1. By way of this petition under Article 227 of the Constitution of India, the petitioner – employer has prayed to quash and set aside the impugned judgement and award dated 24th June,2002 passed by learned Industrial Tribunal, Vadodara in Reference No.23 of 2006, by which, learned Tribunal has partly allowed the said Reference filed by the respondent – employee and has directed the petitioner to reinstate the respondent-employee without backwages from the date of termination till award. However to consider the earlier four years service in his service career.
2. Facts leading to the present petition, in nutshell, are as under:
The respondent-employee joined the petitioner – employer as Technician Grade-IV (Electrical) on 09/12/1981. The respondent-employee proceeded on Earned leave, which was sanctioned for a period of 42 days from 26/10/1984 to 06/12/1984. The respondent was sanctioned Extra Ordinary Leave without pay for two days i.e. on 07/12/1984 and 08/12/1984. Thereafter, the respondent-employee remained absent unauthorizedly from 09/12/1984 onwards. Thereafter, by Notice dated 04/03/1985, the respondent was advised to resume duty immediately and to intimate the petitioner when he will join the duty. Despite the above, the respondent did not resume the duty. Again vide communication dated 19/03/1985, the respondent was asked to join the duty latest by 31/03/1985 with satisfactory explanation for his absence and also intimating that if he fails and if he does not resume his duty, he will loose his lien on his appointment in the Corporation. Despite the above, the respondent did not resume the duty. Thereafter, vide communication dated 02/04/1985, the respondent was again advised to resume the duty latest by 12/04/1985 with satisfactory explanation for his absence and again intimating the respondent that if he fails, he will loose his lien on his appointment in the Corporation. Again vide letter dated 18/04/1985, the respondent was intimated that on account of his absence and not responding to the above letters/communications and not reporting for duties, he has relinquished his appointment in the Corporation without any notice and thereby w.e.f. 13/04/1985 his name has been struck off from the rolls of the corporation as he ceased to be an employee of the Corporation.
After a period of eight years, the respondent- employee raised Industrial Dispute before Assistant Labour Commissioner (Central) on 16/04/1993. Thereafter, after a period of three years, The Ministry of Labour, Government of India, referred the matter to the Industrial Tribunal, Vadodara, which was numbered as Reference ITC No.11 of 1996. The respondent- employee filed statement of claim on 29/11/1996. That the petitioner-employer filed written submissions on 08/04/1997. Vide order dated 06/02/1999, the learned Industrial Tribunal, Vadodara dismissed the original Reference due to constant absence of the respondent and treated the matter as dismissed for default. That vide order dated 30/09/1999 learned Tribunal restored the matter. That thereafter leaned Tribunal has passed the impugned judgement and award partly by allowing the said Reference and by directing the petitioner to reinstate the respondent afresh, in service with no order as to backwages for intervening period. However, the Tribunal has directed that his earlier four years service to be added in his total service. It appears that learned Tribunal passed by impugned judgement and award quashing and setting aside the order of termination solely on the ground that before relieving the respondent on the ground of absenteeism, no departmental inquiry has been held by the petitioner-employer.
Being aggrieved by and dissatisfied with the impugned judgement and award passed by the learned Tribunal, the respondent has preferred the present petition under Article 227 of the Constitution of India.
3. Mr.Manish Bhatt, learned counsel appearing on behalf of the petitioner – Corporation has submitted that the learned Tribunal has materially erred in directing the petitioner to reinstate the respondent afresh in service on the ground that before relieving the respondent, departmental inquiry was not initiated. It is submitted that despite number of notices/communications, the respondent did not resume the duty and remain absent unauthorizedly for longer period and despite the last communication to the respondent that if he fails to resume his duty, he will loose his lien on his appointment in the Corporation and thereafter the name of the respondent was struck off from the rolls of the Corporation. Considering Clause-14 of the Certified Standing Orders of the Corporation, the Tribunal has materially erred in directing the petitioner to reinstate the respondent afresh in- service solely on the ground that before relieving the respondent, departmental inquiry was not held. It is submitted that considering Clause-14 of the Certified Standing Orders of the Corporation, in the case where an employee overstays beyond the period of leave originally granted and subsequently extended, he shall loose his lien on his appointment automatically and in such a circumstances, departmental inquiry is not required to be held and initiated. It is further submitted that considering Clause-14 of the Certified Standing Orders of the Corporation in the aforesaid situation, the respondent has lost the lien on his appointment and, therefore, his name was required to be struck-off from the rolls of the Corporation as he ceased to be an employee of the Corporation and, therefore, name of the respondent was rightly struck-off from the rolls of the Corporation w.e.f. 13/04/1985. Therefore, it is submitted that action of the petitioner-Corporation in relieving the respondent on the ground that his name has been struck-off from the rolls of the Corporation as he lost his lien on his appointment in the Corporation as despite the number of notices, he does not resumed his duty and he overstayed beyond the period of leave originally granted and subsequently extended and the same was absolutely as per Clause-14 of the Certified Standing Orders of the Corporation. It is further submitted by Mr.Bhatt, learned counsel appearing on behalf of the petitioner-corporation– employer that even otherwise the learned Tribunal has materially erred in passing the impugned judgement and award to reinstate the respondent afresh in service in Reference, where the dispute was raised after a period of 8 years.
It is further submitted by Mr.Bhatt, learned counsel appearing on behalf of the petitioner-corporation that the findings given by learned Tribunal and operative portion of the impugned order are self-contradictory. It is submitted that on one hand the Tribunal has observed and held that the respondent did not respond to the Notices issued by the Corporation i.e. there is long unauthorized absence and negligence and misconduct committed by the employee cannot be tolerated, still the Tribunal has directed the petitioner to reinstate the employee in service afresh, which deserves to be quashed and set aside.
Mr.Bhatt, learned counsel appearing on behalf of the petitioner-Corporation has heavily relied upon the decision of the learned Single Judge of this Court dated 04/07/2008 passed in Special Civil Application No.2114 of 1991 dealing with Clause-14 of the Certified Standing Orders of the Corporation and has submitted that considering decisions of the Hon'ble Supreme Court reported in AIR 2000 SC 2198; (2001)1 SCC 214; (1996)11 SCC 404; 2008 AIR SCW 1629; 2001(3) GLR 2025 and 2001 LLR 155, learned Single Judge in the similar set of facts and circumstances of the case has confirmed the action of the Corporation in strucking off the name of the employee from the rolls of the Corporation. Learned counsel appearing on behalf of the petitioner has also relied upon the decision of the Hon'ble Supreme Court in the case of Regional Manager, Central Bank of India V/s. Vijay Krishna Neema & Ors. reported in AIR 2009 SC 2000. By making above submissions and relying upon above decisions, it is requested to allow the present petition.
4. The present petition is opposed by Mr.Ramnandan Singh, learned advocate appearing on behalf of the respondent-employee. It is submitted that on appreciation of evidence and considering the fact that before relieving the respondent from service and terminating his service on the ground that the respondent has remained absent unauthorizedly, no departmental inquiry has been held, learned Tribunal has not committed any error and/or illegality in directing the petitioner to reinstate the respondent afresh in service. It is submitted there are specific findings of facts given by the learned Tribunal that action of the petitioner in terminating the services of the respondent is in haste and, therefore, when the learned Tribunal has partly allowed the Reference directing the petitioner to reinstate the respondent afresh in service and denying backwages for the intervening period, the same is not required to be interfered with by this Court in exercise of power under Article 227 of the Constitution of India.
Learned advocate appearing on behalf of the respondent has relied upon the decision of the Hon'ble Supreme Court in the case of Reena Rani V/s. State of Haryana & Ors. reported in 2012(3) Scale 519 in support of his submission that before termination of the services of the respondent on the ground of unauthorized absence, the petitioner was required to hold regular departmental inquiry. Learned advocate appearing on behalf of the respondent has also relied upon the decision of the Hon'ble Supreme Court in the case of Ajit Kumar Nag V/s. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and others reported in (2005)7 SCC 764. By making above submissions and relying upon above decisions, it is requested to dismiss the present petition.
5. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the name of the respondent was struck off from the rolls of the Corporation w.e.f. 13/04/1985 by communication dated 18/04/1985 on the ground that the respondent has remained absent unauthorizedly from 09/12/1984 onwards and despite various notices, the respondent neither submitted medical report nor payed for extension of leave nor resumed the duty. As stated hereinabove by different communications/ notices, the respondent was called upon to resume the duty with satisfactory explanation for his absence, failing which, he shall loose his lien on his appointment in the Corporation. Despite the above, the respondent neither submitted medical report nor prayed for extension of leave nor resumed the duty. Therefore, considering Clause-14 of the Certified Standing Orders of the Corporation, the respondent forfeited his lien on his appointment in the Corporation. Clause-14 of the Certified Standing Orders of the Corporation reads as under:
“If an employee overstays beyond the period of leave originally granted or subsequently extended he shall loss lien on his appointment unless he (i) returns except on medical grounds within 8 days of expiry of leave and (ii) explains to the satisfaction of General Manager or any other officer authorized by him his inability to return on the termination of his leave”
6. It is an admitted position that the respondent did receive all the communications/ letters dated 04/03/1985; 19/03/1985; 02/04/1985 and even 18/04/1985 also. Considering the aforesaid facts and circumstances of the case and considering Clause-14 of the Certified Standing Orders of the Corporation when the name of the respondent was struck- off from the rolls of the Corporation, it cannot be said that action of the petitioner was illegal and/or contrary to the Certified Standing Orders of the Corporation. Considering Clause-14 of the Certified Standing Orders when the respondent lost his lien on his appointment as he overstayed beyond the period of leave originally granted and subsequently extended and when the respondent did not return for duty and did not explain to the satisfaction of General Manager or any other officer authorized by him his inability to return on the termination of his leave, there was no question of holding any further departmental inquiry as observed by learned Tribunal. Identical question came to be considered by learned Single Judge in Special Civil Application No.2114 of 1991 and in the similar set of facts and circumstances of the case when the employee of the very petitioner-Corporation remained absent unauthorizedly and when the name of the employee was struck off from the rolls of the Corporation relying upon Clause-14 of the Certified Standing Orders of the Corporation, learned Single Judge relying upon the decisions of the Hon'ble Supreme Court reported in AIR 2000 SC 2198; (2001)1 SCC 214;
(1996)11 SCC 404; 2008 AIR SCW 1629; 2001(3) GLR 2025 and 2001 LLR 155 has dismissed the petition preferred by the employee and has confirmed the action of Corporation by observing that Clause-14 provides for opportunity to the employee of returning for explaining why he remained absent and provides for inbuilt opportunity to the employee. Learned Single Judge also observed that despite number of opportunities being given to the employee to return or explain why he remained absent as the employee done neither, he is deemed to have lost his lien by his own action and abandoned from the service. Under the circumstances, learned Tribunal has materially erred in directing the petitioner to reinstate the respondent in service afresh.
7. It appears from the impugned judgement and award passed by learned Tribunal that learned Tribunal has passed the impugned judgement and award and has directed the petitioner to reinstate the respondent mainly on the ground that the petitioner-corporation has acted in undue haste. However from the facts as stated hereinabove when number of notices were issued and despite the same, the respondent remained absent unauthorizedly, it cannot be said that action of the petitioner was in undue haste.
Even the findings given by learned Tribunal and operative portion of the order directing the petitioner to reinstate the respondent in service afresh are contradictory. On one hand in Para-14, the Tribunal has specifically held that the respondent has remained absent unauthorizedly for longer period and did not submit fitness certificate and/or any other Certificate within stipulated time and even negligence and misconduct on the part of the employee cannot be tolerated, still, the learned Tribunal has passed the impugned order directing the petitioner to reinstate the respondent in service afresh. Learned Tribunal has materially erred in partly allowing the Reference in directing the petitioner to reinstate the respondent in service afresh in the Reference, which was raised after a period of 8 years.
8. Now so far as reliance placed upon decision of the Hon'ble Supreme Court in the case of Reena Rani (supra) relied upon by learned advocate appearing on behalf of the respondent is concerned, the same shall not be applicable to the facts of the present case more particularly considering Clause-14 of the Certified Standing Orders of the Corporation.
9. In view of the above and for the reasons stated hereinabove, learned Tribunal has committed serious error in partly allowing the Reference and directing the petitioner to reinstate the respondent in service afresh and the same deserves to be quashed and set aside. Accordingly, the impugned judgement and award dated 24th June,2002 passed by learned Industrial Tribunal, Vadodara in Reference No.23 of 2006 is hereby quashed and set aside. Rule is made absolute accordingly. No order as to costs.
[M.R.SHAH,J] *dipti