The prayer in the writ petition is for a Writ of Certiorarified Mandamus to call for the records relating to the impugned order, dated 31.05.2011 in I.D.No.80 of 2003 passed by the 1st respondent and consequently direct the 2nd respondent to reinstate the petitioner in service with backwages and with all the monetary benefits.
2.The petitioner's case is that he was appointed as Watchman at the 2nd respondent College on 01.01.1994. Though there was no order of appointment specifically given to the petitioner, the said appointment having been orally made pursuant to which, the petitioner has been given the Identity Card by the 2nd respondent Management, where the date of joining the service has been specifically mentioned as 01.01.1994. Therefore, from that date, the petitioner had been working in the 2nd respondent College permanently without any break. While so, in the year 2002, since the petitioner suffered with some disease, he could not attend duty. Therefore, he submitted a request for sanction of medical leave for 30 days from 05.09.2002. Thereafter, since he could not recover from his illness, he required further medical leave of 30 days. Therefore, on 12.10.2002, he sent another request for medical leave for 30 days ie. from 05.10.2002 to 05.11.2002 and the said request as well as medical certificate have been sent by the petitioner to the 2nd respondent through registered post.
3. The further case of the petitioner is that after completing the medical leave, when the petitioner approached the 2nd respondent to give the job, it was not given. Therefore, the petitioner caused a legal notice on his behalf, to the 2nd respondent on 28.05.2003 requiring the 2nd respondent to give back the job of Watchman to the petitioner. Inspite of the legal notice having been issued by the petitioner, the 2nd respondent had not come forward to give back the job to the petitioner and therefore, the petitioner had raised an Industrial Dispute before the first respondent Labour Court in ID No.80/2003.
4. The labour Court, without appreciating the issue in proper perspective and without even considering the very basic principles of natural justice, which was violated, according to the petitioner, in case of the oral termination given by the 2nd respondent, had erroneously rejected the claim made by the petitioner through the said Industrial Dispute by the impugned award dated 31.05.2011. As against which, the petitioner has come out with the present writ petition with the aforesaid prayer.
5. Heard the learned counsel for the petitioner and the learned counsel for the 2nd respondent.
6. The learned counsel for the petitioner would contend that though there was no specific appointment order given to the petitioner, the Identity Card issued by the 2nd respondent College in favour of the petitioner shows that he joined duty as Watchman at the 2nd respondent College on 01.01.1994. From that date onwards, the petitioner had been working continuously. As set out in the affidavit filed in support of the writ petition, the petitioner has applied for medical leave for two times for 30 days and again 30 days and those factors had been admitted by the respondents, even before the labour Court, where a counter statement was filed on behalf of the 2nd respondent. Thereafter, when the petitioner had approached the 2nd respondent on completion of 60 days of medical leave, he had not been given duty. Therefore, rightly he had issued a legal notice on 28.05.2003. Since no reply had been given by the 2nd respondent, the petitioner rightly raised an ID, which was unfortunately dismissed by the first respondent labour Court, through the impugned order.
7. In this regard, the learned counsel for the petitioner would contend that from 05.09.2002 itself, the petitioner's service had been dispensed with orally, that is the reason why whenever application for medical leave was submitted by the petitioner, initially for 30 days and subsequently for another 30 days, nothing had been asked by the 2nd respondent as to whether medical leave applied for by the petitioner has been sanctioned by them or not, also the said information has not been communicated to the petitioner. Therefore, once the petitioner recovered from his illness, when he reported duty to the 2nd respondent, the services of the petitioner since has already been dispensed with orally by the 2nd respondent, the petitioner was not permitted to join duty. Though the petitioner again and again approached the 2nd respondent and requested orally for getting duty, the same was refused by the Management of the 2nd respondent and therefore, as a last attempt, he had sent a legal notice on 28.05.2003. Therefore, these factors would go to show that, according to the learned counsel for the petitioner, the petitioner had been continuously working from the date of initial appointment ie. 01.01.1994 as Watchman at the 2nd respondent College. When that being so, after having extracted work from the petitioner for more than 8 years, the services of the petitioner should not have been dispensed with by the 2nd respondent, that too, without passing any order in writing.
8. Therefore, the learned counsel for the petitioner would vehemently contend that the principles of natural justice has been completely violated in this case, as no opportunity was given to the petitioner or not even an order of termination has been passed. In this regard, the learned counsel for the petitioner would rely upon the judgment of this Court in the matter of Kancheepuram Central Cooperative Bank v. the 2nd Additional labour Court, dated 17.01.2002, and the learned counsel for the petitioner would particularly rely upon paragraph No.14 of the said judgment, which reads thus:
?14.I have already referred to the bylaw of the petitioner Society. Though bylaw 44(8) (ix) specifically states that whoever stayed leave beyond two months will be deemed to have resigned since the order of termination attracts evil/serious consequences, I hold that the principles of natural justice must be read into bylaw 44(8)(ix), otherwise it would become arbitrary, unjust and unfair and violative of
Article 14 of the Constitution of India. When so read, as observed by their Lordships in the above referred Supreme Court decision, the impugned action is violative of the principles of natural justice. It is also clear that there could not be any automatic termination of the services of the 2nd respondent on the basis of bylaw without compliance of principles of natural justice. In other words, in spite of the bylaw, the employee must be informed of the grounds for which is also clear that in the absence of providing an opportunity of hearing the second respondent with reference to the charge of overstaying without proper leave, the action of the bank merely on the basis of bylaw cannot be sustained. The labour Court considered all these aspects and passed just and appropriate order in favour of the workman. It is also useful to refer a decision reported in UNION OF INDIA V. GIRIRAJ SHARMA, wherein Their Lordships have held that if there harsh and disproportionate and that dismissal merely on ground of overstaying leave period of not warranted. After holding so, their Lordships permitted the management/State of Rajasthan to impose appropriate minor punishment.?
9. Therefore, the learned counsel for the petitioner submits that the impugned award whereby the ID has been rejected by the 1st respondent labour Court is liable to be interfered with and the petitioner shall be taken back by the 2nd respondent for duty with all backwages and attendant service benefits.
10. Per contra, the learned counsel for the 2nd respondent would contend by relying upon the averments made in the counter statement filed before the labour Court that the petitioner had worked till 04.09.2002 as a temporary casual worker and the job till such time undertaken by the petitioner is not permanent in nature. At any rate, the petitioner had submitted a letter on 05.09.2002 seeking medical leave for 30 days, even after 30 days he has not turned up for duty, subsequently he has sent a medical certificate for extending his leave for another 30 days upto 05.11.2002, there is a vast difference between the alleged illness shown in both the medical certificates, and after noticing the same, though the Management of the 2nd respondent doubted the very reasoning of medical ground for seeking leave for 30+30 days ie., 60 days, since the petitioner himself has absented from duty from 05.09.2002 onwards, the same has not been questioned. In this regard, the learned counsel for the 2nd respondent is relying upon the averments made by the said respondent in the counter statement filed before the labour Court, which shows the definite case of the 2nd respondent and the same is reproduced hereunder:
?3. ....... Subsequently, the petitioner sent a letter ated 12.10.2002 confirming that he was on leave from 05.09.2002 to 04.10.2002 on medical grounds and that he required extension of leave for another 30 days from 05.10.2002. A medical certificate dated 05.10.2002 issued by another doctor had been annexed to the petitioner's letter dated 12.10.2002. The cause for rest for a period of 30 days shown in the said medical certificate dated 05.10.2002 was totally different from the one mentioned in the previous certificate dated 05.09.2002. In any case, since the petitioner was only a casual worker, the respondent did not seek any clarification from him as to why two different ailments had been shown in the medical certificates dated 05.09.2002 and 05.10.2002. The petitioner however did not come to the college either on 05.11.2002 on expiry of the said further period of 30 days or at any time thereafter. Nor did the Management of the respondent college receive any further communication whatsoever from the petitioner thereafter. When the petitioner was thus absenting from duty on medical grounds from 05.09.2004 according to his own letter dated 12.10.2002, the question of termination of his services by the respondent college on 04.09.2002 did not arise at all. The Management of the respondent College reliably understands that the petitioner has joined the services of a building contractor as a watchman for better prospects the statement that the respondent college terminated his services on 04.09.2002 is hence false and mischievous and the petitioner has raised the industrial dispute with some ulterior motive.?
11. Since the petitioner has not been terminated and after 04.09.2002, the petitioner himself has absented from duty and assuming that he has applied for Medical leave for 60 days, which ended on 05.11.2002, even after that the petitioner has not turned up for duty, the question of terminating the petitioner by the 2nd respondent Management does not arise. Therefore, the arguments advanced by the learned counsel for the petitioner that the principles of natural justice has been violated, also does not arise in this case. It is the action taken by his own by the petitioner, as he himself absented from duty from 05.09.2002 and thereafter he had been in continuous absence for several months. After nearly about 6 or 7 months, as an afterthought on his behalf, legal notice was issued on 28.05.2003. Even in the said legal notice also, the petitioner has also not averred that on which date, he has returned duty on completion of medical leave. Therefore, all these averments shown that the petitioner has himself absented duty from 05.09.2002 and therefore, the second respondent Management has not terminated the service of the petitioner. Therefore, the plea raised before the labour Court is not based on any documents and it does not have any basis to raise any industrial dispute. Therefore, the ID raised by the petitioner has been decided by the labour Court in proper perspective. Hence the impugned order, wherein the claim of the petitioner has been rejected by the labour Court need not be interfered with, the learned counsel contended.
12. This Court has considered the rival submissions made by the learned counsel for the parties.
13. The petitioner claimed that he has been terminated from 04.09.2002. This is what his specific case, even before the labour Court, as the same can be culled out from the very claim petition made by the petitioner. The relevant portion of the said averments in the claim petition filed by the petitioner says as follows:
?1.kDjhuh; 1994 Kjy; vjph;kDjhh; eph;thfj;jpy; fhtyuhf gzp epakdk; nra;ag;gl;L njhlh;e;j rh;tPrpw; gzpGhpe;J te;jhh;. MtuJ gzpf;fhyj;jpy; vt;tpj fhuzKk; ,d;wp kDjhuiu gzpePf;fk; nra;J cj;jputpl;lJ. NkYk; kDjhh; gzp nra;atplhky; jil nra;jdh;. kDjhh; vt;tpjkhd Fw;wKk; jdJ gzpapy; nra;atpy;iy. kDjhuiu NtiyapypUe;J ePf;fpajw;F epahakhd fhuzk; vjidAk; eph;thfk; njhptpf;ftpy;iy. kDjhh; njhlh;e;J eph;thfj;ij mZfp kPz;Lk; Ntiy Nfl;ljw;Fk;> eph;thfk; Ntiy toq;ftpy;iy.?
14. But the same petitioner has claimed that he had submitted the medical leave certificate for 30 days from 05.09.2002 and thereafter, he had submitted another request for extending the medical leave for another 30 days ie., from 05.10.2002 to 05.11.2002. In this regard, the petitioner has filed typed set of papers, wherein, the said request dated 12.10.2002 made by the petitioner seeking extension of medical leave for 30 days upto 05.11.2002 has been filed. These documents would go to show that the petitioner, on his own action, had applied for medical leave for 60 days ie., 30+30 from 05.09.2002 to 05.11.2002. But neither in the claim petition nor in the legal notice given by the petitioner, dated 28.05.2003, absolutely, there is no whisper to state that after completion of the 60 days of medical leave, the petitioner has approached, on a particular date/dates, the 2nd respondent, requesting for giving duty for him.
15. Had the petitioner, on completion of 60 days medical leave, approached the 2nd respondent to seek for duty, certainly, either in the legal notice or in the claim petition filed before the labour Court, such averments could have been made. In the absence of any specific date/dates or even week or month has been mentioned by the petitioner himself in any of the documents that he had approached the 2nd respondent to get back his duty, the entire case projected by the petitioner before the labour Court failed. Therefore, in this regard, the first respondent labour Court, after taking into consideration of the said factors, has rightly held in the following terms at paragraph NO.9 of the impugned order, which reads thus:
?gpur;rid vz;;;/2
9) Vw;fdnt ehk; Muha;e;J kDtpy; brhy;yg;gl;lJ nghy; 04.09/2002 md;w kDjhuh; gzp ePf;fk; bra;ag;gltpy;iy vd;gJ bjhpa tUfpwJ/ ,e;j xnu fhuzj;jpdhy; ,e;j tHf;F tPH;e;J nghfpwJ/ kDjhuh; jw;bray; bjhHpyhsh; jhd; vd;W vjph;kDjhuh; jug;gpy; Twg;gLfpwJ/ 1994ypUe;J kDjhuh; ntiy ghh;j;jjhf kDtpYk;. rhl;rpaj;jpYk; kDjhuh; jug;gpy; brhy;yg;gLfpwJ/ mjw;fhd Mtz';fs; kDjhuh; jug;gpy; jhf;fy; bra;ag;gltpy;iy/ milahs ml;il kl;Lk; jhf;fy; bra;ag;gl;oUf;fpwJ/ milahs ml;il bjh/j/rh/M/1 Mft[k;. bjh/j/rh/M/7Mft[k; cs;sJ/ ,ijg; ghh;f;fpd;w nghJ kDjhuh; vjph;kDjhuh; eph;thfj;jpy; fhtyhspahf ntiy bra;J te;jhh; vd;gJ ed;F bjhpa tUfpwJ/ mt;thW bjhpa te;jhYk; Tl mtiu vjph;kDjhuh; ePf;ftpy;iy/ kDjhunu 04/09/2002f;Fg; gpwF ntiyf;Fr; bry;ytpy;iy vd;gJ ep/j/rh/M/1 kw;Wk; ep/j/rh/M/2 y; bjhpa tUfpwJ/ kUj;Jt tpLg;g[f;F gpwFk; kDjhuh; ntiyf;Fg; nghdjhf rhl;rpankh. Mtz';fnsh. rhl;Liufnsh ,y;iy/ vdnt kDjhuiu vjph;kDjhuh; Ml;Fiwg;g[ bra;J tpl;lhh; vd;w epiya[k; ,e;j tHf;F vHtpy;iy/ 05/09/2002 Kjy; 30 ehl;fSf;Fk; gpwF 30 ehl;fSf;Fk; kUj;Jt tpLg;g[ nghl;ljhf ep/j/rh/M/1 kw;Fk; ep/j/rh/M/2 K:yk; bjhpa tUfpwJ/ gpwF mth; ntiyf;Fr; brd;wjhf rhl;rpankh. rhl;Liunah ,y;iy/ gpwF 2003 Mf!;l; khjj;jpy; jhd; bjhHpyhsh; mYtyiu mth; ehoapUf;fpwhh;/ mjw;F Kd;g[ ntiyf;Fr; brd;wjhf rhl;rpfnsh. Mtz';fnsh ,y;iy/ ,e;j N:H;epiyia vy;yhk; itj;Jg; ghh;f;fpd;w nghJ Ml;Fiwg;g[ bra;jjhff; fUj ,aytpy;iy/ kDtpy; brhy;yg;gl;l njjpapypUe;J mth; gzp ePf;fk; bra;ag;gl;L tpl;lhh; vd;gnjh my;yJ Ml;Fiwg;g[ bra;J tpl;lhh; vd;gnjh epU:gpf;fg;glhjjhy; kDjhuhpd; tHf;F tPH;e;J nghfpwJ/ Mifahy; ,e;j kD mDkjpf;fj;jf;fjy;y vd;W jPh;khdpf;fpnwd;/? ?
16. On a perusal of all these documents, this Court finds that the petitioner himself has absented duty from 05.09.2002. Assuming that he applied for medical leave for 60 days which ended admittedly on 05.11.2002, thereafter, immediately on recovery of his illness, the petitioner should have reported duty to the 2nd respondent either on 05.11.2002 or any other subsequent dates. Assuming that when the petitioner reported for duty, after completion of medical leave, the 2nd respondent has refused to take him back for duty, certainly, the petitioner would have issued a legal notice immediately by stating the specific dates on which, in fact, the petitioner approached the 2nd respondent to get back the duty. However, admittedly, no such documents are available. The petitioner has given the legal notice only on 28.05.2003. Even in the said legal notice, there is no averments mentioned on behalf of the petitioner that after 12.10.2002, whether the petitioner had sent a request for extending medical leave for another 30 days or any date has been given on which the petitoner allegedly approached the 2nd respondent to get back the duty. Therefore, it is only an afterthought on the part of the petitioner, as the petitioner absented himself for duty, even after completion of the alleged medical leave for 60 days and after long period, he had issued a legal notice with vague averments without any specific date to state that he had approached the 2nd respondent to get back the duty. Therefore, these aspects would go to show that the petitioner's service neither has been dispensed with nor the petitioner has been terminated by the 2nd respondent.
17. When there is no termination on the part of the 2nd respondent nor the services of the petitioner has been dispensed with voluntarily by the 2nd respondent, the question of giving any notice to the petitioner nor giving any opportunity to the petitioner would not arise at all. Therefore, the judgment cited by the learned counsel for the petitioner will have no application on the present case. In fact, the law is well settled that the violation of principles of natural justice is the fundamental and rudimentary legal principle. However, the same cannot be applied in the present case, as no adverse action was forthcoming or initiated by the 2nd respondent in respect of the alleged duty/service on the part of the petitioner, which according to the petitioner, has been voluntarily dispensed with by the 2nd respondent. Therefore, this Court has no hesitation to hold that the first respondent labour Court, after having considered the facts and situation, has arrived at a right conclusion, which, in the opinion of this Court, needs no interference.
18. Resultantly, the writ petition fails and therefore, the same is dismissed. No costs.
To The Presiding Officer, Labour Court, Tirunelveli..