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Shambhoo Singh Vs. Central Industrial Tribunal-cum-labour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1981)IILLJ376MP
AppellantShambhoo Singh
RespondentCentral Industrial Tribunal-cum-labour Court and anr.
Cases Referred and Mahbooh Beg v. Central Govt. Industrial Tribunal Misc
Excerpt:
.....for leave. it is true that no written communication for grant of leave was sent to the petitioner in accordance with the first part of clause 10(a), but the finding of the tribunal is that the petitioner well knew that he was granted leave upto 14th january, 1970. this finding is a finding of fact and has to be accepted. 8. all the contentions raised by the learned counsel thus fail......for the purpose and shall depend upon the exigencies of the company.no worker shall overstay the leave granted unless he obtains an extension before the expiry of his original leave. if a worker remains absent beyond the period of granted leave be shall lose his lien on his appointment unless, (1) he returns within 8 days of the expiry of the leave and (ii) gives satisfactory explanation to the authority granting his leave of his inability to return on the expiry of the leave.if a worker, after proceeding on leave, desires an extension thereof, he should apply to the manager ,'or the officer authorised by him in that behalf who shall send a written reply, either granting or refusing extension of leave. request for extension of leave should preferably be made by a registered letter so.....
Judgment:

G.P. Singh, C.J.

1. The petitioner was a Heavy Equipment Operator at the limestone quarry of M/s. Kymore Cement Works Limited, respondent No. 2 in this petition. The dispute relating to the termination of the petitioner's employment was referred by the Government of India under Section 10(1)(d) of the Industrial Disputes Act, 1947, to the Central Government Industrial Tribunal, Jabalpur. The Tribunal by its award dated 30th June, 1973 held the termination to be valid. It is this award which the petitioner challenges by this petition under Article 226 of the Constitution.

2. There is no dispute that the petitioner was on duty on 28th December, 1969. The petitioner was absent from 29th December, 1969. He sent a medical certificate recommending leave upto 14th January, 1970 by registered post from his village. The medical certificate so sent was not accompanied by any application. The management allowed leave to the petitioner on the basis of the medical certificate upto 14th January, 1970. The petitioner's case is that on 15th January, 1970 he sent another certificate with an application for leave under certificate of posting. The management disputed this fact and did not admit to have received any such application. By letter dated 31st January, 1970 the petitioner was informed that as he did not assume duty after expiry of leave which was granted upto 14th January, 1970 and unauthorisedly overstayed leave, he lost his lien on his appointment in terms of Clause 10(a) of the Standing Orders.

3. Clause 10(a) of the Standing Orders of the company in so far as relevant reads as follows:

10(a) Any worker desiring to obtain leave shall apply in writing to the officer or officers at least 7 days in advance under ordinary circumstances on the printed form supplied by the company In the event of leave being granted, the applicant shall be so informed by a written order. If the leave is refused or postponed, the fact of such refusal or postponement and the reasons, therefor, shall be recorded in writing in register to be maintained for the purpose, and if the worker so desires, a copy of the entry in the register shall be supplied to him. The granting of any leave shall be subject to the discretion of the authorities appointed for the purpose and shall depend upon the exigencies of the company.

No worker shall overstay the leave granted unless he obtains an extension before the expiry of his original leave. If a worker remains absent beyond the period of granted leave be shall lose his lien on his appointment unless, (1) he returns within 8 days of the expiry of the leave and (ii) gives satisfactory explanation to the authority granting his leave of his inability to return on the expiry of the leave.

If a worker, after proceeding on leave, desires an extension thereof, he should apply to the manager ,'or the officer authorised by him in that behalf who shall send a written reply, either granting or refusing extension of leave. Request for extension of leave should preferably be made by a registered letter so as to reach the manager or the officer at least three days before the expiry of the original leave.

A look at Clause 10(a) of the Standing Orders will show that the first part of it provides that an application for leave has to be in writing and in case it is granted the applicant is to be informed in writing about the grant of leave. The second part of Clause 10(a) provides that 'No worker shall overstay the leave granted unless he obtains an extension before the expiry of his original leave.' It further provides that 'after a worker remains absent beyond the period of granted leave, he shall lose his lien unless he returns within 8 days of the expiry of the leave and gives satisfactory explanation to the authority granting leave of his inability to return on the expiry of the leave.'

4. Learned Counsel for the petitioner first contends that the loss of lien under the second part of Clause 10(a) can apply only when a worker overstays leave granted in the manner provided in the first part of Clause 10(a). The argument is that if there is no written application made by the worker for leave and no written communication of grant of leave to the worker in accordance with the first part, the second part of Clause 10(a) is not attracted and the worker cannot lose his lien on his remaining absent after the expiry of his leave. It is pointed out by the learned Counsel that in the instant case what the petitioner originally seat by registered post was only a medical certificate and not an application for leave and that the management also did not in writing communicate the petitioner that the leave was granted. In our opinion, there is no merit in this contention. When the petitioner sent a medical certificate recommending leave upto a particular date by registered post, he clearly intended that the management should grant him leave as recommended in the medical certificate. We have already mentioned that the medical certificate recommended grant of leave upto 14th January, 1970. The act of sending the medical certificate was itself an act of making a written application for leave. Although the first part of Clause 10(a) speaks of a form of application, sending of an application in the form is not obligatory. The management sanctioned the leave by an endorsement on the medical certificate. It is true that no written communication for grant of leave was sent to the petitioner in accordance with the first part of Clause 10(a), but the finding of the Tribunal is that the petitioner well knew that he was granted leave upto 14th January, 1970. This finding is a finding of fact and has to be accepted. In such a situation we are of opinion that the absence of the written communication did not arrest the operation of the second part of Clause 10(a). The relevant words of the second part of the Clause are: 'If a worker remains absent beyond the period of granted leave he shall lose his Hen on his appointment.' What is necessary under this provision is that the worker should have absented himself beyond the period of leave granted to him. There is nothing in the second part of Clause 10(a) for us to hold that if a worker is not intimated of the grant of leave by a written order, the consequences mentioned in it will not follow even though he is in the know that he has been granted leave upto a particular date What is of essence is that the worker should know that leave has been granted upto a particular date and his absence thereafter would not be covered by leave. In other words, written communication of grant of leave is not a condition precedent for operation of the second part of Clause 10(a). A similar view was taken by us in the same context while construing Standard Standing Order 8(e) made under the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961. (Baijnath v. State Industrial Court, Misc. Petition No. 163 of 1975, decided on 19th November, 1979).

5. The second contention raised by the learned Counsel for the petitioner is that under the second part of Clause 10(a) the effect is only that if a worker overstays his leave he loses his lien and, therefore, the management is not right in treating that the petitioner's services stood automatically terminated. The argument of the learned Counsel is that the words 'lose his lien' as they occur in the second part of Clause 10(a)mean only that the worker will lose his substantive status but not his appointment. We are unable to agree. The words 'lose his lien' in the same context were construed by the [Supreme Court in N. E. Industries v. Hanuman 1967-II L.L.J. 883. In that case the Supreme Court held that when a standing order provides that a workman would lose lien on his appointment, it obviously means that his services stand automatically terminated. In face of the decision of the Supreme Court in Hanuman's case, it is not open to us to adopt a different meaning of the words 'lose his lien on his appointment' as they occur in the second part of Clause 10(a) of the standing orders.

6. Learned Counsel for the petitioner then submitted that the termination amounted to retrenchment and it was invalid as Section 25F of the Industrial Disputes Act, 1947 was not complied with. In this connection the learned Counsel referred to us the decision of the Supreme Court in D.C. & G. Mills v. Shambhu Nath 1978 I L.L.J. 1. This contention also cannot be accepted. We have earlier stated that by operation of Clause 10 the termination of emloyment was automatic and no order was necessary to be passed for terminating the employment. An automatic termination of employment is not retrenchment attracting the operation of Section 25F. The Supreme Court case relied on is distinguishable. The language of the standing order in that case was such that there was no automatic termination and au order had to be passed for terminating the employment. A Division Bench of this Court has discussed the relevant authorities on this question in Sunil Kumar v. MPSRTC and Ors. Misc. Petition No. 319 of 1979, decided on 19-9-1979 and Mahbooh Beg v. Central Govt. Industrial Tribunal Misc-Petition No. 373 of 1977, decided on 20-9-1979. In both these cases it was held that an automatic termination did not amount to retrenchment. Indeed, Mehhoob Beg's case related to the application of a similar standing order in which the termination of employment was automatic and it was held that the termination did not attract Section 25F and did not amount to retrenchment.

7. It was lastly contended that the petitioner sent an application on 15th January, 1970 under certificate of posting for further extension of leave and as no order granting or rejecting the application was communicated to the petitioner, Clause 10(a) of the standing orders had no operation. The difficulty in the way of the petitioner as regards this contention is that the finding of the Tribunal on this point is against him that no such application was sent. It may here be mentioned that the petitioner in his statement recorded before the Tribunal admitted that he had sent his earlier application for leave by registered post. He, therefore, knew that ordinarily an application for leave has to be sent by registered post. The petitioner's case was that he gave the application alongwith a medical certificate to his brother for delivery to the manager or to some other officer at Kymore and as no officer was found his brother posted the application at Kymore under certificate of posting, The petitioner produced a postal certificate bearing a postal seal of Kymore, The petitioner, however, did not examine his brother. The manager of the company was examined and he stated that no such application was received otherwise it would have been placed before him for orders. The Tribunal after considering all the circumstances gave the finding that the presumption, if any, arising from the postal seal on the certificate was rebutted and no application for extension of leave, as was alleged by the petitioner, was sent by him. The finding reached by the Tribunal was based on appreciation of evidence The production of certificate of posting with a postal seal is not conclusive on the point that a letter was sent. Such a certificate can be manipulated with the help of the employees of the post office concerned. It was, therefore, a question of fact to be decided by the Tribunal whether an application for extension of leave as alleged by the petitioner, was sent. The Tribunal reached the conclusion that no such application was sent. This is an end of the matter. Under Article 226 of the Constitution we cannot interfere with such a finding.

8. All the contentions raised by the learned Counsel thus fail.

9. The petition fails and is dismissed, but without any order as to costs. The security amount be refunded to the petitioner.


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