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Hamdard Dawakhana (Wakf), Delhi Vs. Labour Court, Delhi and Another - Court Judgment

LegalCrystal Citation
Subject Labour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 1036 of 1976
Judge
Reported in(1985)ILLJ57Del; (1985)ILLJ57Del
ActsIndustrial Disputes Act, 1947 - Sections 10(1) and 12(5)
AppellantHamdard Dawakhana (Wakf), Delhi
RespondentLabour Court, Delhi and Another
Cases ReferredIndian Tube Company Ltd. v. Pratap Mishra
Excerpt:
.....'g') to the workman drew his attention to its previous letters dated 6th may, 1974, and 10th may, 1974, and informed that he failed to produce the medical certificate and had been treated as absent from duty, that no application for leave was received for the period from 12th may, 1974, onwards. the workman under this clause cannot claim to be treated better if leave was not sanctioned than the case in which leave was sanctioned to him. 322, wherein it has been observed that discharge of an employee without any enquiry and without giving one month's notice or one month's wages in lieu of notice was bad in law......the workman. in buckingham and carnatic co. ltd. v. venkatiah, : (1963)iillj638sc , the standing orders clause regarding 'absence without leave' was as under : 'absence without leave : any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the company's service without notice thereby terminating his contract of service. if he gives an explanationn to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance. any employee leaving the company's service in this manner shall have no claim for reemployment in this mills. but if the absence is proved to the satisfaction of the management to be one due to sickness, then such absence shall be converted into medical leave for such.....
Judgment:

1. The management of Hamdard Dawakhana (Wakf), Delhi, has filed this petition under Arts. 226 and 227 of the Constitution of India for the issue of a writ of certiorari quashing the award of the Presiding Officer, Labour Court, Delhi (Respondent No. 1) in L.C.I.D. No. 82 of 1975 dated 4th June, 1976 (annexure 'A'), holding that the termination of the services of the workman, Vishwa Nath (respondent No. 2) was illegal and unjustified; that he is entitled to be reinstated with full back wages and continuity of service.

2. Briefly, the facts are that the workman (respondent No. 2) was employed as a section in-charge with the petitioner-establishment in its Dawakhana at Lal Kuan, Delhi. The management is governed under the Industrial Employment (Standing Orders) Act and it has Standing Orders duly certified by the Competent Authority which have been in force since 27th April, 1971 (annexure 'B'). The workman, on 4th May, 1974, (annexure 'C'), applied for casual leave from 6th to 8th May, 1974, to find a suitable match for his daughter. The management by letter dated 6th May, 1974, informed the workman that he had prior knowledge to find a match for his daughter, and he ought to have obtained prior sanction before availing of the leave. The workman was required to explain. On 8th May, 1974, at 2 p.m. another application (wrongly dated 9th November, 1974) (annexure 'D') was received from the workman wherein he stated that he had gone out of station to find a match for his daughter but was taken ill all of a sudden and, thereforee, he requested for extension of leave from 9th may, 1974. The management, by letter dated 10th May, 1974 (annexure 'F'), required the workman to produce medical certificate from Employees' State Insurance Corporation failing which he would be treated as absent from duty. On 17th may, 1974, the management in its letter (annexure 'G') to the workman drew his attention to its previous letters dated 6th May, 1974, and 10th May, 1974, and informed that he failed to produce the medical certificate and had been treated as absent from duty, that no application for leave was received for the period from 12th May, 1974, onwards. He was required to explain within two days why he was absent, failing which he was informed that disciplenary action would be taken against him. The management did not receive any reply. By letter dated 24th May, 1974 (annexure 'H'), the management informed the workman that he was absent from duty with effect from 12th May, 1974, without any intimation and in accordance with the Standing Orders, clause 11(g), he had lost his lien on the post on account of his absence for more than 12 days and, thereforee, his name had been removed from the rolls of the establishment. On 24th May, 1974, the management also received a letter dated 21st may, 1974 (annexure 'I'), from the workman wherein he informed that on account of riots in Sadar Bazar he was arrested and taken to Tihar Jail on 8th May, 1974, that he was innocent and that 25th May, 1974, was fixed for his bail application.

3. The Lt. Governor, Delhi, by order dated 26th April, 1975 (annexure 'J'), as per report of the Conciliation Officer, referred the dispute regarding illegal termination of services of the workman to the Labour Court under Ss. 10(1)(c) and 12(5) of the Industrial Disputes Act, 1974. The Labour Court by the Award dated 4th June, 1976 (annexure 'A'), held that there was no period of leave originally granted or extended and period of leave originally granted or extended and as such clause 11(g) of the Standing Orders could not be pressed into service at all, that the workman was entitled to reasonable opportunity of making representation on the penalty of dismissal proposed against him which was not given before issuing the order dated 24th May, 1974, and that the workman was entitled to one month's pay in lieu of notice, which was not given. The termination of his services was held illegal and he was held entitled to be reinstated with full back wages and continuity of service.

4. Learned counsel for the management submits that clause 11(g) of the Standing Orders has been wrongly interpreted by the Labour Court and the same is applicable to the facts of the present case, that there was no necessity of the month's notice or any enquiry against the workman before the issue of the letter dated 24th May, 1974 (annexure 'H'), that the Labour Court ought not to have ordered reinstatement and payment of back wages. His submission is that the workman remained absent for more than 12 days without any intimation after the expiry of leave from 6th to 11th May, 1974, applied for by him and, thereforee, he lost his lien on the appointment within the meaning of clause 11(g) of the Standing Orders. In the alternative, he submits that the Labour Court ought not to have ordered reinstatement at all. His further grievance is that the representative of the management was not given any opportunity to argue the case before the Labour Court. Learned counsel for the workman, on the other hand, submits that clause 11(g) of the Standing Orders is not applicable as leave from 6th to 11th May, 1974, applied for was never granted, that this clause applies to absence for 12 days or more after the expiry of the leave sanctioned, that the absence of the workman could be treated by the management as absence from duty without permission and sanction of leave within the meaning of clause 15A(3) of the Standing Orders amounting to minor misconduct for which the workman may be fined up to two per cent. of his wages in a month in accordance with clause 15C of the Standing Orders. It is further submitted that the workman cannot be dismissed without notice or payment of compensation in lieu of notice.

5. The workman in his statement of claim before the Labour Court had alleged that he remained on leave from 5th May, 1974, to 4th June, 1974, that he informed the management, vide his applications dated 4th May, 1974, 9th May, 1974, and letter dated 21st May, 1974. The management in reply submitted before the Labour Court that no leave was sanctioned to the workman for the relevant period and he lost his lien on his appointment as he was absent for more than 12 days. The Labour Court held that as no leave was granted to the workman from 6th May, 1974, to 11th May, 1974, and there was no period of leave originally granted or extended, clause 11(g) if the Standing Orders was not applicable.

Clause 11(g) of the Standing Orders is as under :

'11(g). If an employee remains absent beyond the period of leave originally granted or subsequently extended, he shall lose his lien on the appointment unless he returns :

(i) within 12 days of the expiry of leave, and

(ii) gives an Explanationn to the satisfaction of the employer of his inability to return to work on the expiry of leave. If an employee returns within 12 days of the expiry of the leave but does not give satisfactory Explanationn for his overstay, he will lose his lien on the appointment.'

Learned counsel for respondent No. 2 submits that the workman was absent from duty without permission and sanction of leave within the meaning of clause 15(a)(3) of the Standing Orders which reads as under :

'15. Misconduct and Disciplinary Action :

(A) The following acts of omissions and commissions shall be treated as minor misconduct :

(1) * * * (2) * * * (3) Absence from duty without permission and sanction of leave on rare occasions.'

The question for decision is what is the scope of clause 11(g) of the Standing Orders and whether the present case of respondent No. 2 is covered by clause 11(g) or clause 15A(3) of the Standing Orders and in case both the clauses are applicable whether the management has a right to invoke only clause 11(g) and not clause 15A(3) of the Standing Orders.

In Indian Iron & Steel Co, Ltd. v. Their Workmen, 1958 1 L.L.J. 260, the clause relating to absenteeism in the Standing Orders of the management was as follows : 'Absenteeism - Worker absent without leave will be subject to disciplinary action. Overstaying leave will be considered as absence without leave. Any worker who is absent for 14 consecutive days without permission will be automatically discharged. Also, any worker who is absent for 14 individual days during any period of 12 months is liable to discharge.'

6. In that case the workmen were taken into custody by the police and remained in custody for some time; they applied for leave when in custody but leave was refused. The Industrial Tribunal took the view that as the workmen were in the custody of the police, the management was not justified in refusing leave. The Supreme Court held that it is true that the arrested men were not in a position to come to their work because they had been arrested by the police but it would be unjust to hold that in such circumstances the company must always give leave when an application for leave is made. It has been further observed that whether in such circumstances leave should be granted or not must be left to the discretion of the management. It was, thereforee, held that the effect of the above clause of absenteeism be given against the workman.

In Buckingham and Carnatic Co. Ltd. v. Venkatiah, : (1963)IILLJ638SC , the Standing Orders clause regarding 'absence without leave' was as under :

'Absence without leave : Any employee who absents himself for eight consecutive working days without leave shall be deemed to have left the Company's service without notice thereby terminating his contract of service. If he gives an Explanationn to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.

Any employee leaving the company's service in this manner shall have no claim for reemployment in this Mills.

But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowances.'

It has been observed that the certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service; and that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment. There was also another clause treating absence without leave as misconduct. It was held that the fact that the same conduct is dealt with in two different Standing Orders cannot affect the applicability of the Standing Orders relating to absence without leave. The workman in that case had gone on leave for six days from 10th January, 1957. He did not join duty after the expiry of leave but remained absent without leave and without sending any communication for extending his leave. On 11th March, 1957, he sent a letter to the management that after reaching his village he suffered from fever and dysentery. The Supreme Court held that the workman was deemed to have left the company's services as he was absent for more than eight consecutive days.

7. In National Engineering Industries Ltd. v. Hanuman, : (1967)IILLJ883SC , it has been observed that where a Standing Order provided that a workman would lose his lien on his appointment if he does not join duty within eight days of the expiry of his leave, it obviously means that his services are automatically terminated when the contingency happens, and that the workman who has lost his lien cannot continue in service thereafter. It has been further observed that there is no difference between saying that 'the workman's lien would stand terminated' and that 'the workman would lose his appointment'. In that case the workman took leave from 3rd to 9th April, 1965. He did not join on 10th April, 1965, but reported for duty on 20th April, 1965, and he was not allowed to join on the ground that his services stood terminated. There was another Standing Order to treat absence without permission as a major misconduct and it was held that the management was free to resort to any one of the provisions unless it was shown that resort to one particular provision was mala fide.

8. In, Tata Iron and Steel Co. Ltd. v. Their Workmen 1972 2 L.L.J. 259, it has been observed that the loss of lien of appointment is automatic and no action is required to be taken by the employer. The Standing Orders provided that if an employee remains absent beyond the period of original leave granted or subsequently extended, he shall lose his lien on his appointment unless he returns within eight days of the expiry of leave and gives an Explanationn to the satisfaction of the employer.

9. From the above judgments two points are clear : (1) that if a workman overstays leave for certain period he automatically loses his lien on the appointment and his services stand terminated, (2) if there is another clause for treating his absence as misconduct, the management is entitled to proceed against the workman under either of the clauses. The management is not bound to treat the absence as misconduct. Further, in cases where there is a provision for re-joining, the worker must re-join duty within the period prescribed after expiry of leave and also offer Explanationn to the satisfaction of the management.

10. Clause 11(g) of the Standing Orders is under the heading 'Leave'. It provides that if an employee remains absent for 12 days beyond the period of leave originally granted or subsequently extended, he shall lose his lien on the appointment. There is a proviso that if he returns within 12 days of the expiry of the leave and gives Explanationn to the satisfaction of the employer of his inability to return to work on the expiry of leave, he would not lose his lien. If an employee returns within 12 days of the expiry of the leave but does not give satisfactory Explanationn for his overstay, he would lose his lien on the appointment. In other words, he has to satisfy that (i) he joined duty after expiry of leave within 12 days, and (ii) explained his absence to the satisfaction of management. The intention of clause 11(g) is that the workman cannot remain absent from duty for 12 days after the expiry of leave. If he remains absent for 12 days, he is liable to lose his lien on the appointment. In other words, clause 11(g) means that where leave is applied for, the workman should not remain absent for 12 days thereafter, and if he remains absent as such he loses his lien on the appointment. The emphasis is on the absence for 12 days after leave. Sanction of leave is not material. If leave is applied for and not granted and the workman remains absent for 12 days, he loses his lien on the appointment. Sanction of leave is not essential for the applicability of the penalty of losing lien on the appointment in case the workman remains absent for 12 days. According to counsel for the workman, if a workman is granted leave and he remains absent for 12 days after the expiry of leave, then only he would lose his lien on the appointment. I do not agree. A workman cannot say that he would lose his lien on appointment only if leave is granted and he remains absent for 12 days or more that he would not lose such lien if leave was not granted. The workman under this clause cannot claim to be treated better if leave was not sanctioned than the case in which leave was sanctioned to him. Clause 11(g) applies to overstay for the period after the expiry of sanctioned leave and it will apply also to a case where a workman remains absent for 12 days after the expiry of leave, applied for. The intention of the clause is that the workman should not remain absent for 12 days after leave whether sanctioned or not. If the absence is less than 12 days, the workman is required to join duty and give Explanationn for his absence to the satisfaction of the management and if he fails to give satisfactory Explanationn, he would lose his lien on the appointment.

11. Clause 15A(3) of the Standing Orders, as reproduced above, is another action which the management can take against its workmen. The two clauses are independent. The management can treat the absence of the workman either under clause 11(g) or clause 15A(3). It is in the discretion of the management whether to take action under clause 11(g) or under clause 15A(3) of the Standing Orders. It is not necessary for the management to take action only under Clause 5A(3). If the management decides to take action under clause 11(g), the workman cannot say that the management ought to have proceeded against him under clause 15A(3).

12. In the instant case, leave was applied from 4th May. 1974, to 11th May, 1974. The workman says that his leave was orally granted and the management says that his leave was not sanctioned and he was required to produce medical certificate. It is admitted that on leave was granted or applied for the period from 12th May, 1974, onwards. A letter dated 21st May, 1974 (annexure I), from the workman to the management received on 24th May, 1974, at 2 p.m. does not disclose the period of leave. It is in vague terms that he may be treated as on leave and that he would explain the whole case later on. The management has taken action under clause 11(g) of the Standing Orders on the ground that the workman was absent from 12th May, 1974, without any intimation after the leave. The period of 12 days from 12th may, 1974, expired on 23rd May, 1974. Under clause 11(g), the loss of lien on the appointment is automatic. No action is necessary on the part of the management but letter dated 24th May, 1974 (annexure H), was issued informing that he lost his lien on the post on account of his absence for 12 days and his name had been removed from the rolls of the establishment as per clause 11(g) of the Standing Orders.

13. The Labour Court in the impugned award has observed that 12th May, 1974, was a Sunday and, thereforee, 12 days must be counted from 13th May, 1974, and it was held that the issue of letter dated 24th May, 1974, was premature. I do not agree. In the first instance, issue of any letter was not necessary. Secondly, the workman was not on duty from 6th May, 1974, to 11th May, 1974, as he had applied for leave for that period. He would, thereforee, be treated as absent with effect from 12th May, 1974. It is immaterial whether it was a Sunday or a working day. I am, thereforee, of the opinion that on account of the absence from 12th May, 1974, for a period of more than 12 days, the workman lost his lien on the appointment. In other words, his services stood terminated automatically.

14 The Labour Court has further held that notice was to be given to the workman. This is not correct. As observed above, it is the discretion of the management to take action against the workman either under clause 11(g) or clause 15A(3) of the Standing Orders. There was no question of any enquiry or any notice to be issued by the management to the workman. The management treated the case of the workman under clause 11(g) under which his lien on the appointment stood terminated automatically.

15. Learned counsel for the management submits that a prayer for adjournment was made on 4th June, 1976, but it was refused. He further submits that the Labour court wrongly observed in its award that the arguments were heard. He says that, in fact, no opportunity to argue the case was given to the representative of the management. He also submits in the alternative that reinstatement ought not to have been granted in the circumstances as the workman initially sought leave on the ground that he was to search for a suitable match for his daughter and after going out a Delhi he fell ill, and in his application for leave from 9th to 11th May, 1974, he applied for extension of leave on account of his illness but in his letter dated 21st May, 1974, he stated that he was arrested on 8th May, 1974. The learned counsel submits that, under the circumstances, the management lost confidence in the workman and, thereforee, the Labour Court ought not to have ordered reinstatement. He refers to Binny Ltd. v. Their Workmen, : 1973CriLJ1119 , wherein it has been observed that the employer loses confidence in the workman when the latter avails of special leave without wages on false representation. As I am of the view that there was automatic loss of lien on the appointment it is not necessary to decide the other points raised by the petitioner.

16. Learned counsel for the workman respondent has referred to Indian Tube Company Ltd. v. Pratap Mishra, 1970 1 L.L.J. 322, wherein it has been observed that discharge of an employee without any enquiry and without giving one month's notice or one month's wages in lieu of notice was bad in law. The facts of that case are not applicable to the instant case. As already observed, the present case is governed by clause 11(g) and the workman automatically lost his lien as he was absent for more than 12 days without any intimation after expiry of leave.

17. The writ petition is, thereforee, allowed. A writ of certiorari is issued quashing the award of respondent No. 1 in L.C.I.D. No. 82 of 1975 dated 4th June, 1976 (published in the Delhi Gazette dated 24th June, 1976,) (annexure 'A'). The respondent-workman is directed to refund and the petitioner-management is held entitled to recover all amounts paid to the workman for the period from 12th May, 1974, onwards-under the various orders passed from time to time in this petition.

18. There will be no order as to costs.


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