1. The termination of the services of the three employees Curacaos, Marudhachalam and Kuppuswami working under the petitioners was the subject matter of a reference by the Government under G.O. Ms. No. 3233 (Labour) Department of Industries, Labour and Housing dated 4th August, 1966 to the Labour Court, Coimbatore, the first respondent herein. The Labour Court by its award dated 21.11.1966 held that the services of Curiacose were properly terminated but with regard to Marudhachalam and Kuppuswami, the Labour Court came to a different conclusion and directed the petitioner to reinstate them, in the case of Marudhachalm without back wages, and in the case of Kuppuswami with back wages. It is to quash this award of the Labour Court with reference to Marudhachalam and Kuppuswami, the petitioner has filed the present writ petition under Article 226 of the Constitution of India.
2. For the purpose of appreciating the arguments advanced by the learned Counsel for the petitioner, it is necessary to refer to two clauses in the certified standing Orders of the petitioner-mills, marked as Ex. M. 4 before the Labour Court.
3. The portion of Clause 11 of the Standing Orders, which is relevant for the case is as follows:
If any employee remains absent without leave for more than 8 consecutive days, he shall be deemed to have resigned his appointment and shall cease to be an employee. If he gives explanation to the satisfaction of the management, the absence shall be converted into leave without wages.
Standing Order 19(h) is as follows:
The following acts or omissions will be treated as misconducts:
h) Habitual absence without leave, or absence without leave for more than ten consecutive days.
4. Before the Labour Court the stand of the petitioner was that both Marudhachalam and Kuppuswami remained absent without leave for more than 8 consecutive days and therefore they shall be deemed to have resigned their appointment and bad ceased to be the employees of the petitioner. This contention was advanced with regard to Marudhachalam on the basis of the fact that admittedly Marudhachalam did not report for duty from 22nd November 1964 to 31 July 1965 and that he reported for duty only on 2nd August 1965. With reference to Kuppuswami, he was absent from 22nd September to 30th September 1964 and he reported for duty only on 1st October 1964. With regard to both these cases, the Labour Court proceeded on the basis that their cases came within the scope of Clause 19(h) of the certified Standing Orders and that their absence constituted a major misconduct and therefore the petitioner ought to have taken action against them according lo Clause 19(h) of the Standing Orders and the petitioner admittedly not having taken action against them pursuant to that clause, they were entitled to reinstatement. On the other hand, the case of the petitioner was that even though a case may fall under Clause 11 as well as Clause 19(h), it is open to the petitioner to deal with the case under Clause 11 and there is no obligation or compulsion that the case should have been dealt with only under (sic.) Court that it paid proper attention to the argument of the petitioner based on Clause 11 and as a matter of fact, in one place it mentions that a copy of the Standing Orders was not produced A before it, though such a copy of the Standing Orders was produced and marked as Ex. M. 4 in the case.
5. It is easier to dispose of the case of Kuppuswami first. The only ground urged by the petitioner for treating him as coming within the scope of Clause II was that the medical certificate produced by him for his absence from 22nd September to 30th September 1964 was not from a competent doctor connected with employees' state insurance hospital and that the certificate had been produced from Dr. Srinivasan instead of being produced from Dr. John. The case of the workmen was that since Kuppuswami complained against Dr. John, he declined to give a certificate, that Dr. Srinivasan gave the certificate and that even Dr. Srinivasan was in the employees' state insurance panel. No evidence had been let in on behalf of the petitioner before the Labour Court to show that Dr. Srinivasan was not in the Employees' State Insurance panel. Under these circumstances, the Labour Court accepted the case of Kuppuswami and held that the management, namely the petitioner herein, ought to have accepted the medical certificate produced by Kuppuswami from Dr. Srinivasan. As I pointed out already, the only fault that the management found with this certificate was that it did not emanate from a doctor connected with the Employees' State Insurance Hospital, but from a stranger. But once the Labour Court, accepting the evidence of Kuppuswami, finds that Dr. Srinivasan was also on the Employees' State Insurance panel, this objection disappears. Consequently the award of the Labour Court in so far as the reinstatement of Kuppuswami is concerned, does not call for any interference. I may point out here that no other ground was urged by the learned Counsel for the petitioner in relation to the case of Kuppuswami.
6. The case of Marudhachalam stands on a different footing. The explanation of Marudhachalam for his absence was that he was arrested by police on the evening of 21st November, 1964 in connection with the murder of his wife, that he was released only on 31st July, 1965 and that, therefore, he reported for duty on 2nd August 1965. His further case was that he applied for leave from the jail and notwithstanding his writing three letters, no reply was received by him. The Labour Court did not find the case of Marudhachalam that he wrote letters from the jail to the management applying for leave as having been established and, therefore, it proceeded on the basis that part of the case of Marudhachalam was not true.
7. Then the question that remains for consideration, under these circumstances, is was the Labour Court right in holding that the management, namely, the petitioner herein, ought to have proceeded against Marudhachalam under Clause 19(h) of the Standing Orders and should not have treated the case of Marudhachalam under Clause 11. The position in this behalf is settled by a decision of the Supreme Court in Buckingham & Carnatic Co. v. Venkatayya 1963 I.L.J. 638. The Standing Orders in that case also consisted of two such clauses similar to Clauses 11 and 19(h) in the case. The clause dealing with absence without leave in that case provided:
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 explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.
In relation to the argument based on the inter-relation between the two clauses, one dealing with automatic termination and the other disciplinary action for misconduct, the Supreme Court observed at page 612 as follows:
It is true that absence without leave for eight consecutive days is also treated as misconduct under Clause 13(f) of the Standing Orders. The said clause refers to the said absence and habitual absence without leave. In other words, the position under the Standing Orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under Standing Order 8(ii) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant Standing Order. The fact that the same conduct is dealt with in two different standing orders cannot affect the applicability of Standing Order 8(ii) to the present case. It is not as if the appellant is bound to treat Venkatayya's absence as constituting misconduct under Standing Order 13(f) and proceeded to hold an enquiry against him before terminating his services. Dismissal for misconduct as defined under Standing Order 13 may perhaps have different and more serious consequences from the termination of service resulting from the Standing' Order 8(ii). However that may be, if Standing Order 8(ii) is applicable, it would be no answer to the appellant's case under Standing Order 8(ii) to say that Standing Order 13(f) is attracted.
Consequently, the fact that the same case falls under Clause 11 as well as under Clause 19(h), does not impose an obligation on the petitioner herein to treat that case only under Clause 19(h) to the exclusion of Clause 11, and to the extent to which the Labour Court proceeded on that basis it committed an obvious error of law. Hence the order of the Labour Court directing the reinstatement of Marudhachalam cannot be sustained.
8. However, Mr. Dolia, learned Counsel for the second respondent, put forward two contentions. One is that Clause 11 of the Standing Orders does not apply to this type of involuntary absence; it applies only to what he called wilful or deliberate absence without leave. For this purpose, he gave an illustration of an employee being kidnapped when he was proceeding to his work spot and thereby being compelled to remain absent without being able to apply for leave. As Clause 11, which I have extracted above, shows, it does not make any distinction between involuntary absence and voluntary absence. As a matter of fact, if the clause is taken in its entirety, it is capable of applying to all cases of absence without leave irrespective of the circumstances under which the employees happen to remain absent. If the clause is to be restricted only to the cases of wilful and deliberate absence without leave, the second limb of that clause will be practically meaningless because it is that clause which contemplates the management being satisfied with the explanation given by the employee for being absent without leave, and no question of any management being satisfied with an explanation will arise if an employee remains absent deliberately and wilfully without leave. Therefore, in my opinion, both from the point of view of the language as well as from the point of view of principle. I am unable to find any distinction between involuntary absence and voluntary service absence for the purpose of applicability of Clause 11.
9. In this context, Mr. Dolia relied on a decision of the Allahabad High Court in Balvant Raj v. Union of India 1967 I.L.J. 363 : 1968 L.I.C. 9. In that case a single Judge of the Allahabad High Court was considering Note 3 to Rule 73(i) of the Railway Establishment Code and the said Note was as follows at page 11:
Where a temporary Railway servant fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where he is granted a lesser amount of extraordinary leave than the maximum amount admissible, and remains absent from duty for any period which together with the extraordinary leave granted exceeds the limits upto which he could have been granted such leave under Clause (I) above he shall be deemed to have resigned his appointment and shall accordingly cease to be in Railway employ.
Dealing with the expression 'fails to resume duty' the learned Judge stated:
But in my opinion the words 'fails to resume duty' apply only to a railway servant who by a voluntary and deliberate act or omission stays away from duty and fails to report and not to one who was prevented by a cause beyond his control to resume duty. It cannot apply to a servant who fell ill and was treated by the Railway in its own hospital under its own supervision and was discharged as fit for duty by its own officers after the expiry of the maximum period of leave due to him.
10. For more than one reason, I am unable to agree that this decision in any way supports the case of the second respondent. In the first place, the language in the two clauses and the situations to which they apply are entirely different. In the second place, the learned Judge was dealing with a case where a person fell ill and he was actually treated in the hospital established by the Railway Authorities under whom he was working and he was subsequently declared to be fit for duty by the very doctors working in the railway establishment. It is in that context the learned Judge made the observation above referred to. Consequently, I do not think that that decision in any way helps the second respondent This is in addition to the fact that I have already come to the conclusion that the language of Clause 11 of the Standing Orders in this case does not admit of any such interpretation or construction.
11. The second contention urged by Mr. Dolia is that, in any event, I must remand the matter back to the Labour Court so that the Labour Court may consider the second limb of Clause 11 already extracted above, namely, whether the explanation of Marudhachalam for his remaining absent without leave was satisfactory to the management or not. I am unable to accept this argument also for the simple reason that the second respondent or Marudhachalam did not put forward any such case before the Labour Court On the other hand, the positive case of Marudhachalam was that from the jail he wrote three letters to the management applying for leave, but that he did not get any reply. Any case that he had a satisfactory explanation for not applying for leave for that period will be contradictory to and inconsistent with the case of Marudhachalam that he did apply to the management for leave from jail. It is in view of this, Marudhachalam did not put forward any such case. However. Mr. Dolia relied on the following sentences found in the rejoinder statement filed on behalf of the second respondent:
As per the Standing Orders the management is bound to accept the explanation given by the worker after his release. For reasons obvious to the management they have neither accepted nor rejected.
Before any case of this nature can be put forward, there must be a pleading and evidence to show that Marudhachalam offered an explanation to the petitioner and that explanation was not accepted pursuant to the second limb of Clause 11 of the certified Standing Orders. Neither in the original claim made before the Labour Court nor in the evidence of Marudhachalam before the Labour Court was there any case that after he was released by the police, he went and gave an explanation to the petitioner for his absence from 22nd November 1964 to 31st July 1965, but that explanation was not accepted. As a matter of fact, as 1 pointed out already, that explanation will be totally inconsistent with and mutually destructive of the previous case put up by him that he wrote three letters from jail asking the management for leave. In view of this circumstance, I do not think this is a proper case in which I should quash the order of the Labour Court and remand the matter to the Labour Court for consideration of this limited question alone.
12. Consequently, the writ petition is allowed and the award of the Labour Court quashed to the extent of which it directed the reinstatement of Marudhachalam. In other respects, the writ petition will stand dismissed. There will be no order as to costs.