Anil K. Sen, J.
1. The preliminary objection as to the maintainability of the writ petition raised on behalf of the respondent having been overruled on grounds set out in our judgment reported in (1978-II L.L.J. 151). on the preliminary issue, we now proceed to consider the writ petition on its merits.
2. The subject-matter of challenge in this writ petition is the award dated March 30, 1974, made by the learned Judge, and 3rd Industrial Tribunal, West Bengal in Case No. VIII-276/72 whereby the termination of service of the respondent-workman by the petitioner was set aside and he was directed to be reinstated in service with back wages. Certain facts are not in dispute and those may be set out shortly.
3. The respondent-workman Nemai Chandra Goswami was in the employment of the petitioner as a typist since June 7, 1963. He was confirmed as such on January 1, 1967. He went on leave since July 20, 1970, as he was suffering from tuberculosis of spine. He was absent for a long time and he had his leave extended from time to time but ultimately on Nov. 15, 1971, the petitioner terminated his service by addressing a letter to him as set out hereunder:
Re: Termination of your service.
This is to inform you that you have been absenting from your duty for a very long period from 20-4-1970 until this date on the ground of sickness and, in course of the aforesaid period, you have asked for several extensions of leave.
In this connection, it may be noted that such prolonged and indefinite period of absence on the ground of illness cannot be allowed by the management and you have lost lien on your service.
Under the circumstances as stated above, your service has been terminated by the management with effect from 16-11-71 and accordingly, the Accounts Department has been advised to arrange to remit your dues, if any, to your above address at an early date.
(Dr. S.K. Burman)
Sd/- A. C. Burman,
Director & Secretary.
4. A dispute arose between the workman and the petitioner--company over the said termination and on behalf of the workman the dispute was taken up by the workmen's union. An attempt at conciliation having failed, the State Government made a reference under Section 10 of the Industrial Disputes Act, 1947, to the Tribunal, the following issue for adjudication, namely,--'Whether the termination of services of Shri Nemai Chandra Goswami is justified What relief, if any, is he entitled to?'
5. Before the Tribunal a written statement was filed on behalf of the workmen's union. In this written statement it was claimed that the discharged workman was a permament employee who had rendered unblemished and satisfactory service from the date of his appointment in the year 1963 until April 19, 1970. As he was suffering from tuberculosis of spine he had to undergo a prolonged treatment for which he had to take leave and seek its extension from time to time until December 31, 1971, when he being completely cured reported for duty on being declared fit by the medical attendant but the company did not allow him to rejoin his duties as the company had on Nov. 15, 1971, wrongfully terminated his service. Such termination was claimed to be wrongful being violative of standing orders and being violative of principles of natural justice when it was so terminated without any previous show-cause notice. It was claimed that such termination was unjust and constituted an unfair labour practice. It was further pleaded that such termination without a prior sanction of the Industrial Tribunal under Section 33(2)(b) of the said Act was not lawful since a dispute was pending before the Tribunal to which the workman was a party.
6. The company filed a written statement to contest the claim of the union. In this written statement it was not disputed by the company that the discharged workman was a permanent employee and that he rendered satisfactory service from the date of his appointment in 1963 until he went on leave on April 20, 1970. It was, however, claimed that the workman was given leave on medical grounds and such leave was extended from time to time. Last of such extension was given on August 10, 1971, when three months leave without pay was sanctioned in his favour from August 1, 1971 to October 31, 1971. It was, however, made clear to him that no further extension will be granted. In spite of that on October 15,1971, the workman applied for further extension of leave for 2 months which was refused and since he was found absenting from duties even after Oct. 31, 1971, the company had no other alternative but to terminate his service on the ground of prolonged and indefinite period of absence. That was done by the letter dated November 15, 1971, which led to the dispute. According to the company such termination was lawful and bona fide and there was no violation of either of any standing orders or the principles of natural justice. It was claimed that when the workmen was continuously absenting himself for over 1 years on the ground of ill-health the company had to take such a decision of terminating his service because of such indefinite and prolonged absence. Such termination not being retrenchment he was not entitled to any compensation nor was there any case for issue of any show-cause notice. It was disputed by the company that such a termination would attract the provisions of Section 33 of the said Act.
7. At the adjudication oral evidence was led on behalf of the union and the workman was examined as a witness on their behalf. Some documentary evidence was also led. On behalf of the company, however, no oral evidence was led but only reliance was placed on certain documents which were exhibited.
8. On the pleadings, as aforesaid, and the evidence so led, the Tribunal found that the discharged workman was a permanent employee since 1963 and that he went on leave on medical grounds since April 20, 1970, and admittedly such leave was extended from time to time till October 31, 1971. The Tribunal further found that on October 15, 1971, the workman asked for further extension for two months to which the company gave no reply and on the other hand by the impugned letter dated November 15, 1971, the company terminated the service of the workman. Such termination was in violation of Clause 17 of the standing order and as such wrongful. The Tribunal further concluded that when the workman was not allowed to join his duties although he became fit by the end of December, 1971, the earlier termination is a hasty act which is capricious, arbitrary and unnecessarily harsh and as such cannot but be held to be not bona fide. The Tribunal, however, overruled the plea raised on behalf of the union that any previous permission of the Tribunal was necessary on the provisions of Section 33 of the Act. Before the Tribunal a point was sought to be raised on behalf of the company that the impugned termination was one in accordance with Clause 9(3) of the standing order which would not attract Clause 17 but the Tribunal appears to have overruled such a plea on two-fold grounds, namely, (1) it being a case of positive termination by the company no defence under Clause 9(3) could be taken and (2) the company not having replied to the workman's application for extension of leave made on November 15, 1971, it must be presumed that the leave applied for was sanctioned, and as such, he could not be treated to be absenting without leave. On the findings as above, the learned Judge set aside the termination and directed the workman's reintatement with back wages. Feeling aggreived by the award so made by the learned Judge, the company has moved the present writ petition.
9. Mr. Ganguly appearing in support of this writ petition has strongly contended that on the facts and circumstances the impugned termination should have been found to be an automatic termination in terms of Clause 9(3) of the standing order which would constitute neither retrenchment nor a termination within the meaning of Clause 17 of the standing order. According to Mr. Ganguly when the company made it clear while extending the leave on August 10, 1971, that no further extension would be granted the Tribunal could not have concluded that there arises a natural presumption that further leave applied for on October 15, 1971, shall be deemed to have been sanctioned. Moreover, Mr. Ganguly has contended that though not formally proved the company's refusal of such leave is well-established by the letter of refusal dated October 25, 1971, which is on the records. It has been next contended by Mr. Ganguly that even if this Court upholds that view of the Tribunal and holds that by the impugned letter dated November 15, 1971, the company positively terminated the service of the workman, since such termination can also be upheld as an automatic termination in terms of Clause 9(3) of the standing order, this Court should hold that the workman is not entitled to any reinstatement.
10. Mr. Ghosh appearing on behalf of the contesting respondent has contested both the points raised by Mr. Ganguly. Mr. Ghosh has first contended that it being a positive actof termination on the part of the company Clause 17 of the standing order is attracted and the company could not have lawfully terminated the service of the workman except on a notice in accordance with Clause 17. Mr. Ghosh has strongly disputed that it was a case of automatic termination under Clause 9(3) of the standing order. Mr. Ghosh again has contended in the alternative that even if it be such a termination that would constitute retrenchment which would attract the provisions of Section 25F and those provisions not having been complied with the termination must be held to be not in accordance with law.
11. We have set out the letter dated November 15, 1971,hereinbefore. That letter beyond doubt leaves an impression that the company was positively terminating the service of the workman with effect from November 16, 1961, and is not falling back upon any plea of automatic termination in terms of Clause 9(3),though it also recites that the workman due to prolonged and indefinite period of absence on the ground of illness had lost lien on his service. In so far as the company exercises its right of itself terminating the service of workman is concerned there can be no dispute that it can do so only in accordance with the provisions of the standing order and the standing order in Clause 17 in such cases requires one month's notice or one month's wages in lieu of notice. Admittedly, the requirements of Clause 17 were not fulfilled so that if the impugned termination be considered to be a positive act of termination, it must be held that the same not being on due fulfilment of the requirements of the standing order was not in accordance with law. Such termination being made on the ground of prolonged illness may not constitute retrenchmen but nonetheless, no such termination could be made except on the fulfilment of the requirements of Clause 17 of the standing order which provides that in every case of termination of employment by the company, it shall have to give a notice in writing or in the alternative pay the wages for the notice period. This has got to be done irrespective of the ground of such termination. Mr. Ganguly, however, has strongly contended before us that we must look to the substance and looking at such substance we must hold that the company, by the impugned notice dated November 15, 1971, was merely giving effect to the provisions of Clause 9(3) of the standing order which provides for automatic termination and not termination by the company. To consider this point it is necessary for us to refer to the material part of Clause 9 of the standing order which is set out hereunder:
9. Leave and Holidays. Leave--(1) Leave with pay will be allowed as provided for in the Factories (Amended Act) 1948, and other holidays in accordance with law, contract, custom and usage ; other holidays, for example festival holidays will be allowed in accordance with law, contract, custom and usage. The list of festival holidays should be published at the beginning of each year, after consultation with the representatives of the workman concerned.
(2) A workman who desires to obtain leave of absence shall apply to the manager or personnel officer, who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commence on the date of application, or within three days thereof, the orders shall be given on the same day. If the leave asked for is granted, a leave pass shall be issued to the worker. If the leave is refused or postponed, the fact of such refusal or postponement and the reasons thereof shall be recorded in writing in a register maintained for the purpose, and if the worker so desires, a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof he shall apply to the manager or personnel officer who shall send a written reply either granting or refusing the extension of leave to the workman if his address is available and if such reply is likely to reach him before the expiry of the leave originally granted to him.
(3) If the workman remains absent beyond the period of leave originally granted or subsequently extended by the manager or the personnel officer, he shall lose his lien on his appointment unless (a) he returns within 10 days of the expiry of the sanctioned leave and (b) explains to the satisfaction of the manager or personnel officer the reason of his inability to resume his duty just after the expiry of his leave. In case the workman loses the lein on his appointment his name shall be kept on the waiting list of the applicants for jobs.
12. In contesting such a point raised by Mr. Ganguly, Mr. Ghosh has raised a point of some importance when relying on some recent decisions of the Supreme Court, he has contended that even an automatic termination as contemplated by Clause 9 (3) of the above standing order would constitute retrenchment and could not be valid unless the requirements of Section 25F have been duly fulfilled. It has been pointed out by Mr. Ghosh that Sub-clause (3) provides that a workman would lose his lein on appointment if he is absent beyond leave either granted or extended and if he does not return within 10 days of the expiry of such leave and explain to the satisfaction of the manager or personnel officer the reasons of his inability to resume his duties on the expiry of the leave. According to Mr. Ghosh this rule contemplates such a termination as would constitute retrenchment within the meaning of Section 2(oo) of the said Act even if it be held to be automatic termination. Reliance is placed on three decisions of the Supreme Court in the cases of Delhi Cloth and General Mills Company Ltd. v. Sambunath Mukherji : (1978)ILLJ1SC , State Bank of India v. N.S. Moni : (1976)ILLJ478SC and Hindustan Steel v. Labour Court, Orissa. A.I.R. 1977 S.C. 31 : (1976) Lab IC 1766.
13. On the provisions of Clause 9(3) as aforesaid, it is quite clear that the termination contemplated by this clause is not brought about by the employer but is brought about by the default of the workman himself. It constitutes automatic termination as pointed out by the Supreme Court in the case of N, E. Industries v. Hanuman : (1967)IILLJ883SC . Such being the position it is difficult for us to accept the contention of Mr. Ghosh that it would constitute retrenchment which on the definition of the term 'retrenchment' in Section 2(oo) must primarily be termination by the employer of the service of a workman. So far as the decision of the Supreme Court in Delhi Cloth and General Mills Company Limited (supra) relied on by Mr. Ghosh is concerned, it must be pointed out that though reliance was sought to be placed by the employer on Clause 27(a) of the standing order, the Supreme Court found that the impugned termination was not in terms thereof. The Supreme Court further found that the said clause again only authorised the employer to terminate the service of a workman who absents himself for more than 8 consecutive days and did not provide for any automatic termination as contemplated by Clause 9 (3) now under consideration.
14. The other two decisions relied on by Mr. Ghosh are equally distinguishable. In the case of State Bank of India v. N.S. Moni (supra) it was no doubt held that termination of service by running out of time stipulated in the contract of service also amounts to retrenchment and such termination would be invalid if the requirements of Section 25F had not been duly fulfilled. This principle was reaffirmed by the Supreme Court in the case of Hindustan Steel v. Labour Court, (supra). But the distinguishing feature is that those terminations were by the employer and were not brought about by the default of the employee as contemplated by Clause 9(3) of the standing order. It was pointed out by the Supreme Court in those two cases that 'an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination.' Thus, in those cases, the Supreme Court found the termination to be an act of the employer though made in a pre-emptive manner while giving the appointment itself to make it retrenchment. But where on a provision in the standing order as in Clause 9(3) aforesaid the employee himself brings in termination of his service by his own default, it cannot be said that it would amount to retrenchment because the employer himself does not effect such termination though it may possess the character of automatic termination as in case of termination by running out of time stipulated in the contract of service. In this view, we are unable to accept the contention of Mr. Ghosh that if we hold that the impugned termination was really one as contemplated by Clause 9(3) of the standing order as aforesaid as urged by Mr. Ganguly, even then such termination would be invalid for non-fulfilment of the requirements of Section 25F of the said Act.
15. Next we proceed to consider how far we can accept the contention of Mr. Ganguly that in substance the impugned termination is an automatic termination as contemplated by 9(3) of the standing order, as aforesaid. In our view, however, Sub-clause (3) of Clause 9 cannot be read independently of Sub-clause (2) thereof. We have set out the two Sub-clauses hereinbefore. Sub-clause (2) provides in the first part how a workman is to obtain his leave. In the second part it provides how the employer is to grant or refuse the leave. In the third part it provides that if a workman while on leave desires an extension he shall apply to the manager or personnel officer who shall send a reply either granting or refusing the extension of leave to the workman if his address is available and if such reply is likely to reach him before the expiry of the leave already granted to him. Now on the facts of the present case, there is no dispute that when the workman's extended leave was to expire on October 31, 1971, he did apply for a further extension of 15 days in advance on October 15, 1971. Upon the finding of the Tribunal the company failed to give any reply to the workman on his application for extension dated October 15, 1971. Though our attention has been drawn to an unexhibited letter of the company dated October 25, 1971, purporting to refuse the leave prayed for Mr. Ganguly appearing on behalf of the company was fair enough to concede that the company led no evidence to prove that the same was even sent to the workman. Therefore, on the facts proved it cannot be held that the company had fulfilled its mandatory obligation laid down by the last part of Sub-clause (2) of Clause 9 of the standing order, as aforesaid. If the company had failed to discharge its obligation under Sub-clause (2) we think it cannot fall back upon Sub-clause (3) and say that since the workman had failed to report for duties within 10 days from the expiry of the extended leave which was to expire on October 31, 1971, the workman suffers automatic termination of his services under Sub-clause (3). When the workman applies for extension of a sanctioned leave sufficient time in advance giving every opportunity to the employer to communicate either the grant or refusal thereof, until the employer communicates his decision to the workman it cannot be said that the workman can be held guilty of any default contemplated by Sub-clause (3) by not returning to duty within 10 days of the expiry of the original sanctioned leave. Under Sub-clause (3) the workman is to return to duties on the expiry of the leave granted or extended and, therefore, where an extension is prayed for in such a manner that the employer can inform the workman about his decision on such prayer, an employer who fails in his duty to do so should not be allowed to take advantage of his own default and make the workman liable for his failure to return to duties on the expiry of the original leave. Great emphasis was laid by Mr. Ganguly on the fact that the company in its letter dated August 10, 1971, in granting 3 months extension had specifically pointed out that no further extension would be available. But such a note in our opinion does not change the position in any manner for the simple reason that notwithstanding such a direction it would have been competent for the company to grant a further extension and as a matter of fact that extension itself was granted in spite of a similar note incorporated in the earlier order sanctioning an extension of the leave. Such a direction could not have stood in the way of the workman applying for a further extension based on any genuine and reasonable ground nor could the same have stood in the way of the company reversing its earlier view and grant the extension prayed for. This being the position, the note incorporated in the company's letter dated October, 10 1971, relied on by Mr. Ganguly does not help his client. We are, therefore, unable to accept the contention of Mr. Ganguly that the impugned termination is really an automatic termination as contemplated by Clause 9(3) of the standing order as aforesaid. That is perhaps the reason why the company itself instead of falling back on Clause 9 (3) of the standing order decided to terminate the service of the workman by a positive act of termination with effect from Nov. 16, 1971, in terms of its letter referred to hereinbefore. For the same reasons we are unable to accept the alternative contention of Mr. Ganguly that even if the impugned termination fails as a positive act of termination yet the workman will not be entitled to reinstatement as he must be held to have suffered automatic termination under the aforesaid clause. On the conclusions as above, we must uphold the decision of the Tribunal that the impugned termination cannot be held to be valid or lawful.
16. Lastly, Mr. Ganguly had assailed the relief granted by the Tribunal in the present case. He has strongly contended that on the facts and circumstances the Tribunal was not justified in directing reinstatement with back wages. According to Mr. Ganguly the company was not guilty of any lack of bona fides. The company waited for the workman for over 1} years and when the workman failed to resume his duties even thereafter due to his illness and even after the expiry of leave granted without pay, the company had no other alternative but to terminate his service. Such being the facts and circumstances which led to the order of termination, according to Mr. Ganguly, even if the termination must fail on the ground of failure on the part of the company to grant a month's notice or a month's wages in lieu of such notice yet reinstatement should not have been considered the due relief for the workman. According to Mr. Ganguly in the just exercise of its discretion the Tribunal ought to have given appropriate compensation in lieu of reinstatement. It cannot be disputed that where retrenchment or termination of service is set aside, reinstatement is the normal relief admissible to the workman, though such relief may be refused only in exceptional cases like the employer losing confidence in the workman or the retention of the workman may lead to apprehension of breach of security, whatever the exceptional case, that is to be pleaded and made out by the employer. Panitola Tea Estate v. Workman : (1971)ILLJ233SC . Unfortunately, however, in the present case the company had not pleaded any special circumstances before the Tribunal in view of which the normal relief of reinstatement could not have been given by the Tribunal. On the other hand, the workman was on sanctioned leave up to 31st October 1971, and had asked for an extension of such leave up to December 1971 ; he reported back in January, 1972 and the company never made out any case that on such return the company could not afford any berth to accommodate. In such circumstances if the Tribunal found that appropriate relief should be reinstatement, we cannot say that the Tribunal was in any way wrong in its conclusion. Since, however, the workman upon his own showing had been absent from duties up to December 31,1971, he is not entitled to claim any back wages prior to that date and the award in respect of back wages as made by the Tribunal would stand modified to the extent as above. Subject to the modification, as aforesaid, we uphold the award and disposes of the Rule. There will be no order as to costs.
17. Let the operation of the order remain stayed for a period of one month from this date.
B. C. Ray, J.--I agree.