Full Text
$-19 HIGH COURT OF DELHI
Date of Decision: 8th AUGUST, 2014
SHRI SHIV KUMAR GIRI ....Appellant
Through : Mr.Ashok Aggarwal, Mr.Anuj Aggarwal and Ms.Aarushi
Aggarwal, Advocates.
Through : None.
HON’BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Oral)
CM No.12757/2014 For the reasons mentioned in the application, the delay in filing the present appeal is condoned.
The application stands disposed of.
JUDGMENT
1. In this intra – Court appeal, the Appellant – Shiv Kumar Giri impugns a judgment dated 16.04.2014 in W.P.(C) 4764/1995 delivered by learned Single Judge of this Court whereby the writ petition filed to set aside the award dated 07.04.1995 in I.D.No.198/87 whereby the Labour Court answered the reference made by the appropriate Government by holding that the Appellant was not entitled to any relief was dismissed.
2. Shorn of details, the facts of the case are that the Appellant – Shiv Kumar Giri was in the employment of the Respondent Hotel as an 2014:DHC:3810 Electric Helper. On 02.05.1984, he proceeded on sanctioned leave. Appellant‟s case was that he fell seriously ill and at his request, the leave was extended. After recovery from illness when he went to resume duties on 20.08.1984 with a medical certificate / fitness, Respondent did not allow him to join and asked him to come next day. On the next day also he was not permitted to join the duties and was assured to be taken on duty after few days. Ultimately, the Respondent terminated his services on 12.09.1984 illegally without paying his dues. It was urged that the termination was effected without any charge and enquiry. In his claim petition, the Appellant prayed for reinstatement and continuity in service with full back wages.
3. The Respondent‟s case before the Labour Court was that the Appellant‟s services were never terminated but his name was removed from the rolls due to his continuous unauthorised absence from duties in accordance with the terms and conditions of the service. It was further alleged that the Appellant was granted leave on account of his sister‟s marriage from 02.05.1984 to 07.05.1984. Despite intimations to join the duties, the Appellant remained absent w.e.f. 08.05.1984 onwards. It was their case that on 21.05.1984, they informed the Appellant about his unauthorised absence and requested him to report for duties immediately, not later than 24.05.1984. The Appellant did not join the duties despite receipt of letter on 25.05.1984 at his native village address. Another letter dated 25.05.1984 was sent through registered AD with the request to join the duties latest by 29.05.1984. The said letter was received back with the report of the postal authorities that the addressee had gone for treatment to ESI Dispensary, Akbarpur, Distt.Faizabad. Again a letter to the ESI Dispensary, Akbarpur, Distt.Faizabad were sent and information was received that medical certificate from 19.05.1984 was given to the Appellant with the fitness certificate on 09.06.1984, whereby he was declared fit to resume duties on 11.06.1984. Despite that, the Appellant did not join his duties. Again, a letter dated 05.07.1984 was written to the Appellant to report for duty, but in vain. When no intimation was received from the Appellant and he continued to remain un-authorizedly absent from his duties, vide letter dated 20.07.1984, the Appellant was informed that the Respondent had no alternative, but to remove his name from the rolls w.e.f. 11.06.1984.
4. The parties adduced their respective evidence before the Labour Court. After appreciating the evidence and considering the rival contentions of the parties, the Labour Court concluded that the Appellant remained absent without informing the Respondent in violation of Certified Standing Orders, Clause 23, despite his being declared fit by the ESI Dispensary on 09.06.1984 and as such, he must be deemed to have left the services of the company, and his employment thereby automatically stood terminated. It further observed that the action of Respondent did not amount to „retrenchment‟ as the Appellant was given ample opportunity of being heard. Aggrieved by the said orders, the Appellant preferred writ petition before the learned Single Judge which did not find favour and was dismissed by the impugned judgment.
5. We have heard the learned counsel for the Appellant and have examined the record. Undisputedly, the Appellant was in the employment of the Respondent Hotel as an Electric Helper and his last drawn salary was ` 475/- per month. It is not in dispute that the Appellant had proceeded on leave w.e.f. 02.05.1984 after getting it sanctioned. He was to join his duties on 08.05.1984. It is also not in controversy that the Appellant did not join his duties thereafter and as per his own showing, he reported for duty on 20.08.1984 along with medical certificate. Apparently, the Appellant remained absent from his duties w.e.f. 08.05.1984 till 20.08.1984. It was imperative for the Appellant to explain his unauthorized absence during the period from 08.05.1984 to 20.08.1984. The Appellant did not produce any cogent material / document on record to show that during this period because of illness or any other reason, he was unfit / unable to join his duties. The Appellant has not placed on record any application sent to the Respondent for extension of leave after 07.05.1984 on any specific ground. Contrary to that, the Respondent produced and proved various documents on record to show that letter dated 21.05.1984 (Ex.WW1/5) was sent to the Appellant to report for duty latest by 24.05.1984. Mark-Y is another letter dated 25.05.1984 written by the Respondent, calling upon the Appellant to report by 29.05.1984. The Respondent even wrote a letter (Ex.MW1/4) to the Medical Incharge, ESI Dispensary, Akbarpur, Faizabad where the Appellant had gone for treatment. It has come on record that ESI authorities declared the Appellant fit to join his duties on 11.06.1984. Dr.R.S.Mishra, Incharge, ESI Dispensary, Akbarpur, Faizabad entered into the witness-box and proved the letter (Ex.MW1/7) whereby the necessary fitness certificate was given. The Appellant in the explanation given in his statement dated 19.04.1991 before the Labour Court admitted that he was discharged from ESI Dispensary, Akbarpur, Faizabad on 11.06.1984. However, he took a new plea that after reaching home his condition became serious and he went for treatment at Zila Parishad Osdhalaya, Bangaon, Bhidi, U.P. as the dispensary at Akbarpur was 25 km. away from his home and the rivers were flooded due to heavy rains. He wrote a letter marked „D‟ to the management on 12.06.1984 for extension of leave under UPC receipt Ex.WW1/9. This plea taken for the first time in the statement was not believed by the Labour Court. The findings on this aspect are relevant to note:
6. Apparently, the Respondent made all sincere efforts to remind the Appellant to report for duty and to explain circumstances for his absence or furnish the required medical certificate. However, for the reasons known to the Appellant, he did not seek any extension of leave on any genuine ground and failed to adduce any cogent and reliable evidence to justify his unauthorized continuous absence for more than three months. It cannot be inferred by any stretch of imagination that the Appellant was not given reasonable and sufficient opportunities of being heard.
7. The learned Single Judge has recorded clear findings that the Appellant was in violation of the terms and conditions of the appointment whereby he was governed by Standing Orders, Rules, Regulations and Instructions for the time being in force. Para 23 of the Certified Standing Orders (Ex.MW1/9) reads as under:
8. The learned Single Judge relied upon „Syndicate Bank Vs. The General Secretary, Syndicate Bank Staff Association and Another‟, (2000) 5 SCC 65, where the validity of the above provision was upheld. The Supreme Court, considering the provision under which, the employee was treated to have voluntarily abandoned the service held:
9. The Supreme Court in the aforesaid case ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities.
10. Abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as „retrenchment‟ from service as urged. Long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee. In „Vijay S.Sathaye vs. Indian Airlines Ltd. and ors.’, 2014 (1) SCC (LS) 760, the Supreme Court observed:
11. In the instant case, the Respondent remained absent beyond the period of sanctioned leave and subsequently extended leave for more than three months and opted to resume services on 20.08.1984 without specifying the reasons for continuous absence. He was clearly in violation of the terms and conditions of the provisions by which he was governed and is deemed to have abandoned the service. The Appellant was not justified in remaining un-authorizedly absent from duty for more than three months because in the interest of discipline of any institution or organisation, such an approach cannot be countenanced. The nature of Appellant‟s job as Electric Helper in a hotel was of urgent need and prolonged absence from duty for more than three months cannot be considered reasonable or bonafide. No establishment can function if it allows the employees to behave in such a manner.
12. We find no illegality or irregularity in the order dated 12.09.1984 which is based upon fair appraisal of the evidence and warrants no interference. The appeal is dismissed. No order as to costs. (S.P.GARG) JUDGE (REVA KHETRAPAL)
JUDGE AUGUST 08, 2014 tr