IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 WP(C).No. 15068 of 2010(G) -------------------------- PETITIONER: -------------- K.PUSHPA, AGED 35 YEARS, W/O.C.H.BALAKRISHNAN, LAXMI NAGAR, KANHANGAD P.O., KASARAGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENTS: ----------------- 1. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, VIDYANAGAR P.O., KASARGODE DISTRICT. 2. THE HOSDURG BEEDI WORKERS INDUSTRIAL (SERVICE TYPE) CO-OPERATIVE SOCIETY LTD., NELLIKKAT, BALLA P.O., KASARGODE DISTRICT, PIN-671 531, REPRESENTED BY ITS SECRETARY. R1 BY GOVERNMENT PLEADER, SMT.SMITHA SUKUMARAN. R2 BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15068 of 2010(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE REPORT OF THE SENIOR CO-OPERATIVE OFFICER. EXT.P2 : TRUE COPY OF THE ORDER DATED 13.10.2008. EXT.P3 : TRUE COPY OF THE REPORT OF ASST. INDUSTRIES OFFICER. EXT.P4 : TRUE COPY OF THE ORDER DATED 18.01.2010. EXT.P5 : TRUE COPY OF THE REVIEW PETITION DATED 28.01.2010. EXT.P6 : TRUE COPY OF THE LEAVE APPLICATION DATED 01.03.2008. EXT.P7 : TRUE COPY OF THE MEMO DATED 23.04.2008. EXT.P8 : TRUE COPY OF THE LETTER DATED 05.11.2008. EXT.P9 : TRUE COPY OF THE REGISTERED LETTER DATED 03.04.2010, SENT BY THE PETITIONER TO THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R1(A) : TRUE COPY OF THE STANDING ORDER. EXT.R1(B) : TRUE COPY OF REPRESENTATION BY THE PETITIONER TO SECRETARY. EXT.R1(C) : TRUE COPY OF THE MUSTER ROLL OF THE SOCIETY. EXT.R2(A) : TRUE COPY OF THE COMMUNICATION FROM THE MESTHRI/SUPERVISOR TO THIS RESPONDENT DATED 19.04.2008. EXT.R2(B) : TRUE COPY THE NOTICE BY THIS RESPONDENT DATED 23.04.2008. EXT.R2(C) : TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 25.04.2008. EXT.R2(D) : TRUE COPY OF THE RESOLUTION. EXT.R2(E) : TRUE COPY OF THE LETTERBY THE PETITIONER DATED 06.04.2010. /TRUE COPY/ PA TO JUDGE P.R.RAMACHANDRA MENON,J - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 15068 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of September, 2011 JUDGMENT The petitioner, an employee of the 2nd respondent Society, is before this Court challenging the correctness and sustainability of Ext.P4 order passed by the 1st respondent, resulting in a 'break in service' . 2. The sequence of events is as follows. The petitioner is a 'beedi rolling' worker of the 2nd respondent, having started the career with effect from 17.04.1993. In connection with the some serious ailments, ('Sambar Spondaylosis'), she was constrained to apply for leave for the period from 26.10.2006 to 31.03.2008, which is stated as sanctioned by the 2nd respondent as revealed from their own proceedings (Ext.P8 dated 05.11.2008). Since the petitioner was not in a position to join duty immediately thereafter, she submitted an application for extension of leave, which however, was not considered favourably. But, in the meanwhile, the petitioner approached the 2nd respondent for issuance of a certificate for WP(C) No. 15068 of 2010 -:2:- availing some benefits for the children of Beedi Workers, in tune with the relevant Scheme notified for such benefits; when she was taken to surprise, on being informed by the 2nd respondent, that she was no longer in the service rolls, having removed from the service as per the resolution taken by the 2nd respondent on 27.05.2008 for 'unauthorised absence' from duty. 3. In the said circumstance, the petitioner preferred a complaint before the 1st respondent, whereupon an enquiry was ordered. Ext.P1 is the Enquiry Report submitted by the Senior Co-operative Officer, which reveals that the application for leave for the period from 20.10.06 to 31.03.08 was sanctioned by the 2nd respondent. She had applied for further leave from 01.03.2008 to 01.07.2008, but the same was not sanctioned by the Secretary. A notice was issued by the Secretary, referring to the absence and also as to the inability to sanction the leave from 01.03.2008 to 01.07.2008; asking the petitioner to join duty, besides claiming the arrears due to the Society; lest her name should be removed from the rolls. The report also reveals that WP(C) No. 15068 of 2010 -:3:- an Executive Committee of the 2nd respondent had taken a resolution on 27.01.2008 putting an end to the service of the petitioner, for not having reported for duty in spite of the notice issued in this regard; however, adding that such a decision/order was never communicated to the employee at any point of time. It is also mentioned in Ext.P1 that the removal of the petitioner from the service was without complying with the statutory prescriptions and hence not in accordance with law. 4. On receipt of Ext.P1 report, the 1st respondent issued Ext.P2 notice to the 2nd respondent. In the meanwhile, a further report was called for from the Assistant District Industries Officer, Hosdurg, who submitted the same as per Ext.P3 dated 05.10.2009. The factual position as revealed from Ext.P1 is more or less confirmed in Ext.P3 as well. The lapses on the part of the 2nd respondent in putting an end to the service of the petitioner are writ large on the face of the said proceedings. However, a 'rider' has been incorporated therein, stating that the action of the 2nd respondent appears to be justified in tune with the 'Clause No.52' of the Certified Standing Orders. As per Ext.P3, two WP(C) No. 15068 of 2010 -:4:- suggestions were made and the stand of both the employee and the Management were also incorporated therein, placing the same for further consideration before the 1st respondent. After considering the matter, the 1st respondent issued Ext.P4 order dated 18.01.2010; whereby the petitioner was ordered to be re-instated in service, however making it clear that the period of absence from 26.10.2006 till the date of rejoining duty shall be treated as 'service break'. The petitioner is challenging the said condition resulting in the service break on many a ground, legal as well as factual. 5. A counter affidavit has been filed by the 1st respondent seeking to sustain Ext.P4, also referring to Clause 52 of the Certified Standing Orders (a copy of which is marked as Ext.R1(a)). A copy of the letter dated 06.04.2010, stated as written by the petitioner, addressed to the 2nd respondent, requesting to permit her to rejoin duty after treating the period from 26.10.2006 to 06.04.2010 as 'service break', is also produced by the 1st respondent as Ext.R1(b); though a copy of the said letter is not stated as marked to the 1st respondent. The WP(C) No. 15068 of 2010 -:5:- same document is also produced by the 2nd respondent as Ext.R2(e), along with the counter affidavit filed by the said respondent. Based on Ext.R1(b)[Ext.R2(e)] it is contended by the 2nd respondent in their counter affidavit, that the action pursued by the 2nd respondent putting an end to the service of the petitioner as per Ext.P8 resolution dated 27.05.2008 was not liable to be intercepted in any manner. 6. Heard the learned counsel for the petitioner as well as the learned counsel for the 2nd respondent and also the learned Government Pleader appearing for the 1st respondent, at length. 7. The learned counsel for the petitioner submits that the contents of the counter affidavit filed by the 2nd respondent referring to Ext.R2(e) are not at all correct and no such letter has ever been sent by the petitioner. As a matter of fact, since Ext.P4 was not implemented permitting the petitioner to rejoin duty, she had sent a notice, a copy of which is marked as Ext.P9 along with the reply affidavit dated 03.04.2010 and this being the position, there was no need, necessity or occasion for the WP(C) No. 15068 of 2010 -:6:- petitioner to have filed any further submission on 06.04.2010. The learned counsel also asserts that the handwriting in Ext.R2 (e) is not that of the petitioner but is of the authorities of the 2nd respondent, which is quite similar to Ext.R2(b). Reliance is also said to be placed on the decision rendered by the Apex Court as reported in State of Punjab v. Dr.P.L. Singla [(2000) 8 SCC 469] in support of the contention that, once the leave is sanctioned, it is no more liable to be reopened, unless a specific right to take the disciplinary proceedings is reserved in this regard(Paragraph 12). It is also brought to the notice of this Court that a stipulation as contained in 'Clause 52' of the Standing Order is a unilateral one and it cannot have any legal sanctity, in view of the law declared by the Apex Court in M/s.Lakshmi Precision Screws Ltd. v. Ram Bahagat [AIR 2002 SC 2914](paragraphs 4, 10, 15 and 16). 8. After hearing both the sides, it is seen that there can not be any more controversy with regard to the factual position that the petitioner was a permanent employee of the 2nd respondent and that she was suffering from serious ailment, WP(C) No. 15068 of 2010 -:7:- based on which she had applied for leave from 26.10.2006 to 31.03.2008, which was sanctioned as borne by Ext.P8. There is no case for the 2nd respondent with regard to Exts.P1 and P3 enquiry reports and as to the inference therein, pointing out the lapses on the part of the 2nd respondent as to the course and procedure adopted by them in putting an end to the service of the petitioner. The only case as put forth by the 2nd respondent is that their action in terminating the service of the petitioner in respect of the unauthorised absence, after issuing Ext.R2(b) notice, for non-joining duty; that too, without conducting any further enquiry, is with reference to the mandate under 'Clause 52' of the Certified Standing Orders[Ext.R1(a)]. It is also seen from Ext.P1 report of the departmental authority, that on receipt of ExtR2(b) memo issued by the 2nd respondent, a reply dated 28.04.2008 was submitted by the petitioner to the Secretary, which however is not seen referred to anywhere in the proceedings pursued by the 2nd respondent. 9. The basic issue is, whether there is any justification on the part of the 1st respondent for having stipulated in Ext.P4 WP(C) No. 15068 of 2010 -:8:- that the absence of the petitioner with effect from 20.10.2006 to 31.03.2008 will result in any 'service break'. The true state of affairs, particularly that the said period of leave was actually sanctioned by the 2nd respondent, is very much discernible from Ext.P8 proceedings of the 2nd respondent itself and as it stands so, the said leave which was actually sanctioned can not result in any service break. This Court finds support from the observations made by the Apex Court from the decision cited supra [(2000) 8 SCC 469, paragraph 12]. 10. Coming to the scope of 'Clause 52' of the Certified Standing Orders relied on by the 2nd respondent, the said Clause clearly stipulates that the right of the management to put an end to the service of the employee who does not propose to join duty, despite the service of notice of 7 days, pursuant to the unauthorised absence of not less than 10 days without offering any explanation, is subject to certain conditions as specified therein. Going by the said Clause, it enables the management to terminate the service of such an employee without conducting a domestic enquiry in the manner as prescribed under Sections 25F WP(C) No. 15068 of 2010 -:9:- and 25M of the Industrial Disputes Act, 1947. Section 25F of the Industrial Disputes Act reads as follows: “25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employee shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.” There is no case for the 2nd respondent/management that the termination of service of the petitioner as per resolution dated 27.05.2008 (Ext.P8) was in compliance with the condition stipulated under Section 25F. No notice whatsoever, as contemplated under the said provision or the retrenchment compensation payable (at the rate of fifteen days' average pay WP(C) No. 15068 of 2010 -:10:- for every completed year of continuous service or any part thereof in excess of six months) is stated as complied with. It is also relevant to note that, by virtue of the non-obstante clause of 'Section 27J' of the Industrial Disputes Act, the provisions contained in Chapter VA (incorporating Section 25F and other provisions) shall have an 'overriding effect' over any other provisions of the Industrial Disputes Act or stipulations under any other statute. Since 'Clause 52' of Ext.R1(a) Certified Standing Order contemplates termination of service without enquiry, only subject to the satisfaction of Section 25F, in so far as the 2nd respondent does not have a case that they have satisfied the said condition, the termination is quite wrong and illegal in all respects. In the said facts and circumstances, this Court finds that the 'rider' placed by the 1st respondent in Ext.P4, ordering the leave period from 20.10.2006 to 31.03.2008, which was actually sanctioned as borne from Ext.P8, cannot result in any service break. 11. Obviously, the prayers raised in the writ petition call for the interference only to the said extent. In the said WP(C) No. 15068 of 2010 -:11:- circumstance Ext.P4, to the said extent it has ordered 'service break' for the period from 20.10.2006 to 31.03.2008, is set aside. The Writ Petition is allowed to the said extent. No costs. P.R.RAMACHANDRA MENON, JUDGE ttb