( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 625 OF 2002 1. The Superintending Engineer, Special Project Circle, Jalgaon. 2. The Executive Engineer (North) Division, Jalgaon. 3. The Executive Engineer, Public Works Division, Amalner, Dist. Jalgaon. 4. The Sub Divisional Engineer, Public Works Sub Division, Chopda, Tq. Chopda, Dist. Jalgaon. PETITIONERS VERSUS Sunil Jivan Salunkhe, R/o Dhar, Tal. Amalner, District Jalgaon. RESPONDENT ..... Mr. K.M. Suryawanshi, AGP for the petitioners. Mr. Sambhaji G. Munde, advocate holding for Mr. P.S. Patil, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 19th June, 2009] ORAL JUDGEMENT : 1. By this petition, the petitioners challenge judgement and order rendered by learned Judge of the Labour Court, Jalgaon in complaint (ULP) No. 153/1998. ( 2 ) 2. The respondent was employed as adhoc employee as Junior Clerk on compassionate ground, by order dated 7th October, 1993 on establishment of Public Works Department (North Division), Jalgaon. He was directed to comply with certain conditions including the condition to produce fitness certificate from competent District Civil Surgeon within period of three months, to pass the Departmental Examination within three years from date of joining, to pass the English typing examination within six months from the date of joining and further that the appointment was subject to appropriate character certificate received from the competent police authorities. The petitioner joined the duty as temporary staff member (Junior Clerk). He was placed in pay scale of Rs. 950-20-1150-25-1500. He was found absent since 3rd September, 1994 and did not report to the duty till 29th February, 1996. Still, however, he appeared on 29th February, 1996 alongwith a medical certificate and requested to permit him to resume the duty. The superior officer of the Public Works Department directed him to obtain counter signature of ( 3 ) the Civil Surgeon regarding the medical certificate for allowing him to join the duty. He did not comply with such directions. He was arrested in connection with murder of his wife who died on 6th July, 1996. He was suspended from duty by order dated 28th October, 1996. He did not produce the medical certificate counter- signed by the Civil Surgeon in order to justify his illness for the period between 3rd September, 1994 to 29th February, 1996. He remained suspended till his acquittal from the criminal case. He was acquitted by the Sessions Court on 30th September, 1997 of the murder charge. 3. The petitioners asserted that he was ready and willing to comply with the directions but was not given sufficient time to produce the medical certificate and to pass departmental examinations or typing examination. His services were terminated by letter dated 06-08-1998 issued by the Superintendent, Public Works Department. He alleged that he was terminated without following due process of law and thereby the petitioners committed breach of the provisions contained in section 25 (F) and ( 4 ) 25 (g) of the Industrial Disputes Act. He asserted that the persons who were junior to him have been retained in service, but he was shunted out illegally. He had continued for more than 240 days of work in each year and was entitled to continuation of the services. He, therefore, filed the complaint (ULP) case No. 153/1998 in the Labour Court. The learned Judge of the Labour Court came to the conclusion that the petitioners committed unfair labour practices within the meaning of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “the MRTU & PULP Act”). The Labour Court held that the termination of the respondent was quite illegal and the petitioners had indulged in unfair labour practices under Item 1 (a) (b) (d) (f) and (g) of Schedule-IV of the MRTU & PULP Act. The complaint application of the respondent was, therefore, allowed with direction that he shall be reinstated by taking affirmative action and on the condition that he shall comply with the conditions enumerated at serial Nos. 4 to 6 of the appointment letter. ( 5 ) 4. Heard learned AGP Mr. Suryawanshi for the petitioners. Mr. Munde, learned advocate holding for Mr. P.S. Patil, would submit that Mr. Patil has gone out of station due to some difficulties. He, therefore, seeks adjournment. The request is rejected. For, by order dated 08-04-2009, this petition was scheduled for hearing on 13-04-2009. The accommodation was granted and the date of hearing was scheduled by consent. On the given date, however, the learned counsel did not attend the matter and now also, without much reason, he is found absent. The petition is quite old one and need not wait any more for final disposal. 5. Before I proceed to consider the submissions of the learned AGP, it may be mentioned that the appointment of the respondent was purely on temporary basis and on compassionate ground. He was under obligation to comply with the conditions enumerated in the appointment letter. One of such conditions was that he shall pass the departmental examination within period of three (3) years in respect of Hindi and Marathi languages. He was required further to pass the English ( 6 ) and Marathi typing examination within period of six (6) months. Admittedly, he was working between 3rd September, 1994 and 29th February, 1996. During the above period, he did not comply with the terms of the appointment letter. He had not passed the typing examination as required. The requirement of necessary qualification was relaxed in case of the persons who were appointed on compassionate ground and they were given opportunity to qualify themselves within the given time-frame. In other words, due to failure to pass the required examinations, the respondent was ineligible to claim continuation of the appointment on the date on which he had again submitted application to permit him to join the duty i.e. On 29th February, 1996. Even so, he was directed to produce the counter-signed medical certificate in order to justify the reason for his absentia. The Maharashtra Civil Services (Leave) Rules, 1981 require certification of the Civil Surgeon for the grant of such long term leave. It is well settled that leave is not a right available to an employee. The respondent ought to have shown that leave was at his credit. Rule 33 of the Maharashtra Civil Services ( 7 ) (Leave) Rules, 1981 reads as follows : “33. – Production of medical certificate does not confer a right to leave which is not admissible. Every certificate of a Medical Board or a Medical Officer recommending the grant of leave to a Government servant must contain a proviso that no recommendation contained in it, shall be deemed to be evidence of a claim to any leave not admissible to the Government servant under the rules to which he is subject.” The supervisory officer may direct the Government servant to obtain the certificate from Civil Surgeon or the Medical Board, if the certificate is issued by any other medical practitioner. The grant of medical certificate by itself does not confer any right on the Government servant to claim leave not due. It need not be reiterated that the respondent was a temporary employee and had not demonstrated that leave was at his credit. Nor he could establish that the medical reason shown by him was genuine one. ( 8 ) 6. The respondent’s services were not terminated because of any stigma placed on him. The termination is due to non-compliance of the service conditions. The question of any unfair labour practice was not involved at all. For, the respondent had not completed the qualification test. His absence from the duty was also unjustified. He had not acquired any right to continue on the post without being duly qualified person. After the arrest, he was suspended from service by order dated 28-10-1996 and was not, therefore, on duty for more than 240 days preceding the year of termination. The learned Judge of the Labour Court failed to notice that the respondent was not on duty for more than 240 days after the absence from duty on 03-09-1994 till 29th February, 1996 and thereafter, from July, 1996, due to arrest and suspension till the acquittal in the month of September, 1997. The foremost requirement of his continuous service for more than 240 days in the preceding year of termination was not satisfied. The compassionate appointment could not be continued under the peculiar circumstances of the present case. For, the respondent was not appointed through regular recruitment process. ( 9 ) Nor he was qualified for the post due to his absence of having passed the typing test required for such appointment as Junior Clerk. The respondent has not filed any reply affidavit. The learned Judge of the Labour Court erroneously came to the conclusion that termination of the respondent was by way of victimization and not in good faith. This approach is quite perverse and improper. 7. Considering the foregoing reasons and having regard to the circumstances of the present case, I have no hesitation in holding that the impugned judgement and order rendered by the learned Judge of the Labour Court is quite unsustainable. The petition is, therefore, allowed. The impugned judgement and order stands quashed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP625-02 ( 10 )