IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 14576 of 1991. Date of Decision : February 06, 2009. Swarn Singh .... Petitioner. Versus. The Presiding Officer and others . ...Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. A.S. Klar, Advocate, for Mr. Vikas Singh, Advocate, for the petitioner. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 15.01.1991 (Annexure-P-3), vide which the reference has been answered against the workman holding that the termination of the workman was in accordance with law. Counsel for the petitioner contends that although the Labour Court has given a categoric finding that the inquiry proceedings initiated against the workman was not in accordance with law but still the Court has proceeded to decide the claim of the workman against him. He contends that the petitioner had initially sought permission from the respondents for leave to go to West Germany from 04.06.1980 to 03.12.1980 and thereafter from there he had sought extension for leave from 04.12.1980 to 03.05.1981 which was sanctioned on 17.12.1980. Thereafter, again an extension from 04.05.1981 to 04.11.1981 was prayed for and the said sanction was not C.W.P. No. 14576 of 1991. granted rather departmental proceedings were initiated against him and the notices and a chargesheet were issued at an address in New Delhi when the department was aware that he had sought permission to go to West Germany and therefore, he was not in India. The departmental proceedings were merely an eye wash. He contends that since earlier sanction dated 17.12.1980 was not conveyed to him, therefore, while he had submitted his further application for extension of leave from 04.05.1981 to 04.11.1981, he had proceeded on the assumption that the said leave would have been granted to him by the department. I have gone through the award passed by the Labour Court which has been impugned herein. A perusal of the award would show that the proceedings against the workman has been held to be illegal by the Labour Court and has therefore, exercising its power under Section 11-A of the Industrial Disputes Act given an option to the respondent-management to prove the charges against the petitioner-workman. While considering this aspect and on the basis of the evidence produced by the respondent- management, the Court has come to the conclusion that the petitioner- workman has absented himself from duty. This conclusion has been drawn by the Labour Court on the basis of the fact that the petitioner-workman has sought extension of his leave from 04.05.1981 to 04.11.1981 which application was received in the office of respondent-Management on 07.07.1981 after a delay of two months from the date of expiry of earlier leave. This shows that the petitioner-workman was not vigilant enough to seek extension of his leave. Further as per Rule 41 of the Pepsu Road Transport Corporation (Conditions of Appointment and Service Regulations, 1981) in clause (i) and (iii) whereof, it is clearly mentioned that if a -2- C.W.P. No. 14576 of 1991. workman desires extension of the original sanctioned leave or of subsequently extended leave, he shall make an application in writing to the competent authority stating specific reasons for such extension and shall submit it at least two days in advance on the expiry of the leave period and shall also mention therein the address of communication during the period of leave. The Labour Court on the basis of those applications for extension of leave which have been submitted by the petitioner-workman has found, as a matter of fact, that no address for communication with the petitioner in West Germany was incorporated therein. It is an admitted position that the petitioner-workman was in West Germany and continued to stay there despite of his not having been communicated that the sanction has not been granted. He proceeded on the assumption and over stayed in Germany only on assumption that since he was earlier not communicated the sanction, therefore, the present extension in leave would have been granted by the respondents. This explanation put forth by the petitioner-workman cannot be accepted in the light of the fact that for availing leave prior approval of competent authority is a must. You simply cannot post an application for leave and draw a presumption that the same stands sanctioned. The requirement of law and of the rules is the prior sanction of leave which is quite evident from the requirement of Rule 41(i) and (iii) of the Pepsu Road Transport Corporation (Conditions of Appointment and Service Regulations, 1981) which mandates that application for extension of leave should reach to the officer at least two days in advance on the expiry of leave period. Counsel for the petitioner contends that the respondent- management has not produced the registered letters and envelopes vide which he had sought extension of leave, and therefore, the best evidence -3- C.W.P. No. 14576 of 1991. which was available with the respondent-management to prove that the said application has not reached them on time has been withheld. On a query been put by the Court as to whether any request for production of those envelopes was ever made to the Court, the answer which has come from counsel for the petitioner is in negative. That being so, it cannot be said that the said envelopes have been withheld by the respondent-management. The next contention which has been put forth by counsel for the petitioner is that the principle of natural justice has not been complied with as he has not been given an opportunity to explain his position with regard to his overstay in West Germany. For this he relies upon the Judgment of Hon'ble the Supreme Court in case of “Jai Shankar Versus State of Rajasthan, A.I.R. 1966 S.C. 492. The proposition as put forth in the said judgment cannot be disputed but in the present case after holding by the Labour Court that the departmental proceedings initiated against the petitioner-workman was not in accordance with law. It was open to the petitioner-workman to produce all his evidence and put forth his explanation with regard to overstay in West Germany without the sanction of leave but the petitioner-workman has failed to explain that, leading to the finding coming against him. Therefore, this judgment would not be applicable to the present case. In view of the above, no merit is found in this writ petition and therefore, the same is hereby dismissed. (AUGUSTINE GEORGE MASIH) JUDGE February 06, 2009. sjks. -4- C.W.P. No. 14576 of 1991. Descendant -5-