410 SJ 9 CWP No13535 of 2008 1 1 IN THE HIGH COURT OF PUNJAB 8 HARYANA CHANDIGARH CWP No13535 of 2008 Date ofdecisionl December 1 2009 G D Goyal Petitioner Versus The PresidingOfficer Central Govt Industrial TribunalmeLabour 1 Courtmii UT Chandigarh CC Respondents 0 CORAMl HONBLE MRIUSTICE KANNAN C Presentl Mr R K Gautam Advocte I for the petitioner C5 I Mr TribhuwanSinglaAdvocate for respondentNo Z kk C 1 VVhetherreportersof Iocal newspapers may be allowed to see thejudgment7 I 2 To be referredto the reporters or not7 a5 3 VVhetherthejudgmentshould be reportedin the digest2 Rkek 7 Z KKannan tl 1 The short pointthat arises for consideration is whether the Labour Court was justifiedin findingthat the workman had by his conduct forefeited his right to remain in service and rejectedthe referencewhich was soughthrougha ciaim for reinstatement 2 The petitionerhad been appointedas a Clerke cumShroff againsta regularpost and postedat the branch oHice at Ludhianale had been a persistentabsentee from the years 1992 and he had been warnted by the Managementthat he should devote attentionto the recurrent absence and mend his ways AIthoughhe was allegedto be absent from the year 1992 suffice it for consideration the absence that allegedlytook placein the year 1993 that ultimatelyresulted the service Parkash Om 2014.02.21 14: 48 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 411 0 r CWP No13535 of 2008 2 from beingterminated On 41 1 1993 the Management sent a Ietter to the workmandrawinghis attentionto the fact that he had been persistentiy absent from 4 11 1993 callingupon him to resume dutywithin 30 daysor submitsatisfactoryexplanationwithin 30 daysfrom the date of receiiptof the notice The workman reportedfor dutyon 221 1 1993 that was withina periodof 30 days He explainedhis conduct of absence by reference to 1 Ieave Iettersallegedto have been sent by him but without accompanying 0 themwith medical certificates althoughthe Ieave had been purportedto C havebeen taken for sickness The resumption of dutysince 22 11 393 did c not Iastfor longand the Managementagainissued a notice on 10712993 I that he had been absent again from 1 1993 As his Z absence was persistingtiii 28121 993 the workman had been served with e yet another notice on 281 993 reminding him of the fact that he had been C continuouslyabsent and directinghim to reportfor dutywithin 30 days I 08 the workman respondedto the notice by reportingfor dutyon 2121994 but the workman compiainedthat he was deliberatelynot 7 ailowed by the Managementto resume duty on the groundthat the Z Managerhad stated that he would not be permittedto rejoinwithout apprisingthe higherIevel Managementand securingtheir consent The Managementcomplainedthat the workman had never reportedfor dutyas contended by him and issued a notice on 16 1994 which notice in turn referred to an allegedearlier notice on 21 1 1994 that owingto his persistentabsence his services were beingterminatedin terms of clause 17 clofthe bipartitesettlementdated 1 4 1989 Since the terminationhas been broughtabout by reference to caluse 17 cl it is necessary to examine whether facts and circumstances existed for the Management to relyon the said clause for termination 3 Ciause 17 of the bipartiteSettlement deals with voluntarycessation of employmentby employeesClause al operatestn Parkash Om 2014.02.21 14: 48 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 412 0 CWP No13535 of 2008 3 a case where the employeeis absent for 11 daysor more consecutive dayswhen the Managementis expectedto give a notice givinghim 30 daystime for reportingfor duty If he shall so reponhe shall be permitted to join without preJudice to the Banks rightto take any action under Iaw or rules of service Clause 17 sub clause 01contemplates a situtationwhere the workman on beingserved with notice for beingabsent for a periodof a tr 150 consecutive dayswithout submitting any applicationfor Ieave resumes 0 service after notice This action providesfor a reprievefor the workman 0 againstterminationif the employeesubmits a replyand reports 9 for dutywithin30 days Section 17 clwhichis invoked reads as underl I cllf an employeeagainabsents himself within a period of 30 days without submittingany Z applicationafter reportingfor dutyin response to 2 the notice given after 90 days or 150 days absence as the case may be the second notice I shall be given after 30 days of such absence 08 givinghim 30 daystime to report If he reportsIn responseto the second notice but absents V himself a thirdtime from dutywithina periodof 30 Z dayswithoutapplicationhis name shall be struck Cls off from the establishment after 30 daysofsuch absence under intimation to him by registered post deemingthat he has voluntarilyvacated his appointment Il 4 Itstates that the workman who resumes dutyafter noticescould avail to his benefit such resumption but on the thirdtime also if he is absent and does not resume his name shail be struck off from the establishment after 30 days In this case have alreadyoutlined the instances when the first notice was issued on 41 1993 and the second notice had been issued on 101 2 1993 alongwith notice dated 281 1993 on the groundthat notice date 101 2 1993 could not be served The third notice itself is not exhibited as evidence but assignedas Mark M2 since Parkash Om 2014.02.21 14: 48 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 413 0 r CWP No13535 of2008 4 l onlya copy had been filed with no proofof service This is referredto in the ultimate order of terminationdated 16 1994 which the workman had been contendingthat he had not been served with a notice and on the other hand contended that he was not allowed to joinalthoughhe reponed for duty The Labour Court did not specificaliyconsider whether the notice dated2111994 had infact been issued or not Ifthe terminationwas to be m effective by virtue of the clause 17cl without proofof the notice dated 0 211994 it shall not be possiblefor the Management to contend that the C termination was validlyeffected I C5 5 Learned counset for the petitionerhas relied I extensively on judgmentsof the Honble SupremeCourt and of thIsCourt Z as to how ruies of naturaijusticeshail have to be read intoclause providing for automaticterminationof setvice The issue is not merelywhether there r1 was any enquiryto be conducted beforeterminating the setvices when the I 08 misconduct of absence withoutdue sanction is to be treated as resulting Irl cessation of service There is no escape from the view that unless the I7 particulargroundis specificallyprovedit cannot result in valid termination Z Ultimately there was no enquirypriorto the terminationof service eHected tl on 16 1994 6 To the workmans contention that the Managementhad not deliberatelyallowed him to rejointhe duty the answer by the Managementwas that after he was served with notice of terminationof service on 161 994 the workman had not challengedthe order within any reasonable time and a demand notice issued on 15 10 1997 more than three years after the termination Under normal circumstances1would have been inclined to refer the case to the Labour Court again for consideration whether the notice dated 21 1 1994 had reallybeen issued and whether the reference to it in the notice dated 161 994 was oniy an after thoughtand or whether it was a genuine Parkash Om 2014.02.21 14: 48 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 414 0 r CWP No3535 of2008 5 document The notice dated 21 11994 was indeed the Iinchpinon which thevalidityof the order of terminationwould revolve However I do not feel it necessary to undenake such a course for admittedlyby that time when the workman had issued a demand notice on 151 01 997 it was a case where the workman had actuallyremained absent for more than three yearsThis absence was a reguiarfeature and duringthe entire period between 1141 993 to 161994 it could be seen that the workmanhad 0 workedonlyfor short duration from 221 1 1993to 9121993 and during C the remainingperiodshe had been givingsome false excuse or the other I 9 A Iongabsence as such from 11 1993 to 221 1 1993 was explinedwith Iame excuses Iike he had submitted the Ieave appiicationsthat he was Z unwell but he had no medical certificatesto substantiatethe same Again afler he resumed on 2211 1993 he was attendingto duty only upto r 812 1993 and again remained absent from 9 12 1993 onwards The so called willingnessto resume duty Orl 2121994 or a day earlier on oll 202 1994 have not been in any way substantiated If he was really 7 preventedfrom joining duty there was no reason why he has not Z complainedof the same till when a demand notice was issued nearlymore 0m than threeyears Iater The conduct of the workman had been such that he does not deserve considerationfor reinstatement The terminationthat has resulted shall stayand notice issued more than three years althoughnot barred by Iimitation must be taken to be a circumstance when the discretionary jurisdictionof this Court shali not be exercisecl The writ petitionshall therefore be dismissed No costs 1F eole IK KANNANI 01NeG75 JUDGE December 1 2009 z12J1 archana SvpelA A Parkash Om 2014.02.21 14: 48 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document