Case: New India Assurance Co. Ltd Vs. Vipin Behari Lal Srivastava

reference to your letter of 31st ultimo. You are aware that no leave is due & we cannot grant you any further leave even without pay. You are, therefore, required to join your duty immediately, failing which we shall presume that you are no more interested in the job & we shall also presume that you have abandoned the job.Thanking you,Yours faithfully,Sd/-Sr. Divisional Manager" 7. A bare look at it shows that there was no condonation of the absence without leave as held by the High Court. On the contrary, it was clearly indicated that no leave was due and even leave without pay cannot be granted. Therefore, direction was given to join back immediately failing which certain presumptions were to be drawn as noted above. 8. The case of the appellant was really not of abandonment but of an unauthorized absence. 9. The Rules governing "leave" read as follows "(1) General Principles Governing Grant of Leave:The following general principle shall govern the grant of leave to the employees:(a) Leave cannot be claimed as a matter of right.(b) Leave shall be availed of only after sanction by the competent authority, but one days casual leave may be availed of without prior sanction in case of unforeseen emergency, provided the head of the office is promptly advised of the circumstances under which prior sanction could not be obtained."(4) Sick Leave:(c) Sick Leave can be granted to an employee only on production of a medical certificate from a Registered Medical Practitioner, which term would include Homeopathic, Ayurvedic and Unani doctor also provided they are registered medical practitioners.(d) The certificate should state as clearly as possible the diagnosis and probable duration of treatment." 10. As noted above, sick leave can be granted only on the production of a medical certificate from a Registered Medical Practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 3.8.1994. The charges against the respondent, inter alia, were as follows: "(i) willful insubordination and disobedience of lawful and reasonable orders of his superiors(ii) absence without leave, without sufficient grounds or proper or satisfactory explanation(iii) absence from his appointed place of work without permission or sufficient cause" 11. In Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] this Court, inter alia, observed as follows: "14. What fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates.18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyers notice categorically stated that the workman had been carrying on some business elsewhere.19. We cannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartite settlement.20. It may be true that in a case of this nature, the principles of natural justice were required to be complied with the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of natural justice." 12. In view of the factual position, when tested on the touchstone of the principles of law and governing rules, the inevitable conclusion is that the impugned order of the High Court passed by the learned Single Judge dismissing the writ petition, i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006 cannot be sustained and is set aside. The order passed by the departmental authorities directing removal of the respondent from service is maintained.13.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]leave can be granted only on the production of a medical certificate from a Registered Medical Practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 3.8.1994. The charges against the respondent, inter alia, were aswillful insubordination and disobedience of lawful and reasonable orders of his superiors(ii) absence without leave, without sufficient grounds or proper or satisfactory explanation(iii) absence from his appointed place of work without permission or sufficientViveka Nand Sethi Vs. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337]  this Court, inter alia, observed asWhat fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medicalsending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyers notice categorically stated that the workman had been carrying on some businesscannot accept the submission of Mr. Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartitemay be true that in a case of this nature, the principles of natural justice were required to be complied with the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of naturalview of the factual position, when tested on the touchstone of the principles of law and governing rules, the inevitable conclusion is that the impugned order of the High Court passed by the learned Single Judge dismissing the writ petition, i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006 cannot be sustained and is set aside. The order passed by the departmental authorities directing removal of the respondent from service is maintained.