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

The respondent was working as a permanent typist at the Allahabad branch of the appellant-New India Assurance Co. Ltd. Alleging that he had unauthorizedly remained absent for more than 600 days, a charge sheet was issued. An Enquiry Officer was appointed and after completion of enquiry and on consideration of the enquiry report, the respondent was removed from service by order dated 15.6.1985. Thereafter, a dispute was raised and the reference was made, as noted above. The Tribunal came to hold that during the period in question, i.e., 25.9.1982 to 5.6.1984, the respondent was suffering from Tuberculosis and he had applied for medical leave and since the management did not pass any order on his leave applications, the concerned workman cannot be held responsible and, therefore, he was not absent unauthorizedly from duty. Accordingly, the order of removal was set aside and order was passed directing reinstatement with full back wages and consequential benefits including continuity of service. The same was challenged before the High Court. By the impugned order, the High Court observed that though the respondent had remained absent, his absence with leave stood condoned by virtue of the letter dated 3.8.1984 issued by the Branch Manager of the appellant Company by which the respondent was called back to work. It was further observed that the Tribunal had also recorded that the management did not pass any order on the leave application and, therefore, it had to be implied that leave had been sanctioned. But it was noted that by virtue of a stay order passed in a writ petition, the proceedings before the Tribunal had remained stayed for about six years and, therefore, the respondent was not entitled to back wages for the whole period, but was entitled from 28.1.1998 i.e. from the date of the award. A Letters Patent Appeal was filed before the Division Bench of the High Court which dismissed holding the same to be not maintainable.

Reasoning: 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.