High Court
Case Details
WP(C) 2877/2006 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER The legality of the Award dated 20-12-2005 passed by the Industrial Trib 1. unal, Silchar in Reference Case No. 6 of 1995 directing the petitioner-Corporati on to reinstate the respondent No. 1 to his former post with full back wages, is called into question in this writ petition. 2. The petitioner is a Corporation and a Government of India Undertaking, h aving its registered office at South Tower (4th Floor) Scope Minar Complex, Laxm inagar District Centre, New Delhi. The Corporation set up two units in Assam, na mely, Nagaon Paper Mill (NP),which started its production in 1985 and, the petit ioner No. 2, namely, Cachar Paper Mill (CPM) which started production in 1988. T he Corporation is engaged in the manufacture and sale of various varieties of pa per and newsprints and a small quantity of caustic soda and chlorine. The respon dent was the workman of the petitioner No. 2, who was appointed as unskilled wor ker on 1-3-1986 in lieu of the acquisition of the land of his father by the Corp oration for establishment of the unit. According to the petitioner-Corporation, the respondent No. 1 became habitual unauthorized absentee from 4-4-1988 to 24-2 -1989 i.e. for a period of 385 days. However, on his written assurance that he w as ready to face any action against him if he repeated his habitual absenteeism, his case was sympathetically considered by the petitioner, and he was according ly given fresh appointment on 24-4-1989. Unfortunately, he again unauthorizedly absent from duty from 31-7-1989 to 10-7-1990, for a period of 211 days from 27-1 0-1990 to 28-2-1991 i.e. for a period of 102 days and thereafter from 19-3-1991 onwards. This compelled the petitioners to strike off the name of the respondent No. 1 from the roll of the company till the date of his termination. The respon dent No. 1 was thereafter given an opportunity to explain his absence from duty. When he neither gave satisfactory explanation nor resumed his duty, the petitio ners, therefore, presumed that the respondent No. 1 had voluntarily abandoned hi s service and accordingly informed him vide the letter dated 9-10-1991 that his name had been struck off in accordance with the provisions of the Certified Stan dings Orders.
Facts
3. Aggrieved by termination of his service, the petitioner approached this Court in Civil Rule No. 1156/93, and this Court by the order dated 29-6-1994 ref erred the matter for conciliation before the Labour Court or Tribunal as the wri t petition involved an industrial dispute. It was further directed therein that in the event of failure of the conciliation process, the Labour Officer, Hailaka ndi should make a report to the State Government within two months from the date of complaint and the State Government should thereafter pass appropriate order under the Industrial Disputes Act, 1947 ( (cid:28)the Act (cid:29) for short) for referring the dispute to the Labour Court or the Industrial Tribunal as the case may be. In pu rsuance of the said order, the dispute was referred to the Labour Officer, Haila kandi for conciliation and when the conciliation process failed, the dispute was eventually referred to the Industrial Tribunal, Silchar ( (cid:28)the Tribunal (cid:29)) under Section 10 of the Act for adjudication. Though the Tribunal, after hearing the p arties, came to the conclusion that though the Management was not at fault in di smissing the respondent No. 1 from service, it nevertheless, passed the award da ted 18-12-1998 directing the petitioners to give fresh appointment to the respon dent No. 1 together with 1/4th of his back wages to be calculated from 13-4-1991 . 4. Aggrieved thereby, the petitioners filed WP(C) No. 3317/99 before this Court questioning the legality of the award dated 18-12-1998. The respondent No. 1 also filed WP(C) No. 1939/99 before this Court praying for full back wages. T his Court by a common judgment and order bearing dated 26-2-2004 disposed of the two writ petitions by directing the Tribunal to hold a de novo adjudication of Reference Case No. 6/95 after hearing both the parties. The Tribunal again condu cted the de novo trial and, after hearing the parties, passed the award dated 20 -12-2005 directing the petitioners to reinstate the respondent No. 1 to his serv ice forthwith with full back wages and that if they found him to be incapable of performing his duty due to physical disablement, it would be open to them to re lieve him from service after his reinstatement in accordance with the establishe d procedure provided for in the Certified Standing Order of the Corporation. Dis satisfied with this award, the petitioners initiated this round of litigation to question the legality thereof. While passing the impugned award, the Tribunal recorded the findings fro 5. m the evidence of MW 1 that the evidence adduced by the management is not worthy of belief inasmuch as there was no evidence to substantiate the charge that the respondent No. 1 was very irregular in attending his duties since after or befo re his re-employment and that statement of this witness that the petitioners iss ued several show cause notices upon the respondent No. 1 in the year 1988, 1989, 1990 and 1991 is not proved by supporting documents: such self-serving statemen t cannot absolved them of their duty to proving proper service of those show cau se notices. On the contrary, the Tribunal took the view that the respondent No. 1 has been able to establish by leading oral and documentary evidence that after his appointment as unskilled worker at HPC, Panchingram, he fell ill due to rhe umatic fever, which prevented him from attending his duty; that when the petitio ners resumed his duty after his fresh appointment, he fell ill again and had bee n undergoing treatment at different hospitals including the departmental hospita l of H.P.C. from 28-12-90 to 12-12-1991 and from 19-03-91 to 12-4-91 and he appl ied leave for those days by sending petition to the management of H.P.C. and aft er recovering from his ailment, he visited the office of the H.P.C. with medical fitness certificate marked Ext. 4 and 5, but the Senior Manager did not allow h im to join his services: he was rather issued show cause notice but even after s ubmission of Ext. 9 his show cause, he was not allowed to resume his duty and th at the Senior Manager, on the contrary, issued the impugned order dismissing him from service. According to the Tribunal, as the management has failed to rebut the aforesaid evidence adduced by the respondent No. 1, it could be safely concl uded that the impugned dismissal order is illegal, mala fide and contrary to law . The Tribunal further took the view that the management, after receiving show c ause from the respondent No. 1, ought to have conducted a departmental or domest ic enquiry by affording him reasonable opportunity of hearing. It was on the bas is of the aforesaid findings that the Tribunal passed the impugned order reinsta ting the respondent No. 1 to service with full back wages but by giving liberty to the petitioners to relieve him from after his reinstatement in accordance wit h the Certified Standing Order of the Corporation. 6. Clause 21 of the Standing Orders of Nagaland Pulp & Paper Co. Ltd., whic h is admittedly applicable to the petitioners, deals with absence without leave and reads thus: (cid:28)21. Absent Without Leave (i) An employee shall not absent himself without leave. If any employee rema ins absent without prior permission, he will be marked absent in the attendance register and it will render him liable to disciplinary action. (ii) Absence without leave for more than eight days will be treated as volunt ary abandonment of service without formal notice. The name of such employee will be struck off from the rolls of the Company. 7. In the instant case, we are concerned with abandonment of service, which is dealt with by sub-clause (ii) of Clause 21 of the Standing Orders. There is no definition of the term (cid:28)abandonment of service (cid:29). The term came up for conside ration before a three-Judge Bench of the Apex Court in GT Lad and ors. V. Chemic al and Fibres of India Ltd., AIR 1979 SC 582 and the decision is found at para 6 , 7 and 8 of the judgment, which read thus: (cid:28)6. Re. Question No. 1: In the Act, we do not find any definition of the express ion ’abandonment of service’. In the absence of any clue as to the meaning of th e said expression, we have to depend on the meaning assigned to it in the dictio nary of English language. In the unbridled edition of the Random House Dictionar y, the word ’abandon’ has been explained as meaning ’to leave completely and fin ally; forsake utterly; to relinquish, renounce; to give up all concern in someth ing’. According to the Dictionary of English Law by Earl Jowitt (1959 edition) ’ abandonment’ means ’relinquishment of an interest or claim’. According to Black’ s Law Dictionary ’abandonment’ when used in relation to an office means ’volunta ry relinquishment’. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertainin g to the office must be with actual or imputed intention, on the part of the off icer to abandon and relinquish the office. The intention may be inferred from th e acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an abandonment of office’. 7. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indica te an intention not to resume the same. In Buckingham Co. v. Venkatiah and ors. MANU/SC/0163/1963: (1963) IILLJ638SC it was observed by this Court that under co mmon law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding ci rcumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquish ment of service is always a question of intention, and normally, such intention cannot be attributed to an employee without adequate evidence in that behalf. Th us, whether there has been voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstance s of the case. 8. Re.-Question 2: This takes us to the consideration of the second question, na mely, whether in the circumstances of the instant case, it could be said that th e appellants had voluntarily abandoned the service of the Company. It may be rec alled that the appellants had along with 229 other workmen gone on indefinite st rike which ended on October 22, 1972 in response to the strike notice by the uni on to the company to press its demand for reinstatement of its three dismissed l eaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the Company that they did not intend to aban don the service but had also returned the cheques sent to them by the company on account of their leave salary gratuity, etc. The appellants’ stand that the let ter of the Company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the Company in the correspo ndence that passed between the parties. Thus, there was nothing in the surroundi ng circumstances or the conduct of the appellants indicating or suggesting an in tention on their part to abandon service which in view of the ration of Gopal Ch andra Mishra’s case MANU/SC/0370/1978: (1978)ILLJ1492SC, can be legitimately sai d to mean detach, unfasten, undo or untie the binding knot or link which holds o
Legal Reasoning
ne to the office and the obligations and privileges that go with it. Their absen ce from duty was purely temporary and could by no stretch of imagination be cons trued as voluntary abandonment by them of the Company’s service. In Express News paper (P) Limited v. Michael Mark and anr. MANU/SC/0264/1962: (1962)IILLJ220SC w hich is on all fours with the present case, it was held that if the employees ab sent from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also th e appellant’s absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of s ervice on the part of the appellants. (cid:29) 8. In other words, there has to be an intentional or willful relinquishment or abandonment of service on the part of the absentee employee so as to constit ute abandonment of service. In this connection, the following observations of th e Apex Court in Krushnakant B. Parmar v. Union of India and anr., (2012) 3 SCC 1 78, though rendered in the context of service law, will equally clarify the posi tion: (cid:28)16. In the case of the appellant referring to unauthorised absence the dis ciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a a government servant. The question whether (cid:28)unauth orised absence from duty (cid:29) amounts to failure of devotion to duty or behaviour un becoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which i t was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amoun t to unauthorised absence, but it does not always mean willful. There may be dif ferent eventualities due to which an employee may abstain from duty, including c ompelling circumstances beyond his control like illness, accident, hospitalisati on, etc., but in such case the employee cannot be held guilty of failure of devo tion to duty or behaviour unbecoming of a government servant. (cid:29) 18. In a departmental proceeding, if allegation of unauthorised absence fr om duty is made, the disciplinary authority is required to prove that the absenc e is wilful, in the absence of such finding, the absence will not amount to misc onduct. (cid:29) (Underlined for emphasis) 9. In the case at hand, while passing the impugned award, the Tribunal reco rded the findings from the evidence of MW 1 that the evidence adduced by the man agement is not worthy of belief inasmuch as there was no evidence to substantiat e the charge that the respondent No. 1 was very irregular in attending his dutie s since after or before his re-employment and that the statement of this witness that the petitioners issued several show cause notices upon the respondent No. 1 in the year 1988, 1989, 1990 and 1991 is not proved by supporting documents: t he management could not produce copies of such show cause notices purported to h ave been issued to the respondent No. 1. The Tribunal further held that merely b ecause the management had stated that show cause notices were issued upon the re spondent No. 1 could not absolve them of their duty of proving the factum of ser vice of such show cause notices upon the respondent No. 1 and that if the statem ent of MW 1 is discarded on the ground that he could not substantiate his case, the management has miserably failed to refute and rebut the evidence led by the respondent No. 1 and the documents exhibited by him. 10. On the contrary, the Tribunal took the view that the respondent No. 1 h as been able to establish by leading oral and documentary evidence that after hi s appointment as unskilled worker at HPC, Panchingram, he fell ill due to rheuma tic fever, which prevented him from attending his duty; that when the petitioner s resumed his duty after his fresh appointment, he fell ill again and had been u ndergoing treatment at different hospitals including the departmental hospital o f H.P.C. from 28-12-90 to 12-12-1991 and from 19-03-91 to 12-4-91 and he applied leave for those days by sending petition to the management of H.P.C. and after recovering from his ailment, he visited the office of the H.P.C. with medical fi tness certificate marked Ext. 4 and 5, but the Senior Manager did not allow him to join his services: he was rather issued show cause notice but even after subm ission of Ext. 9 his show cause, he was not allowed to resume his duty and that the Senior Manager, on the contrary, issued the impugned order dismissing him fr om service. According to the Tribunal, as the management has failed to rebut the aforesaid evidence adduced by the respondent No. 1, it could be safely conclude d that the impugned dismissal order is illegal, mala fide and contrary to law. T he Tribunal further took the view that the management, after receiving show caus e from the respondent No. 1, ought to have conducted a departmental or domestic enquiry by affording him reasonable opportunity of hearing. It was on the basis of the aforesaid findings that the Tribunal passed the impugned order reinstatin g the respondent No. 1 to service with full back wages but by giving liberty to the petitioners to relieve him from after his reinstatement in accordance with t he Certified Standing Order of the Corporation. 11. In my judgment, the aforesaid findings of the Tribunal do not suffer fro m any infirmity: on the contrary, those findings are based on evidence. The resp ondent No. 1 was admittedly, suffering from rheumatic fever and had undergone tr eatment at the departmental Hospital of Cachar Paper Mill from 1-3-91 to 12-4-91 , for which he sent leave application to the management of H.P.C., and after rec overing from his ailments, he visited his office with medical fitness certificat es, but he was not allowed to join his service. Then one thing led to another wh ereafter the impugned order of removal was issued. In my judgment, the absence o f the respondent from duty under the aforesaid proved facts cannot be held to be willful absence or abandonment of service: his absence was rather due to illnes s and, therefore, occasioned by circumstances beyond his control. The Tribunal d id not commit any error of law or jurisdictional error in deciding the case agai nst the petitioner-Corporation. The next question to be determined is whether th e respondent is entitled to back wages. A number of decisions have been cited at the bar by counsel appearing for the rival parties. Suffice it to say that the principle of ’no work, no pay’ cannot entirely apply in this case inasmuch as th e respondent was wrongfully removed from service as indicated earlier. Neverthel ess, on considering the totality of the facts in this case and also of the diffi culty being faced by the petitioner-Corporation, it will not be equitable to sad dle them with the entire back wages either. Under the circumstances, by striking a balance between the interests of the Corporation and the respondent No. 1, I decide to give back wages to the respondent No. 1 only with effect from 20-12-20 05 when the impugned award was passed by the Tribunal. 12. There is, however, another aspect of the matter which cannot be overloo ked in this case. Therefore, the last question which falls for consideration now is the type of reinstatement, which can be ordered on the admitted position of the parties that the respondent No. 1 is paralytic patient (and he had remained absent from duty since the date of his fresh appointment).? See para 17 of the w rit petition. In this context, it may be apposite to refer to Section 47(1) of P ersons with Disabilities (Equal Opportunities, Protection of Rights and Full Par ticipation) Act, 1995 ( (cid:28)the Act (cid:29) for short), which is in the following terms: (cid:28)47. Non-discrimination in Government employment.? (1) No establishment shal l dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitabl e for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee again st any post, he may be kept on a supernumery post until a suitable post is avail able or he attains the age of superannuation, whichever is earlier. * * * (cid:28) 13. As the petitioner-Corporation has admitted inparagraph 17 of their writ petition, there can be no dispute that the respondent No. 1 is a person with di sability. Section 2(t) of the Act defines the term (cid:28)person with disability (cid:29) to m ean a person suffering from not less than forty per cent of any disability as ce rtified by a medical authority. In my considered view, on considering the admiss ion made by the petitioner-Corporation in their writ petition and keeping in min d the definition of (cid:28)person with disability (cid:29) adumbrated above, there is presumpt ion, or, at any rate, rebuttable presumption, that the respondent No. 1 comes wi thin the purview of the definition. In fact, I have a sneaking suspicion that th is disability must have at the first instance prompted the petitioner-Corporatio n to remove him from service. Consequently, the petitioner-Corporation, while re instating the respondent No. 1 to his former post, shall follow the provisions o f Section 47 of the Act. It is, however, vehemently argued by the learned for th e petitioner-Corporation that there can be no presumption of disability to the e xtent of forty per cent so as to automatically entitle the respondent No. 1 of b enefit of the Act and that the question of reinstatement of the respondent No. 1 to his post should be preceded by his examination by an approved Medical Board on the extent of his disability. There is force in the contention of the learned counsel for the petitioner-Corporation. No other issue survives for considerati on. For what has been stated in the foregoing, this writ petition is allowe 14. d with the following directions: (a) The petitioner-Corporation is directed to refer the respondent No. 1 bef ore an approved Medical Board to examine the extent of his disability, and if th e Medical Board finds the petitioner to be suffering from not less than forty pe r cent disability, the petitioner-Corporation shall thereafter act in accordance with the provisos to Section 47(1) of the Act. (b) For enabling the petitioner-Corporation to facilitate the medical examin ation, the respondent No. 1 is directed to approach the petitioner No. 2 represe nted by the Manager (Legal), HPC within two weeks from the date of receipt of th is judgment and on his appearance, the petitioner No. 2 shall cause the medical examination, without any delay. (c) If the Medical Board determines that the respondent No. 1 is a person wi th disability as defined by the Act, the petitioners shall reinstate the respond ent No. 1 in accordance with the provisos to Section 47(1) of the Act. (d) he back wages due with effect from 20-12-2005 to the respondent No. 1. The entire exercise shall be carried out by the petitioners within a per (e) iod of two months from the date of receipt of the certified copy of this judgmen t, which shall be furnished to them by the respondent No. 1. (f) (g) The parties are, however, directed to bear their respective costs. Transmit the L.C. record forthwith. On his reinstatement as indicated above, the petitioners shall pay all t