High Court · 2012

(cid:28)1. Whether the Management of M/S French Motor Car Co. Ltd. is justified by not regularized the Medical leave of Shri C.D. Banerjee and not allow him to sign in the attendance register to perform his duty.

2. If not, that the said workman is entitled for reinstatement in his part with all back wages and back benefits or any other relief in lieu thereof. (cid:29)

3. The fact as could be gathered from the impugned award itself are that wh ile the workman/writ petitioner was serving in the respondent company as Junior Officer he had suffered from illness with effect from 3.4.1999 as consequence of which he could not attend office from 5.4.1999 onwards. According to the workma n, although he had recovered from the particular illness, he again suffered from another illness from 18.5.1999 and had to be admitted at ESI Hospital. It was o nly in the 3rd week of June, 1999 he fully recovered from all the diseases and j oined duty on 21.6.1999 after a gap of 75 days. While started attending office r egularly, he found that his signatures were struck off from the attendance regis ter and thereafter he received a letter dated 26.6.1999 from the Management aski ng him to abstain from putting his signature in the attendance register from 27. 6.1999 till a decision regarding his leave status was arrived at by the Manageme nt. Although the workman submitted representation on 1.7.1999 followed by anothe r one on 22.7.1999 seeking an early settlement of the matter, but he was not all owed to sign the attendance register.

4. According to the workman, he was asked by the Management to tender writt en apology for his absence from duty and on refusal to do so, he was not allowed to sign the attendance register. Amidst the aforesaid development, the workman/ writ petitioner raised a conciliation proceeding in September, 1999. The concili ation having failed, an industrial dispute was raised and the Government in the Labour Department referred the dispute to the learned Labour Court under the afo resaid reference. On receipt of notices from the learned Labour Court, both the parties ap 5. peared and submitted their respective written statement. Both the parties examin ed one witness each. On completion of the proceeding, the learned Labour Court p assed the impugned award dated 18.6.2003 holding that the workman/writ petitione r would have entitled to leave salary for the period from 5.4.1999 to 3.5.1999 a nd from 18.5.1999 to 20.6.1999. It has further been held that the petitioner is not entitled to leave salary for the period from 4.5.1999 to 17.5.1999 and that he would be entitled to back wages and back benefits from 21.6.1999 to 30.6.1999 , but not entitled to any back wages and back benefits thereafter.

6. According to the petitioner, the aforesaid finding of the learned Labour Court depriving the petitioner from the admissible leave and salary for the per iod from 1.7.1999 to the date of the award i.e. 18.6.2003 is illegal and contrar y to the evidence on record.

7. Mr. M. Dutta, learned counsel for the petitioner referring to the eviden ce on record submits that although at the first instance, the petitioner did not submit any medical certificate for the period from 4.5.1999 to 17.5.1999, but h e having submitted the same at a later point of time, the Management ought not t o have taken a technical view of the matter towards non-regularization of the sa id period. He further submits that the Management itself having debarred the pet itioner from signing attendance register and performing his duties, learned Labo ur Court ought to have award full back wages to the petitioner for the period fr om 1.7.1999 to the date of the award i.e. 18.6.2003.

8. Mr. L.P. Sarma, learned counsel for the respondent company, on the other hand, submits that the petitioner having not performed any duty for the period in question, he is not entitled to any back wages. Referring to the counter affi davit filed by the Management, he submits that the fact that the workman has not joined the office even after the impugned award is a pointer to the fact that t he petitioner was all along not interested to serve the company. He further subm its that by filing the writ petition, the petitioner has taken a chance for favo urable consideration for payment of back wages even for the period when he did n ot render any service to the respondent company. I have very carefully considered the submissions made by the learned cou 9. nsel for the parties and have also perused the entire materials on record includ ing the records received from the Tribunal. As regards the first period, which is from 4.5.1999 to 17.5.1999, the on 10. ly ground on which the learned Labour Court has declined to grant any relief to the workman is that he did not submit any medical certificate to cover the said period. It is true that the petitioner at the first instance did not submit any medical certificate along with his leave application. However, as recorded by th e Tribunal itself in the impugned order, there was only delay in submitting the medical certificate. The fact of the matter is that the medical certificate was submitted, may not be along with the leave application, but was submitted at a l ater stage. Even after observing that the Management could have granted special leave to the petitioner for the period which was supported by medical certificat e with a warning to be careful in future, learned Labour Court held that the wor kman is not entitled to regularization of the period from 4.5.1999 to 17.5.1999. In such circumstances, merely because there was delay on the part of the petiti oner to submit the medical certificate, the learned Labour Court ought not to ha ve deprived the workman from salary for the period from 4.5.1999 to 17.5.1999. A ccordingly, it is hereby held that the petitioner would be entitled to leave sal ary for the period from 4.5.1999 to 17.5.1999, which, however, will be subject t o leave account.

11. As regards the second period i.e. from 1.7.1999 to the date of the award i.e. 18.6.2003 is concerned, it is the case of the petitioner that since he was debarred from performing duties without terminating his services, he is entitle d to full back wages. On the other hand, it is the stand of the respondents that the petitioner having not joined the company even after the impugned award pass ed on 18.6.2003, is not entitled to receive any back wages. Further stand of the respondents is that when the matter was under examination of the Management, th e petitioner raised the conciliation proceeding in September, 1999 followed by t he industrial dispute, during the pendency of which, nothing could be done in th e matter. It has also been emphasized that the workman did not approach the Mana gement for rejoining of his duties and remained unauthorisedly absent from dutie s. The learned Labour Court has held that although the petitioner was not allowe d to sign the attendance register, but there was no order preventing him to perf orm his duties. The Tribunal has also found that the petitioner did not adduce a ny evidence to show that he was willing to perform duties and/or had been attend ing the office irrespective of as to whether he was allowed to perform duties or not.

12. Mr. M. Dutta, learned counsel for the petitioner has drawn my attention to Exhibit-L letter dated 8.7.1999 addressed to the petitioner by the Management of the company, by which, he was intimated that the allegations made against th e Management were completely baseless and that the matter was be looked into. By the said letter, the petitioner was also intimated that till a decision was arr ived at about the status of resumption of duties as was intimated by the earlier letter dated 26.6.1999 could be considered, the workman/writ petitioner would s tand debarred from signing the attendance register.

13. Exhibit-H is the letter dated 1.7.1999 addressed to the Management by th e petitioner, in which, it was stated that there was no written intimation to hi m that he had abstained from marking his presence in the attendance register til l such time, the Management took a decision on his leave status. It was conveyed that the petitioner was unable to decide as to what he was supposed to do in th e matter. On perusal of the records, more particularly, the representations made by the petitioner from time to time, it appears that the whole controversy was relating to the period of absence of the workman before the conciliation proceed ing was raised and to be precise the period mentioned in the award i.e. 5.4.1999 to 3.5.1999; 18.5.1999 to 20.6.1999; 4.5.1999 to 17.5.1999 and 21.6.1999 to 30.

6.1999.

14. Above apart, as per the provision of Section 11 A of the Industrial Disp utes Act, 1947, the power of the Court in respect of granting appropriate relief in case of discharge or dismissal of workmen is as indicated in the said provis ion. As per the said provision, the Court is to decide as to in what material th e order of discharge or dismissal etc. should be set aside with direction for re instatement in service. Although, Mr. L.P. Sarma, learned counsel for the respon dent company has raised the objection about maintainability of the reference its elf in view of the fact that it was not a case of discharge/dismissal from servi ce and the reference being on the basis of the individual grievance raised by th e workman, the said aspect need not be gone into at this stage inasmuch as the M anagement did not raise any grievance in respect of the said issue.

15. As noted above, the fact of the matter is that even after the award, the petitioner did not join the respondent company, about which the respondent has stated in its supplementary affidavit filed on 30.1.2012. It is on record that t he petitioner has been paid the amount pertaining to the period in question in r espect of which the Tribunal has passed the impugned award. It is also on record that the petitioner had communicated with the respondent company on 23.2.2004 s tating that he was not in a position to perform duties because of his illness.

16. From the above what is seen is that the workman is not on duty with effe ct from 1.7.1999 till this very date inspite of the award dated 18.6.2003 passed in the aforesaid reference No. 12/2000. Although as has been held by the learne d Labour Court that there is no evidence to show that there was any effort on th e part of the petitioner to resume his duties for the period in question, but as Exhibit-L letter dated 8.7.1999 reveals that the respondent company was to take a decision in respect of resumption of duties by the workman. However, before a ny such decision could be taken, the petitioner initiated the conciliation proce eding followed by the industrial dispute.

17. Taking note of all the facts and circumstances, the learned Labour Court has held that although the petitioner claimed that he had been attending the of fice regularly, but the Management did not allow to put his signature in the att endance register, but there is no evidence to suggest that the petitioner in fac t had attended the office regularly, but he was debarred to perform his duties. In was in such circumstances, the learned Labour Court has held that the petitio ner is not entitled to any back wages for the second period i.e. from 1.7.1999 t o the date of the impugned award dated 18.6.2003. However, in the impugned award , there is no reference to the Annexure-L communication dated 8.7.1999, by which the petitioner was intimated that a decision would be conveyed. However, before any such decision was taken, the matter went to conciliation proceeding followe d by the industrial dispute at the behest of the petitioner.

18. Taking note of all the aforesaid facts, I am of the considered opinion t hat ends of justice would be met if the workman/writ petitioner is awarded 25% o f the back wages for the second period in question i.e. from 1.7.1999 to the dat e of the award dated 18.6.2003. To the above extent, the impugned award stands m odified. If the petitioner is entitled to any other statutory dies, the same may 19. also be paid to him. Let necessary follow up action be taken as expeditiously as possible, preferably within 30.9.2012.

20. er as to costs. Writ petition is answered in the above manner, without, however, any ord

21. e copy of this judgment and order. Registry shall transmit the case records to the Court below alongwith th