U.P.State Sugar Corp. vs Manoj Tandan
2023 Latest Caselaw 20630 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:51416
 
Court No. - 5						   [RESERVED]
 
Case :- WRIT - A No. - 4372 of 1994
 
Petitioner :- U.P.State Sugar Corp.
 
Respondent :- Manoj Tandan
 
Counsel for Petitioner :- P.K.Sinha
 
Counsel for Respondent :- S.K.Mehrotra,M.L.Sayal
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri P.K. Sinha, learned counsel for the petitioners and Sri M.L. Sayal, learned counsel for the respondent.

2. By means of the present writ petition, the petitioners have prayed for the following reliefs :-

"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned Award dated 16-2-1994 contained in Annexure-1 to the writ petition.

(b) Issue a writ, order or direction in the nature of mandamus restraining the opposite party No.1 from interfering in any way with the peaceful functioning of the petitioner factory.

(c) ..."

3. Brief facts of the case are that the respondent No.1 was employed at the petitioner-factory as a permanent Clerk. On 1.5.1988, the respondent No.1 fell ill and he was granted medical leave w.e.f. 1.5.1988 to 30.5.1988. Thereafter, he extended his medical leave w.e.f. 31.5.1988 to 30.7.1988 and further on the advise of the doctor, he extended his medical leave till 31.12.1988.

4. Vide letter dated 3/8.6.1988, the petitioner No.1 directed the respondent No.1 to get his medical certificate countersigned by the Chief Medical Officer. It is the case of the petitioners that the respondent No.1 was absent from duty on the pretext of his medical condition for more than a year and has not complied with the directions issued by the General Manager of the petitioner No.1 from time to time.

5. Due to persistent absence from duty without sanctioned leave and further that the directions issued by the petitioner No.1 were not being complied with by the respondent No.1, the General Manager of the petitioner No.1-factory vide order dated 1/2.11.1988 terminated the services of the respondent No.1 and further required the respondent No.1 to collect his dues in accordance with the rules.

6. Feeling aggrieved by the aforesaid order of termination of service, the respondent No.1 raised industrial dispute before the Conciliation Officer which was registered as C.B. Case No.669/88 and ultimately, the said proceeding culminated in a reference to be adjudicated by the Labour Court. In pursuance thereof, notice was issued to the petitioner No.1 and both the parties appeared before the respondent No.2/ Presiding Officer, Labour Court, whereby they filed their respective written statements and the Labour Court passed an dated 16.2.1994, whereby the order dated 1/2.11.1988 was set aside direction was issued to reinstate the respondent No.1 and further to pay 50% of his salary and dearness allowance from the date of termination to the date of reinstatement.

7. Submission of learned counsel for the petitioners is that under the standing order G-12, if a workman remains absent beyond the period of leave originally granted, or subsequently extended, he shall be liable for dismissal but his name shall be kept on the substitute list. It is stated that despite the fact that the respondent No.1 was issued direction to appear before the Chief Medical Officer and obtain counter signatures on the medical certificate, as produced by him, the leave was not sanctioned after 30.5.1988. It is stated that despite sufficient opportunity was granted, again by a subsequent letter, even then the respondent No.1 chose not to appear before the Chief Medical Officer, thus, the General Manager has rightly formed an opinion as was indicated in his order dated 1/2.11.1988 as contained in Annexure-2 to the writ petition.

8. Learned counsel for the petitioners states that the Labour Court has failed to appreciate the fact that at no point of time, the respondent no.1 has raised any dispute in regard to payment of expenses for countersigning of the medical certificate issued by the private practitioner nor he ever claimed by way of any application or demanded the money to be paid to him. It is further stated that the respondent No.1 has never produced any letter of the Chief Medical Officer, indicating that he has refused to countersign the medical certificate for the reason that the same has not been forwarded by the employer. It is submitted that entire findings of the respondent No.2 are based on conjecture and surmises of the respondent No.1.

9. It is further submitted that the attention of the respondent No.2/ Labour Court was not drawn to the standing order No.G-12, wherein the employer has right to dismiss the employee from service and only keep his name on the substitute list in case the workman remains absent beyond the period of leave originally granted or subsequently extended.

10. On the other hand, submission of learned counsel for respondent No.1-employee is that the Labour Court recorded the findings based on consideration of relevant evidence on the record of the case before him that the service of the employee was terminated for the reason that he remained absent from 7.8.1988 to 31.0.1988. The service of the petitioner was purported to be terminated firstly for flouting the orders of the employer and secondly for showing no interest in the service of the Mill. He submits that the Labour Court after considering the rival contentions, held that the order terminating the service of the petitioner as above was illegal, being violative of Section 6-N of the U.P. Industrial Disputes Act, 1947.

11. In support of his submission, learned counsel for respondent No.1-employee relied upon the following judgments :-

(i) Executive Engineer, Water Services Division, Haryana Vs. Kartar Singh [(2009) 5 Supreme Court Cases 44]. Relevant paragraphs-8 and 9 are quoted below :-

"8. In our view, since the respondent has already been reinstated in service and considering the fact that there was no plea nor any evidence or proof to show that from the alleged discontinuation of his engagement till the date of the award, the respondent was not in gainful employment, we are of the view that instead of payment of 50% of the back wages, the award may be modified to the extent that the respondent shall be entitled to 25% of the back wages. Accordingly, the order of the High Court and the award in question is modified to the above extent.

9. The appellant is directed to pay 25% of the back wages from the date of award i.e. 5th of March, 2004 within four months from this date. The appeal is allowed to the extent indicated above. There will be no order as to costs."

(ii) Mandeep Kumar Vs. State of Haryana and another [(1996) 1 UPLBEC 803]. Relevant paragraphs 2 and 5 are quoted below :-

"2. In view of the fact that absence from duty from 2nd to 5th November, 1990 for nine days was already converted to casual leave, the absence from 27th and 28th January, 1991 and from 5th to 7th May, 1991 was for one day 23 hours and 30 minutes, practically two days, and from 1st to 3rd February, 1992, practically two days, being marginal lapse, on the part of the appellant, we, in the fact and circumstances of the case, think that he may be given a fresh opportunity to improve his excellence in the performance of his duty. If the appellant absents himself from duty without leave even on a single occasion during next two years, his services may be discharged. On reinstatement, pursuant to this order, the appellant would not be eligible for payment of arrears of salary.

5. Appellant's absence from duty on 3rd March, 1991, for 1 day, 6 hours and 35 minutes, on 26th April, 1991, for 10 hours and 35 minutes, on 22nd May, 1991, for 16 hours being marginal lapse on his part, we, in the facts and circumstances of the case, think that he may be given a fresh opportunity to improve his excellence in the performance of the duty. If the appellant absents himself from duty without leave even on a single occasion during next two years, his services may be discharged. On reinstatement, pursuant to this order, the appellant would not be eligible for payment of arrears of salary."

12. While entertaining the writ petition, vide order dated 27.9.1994, following order was passed, operative portion is being quoted below :-

"In the meantime operation of the order dated 16-2-1994 passed by the Labour Court contained in Annexure no.1 shall remain stayed subject to the condition that the petitioner will employ opposite party no.1 namely Manoj Tandon and regularly pay salary to him from 1-10-1994. However, it will not be a binding on the petitioner to taken work or not to take work from opposite party no.1 but will pay salary to the opposite party no.1."

13. On perusal of the aforesaid interim order, granted by this Court, it is apparent that the impugned order dated 16.2.1994 was stayed and in pursuance to the interim order, the respondent No.1-employee continued to discharge his duties. In view of the above, the controversy involved in the writ petition is resolved as the respondent No.1-employee is continuing on his post w.e.f. 1.10.1994 i.e. for more than 28 years.

14. In view of the above, to meet out the substantial justice and in order to balance equities as the respondent No.1-employee is working since last more than 28 years on the basis of an interim order granted by this Court, the impugned order dated 16.2.1994 is quashed and the writ petition is disposed of with the direction to the petitioner-corporation to treat the respondent No.1-employee to be working since 1.10.1994 and to pay him regular monthly salary month by month.

Order Date :- 4.8.2023

Gautam