Delhi High Court
Chitra Sharma vs Airline Allied Services Ltd. & Ors on 30 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 4492/2015
% 30th November, 2016
CHITRA SHARMA ..... Petitioner
Through: Mr. Ashwarya Sinha, Advocate.
versus
AIRLINE ALLIED SERVICES LTD. & ORS ..... Respondents
Through: Mr. Abhinav Agnihotri, Advocate for
R-1.
Ms. Anjana Gosain, Advocate for R-
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Article 226 of the Constitution of
India, petitioner seeks issuance of an appropriate writ, order or direction
against the respondent no. 1 to continue petitioner's contractual employment
beyond 1.12.2014. Petitioner effectively claims that her contractual services
which have existed from 7.11.1996 should not be brought to an end on a
particular contractual period coming to an end on 1.12.2014.
2. The case of the petitioner is that she had been diagnosed with
Tuberculosis of bone as noted by the doctor on the respondent no. 1's panel
on 16.11.2013 and it was said in his certificate dated 16.11.2013 issued by
Dr. Deepak Chaudhary that however now( i.e 16.11.2013) petitioner is fit
to resume her duties w.e.f 18.11.2013. However, when the petitioner
reported for duty the in-house doctor on the panel of respondent no.1, on
18.11.2013, categorized the petitioner as not fit on account of petitioner
being patient of AKT uniliary Tuberculosis and Pots spine. By the
certificate of the in-house doctor dated 18.11.2013 it was found that
petitioner can apply for fitness certificate only on completion of therapy.
3. Petitioner thereafter was advised rest for 18 months with effect from
February, 2013 as per the records of the respondent no. 1. Petitioner became
fit for duty with effect from 7.11.2014 in terms of the certificate issued by
Dr. Ashish Bhagat on the panel of respondent no. 1. Accordingly, it is
argued that since petitioner is fit to resume the duty hence the petitioner's
services should be continued from 1.12.2014. Reliance is placed on behalf
of the petitioner upon the judgment of the Supreme Court in the case of
State of Haryana and Others Vs. Piara Singh and others, (1992) 4 SCC
118, which holds that one contractual employee cannot be substituted by
another contractual employee by an instrumentality of the State as long as
the contractual post continues and the need for an employee for the
contractual services continues. The only way in which a person's
contractual services cannot be continued is, if valid reasons are given by the
employer for not continuing of the contractual employment.
4. Learned counsel for the respondent no. 1 has argued that no doubt the
petitioner suffered from Tuberculosis and was thus found to be unfit for
joining duty in terms of the various certificates relied upon, but, the fact that
an employee is unfit does not automatically entitle the employee to stay
away from work without applying for and getting sanctioned medical leave.
It is argued that the petitioner did not report for duty without even applying
for medical leave. Reliance by the respondent no. 1 is placed upon the
terms and conditions of employment contained in paragraph 4.2 and 4.6
which read as under:-
"4.2. LEAVE
No leave can be claimed as a right and Grant of any leave shall be at the sole
discretion of the management. Any absence without authorised or sanctioned
leave shall be leave without pay and the employee will be liable for
disciplinary action.
All leave will be granted at the discretion the Company and can only be
availed, after the Competent Authority has approved/sanctioned the leave
request.
XXXXX
XXXXX
4.6 CONDITIONS OF LEAVE
With reference to above, some of other main terms and conditions of
the leave rules framed by the Company as applicable are follows:
(i) Prior written permission of the Competent Authority has to be
obtained to leave station when availing leave. Permissible to leave station
when on sick leave will only be granted if it is necessary for medical reasons.
(ii) Leave for more than 2 days, on sickness grounds shall be supported
by a Medical Certificate from a specialist Doctor/Registered Medical
Practitioner under Allopathic stream. Moreover, the leave on medical grounds
for more than 5 consecutive days shall also require medical fitness certificate
from the doctor/Registered Medical Practitioner from Allopathic stream.
(iii) Any casual cum sick leave standing to the credit of the Employee as
on 31st March shall lapse automatically and no accumulation will be permitted.
(iv) Not more than 3 days of casual leave can be availed at a time with
prior permission.
(v) All types of leave will be entered in leave card and approved in
advance except 4 sick leave( to be intimated at the earliest) which can be
updated immediately on joining"
5. It is argued that the petitioner cannot say that she is her own master
and that because she suffered from a medical condition, she need not report
for duties without applying for and getting sanctioned medical leave.
Medical leave has to be applied for and sanctioned, failing which, an
employee will be taken to be an in-disciplined employee that is guilty of
indiscipline in being on leave without any medical leave being applied for
or sanctioned by the respondent no. 1/employer.
6. I have put it to counsel for the petitioner as to whether the petitioner
had any sanctioned medical leave or petitioner at least had applied for
sanction of medical leave, and to which query it could not be disputed on
behalf of the petitioner that the petitioner had not even applied for sanction
of medical leave, what to talk of medical leave being sanctioned.
7. In such facts as aforesaid, in my opinion, the respondent
no.1/employer was hence justified in finding the petitioner being an in-
disciplined employee for not continuing with her contractual employment.
8. The present petition is accordingly dismissed.
NOVEMBER 30, 2016 VALMIKI J. MEHTA, J
AK
