Orissa High Court
Biswanath Pradhan vs Presiding Officer on 27 September, 2023
HIGH COURT OF ORISSA: CUTTACK
W.P.(C). NO. 9927 OF 2016
(In the matter of an application under
Articles 226 and 227 of the Constitution of India, 1950)
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Biswanath Pradhan ... Petitioner
-versus-
Presiding Officer, Labour Court ... Opposite Parties
and another
Advocate for the Parties
For the Petitioner : Mr. Bisikesan Pradhan Advocate
For Opp. Party : Mr. Radharaman Das Nayak, Advocate
(For Opposite Party No.2)
CORAM:
JUSTICE KRUSHNA RAM MOHAPATRA
JUSTICE RADHA KRISHNA PATTANAIK
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Heard and disposed of on 27.09.2023
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Order dated 17th September, 2014 (Annexure-16) passed by
learned Presiding Officer, Labour Court, Bhubaneswar in Industrial
Dispute Case No.25 of 2013 is under challenge in this writ petition,
whereby the reference has been answered in favour of the
Management holding that in view of Rule 46 of the Orissa
Corporative Marketing Federation Ltd. Employees Recruitment,
Classification, Control and Appeal Rules, 1990 (For brevity 'the
Rules), the Petitioner has abandoned services by remaining absent
W.P.(C). NO.9927 OF 2016
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for more than fourteen days without prior permission, which does
not amount the termination.
3. Mr. Pradhan, learned counsel for the Petitioner, at the
outset, submits that the Petitioner remained absent from the duty
w.e.f. 1st September, 2003 till 15th September, 2003 without prior
permission of the Competent Authority. However, he had intimated
the authority that he was suffering from illness and was not in a
position to attend the duty. It is his submission that neither any
disciplinary enquiry was held nor the Petitioner was provided with
any opportunity of hearing before terminating of his services. It is
his submission that striking off the name from the role of the
management amounts to retrenchment in terms of Section 2 (oo) of
the Industrial Disputes Act, 1947 (For brevity 'the Act'). Hence,
provision under Section 25-F of the Act should have been followed
before termination of his services. He also submits that the
Petitioner was not made aware of Rule 46 of the Rules either by the
Appointing Authority or by learned Labour Court. As such, he
could not raise any objection with regard to the validity of the said
Rules. Learned Labour Court, Bhubaneswar, while answering the
reference, did not take into consideration the aforesaid material
aspects and passed the impugned award under Annexure-16. He
also relied upon the decisions of D.K. Yadav vrs. JMA Industries
Ltd. (1993) 3 SCC 259, Syed Yahoob vrs. K.S. Radhakrishnan
and others AIR 1964 SC 477, Delhi Transport Corporation (DTC)
vrs. DTC Mazdoor Congress and others AIR 1991 SC 101,
Chairman-cum-managing Director, Mahanadi Coal Fields Ltd.
vrs. Rabindranath Choubey (2020) 18 SCC 71, State Bank of
W.P.(C). NO.9927 OF 2016
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India vrs. Shri N. Sundara Money AIR 1976 SC 1111 and submits
that striking off the name of the Petitioner from the role of the
Management-Opposite Party No.2 is not proper. Hence, the
impugned award is liable to be set aside.
4. Mr. Nayak, learned counsel for the Opposite Party No.2-
Management submits that there was serious allegation against the
Petitioner with regard to misappropriation. In view of that he was
directed to handover charges to one Deepak Kumar Swain at
Pallahara. However, the Petitioner remained absent from 1st
September, 2003 to 15th September, 2003. Although, it was
contended before learned Labour Court, Bhubaneswar that he had
applied for leave but no material in support of the same could be
filed. Although the Petitioner had filed document (Exhibit-1) in
support of his treatment, but learned Labour Court, Bhubaneswar
holding that the said document did not disclose that the Petitioner
was not in a position to perform his duties or advised complete bed
rest, did not accept such submission. On assessment of materials on
record and relying upon Rule 46 of the Rules, learned Tribunal held
that the Petitioner being under temporary employment (NMR)
remained absent for fourteen days continuously without prior
permission of the Competent Authority. Thus, striking off his name
from the role of the management amounts to abandonment of
service and not retrenchment. He, therefore, submits that the
impugned award under Annexure-16 warrants no interference.
5. Considering the submission made by learned counsel for
the parties and on perusal of the record, it appears that admittedly
W.P.(C). NO.9927 OF 2016
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the Petitioner remained absent w.e.f. 1st September, 2003 till 15th
September, 2003, without prior permission of the Management.
6. Mr. Pradhan, learned counsel for the Petitioner submitted
that the Petitioner had sent Telegram followed by representation to
the Area Manager, Jagannathpur on 1st September, 2003 seeking
leave for fifteen days. But he could not produce any material in
support of his case before learned Labour Court, Bhubaneswar.
7. It further appears that the medical certificate (Exhibit-1)
produced by the Petitioner does not disclose that he was not in a
position to attend the duties or he was advised complete bed rest for
the said period. Rule 46 of the Rules reads as under:
"46. Abandonment of service:
Except as otherwise expressly provided for in these Rules, no
workman / employee shall be allowed to absent himself from
work without the prior sanction of the authority competent to
grant him leave. Absence from duty without permission shall
be treated as misconduct and dealt with accordingly.
Provided that any employee or workman not in regular
employment remaining absent from duty without permission
for a period of 14 (fourteen) days or more continuously shall
be deemed to have abandoned his service under the
Federation on his own accord and, thereafter, his name shall
be struck off the roll of the Federation."
7.1 Rule 46 of the Rule clearly discloses that any employee or
workman not in regular employment, if remains absent without
permission of the Competent Authority for a period of fourteen
days or more continuously, he shall be deemed to have abandoned
his services under the Federation (Management) on his own accord
and thereafter his name shall be struck off the role of the
Federation.
W.P.(C). NO.9927 OF 2016
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8. In the instant case, admittedly the Petitioner could not
produce any material to show that he had taken prior permission of
the Competent Authority to remain absent from 1st September,
20003 till 15th September, 2003. It is also not disputed that the
Petitioner was an NMR employee. Thus, he being not in regular
employment of the Federation-Management, the proviso to Rule 46
of the Rules squarely applies to his case. The case laws cited by
learned counsel for the Petitioner have no application to the instant
case, as those case laws set out the general principles of law. When
a specific provision has been made out in the Rules, which covers
the services of the Petitioner also, the provision under Section 2(oo)
of the Act or Section 25-F of the Act thereof, have no application to
the instant case. Ignorance of Rule 46 of the Rules by the Petitioner
is not an excuse for application of the provision of the said Rules to
the case of the Petitioner.
9. In that view of the matter, we find no infirmity in the
impugned award.
10. Accordingly, the writ petition, being devoid of any merit
stands dismissed.
Urgent certified copy of this judgment be granted on proper
application.
(K.R. Mohapatra)
Judge
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK (R.K. Pattanaik)
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Judge
Date: 03-Oct-2023 13:11:23
Rojalin
W.P.(C). NO.9927 OF 2016
