Mahabir Prasad Pathak vs Labour Court and Another

Vineet Saran, J.—By means of this writ petition, the petitioner is challenging the award dated 31st July, 1985 passed by the Labour Court, Allahabad.

Briefly, the admitted facts of this case are that the petitioner was appointed on 3.10.1967 as a fitter in the respondent-company, G.E.C. India Limited. Thereafter on 17.10.1968, the service of the petitioner was confirmed as fitter and on 3.9.1970 the petitioner was promoted to the post of Junior Inspector. While working as Junior inspector, the petitioner absented himself from 1.10.1982 to 26.11.1983. According to the petitioner, he had absented himself from duty because of illness but his absence for more than a year was admittedly without any leave application. Thus, on 26.11.1983, the service of the petitioner was terminated and in compliance with the provisions of Section 6N of the U. P. industrial Disputes Act, 1947, the employer gave him one month''s salary in lieu of notice. The said payment was made by the respondent No. 2 by cheque which was accepted by the petitioner.

Subsequently, the petitioner raised an industrial dispute u/s 4K of the U. P. Industrial Disputes Act, 1947 which was referred to the Labour Court, Allahabad. The terms of reference were as follows :

"Kya sewayojakon dwara apne shramik Ma.ha.bir Prasad Pathak, junior inspector ki sewayen dtnank 26.11.1983 se samapt kiya jana uchit tatha/athwa waidhanik hai yadi nahin to sambandhit shramik kya labh/anuthosh (reliej) pane ka adhikari hai, tatha anya kis uivran sahit."

After exchange of pleadings and appraisal of evidence, the Labour Court gave a finding that the petitioner absented himself from duty w.e.f. 1.10.1982 to 26.11.1983 without any sanctioned leave. It was submitted by the petitioner that during this period, he was unwell and hence could not attend his duties. When the workman petitioner submitted medical leave application, the employer directed him to present himself for examination before the company''s Medical Officer but the petitioner did not respond nor did he present himself for examination. Further, it is not disputed by the petitioner that he was serving as field officer with the Peerless Insurance Company since 1978. This fact came to light during the proceedings before the Labour Court. It was also not disputed by the petitioner that during the period 1982-83, i.e., when he was absent from duties, he earned a commission of about rupees forty to forty-five thousand from Peerless Insurance Company. It is also admitted by the petitioner that even after the termination of service in the year 1983, he continued to work as filed officer of the Peerless Insurance Company and was earning his commission there. At the time when the service of the petitioner was terminated in the year 1983, he was getting the salary of Rs. 700 to 800. Admittedly, the commission income which he was getting during the period of absence in the year 1982-83 was much more than his salary. On the excuse of medical leave, the petitioner absented himself from work at the office of the respondent company but continued to work with Peerless Company and earned higher commission.

I have heard Ms. Mahima Maurya holding the brief of Mr. K. P. Agarwal, learned senior counsel for the petitioner and Sri V. R. Agarwal for the contesting respondent No: 2. The findings of fact as stated above have not been disputed by the learned counsel for the petitioner. However, it has been submitted by her that since there was no provision in the standing order that the workman cannot do any part time work after working hours, the service of the petitioner cannot be terminated on this ground. It was also contended by her that the services of the petitioner cannot be automatically terminated without giving any opportunity of hearing or conducting any domestic enquiry by the employer. In support of her argument, she has placed reliance on two decisions of the Supreme Court in Uptron India Limited Vs. Shammi Bhan and Another, and D. K. Yadav v. J.M.A. Industry Limited.. 1993 (67) FLR 111.

I have considered the said decisions of the Supreme Court and am of the view that, the same do not apply to the facts of this case. In this case, it is not disputed by the petitioner that he was absent for more than a year without any sanctioned leave and when asked, he did not present himself for examination by the company''s Medical Officer. Coupled with this was the fact which has come on record, that the petitioner continued to work as a field officer of Peerless Insurance Company Limited and earned higher commission than usual during the period of absence. The Labour Court has considered the case of the petitioner in details and has also examined the evidence adduced by the parties before arriving at its findings.

In the light of the circumstances enumerated above, I agree with the finding arrived at by the Labour Court that the petitioner could not be permitted to work at two places and by working with another establishment during the period when he absented himself, allegedly on medical ground, he has cheated his employer. Accordingly, I do not find any reason to interfere with the award given by the Labour Court.

In the result, the petition fails and is dismissed. There shall be no orders as to costs.