Nissar vs M.P.S.R.T. Corporation and Others

N.K. Mody, J.

Short facts of the case are that the petitioner was in the service of M.P.S.R.T.C, and was working as Driver. Petitioner took leave from 12.3.1996 to 11.4.1996 on medical ground as he sustained injuries on his right leg, during the course of his employment. Due to unavoidable circumstances, petitioner extended his leave till 27.6.1996. Thereafter, he submitted his joining report. After holding an enquiry, the petitioner was charge-sheeted for a major misconduct on account of his absence from duties for more than ten days. After holding enquiry, the petitioner was dismissed from service with effect from 26.9.1996. Order of dismissal was challenged before the learned Labour Court in Case No. 105/MP1R/97. Learned Labour Court set-aside the order of dismissal with a direction of stoppage of one increment and petitioner was reinstated without back wages vide order dated 23.4.1998. The order passed by the Labour Court was challenged in appeal by both tine parties unsuccessfully. Aggrieved by the order of Industrial Court also the present petition has been filed.

Learned Counsel for petitioner Shri Moyal placed reliance on Sub-clause (d) of Section 8 of M.P. Industrial Employment (Standing Orders) Rules, 1963 which shall be referred hereinafter as rules, is reproduced hereinbelow:

Condition and procedure in applying for, and authority which may grant leave and holidays-

If an employee after proceeding on leave desires an extension of the leave granted, he shall make an application in writing for the same to the manager or the officer authorised by him. A written reply either of the grant or refusal of such extension shall be sent to the employee at the address given by him in the application for extension.

Learned Counsel for the petitioner submits that no doubt that petitioner has overstayed without sanctioned leave and also no intimation was sent, but petitioner has been suffered thrice, firstly, one increment has been withheld by the order passed by learned Court, secondly, petitioner has not been paid the salary from the period 11.4.1996 to 26.6.1996 when the petitioner extended leave was not sanctioned, thirdly from the date of dismissal till the date of reinstatement.

Learned Counsel for the petitioner placed reliance on the decision in Uptron India Limited Vs. Shammi Bhan and Another, , wherein the Hon''ble Supreme Court has examined Clause 17(g) of the certified standing orders and observed that,

It does not say that the service of workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that "the services are liable to automatic termination." This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime, fallen ill? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again question which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave.

Taking into consideration all the facts and the fact that petitioner has been punished with a fine of stoppage of one increment, this petition is allowed in part and the order passed by the learned Labour Court is modified lo the extent that the petitioner will be entitled for 25% back wages. No order as to costs.