Sakhrullah Khan v. State Industrial Court — 1978 DIGILAW 47 (MP)

ORDER G.P. SINGH, J. 1. The petitioner Sakhrullah Khan was employed as a driver by the Heavy Electricals (India) Ltd., Bhopal, which is a Government Company. On 12th April 1966, the petitioner met with an accident while he was working in the Factory. A wooden box fell on the toe of the petitioner's right foot with the result that the toe was injured. The petitioner was given first aid in the medical block of the factory. The petitioner was then removed on the same day to the Company's hospital at Govindpura. The Medical Officer of the Company's hospital found that the injury was minor and advised rest for one day. The petitioner next day, i.e. on 13th April, went to his residence in the city of Bhopal. The petitioner absented from duty till 31st May 1966. The petitioner applied for joining duty on 1st June 1956, but he was not permitted to do so. The petitioner was served with an order of the same date that in accordance with Standing Order 42 (10) it was presumed that he terminated his service by his own conduct, i.e. by remaining absent for more than 30 days without leave. The petitioner was also asked by the same order to pay to the Company one month's notice-pay amounting to Rs. 197/- for failure to give notice. The petitioner moved the Labour Court under the Madhya Pradesh Industrial Relations Act, 1960, challenging the termination of his employment. The Labour Court dismissed the petitioner's application by its order dated 18th Match 1971. The petitioner then filed a revision to the Industrial Court which was dismissed by order dated 24th April 1972. The petitioner then filed the present petition under Articles 226 and 227 of the Constitution for passing the orders of the Labour Court and Industrial Court. 2. Standing Order 42 (10) under which the action was taken by the Company reads as follows:– "42. (10) An employee who remains absent from duty without leave or permission or in excess of the period of leave originally sanctioned or subsequently extended, shall be liable to disciplinary action unless he is able to explain his absence in a manner satisfactory to the Sanctioning authority. (10) An employee who remains absent from duty without leave or permission or in excess of the period of leave originally sanctioned or subsequently extended, shall be liable to disciplinary action unless he is able to explain his absence in a manner satisfactory to the Sanctioning authority. Where the period of such absence exceeds 30 days, the employee shall be presumed to have left the service of the Company of his own accord without notice and shall be liable to deduction of wages for the notice period. In case of overstayal of leave without competent sanction and authority, the period of such overstayal should be treated as leave on half pay to the extent such leave is due and as extra-ordinary leave without pay to the extent the period of half pay leave is not due or falls short of the period of overstayal The employee will not be entitled to leave salary during such overstayal of leave not covered by an extension of leave by the Competent Authority. In other words, though the period will be debited to the half pay leave account of the employee (if he is due for leave on half pay), no leave salary will be paid for the full period of the overstayal of leave." 3. The first contention raised by the learned counsel for the petitioner is that the aforesaid standing order has no application to the petitioner. The standing orders of the Company out of which Standing Order 42 (10) is one, were submitted for certification under section 3 of the Industrial Employment (Standing Orders) Act, 1946, (Central Act 20 of 1946) on 7th June 1961. The Standing Orders so submitted were certified under section 5 of the Act on 29th November 1962. The Madhya Pradesh Legislature in 1959 enacted the Madhya Pradesh Industrial Workmen (Standing Orders) Act, 1959. This Act had received the assent of the President and applied to every industrial establishment within the State but as provided in section 1(3), it did not apply "except with the consent of the Central Government to an Industrial establishment under the control of the Central Government." The 1959 State Act was repealed and replaced by the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961. This Act came into force on 25th November 1961. This Act came into force on 25th November 1961. It applied to every undertaking, but, as provided in section 2, it did not apply to "an undertaking carried on by or under the authority of the Central Government." It would be seen that the 1959 State Act did not apply except with the consent of the Central Government to an industrial establishment under the control of the Central Government. But so far as the 1961 State Act is concerned, the exemption from operation was in respect of an undertaking carried un by or under the authority of the Central Government and not in respect of an undertaking merely under the control of the Central Government. The 1961 State Act had also received the assent of the President. The undertakings under the control of the Central Government which were not carried on by or under the authority of the Central Government and which till then were governed by the Central Act 20 of 1946 on the subject of standing orders came to be governed by the 1961 State Act from 25th November 1961. Section 4 of this Act made that position clear. It provided that nothing in the Central Act 20 of 1946 shall apply to any undertaking to which this Act applies. There was, however, an important Proviso to section 4 which reads:– "Provided that any proceeding under the said Act pending on the date of the commencement of this Act may be continued and completed in accordance with the provisions of the said Act as if this Act had not been passed." Section 6 of the 1961 State Act made provision for application of standing orders which reads as under:– "S. 6 Application of standard standing order to undertakings–(1) The State Government may, by notification, apply standard standing orders to such classes of undertakings and from such date as may be specified therein. (5) Where immediately before the commencement of this Act standing orders are in force in respect of any undertaking, such standing orders shall, until standard standing orders are applied to such undertaking under sub-section (1), continue in force as if they were made under this Act. (5) Where immediately before the commencement of this Act standing orders are in force in respect of any undertaking, such standing orders shall, until standard standing orders are applied to such undertaking under sub-section (1), continue in force as if they were made under this Act. (3) The standard standing orders made or amendments certified under this Act small provide for every matter set out in the Schedule." Standard standing orders were made under section 6 read with section 21 (2) (b) of the 1961 State Act and were brought into force from 22nd March 1963. The Central Act 20 of 1946 was amended by the Central Act 39 of 1963 which came into force on 23rd December 1963. One of the important amendments was insertion of sub-section (4) to section 1. This sub-section, in so far as relevant, provides that "notwithstanding anything contained in the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961, the provisions of this Act shall apply to all industrial establishments under the control of the Central Government," Another important amendment was addition of a new section as 12- A, This section reads as follows:– "12A. Temporary application of model standing orders–Notwithstanding anything contained in sections 3 to 12, for the period commencing on the date on which this Act becomes applicable to an industrial establishment and ending with the date on which the standing orders as finally certified under this Act come into operation under section 7 in that establishment, the prescribed model standing orders shall be deemed to be adopted in that establishment and the provisions of section 9, sub-section (2) of section 13 and section 13-A shall apply to such model standing orders as they apply to the standing orders as certified. (2) Nothing contained in sub-section (1) shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat or the Government of the State of Maharashtra." The model standing orders referred to in section 12-A of the Central Act were prescribed on 28th December 1963. Neither the standard standing orders made under section 6 of the 1961 State Act, nor the model standing orders prescribed under section 12-A of the Central Act, contain any provision like Standing Order 42 (10) of the certified standing orders of the Company. Neither the standard standing orders made under section 6 of the 1961 State Act, nor the model standing orders prescribed under section 12-A of the Central Act, contain any provision like Standing Order 42 (10) of the certified standing orders of the Company. The contention of the learned counsel for the petitioner is that the certified standing Order out of which Standing Order 42 (10) is one, have no application and that either the standard standing orders made under the 1961 State Act or the model standing orders prescribed under section 12-A of the Central Act apply to the petitioner. 4. The first argument in support of the aforesaid contention is that the Company is not an undertaking under the control of the Central Government and therefore after the enactment of the 1959 State Act, the Central Act ceased to be applicable to the Company on the subject of the standing orders and that for the same reason the amendment of the Central Act by Act 39 of 1963 had not the effect of making the 1961 State Act inapplicable to the Company. It is not disputed before us that the Company is not an undertaking carried on by or under the authority of the Central Government on this question the ruling of the Supreme Court in H.E.M. Union vs. State of Bihar, AIR 1970 SC 82 is clear and there is no scope for any doubt. The only controversy before us is whether the undertaking of the Company is an undertaking under the control of the Central Government. It is the admitted position that the Company is a Private Limited Company whose share capital is wholly subscribed by the Central Government. There are only three share-holders. The President of India holds three shares; the Joint Secretary, Department of Heavy Engineering, Ministry of Industry and Supply and the Additional Secretary, Ministry of Finance, each holds one share. The Articles of Association make it clear that the Chairman, Deputy Chairman, Resident Director etc. are all appointed by the President. The Central Government has also power of appointment of auditors and of giving directions in the matter of maintenance of account and audit. The Articles of Association make it clear that the Chairman, Deputy Chairman, Resident Director etc. are all appointed by the President. The Central Government has also power of appointment of auditors and of giving directions in the matter of maintenance of account and audit. The articles enjoin upon the Chairman to reserve for the decision of the Central Government any proposal or decision of the Board of Directors which raises an important issue, and no decision on an important issue can be taken in absence of the Chairman appointed by the President. The articles further authorise the Central Government to give directions to the Company as to the exercise and performance of its functions in matters involving the national security or substantial public interest and to ensure that the Company gives effect to such directions. Above all, Article 116 of the Articles provides that the President may, from time to time, issue such directive as he may consider necessary in regard to the conduct of the business and affairs of the Company or Directors thereof and in like manner may vary and annul any such directive. It is further provided that the Directors shall give immediate effect to directives so issued. In face of the above provisions in the Articles it is difficult to accept the argument that the Company's undertaking is not under the control of the Central Government. It is clear that the President holds the shares in the Company not in his personal capacity but as head of the Central Government. Similarly, it is also clear that the Control vested in him under the Articles is in tile same capacity. In our opinion, full control of the Company's affairs is vested in the Central Government and so the Company's undertaking is under the control of the Central Government. in Learned counsel for the petitioner, however argues that the control vested the Central Government under the Articles is qua share-holder and not as Government and that such a control does not make the Company under the control of the Central Government in our opinion the word "control" as used in section 1(3) of the 1959 State Act or section 1(4) of the Central Act 20 of 1946 (as amended by Act 39 of 1963) must mean legal control irrespective of the source from or the capacity in which it arises. Looking at it from this point of view, there can be no doubt that the Company's undertaking is under the control of the Central Government. In Sindri Worker's Union vs. Labour Commr. AIR 1959 Patna 36, a Division Bench of the Patna High Court held that the Sindri Fertilizers and Chemicals Ltd., which is also a Government of India undertaking like the Company with which we are concerned here, was under the control of the Central Government within the meaning of that expression as used in section 2(b) of the Central Act 20 of 1946. It was observed that the test of finding out whether an industrial establishment is controlled by the Central Government is a realistic test namely, whether the Central Government has control over the industrial establishment under the Articles of Association in the case of a private limited company or by the provisions of the special statute in the case of a public corporation. We are in respectful agreement with this view which supports the conclusion reached by us above. In H.E.M. Union vs. State of Bihar (supra) the Supreme Court was dealing with the Heavy Engineering Corporation Limited, another Government of India undertaking. After referring to the extensive powers exercised by the Central Government, their Lordships observed that "in the absence of a statutory provision, however, a commercial corporation acting on its own behalf, even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State." These observations show that although the undertaking of the Company was not held to be carried on by or under the authority of the Central Government, it was held that the Company was under the control of the Central Government. This ruling thus also indirectly supports our conclusion. 5. The second argument of the learned counsel for the petitioner is that the standing orders certified under the Central Act were obliterated by the standard standing orders made under section 6 of the 1961 State Act and that they were not revived when this Act ceased to be operative on the enactment of the Central Act 39 of 1963. As held by us, the undertaking of the Company is under the control of the Central Government. The Company was governed by the Central Act 20 of 1946. As held by us, the undertaking of the Company is under the control of the Central Government. The Company was governed by the Central Act 20 of 1946. The 1959 State Act had no application to the Company as the undertakings under the control of the Central Government were exempted from its operation. As earlier stated by us, the Company submitted its standing orders for certification on 7th June 1961 under section 3 of the Central Act 20 of 2946 which was then applicable to it. During the pendency of the proceedings for certification, the 1961 State Act came into force. This Act did not make any exemption in respect of undertakings under the control of the Central Government and, as it had received the assent of the President, it became applicable to the Company from 25th November 1961 we have also referred to sections 4 and 6 of this Act. Although section 4 of the 1961 State Act said that "nothing in the Central Act 20 of 1946 would apply to any undertaking governed by the State Act," the proviso to the section allowed the continuance of any proceeding pending under the Central Act in accordance with the provisions of that Act as if the State Act had not been passed. The effect of this provision was that the proceedings pending for certification of the Company's standing order under the Central Act were validly continued and the standing orders were validly certified under section 5 of that Act on 29th November 1962. Now when the 1961 State Act enabled the continuance of the proceedings for certification of the standing orders, it logically follows that the certified standing orders became applicable to the company having been validly certified under the Central Act. Till then there was no repugnancy between the Central Act and the 1961 State Act. The repugnancy arose when the standard standing orders were made under section 6 (1) of the State Act. As the State Act was to prevail under Article 254 of the Constitution, the standard standing orders made under section 6 (1) of the State Act superseded the standing orders certified under the Central Act. The repugnancy arose when the standard standing orders were made under section 6 (1) of the State Act. As the State Act was to prevail under Article 254 of the Constitution, the standard standing orders made under section 6 (1) of the State Act superseded the standing orders certified under the Central Act. The question to be considered is as to what is the effect of this supersession, whether the certified standing orders were so obliterated that they could not revive after the State Act ceased to be applicable to the Company on the enactment of the Central Act 39 of 1963 or whether the standing orders were merely eclipsed so that they revived immediately after the State Act ceased to be operative? This question must be answered in the light of Article 254 of the Constitution. 6. Article 254 (2) provides that "where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State." It will be seen that the State Act which has received the assent of the President does not repeal the Central Act or make it void, but only prevails in the State as against the Central Act. We are not here concerned with Article 254 (1) or the proviso to Article 254 (2) where the language is slightly different, we are also not here concerned with the well-known controversy on the question whether when a post-constitution law violates any fundamental right it is still-born and is not revived by an amendment of the Constitution removing the ground of invalidity or by supersession of fundamental rights. See State of Gujarat vs. Shri Ambica Mills, AIR 1974 SC 1300 and other cases referred to therein. The only relevant provision for purpose is Article 254 (2). See State of Gujarat vs. Shri Ambica Mills, AIR 1974 SC 1300 and other cases referred to therein. The only relevant provision for purpose is Article 254 (2). When the State Act prevails under Article 254 (2) over a Central Act, the effect is merely to supersede the Central Act or to eclipse it by the State Act and the moment the State Act ceases to be operative, the field becomes clear for revival of the Central Act. The language of Article 254 (2) is similar to section 109 of the Australian Constitution, which provides that "when a law of the State is inconsistent with the law of Commonwealth, the latter shall prevail and the former shal1 to the extent of the inconsistency be invalid." It is settled law that the effect of section 109 is merely to supersede the State law to the extent of any inconsistency with the Commonwealth law and that on the repeal of the Commonwealth law the State law is revived without the necessity of reenactment. See Wyne's Legislative Executive and Judicial Powers in Australia, 5th edition, P. 106; Bulter vs. A.C. [Vict], (1961)106 CLR 268; Carter vs. Egg etc. Board, (1942) 66 CLR 557; Liquor Prohibition Appeal Case, (1896) AC 348 Canada; Tua vs. Cerriere, 117 US 20. This view was accepted by the Supreme Court in Deep Chand vs. State of U.P. AIR 1959 SC 648 and the observations of Latham, C.J., in the Australian case of Carter vs. Egg and Egg etc. (supra) were cited with approval. 7. The standing orders certified under the Central Act were validly certified. The coming into force of the 1961 State Act did not create any inconsistency or repugnancy with the standing orders or with the proceeding for their certification pending under the Central Act for two reasons. First, the State Act itself made provision under the proviso to section 4 for continuance of proceedings under the Central Act as if it had not been passed; it even continued the standing orders in force under section 6 (2). The second reason is that the principle of repugnancy requires that the repugnancy must exist in fact and should not be a mere possibility; See Tika Ramji vs. State of U.P., AIR 1956 SC 676 and K.S.E. Board vs. Indian Aluminium Corporation, AIR 1976 SC 1031 . The second reason is that the principle of repugnancy requires that the repugnancy must exist in fact and should not be a mere possibility; See Tika Ramji vs. State of U.P., AIR 1956 SC 676 and K.S.E. Board vs. Indian Aluminium Corporation, AIR 1976 SC 1031 . There was no repugnancy in fact until the standard standing orders were made under section 6 (1) of the State Act. Although section 6 (2) of the State Act which continued the standing orders inforce was not in terms applicable to the standing orders which were till then not certified under the Central Act, yet when the proceedings for certification were permitted to be continued under the Central Act by the proviso to section 4 of the State Act, the standing orders after certification under the Central Act became applicable to the Company and continued to be operative until the standard standing orders were made under section 6 (1) of the State Act. The effect of the standard standing order made under section 6 (1) of the State Act was to supersede or eclipse the standing orders certified under the Central Act because of repugnancy under Article 254 (2) of the Constitution. The standing orders certified under the Central Act were not obliterated or repealed; they were merely superseded or eclipsed by the standard standing orders made under the State Act because the field of the standing orders became occupied by the standard standing orders made under the State Act. By the Central Act 39 of 1963, the Company's undertakings being under the control of the Central Government, was taken out of the field of operation of the State Act. The standard standing orders made under the State Act then ceased to be applicable and the standing orders certified under the Central Act revived as the shadow of the State Act was removed and the field was made clear for their operation. 8. It is argued by the learned counsel for the petitioner that the rule contained in Article 254 (2) of the Constitution will not apply to standing orders as they do not amount to law. Reference in this connection is made to Co. op. Cr. Bank vs. Ind. Tri. B. Hyderabad, AIR 1972 SC 1201 . 8. It is argued by the learned counsel for the petitioner that the rule contained in Article 254 (2) of the Constitution will not apply to standing orders as they do not amount to law. Reference in this connection is made to Co. op. Cr. Bank vs. Ind. Tri. B. Hyderabad, AIR 1972 SC 1201 . In this case it was held that byelaws of a co-operative society relating to the conditions of service of its employees have not the force of law. In that context it was in passing observed that certified Standing Orders do not have "such force of law" as to be binding on an Industrial Tribunal adjudicating an industrial dispute because the Tribunal's jurisdiction is not merely to administer existing laws and enforcing existing contracts and that the Tribunal has even the right to vary existing contracts Standing Orders after they are certified apply uniformly to all employees of the undertaking. The authorities functioning under the Central Act are duty bound to examine the fairness or reasonableness of the standing orders before they are certified. The same duty is cast on the authorities when a proceeding is taken for modification of the standing orders. The model standing orders prescribed under the Act get replaced by the certified Standing Orders. The employer cannot enter into any agreement with a workman which is inconsistent with the standing orders. The violation of the standing orders by the employer is a criminal offence; See U.P.E. Supply Co. vs. T. N. Chatterjee, AIR 1970 SC 245 ; Western India Match Co. vs. Workmen, AIR 1973 SC 2650 . Having regard to these features of the standing orders, it is difficult to accept that the standing orders certified under the Central Act have not the force of law even though they may not be having "such force of law" that the Industrial Tribunal cannot modify them while adjudicating an industrial dispute. In this connection, it may be pointed out that the Supreme Court in Sukheo Singh vs. Bhagat Ram AIR, 1975 SC 1331, has held that regulations made by Corporations under statutory powers laying down conditions of service of their employees have the force of law. Sukhdso Singh is case overruled the cases of Indian Airlines vs. Sukhdeo Rai AIR, 1971 SC 1828 and U.P.S.W, Corporation, Lucknaw vs. C.K. Tyagi, AIR 1970 SC 1244 , where a contrary view was taken. Sukhdso Singh is case overruled the cases of Indian Airlines vs. Sukhdeo Rai AIR, 1971 SC 1828 and U.P.S.W, Corporation, Lucknaw vs. C.K. Tyagi, AIR 1970 SC 1244 , where a contrary view was taken. In our opinion, certified Standing Orders have adequate statutory sanction and authority and generality of applicant ion as to confer upon them the status of law. Even assuming that they do not strictly amount to law, we do not find any good reason why the principle of Article 254 (2) of the Constitution should not apply when Standing Orders certified under the Central Act are superseded by standing order made under the State Act which had received the assent of the President. As earlier stated by us the Standing Orders certified under the Central Act were superseded or eclipsed by the standard standing orders made under the State Act and when the Central Act 39 of 1963 made the State Act in-applicable, the Standing Orders certified under the Central Act revived and became operative. 9. The next argument of the learned counsel for the petitioner is that on enactment of the Central Act 39 of 1963, the model standing orders prescribed under section 12-A become applicable to the Company and not the certified Standing Orders. This argument cannot be accepted because the model standing orders under section 12-A are applicable only till the certified Standing Orders come into force. As earlier stated by us, the standing orders certified under the Central Act which were eclipsed during the operation of the standard standing orders made under section 6 of the State Act revived after the State Act ceased to be applicable on coming into force of the Central Act 39 of 1963. As the standing orders certified under the Central Act revived immediately on the coming into force of the Central Act 39 of 1963, there was no scope for the operation of the model standing orders prescribed under section 12-A inserted by the same Act. 10. Thus the first contention that the Standing Order 42 (10), which we have quoted in paragraph 2 above and under which action was taken against the petitioner, has no application fails. 11. 10. Thus the first contention that the Standing Order 42 (10), which we have quoted in paragraph 2 above and under which action was taken against the petitioner, has no application fails. 11. The second contention raised by the learned counsel for the petitioner is that before termination of service is finally inferred and given effect to under Standing Order 42 (10) on employee's absenting without leave for more than 30 days, reasonable opportunity should be given him to explain his absence and that it is only when satisfactory reasons for absence are not given that the inference of termination of service can be acted upon. In the same context, it is contended that in the instant case no such opportunity was given to the petitioner and therefore, the order of the Company holding that the petitioner's employment came to an end is invalid being contrary to the terms of the standing order. The first question that arises in this connection is whether any opportunity to explain the absence is contemplated when the employer raises the presumption of termination of employment under the standing order. An employee who remains absent from duty without leave or permission or in excess of the period of leave originally sanctioned or subsequently extended is liable to disciplinary action unless he is able to explain his absence in a manner satisfactory to the sanctioning authority. This is the first part of the standing order. The second part of the standing order with which we are concerned provides that "where the period of such absence exceeds 30 days the employee shall be presumed to have left the service of the Company of his own accord without notice and shall be liable to deduction of wages for the notice period." The words "such absence" as they occur here mean absence from duty without leave or permission, or in excess of the period of leave sanctioned or extended. If such absence exceeds 30 days, the employee is presumed to have left the service of the Company of his own accord. Now the word "presumed" implies that the presumption raised can be dislodged by showing that there was some s 1is factory reason for absence from duty without leave and therefore, the employee did not intend to leave the service. Now the word "presumed" implies that the presumption raised can be dislodged by showing that there was some s 1is factory reason for absence from duty without leave and therefore, the employee did not intend to leave the service. If the intention of the standing order were to raise a conclusive presumption of termination of employment at the instance of the employee on his absenting from duty without leave for more than 30 days, the word "deemed" would have been used in place of the word "presumed". On the language of the standing order as it is the absence from duty without leave exceeding 30 days merely raises a presumption that the employee left the service of his own accord. But before action is taken on the basis of the presumptive inference that the employee has left the service and his employment has come to an end the employee must be given opportunity to explain his absence. If the employee shows satisfactory reasons for his absence without leave, the presumption would be destroyed and it would not be possible for the employer to take action against the employee on the basis of the presumption. It is true that the second part of the standing order with we are concerned here does not expressly provide that the employee shall have opportunity to explain his absence as is provided in the first part; but as explained above, the use of the word "presumed" necessary leads to the inference that the employee must be given that opportunity. It is not difficult to conceive of cases where there may exist circumstances beyond the control of the employee under which he is compelled to remain absent from duty for more than 30 days without leave but without in any way intending to leave the service. If it is held that the presumption of termination of employment at the instance of the employee under the standing order is absolute, it would not be possible to mitigate the hardship in such cases. In our opinion, therefore, the learned counsel for the petitioner is right in his contention that before the employer proceeds to take action on the basis that the employee terminated his employment by remaining absent for more than 30 days without leave, opportunity should be given to him to explain the absence. In our opinion, therefore, the learned counsel for the petitioner is right in his contention that before the employer proceeds to take action on the basis that the employee terminated his employment by remaining absent for more than 30 days without leave, opportunity should be given to him to explain the absence. Learned counsel for the Company submitted that in two previous cases contrary view has been taken by other Division Benches. The cases to which reference was made are H.L. Handa vs. Industrial Court & other, MP No. 411 of 1967 & Jagdish Singh vs. Assistant Works Manager, H.E.L., MP No. 219 of 1968. In Handa's case a Division Bench of which one of us (Singh, J.) was a member, came to the conclusion that on the facts of that case the employee was given sufficient opportunity to explain his absence and it was for this reason that no interference was made. A reading of the judgment in Handa's case shows that it was immediately accepted that before inference of termination of employment arising out of the presumption is given effect to, the employer must give opportunity to the employee to explain the absence. As regards the case of Jagdish Singh, it is no doubt true that there are observations which show that no such opportunity need be given to the employee. But the learned Judges referred to the Handa's case and said that they did not find any reason to take a contrary view. So, in fact, Handa's case was accepted as an authority on the interpretation of the standing order even in the case of Jagdish Singh, Jagdish Singh's case, therefore, cannot be taken to have decided anything contrary to Handa's case. As earlier pointed out by us, Handa's case proceeds on the basis that before the employer gives effect to the presumption of termination of employment, the employee should get a chance for explaining the absence on the basis of which the presumption is raised. In circumstance it cannot be said that the interpretation accepted by us above is in any way contrary to the aforesaid two cases. 12. The next question is whether opportunity was given to the petitioner to explain the absence. In circumstance it cannot be said that the interpretation accepted by us above is in any way contrary to the aforesaid two cases. 12. The next question is whether opportunity was given to the petitioner to explain the absence. It is pointed out by the learned counsel for the, Company that by a notice issued on 18th May 1966, the Company drew the attention of the petitioner that he was absent for more than 30 days and he was asked to report for duty on 26th May 1966. The petitioner's case is that he was ill till 24th May 1966 and was unable to walk. His ease further is that he received the Company's notice on 25th May, but he could not join duty on 26th Mayas required by the notice as his niece fell ill on the same date and died on 30th May. The petitioner went to the office of the Company to report for duty on 1st June 1966 and made an application stating the above facts. The petitioner was then told that he was no longer in service and that an order to that effect had been issued. The injury received by the petitioner was minor. The Labour Court has found that the petitioner's case that he was unable to walk is not true. Indeed, the petitioner went to the Company's office in the beginning of May and collected his salary for the month of April. The injury was clearly not such which could have prevented him in making application for leave. The petitioner admittedly received the notice dated 18th May 1966 on 25th May when he was perfectly fit, yet he did not report for duty on the pretext of his niece's illness. The petitioner' case that the niece (a child of six-months) died on 30th May is also false. The said niece admittedly died on 28th May. The petitioner reported for duty only on 1st June when the order giving effect to the termination of employment had been issued. Having regard to the facts, in our opinion, the notice of 18th May 1966 issued by the Company gave sufficient opportunity to the petitioner to explain his absence without leave and that there was no infraction of the standing order in giving effect to the presumption of termination of employment. 13. Having regard to the facts, in our opinion, the notice of 18th May 1966 issued by the Company gave sufficient opportunity to the petitioner to explain his absence without leave and that there was no infraction of the standing order in giving effect to the presumption of termination of employment. 13. It was also argued by the learned counsel for the petitioner that the injury suffered by the petitioner amounted to temporary total disablement within the meaning of the Workmen's Compensation Act, 1923 and that absence from duty resulting from such an injury could not give rise to the presumption of termination of employment under the standing order. In our opinion, there is no merit in this argument. The standing order applies when an employee remains absent from duty without leave for more than 30 days. No such rule has been shown to us that if an employee suffers an injury which amounts to temporary total disablement, he is not required to apply for leave. In the instant case, the injury was not such that the petitioner could not move am was, therefore, unable to apply for leave. Moreover, the petitioner should have taken the opportunity after receiving the notice dated 18th May 1966 to put forward any explanation that he may have had, including the explanation that he was suffering from temporary total disablement, for his absence from duty. As earlier held by us, the petitioner did not avail of that opportunity. In the circumstances, the standing order was attracted and the Company acted within the authority conferred by it, in giving effect to the inference of termination of employment. 14. The petition fails and is dismissed, but without any order as to costs. The amount of security deposit shall be refunded to the petitioner.