RAJAN T. K. v. LABOUR COURT — 1996 DIGILAW 236 (KER)

ORDER : K.P. Dandapani, J.—Petitioner challenges Ext.P4 order dated August 7, 1990 in C.P. No.72 of 1988 on the file of the Labour Court, Ernakulam. 2. Petitioner is a workman on the permanent rolls of the 2nd respondent. He had applied for six days privilege leave from March 12, 1988 to March 18, 1988 and according to him, it was sanctioned by the competent authority. He had an off day tagged to the above spell. When wages were paid subsequently, it was found that the wages for the above days were not paid. On enquiry, he understood that as a strike intervened, the management has decided subsequently to cancel the leave. Petitioner contends that he is entitled to the privilege leave applied for and sanctioned. He estimates that an amount of Rs. 395.08 is due to him from the 2nd respondent. He submits that he was not a member of any of the unions and he had not struck work on the date of strike. According to him, the withholding of the amount is illegal and it is a benefit payable to him by virtue of the provisions of the binding award and also the standing orders of the company. He, therefore, filed C.P. No. 72/88 on the file of the first respondent.: 3. The management filed a written statement before the first respondent and contended that petition is not maintainable. According to the management, three out of the four recognised trade unions gave notice to the management intimating that the workmen of Cochin Division would strike work for three days i.e. March 14, 1988 to March 26, 1988. It published a notice on the notice board and informed all the workers concerned that it would be in the interest of the employees not to participate in the strike and if the employees absent themselves and participate in the illegal strike, apart from loss of wages on the basis of 'no work, no pay', it reserved its right to take action as it may deem fit. The management had also taken a decision to cancel all the leave sanctioned and required all the employees to report for duty due to exigencies of work. A notice to that effect was published on March 9, 1988 itself. The management had also taken a decision to cancel all the leave sanctioned and required all the employees to report for duty due to exigencies of work. A notice to that effect was published on March 9, 1988 itself. The leave applied for by the petitioner was not sanctioned or concurred by the Personnel Manager as the petitioner did not make out any compelling reasons for granting him the leave during the strike days. Since the leave was not sanctioned, he is not entitled to any leave wages for that period. The leave of any kind cannot be claimed as a matter of right. After having participated in the illegal strike, petitioner cannot claim to regularise the same against the leave to his credit. Since he had participated in the illegal strike, he is not entitled to wages. 4. Petitioner examined himself and produced Exts. P1 to P6 before the first respondent. On behalf of the management DW 1. was examined and Exts. D1 to D8 were marked. On sifting the evidence, the Labour Court came to the conclusion that no benefit is due to the petitioner from the opposite party to be computed in terms of money and therefore, the worker has no pre-existing right to invoke the provisions of Section 33-C(2) of the Industrial Disputes Act (for short 'the Act') and dismissed the claim petition. Petitioner challenges the said order of the Labour Court. 5. Learned counsel for the petitioner contended that Ext. P4 order is vitiated by errors of law and is liable to be set aside. He contended that the first respondent erred in holding that the reason pointed out in the application for leave has no relevance for reconsidering the sanction already granted. According to him, privilege leave was allowable under the Factories Act and once it is sanctioned, it cannot be cancelled without notice to the petitioner. Petitioner was not served with any communication in that regard and in the absence of which the leave once granted cannot be cancelled. Counsel relied on Clause 12(2) of the Standing Orders of the 2nd respondent, and contended that the method adopted by the management in this case is totally wrong. Petitioner was not served with any communication in that regard and in the absence of which the leave once granted cannot be cancelled. Counsel relied on Clause 12(2) of the Standing Orders of the 2nd respondent, and contended that the method adopted by the management in this case is totally wrong. The provision for applying for the privilege leave and the steps to be taken in that regard are detailed in Clause 12 of the Standing Order and it reads as follows: 12.(2) A workman who desires to obtain leave of absence shall observe the following procedure: (a) Leave of any nature shall be availed of only with previous permission. Leave shall be granted with due regard to the exigencies of work. A workman who desires to obtain leave of absence shall apply to the Head of his Department or Division in the prescribed form. Orders on the leave application shall be issued within 3 days of its submission. If the leave applied for is for a period of less than 3 days orders thereon shall be passed within 24 hours. If the leave is refused or postponed the fact of such refusal or postponement shall be recorded on the application. (b) If a workman after proceeding on leave desires an extension thereof he shall apply to the Management who shall send a written reply to the workman either granting or refusing the extension of leave if his address is available and if such reply is likely to reach him before the expiry of the leave originally granted to him. (c) If a workman absents without leave or remains absent beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless he returns or applies for leave within 7 days of such absence and explains to the satisfaction of the management or other officer empowered in this respect his reasons for absenting without leave. If he fails to do so, he shall be deemed to have left the service of the Company of his own accord. (d) If application is for sick leave the nature of the sickness must be specified in the application. Applications for sick leave while on duty must be got initialled by the person in charge before being presented to the Company Medical Officer. (d) If application is for sick leave the nature of the sickness must be specified in the application. Applications for sick leave while on duty must be got initialled by the person in charge before being presented to the Company Medical Officer. The initial of the person in charge is only to indicate that the workman has left the work spot with his knowledge and is not to be construed as a sanction or a recommendation. The Company Medical Officer will, after examination recommend or refuse the leave as conditions justify. Where leave has been recommended by the Company Medical Officer, the leave shall be formally granted by the Departmental Head. (e) Any medical certificate by a duly Registered Medical Practitioner, other than the Company Medical Officer, should satisfy the following conditions:-- (i) The certifying Registered Medical Practitioner should be fully convinced that the workman is, at the time of the issue, of the certificate, unable to work. The name of the Company and the workman concerned, his badge or token number and also the Department in which he works should clearly be specified. (ii) The details of the illness (i.e. condition, symptoms, reason and for how long the illness prevails) should be noted by the Registered Medical Practitioner and the certificate is to be produced by the workman within 7 days of its issue either in person or through Registered Post. Certificate produced after seven days are liable to be rejected. (iii) The recommendation of a Medical Practitioner for grant of leave from a date previous to his admission for treatment by him is liable to be rejected. (f) Any workman who has been on sick leave for four days or more at a stretch shall get himself certified fit to resume his normal duties by the Company Medical Officer before he can be admitted for duty." He contended that when the leave was applied for, it was granted by the Chief Personnel Manager as admitted by him in his evidence when he was examined as DW 1. There is no justification for the management to cancel the same without notice to the petitioner. 6. There is no justification for the management to cancel the same without notice to the petitioner. 6. Learned counsel for the management contended that the application filed by the petitioner u/s 33-C(2) of the Act before the first respondent itself is not maintainable and therefore, this Court need not go into any other question, regarding the application for leave, grant of leave, the power to grant leave, legality or otherwise of the non-granting of leave etc. Counsel submitted that the benefit which the petitioner seeks from the management cannot be computed in terms of money and therefore, a petition u/s 33-C(2) of this nature would not lie. 7. The only question for consideration, therefore, is whether the Labour Court was right in holding that no benefit is due to the petitioner from the management to be computed in terms of money or not. 8. The petition was filed u/s 33-C(2) of the Act claiming denied wages for the days in which the petitioner applied for privilege leave, but it was refused by the opposite party. According to the learned counsel, petitioner is entitled to privilege leave from March 12, 1988 to March 18, 1988. According to him, the claim of leave is on the basis of the provision of the binding award and the standing order and also the Factories Act. The Labour Court found that petitioner has not produced the award on which he relies on. I cannot, therefore, look into that contention. Petitioner relies on Clause 12(2) of Ext. D1 standing order. "Statutory leave (PL) with wages will be allowed as provided for in chapter VIII of the Factories Act, 1948 (Central Act LXIII of 1948)." In view of the above, the privilege leave can be granted only in accordance with the provisions of Chapter VIII of the Factories Act. Admittedly, petitioner has not followed the provisions of the Factories Act and he has not applied for privilege leave as provided in Section 79(6) of the said Act. 9. It is the case of the management that 3 out of 4 recognised trade unions gave notice intimating that workmen in the Cochin Division would strike work for 3 days from March 14, 1988 to March 16, 1988 in response to the appeal by the committee of Central Public Sector Trade Unions. The management published Ext. 9. It is the case of the management that 3 out of 4 recognised trade unions gave notice intimating that workmen in the Cochin Division would strike work for 3 days from March 14, 1988 to March 16, 1988 in response to the appeal by the committee of Central Public Sector Trade Unions. The management published Ext. D5 and informed all the workers that the strike contemplated can only interrupt the normal operations of the company and cause loss to the organisation as well as to the employees and it would be only in the interest of the employees not to participate in the illegal strike which is unjustifiable and unwarranted. The notice further stated that if the employee absent, themselves and participate in the illegal strike he may lose his wages on the principle of "no work, no pay". The management also reserved its right to take action as it may deem fit. Therefore, the management decided to cancel all the leave sanctioned and requested all the employees to attend the work as per Ext. D6 notice. I find that Ext. D6 should be deemed to be sufficient notice and intimation to the employees concerned. Moreover, the leave applied for was not sanctioned by the management as can be seen from Ext. D3 leave application. It is to be noted that the privilege leave cannot be sought as matter of right especially in a public utility service. Since he has applied for the privilege leave inclusive of the days of strike in spite of the warning given by the management to the workmen, I am not inclined to accept the contention of the petitioner that he is entitled to the leave as a matter of right. 10. This Court has, in Divisional Personnel Officer, Southern Railway v. Kamalam 1988 2 Ker LT 835 held thus: "Labour Court while dealing with a petition u/s 33-C(2) of the Industrial Disputes Act is to calculate the amount of money due to the workman from his employer. If the workman is entitled to any benefit which is capable of being computed in terms of money, that can be computed and the workman given the money. The said calculation or computation should be on the basis of an existing right to money or benefit which had been previously adjudicated. If the workman is entitled to any benefit which is capable of being computed in terms of money, that can be computed and the workman given the money. The said calculation or computation should be on the basis of an existing right to money or benefit which had been previously adjudicated. If the right to the money or benefit which is sought to be computed is disputed the Labour Court cannot adjudicate on that in a petition filed u/s 33-C(2). The question as to whether the workman is entitled to the benefit is beyond the purview of the jurisdiction of the Labour Court u/s 33-C(2) of the Industrial Disputes Act. In other words, the determination of the question as to whether the employee is entitled to the right claimed by him as also to whether the employer is liable to pay the amount claimed by the employee are not to be adjudicated upon by the Labour Court while dealing with the petition u/s 33-C(2) of the Industrial Disputes Act." 11. In a recent decision of the Supreme Court in Municipal Corporation of Delhi Vs. Ganesh Razak and Another, (1995) 1 SCC 235 "..... The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding u/s 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power u/s 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power u/s 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution" 12. In the present case, the management has disputed the right of the petitioner for the privilege leave and has successfully proved before the Labour Court that petitioner is not entitled to the leave as a matter of right. In the present case, the management has disputed the right of the petitioner for the privilege leave and has successfully proved before the Labour Court that petitioner is not entitled to the leave as a matter of right. Section 33-C(2) of the Act provides a remedy to a workman only to make an application for recovery of the amounts due to him. Unless and until it is proved that privilege leave can be claimed as a matter of right and its illegal refusal has caused him loss of amount, the petitioner is not entitled to lay a claim u/s 33-C(2) of the Act. For the above reasons, I find no merit in this original petition. It is accordingly dismissed. No costs.