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2001 DIGILAW 277 (JHR)

Lidha Oraon v. Heavy Engineering Corporation Ltd.

2001-04-20

M.Y.EQBAL

body2001
JUDGMENT M.Y. Eqbal, J. 1. Heard Mrs. M.M. Pal, learned counsel for the petitioner and Mr. R, Mukhopadhyay, learned counsel for the respondent-Heavy Engineering Corporation Ltd. 2. In this writ application, the petitioner has challenged the orders passed by the respondents, whereby and whereunder, the name of the petitioner has been struck-off from the roll of the Corporation with effect from 26.11.1988 by invoking clause 15(x) of the Certified Standing Order of the respondent- Corporation. 3. The facts of the case lie in a narrow compass. 4. The petitioner came in service of the respondent-HEC in 1970 and continuously rendered his services under the respondents. While in service, the petitioner made an application for leave on medical ground. The respondents by letter, dated 23.12.1988 asked the petitioner to submit medical certificate in support of his illness from the registered medical practitioner. The petitioner alleged to have been suffering from mental disorder and he was under the treatment of Medical Officer, Ranchi Mansik Arogyashala. Kanke from 27.11.1988 to 17.2.1989. It is contended that immediately after recovery from ailment, he went to the office along with medical certificate and submitted his joining but instead of allowing the petitioner to join services he was served with an office order, dated 15th June. 1989 terminating the services of the petitioner and striking-off his name from the roll of the Corporation in terms of clause 15(x) of the Standing Order. 5. A counter-affidavit has been filed on behalf of the respondents stating, inter alia, that the petitioner was in habit of absenting from duty since 1984. The petitioner started absenting continuously from 26.11.1988 without any information, for which the petitioner was informed that either he should furnish a medical certificate or join duty. Since the petitioner neither furnished medical certificate nor Joined his duty, his name was struck-off from the roll of the Corporation with effect from 26.11.1988 by invoking clause 15(x) of the Certified Standing Order. It is further stated in the counter- affidavit that no charge-sheet was issued against the petitioner rather he was informed about his absence and was directed to report for duty within one month with satisfactory explanation, failing which he shall be removed from service by passing appropriate order under clause 15(x) of the Standing Order. 6. It is further stated in the counter- affidavit that no charge-sheet was issued against the petitioner rather he was informed about his absence and was directed to report for duty within one month with satisfactory explanation, failing which he shall be removed from service by passing appropriate order under clause 15(x) of the Standing Order. 6. Admittedly, before terminating the services of the petitioner or before invoking clause 15(x) of the Standing Order no charge-sheet was issued against the petitioner nor any departmental proceeding was initiated against him. The question, therefore, falls for consideration is whether removal of the petitioner from service by invoking clause 15(x) of the Standing Order is valid in law. 7. Clause 15(x) of the Standing Order reads as under:-- "15(x) A workman/employee, who remains absent from duty without leave, 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 15 days, the workman/ employee shall loss his lien on his appointment and if he explains his absence to the satisfaction of the management his name may be kept on the Badli list." 8. From bare perusal of the aforesaid provision, it is clear that the said provision confers power to the respondent- Corporation to initiate disciplinary action against the employee, who remain absent from duty without leave or in excess of the period of leave originally sanctioned or subsequently extended, unless the employee explains his absence satisfactory to the sanctioning authority. This clause further provides that where the period of such absence exceeds 15 days, the employee shall loss his lien on his appointment. Clause 15(x) of the Standing Order, therefore, confers unfettered and unrestricted power to the Corporation to remove the workman or the employee from service on account of his unauthorised absence without initiating any departmental proceeding or without giving reasonable opportunity of hearing to satisfy the authority about the reasonable causes for his absence. 9. Recently, the apex Court was considering the validity of such a provision in the Standing Order for automatic termination of service of a permanent employee on his overstaying sanctioned leave in the case of Scooter India Ltd. v. M. Mohammad Yaqub, 2000 AIR SCW 4117. 9. Recently, the apex Court was considering the validity of such a provision in the Standing Order for automatic termination of service of a permanent employee on his overstaying sanctioned leave in the case of Scooter India Ltd. v. M. Mohammad Yaqub, 2000 AIR SCW 4117. Their Lordships relying upon the earlier decisions have held that such Standing Order which provided for automatic termination of service of a permanent employee on his over-staying sanctioned leave would be bad If it did not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically. It was further observed that when the delinquent workman had reported for work but was not allowed to Join duty then his services could not be terminated by applying the Standing Order which provided for automatic termination of overstaying of leave. Such termination of services will amount to retrenchment without following the provisions of law. 10. For the reason aforesaid, this writ application is allowed and the impugned orders passed by the respondent terminating the services of the petitioner or striking-off his name from the service roll are quashed. 11. Since the petitioner submitted his joining after recovery from ailment, he will be entitled to monetary benefits. However, since the petitioner remained out of service from 1988, Mr. R. Mukhopadhyay, learned counsel for the Corporation, submitted that the petitioner would not be entitled to any monetary benefit for the reason that admittedly he did not work. On the other hand. Mrs. M,M, Pal, learned counsel for the petitioner, submitted that the petitioner submitted his Joining but he was not allowed to work and, therefore, he is entitled to the monetary benefits. However, Mrs. Pal conceded that at least the petitioner should be paid 75% back-wages for the entire period. 12. Taking into considering the rival submissions of the parties and having regard to the fact that there is no material produced from either side on the question whether the petitioner was gainfully employed or not. I am of the opinion that payment of 50% back- wages for the entire period will meet the ends of Justice. 13. Application allowed.