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Andhra High Court · body

2012 DIGILAW 46 (AP)

G. Sudhakar Rao v. Bharat Heavy Plate & Vessels

2012-01-19

K.G.SHANKAR

body2012
Judgment : The petitioner was an employee under the respondents. He was working as a Job Recorder by 23-08-1994. The petitioner initially joined the service in the respondents’ organization on 06-06-1972 as Grade-IV Fitter. 2. When his services were terminated by invoking clause 6 of the terms and conditions of the lien through orders dated 30-09-1999, the petitioner came up with this petition claiming that the order of the employer that the petitioner was deemed to have left the services of the respondent was incorrect and is liable to be set aside. 3. The petitioner, as already pointed out was working as Job Recorder by 23-08-1994. The petitioner sought for lien for a period of four years to start his own industrial venture. Through office order dated 23-08-1994, the petitioner was granted lien for a period of four years. 4. It is the case of the petitioner that on 26-08-1998, the petitioner sought for further lien for a period of three years and that the lien however was extended only for one year from 26-08-1998 to 25-08-1999. Sri P. Nageswar Sree, learned counsel for the respondents however pointed out that soon after the expiration of the lien period on 25-08-1998, the petitioner was not granted extension of lien as claimed by the petitioner. As the lien of four years period was coming to an end on 25-08-1999, the respondents advised the petitioner to report to duty through letter dated 10-09-1998. However, the petitioner did not join duty on 25-08-1998 but submitted a letter on 04-09-1998 seeking extension of lien for a further period of three years. 5. In the letter dated 10-08-1998, the first respondent advised the petitioner to report to duty by 25-08-1998 informing the petitioner that there was no possibility of extending lien for further period. While the petitioner was asked to join duty by 25-08-1998, the petitioner would appear to have informed the respondents on 14-09-1998 that the petitioner fell ill and that he was advised bed rest for a period of one month till 13-10-1998. 6. On 06-10-1998, the first respondent again addressed a letter to the petitioner asking the petitioner to join duty by 14-10-1998. On 13-10-1998, the petitioner sought for extension of leave for one more month from 14-10-1998 till 13-11-1998 on the ground that the petitioner was suffering from jaundice. 6. On 06-10-1998, the first respondent again addressed a letter to the petitioner asking the petitioner to join duty by 14-10-1998. On 13-10-1998, the petitioner sought for extension of leave for one more month from 14-10-1998 till 13-11-1998 on the ground that the petitioner was suffering from jaundice. However, on 26-10-1998, the petitioner addressed another letter seeking for extension of lien for a further period of two years in continuance of the lien initially granted with effect from 26-08-1994. The first respondent, in response to the request of the petitioner extended the lien for a further period of one year with effect from 25-08-1998 on which date the first lien period stood expired. The petitioner consequently was to report to duty by 25-08-1999. 7. The petitioner did not report for duty after the expiration of the lien period, albeit it was made clear to the petitioner that further extension of lien would not be granted. The learned counsel for the respondents submits that the respondents waited for more than a month after the expiration of the lien period and on 30-09-1999, passed the impugned orders and informed the petitioner that the petitioner was deemed to have left the services of the first respondent with effect from 26-08-1999. It is the contention of the learned counsel for the respondents that the termination order is in conformity with clause 6 of the terms and conditions of the office order dated 23-08-1994 under which lien was granted in favour of the petitioner. 8. It may be recalled that the initial office order granting lien was passed on 23-08-1994. Clause 6 of the office order reads : “In case the employee does not join back to duty or resign on expiry of lien period, he shall be deemed to have left the services of the Company on his volition”. 9. According to clause 6, if the employee does not report to duty on the expiration of the lien period, it would be deemed that the employee had left the services of the Respondent Company on his own volition. On the basis of clause 6 of this office order dated 23-08-1994, it was deemed that the petitioner voluntarily left the services of the respondents. Accordingly, the orders were passed on 30-09-1999 by the first respondent. They were duly communicated to the petitioner. The petitioner now challenges the same. 10. The contention of Sri Ch. On the basis of clause 6 of this office order dated 23-08-1994, it was deemed that the petitioner voluntarily left the services of the respondents. Accordingly, the orders were passed on 30-09-1999 by the first respondent. They were duly communicated to the petitioner. The petitioner now challenges the same. 10. The contention of Sri Ch. Ramesh Babu, learned counsel for the petitioner is that the terms and conditions of the office order which are contrary to the standing orders are invalid and cannot be applied to the detriment of the petitioner. He submitted that the domestic enquiry regarding misconduct of an employee is mandatory under the Industrial Employees Standing Orders Act. 11. He placed reliance upon the certified standing orders of the respondents. He rightly submitted that the certified standing orders over-ride the contractual obligations. Office orders on contractual obligations certainly are subordinate to the standing orders. The learned counsel for the respondents however contended that the standing orders do not apply to the petitioner. This contention shall be examined later. 12. I may first examine the implication of the standing orders. Clause 13 (iii) of the certified standing orders of the respondents envisages that if an employee applies for extension of leave, he should make an application in writing to the leave sanctioning authority before the expiration of the previous leave period and send the same through certificate of posting; and the leave sanctioning authority should inform the employee whether extension of leave had been sanctioned or otherwise. Clause 23 (f) of the standing orders defines habitual absence without leave or absence without leave for more than 10 consecutive days or over-staying the sanctioned leave without sufficient ground or proper or satisfactory explanation as a misconduct. Clause 26 of the standing orders adumbrates that no punishment should be awarded to an employee unless the employee is proved guilty of misconduct in a domestic enquiry conducted against him. It is the contention of the learned counsel for the petitioner that the provisions of the certified standing orders which are contrary to clause 6 of the office order dated 23-08-1994 prevail over the office order and treating that the petitioner had voluntarily left the services of the respondents without conducting any domestic enquiry in terms of clause 26 of the standing orders is invalid and is liable to be set aside. 13. 13. The learned counsel for the petitioner placed reliance upon decisions in support of his contentions. In the famous Air India v. Nergesh Meerza AIR 1981 SC 1829 , the Supreme Court observed that there was no estoppel against the statue much less against the constitutional provisions. It is the case of the learned counsel for the petitioner that the respondents cannot contend that the petitioner agreed to the terms and conditions of the lien dated 23-08-1994 and that the petitioner is not stopped from contending that clause 6 of the terms and conditions of the lien are violative of the principles of natural justice. In L. Robert D’Souza v. The Executive Engineer, Southern Railway AIR 1982 SC 854 , the order of termination was held to be tantamount to retrenchment and that automatic discharge from service under an agreement would also be tantamount to retrenchment. 14. The learned counsel for the petitioner also placed reliance upon M/s. Bharat Heavy Plates and Vessels Ltd. Visakhapatnam V. Sreeramachandra Murthy 1988 (1) ALT D.B. 151. The Division Bench of this Court held in that case that a regular employee of the State could not be removed from public employment by merely following the terms of his contract of employment. In Delhi Transport Corporation V. D.T.C. Mazdoor Congress AIR 1991 SC 101 the Supreme Court held that the services of a regular employee should not be terminated without reasons merely on the basis of the contractual liability. It is the case of the learned counsel for the petitioner on the strength of these decisions that his services could not be terminated by the respondents without conducting any domestic enquiry, assuming that he was absent from duty without any reasonable cause. 15. The learned counsel for the respondents on the other hand contend that the services of an employee can be terminated when the employee who went on lien did not return to duty after the expiration of the lien period. In Dr. Anil Bajaj v. Post Graduate Institute of Medical Education and Research AIR 2002 SC 2414 relied upon by the learned counsel for the respondents, the employee did not return to duty after he went off duty on lien. The request of the employee for extension of the lien period was specifically rejected. In Dr. Anil Bajaj v. Post Graduate Institute of Medical Education and Research AIR 2002 SC 2414 relied upon by the learned counsel for the respondents, the employee did not return to duty after he went off duty on lien. The request of the employee for extension of the lien period was specifically rejected. The Supreme Court held as follows : “A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if he does not come back, his lien will automatically be regarded as being terminated he then cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted. Of course, if there is a dispute with regard to the question whether he had in fact come back within the stipulated period or an extension had been specifically granted an inquiry may be necessary but where the facts are not in dispute the inquiry would be an empty formality”. 16. It is the contention of the learned counsel for the respondents on the strength of this decision that the petitioner cannot seek for the cancellation of the order dated 30-09-1999 under which it was deemed that the petitioner had left the services of the respondents voluntarily. I consider that Dr. Anil Bajaj’s case (5th supra) does not apply to the facts of the present case to the extent that in the present case there are standing orders, which prescribe a procedure to terminate the services of an employee. However, the fundamental principle envisaged in Anil Bajaj holds good that when an employee who takes lien does not report for duty, his services certainly can be terminated. 17. Sri P. Nageswar Sree, learned counsel for the respondents inter-alia contend that the standing orders apply to the employees of the respondents and do not apply to non employees. He submitted that the petitioner was relieved from duty on 23-08-1994 itself, indeed with a lien over his job. His contention is that albeit the petitioner had lien over the job, he was not an employee as such, as he was relieved from his employment. It may be noticed that this is not a case where the petitioner went on deputation to another department with lien with the respondents. His contention is that albeit the petitioner had lien over the job, he was not an employee as such, as he was relieved from his employment. It may be noticed that this is not a case where the petitioner went on deputation to another department with lien with the respondents. The petitioner went off duty with lien in order to commence his own industrial activity. The learned counsel for the respondents contended that the standing orders proscribe any employee from indulging in any business activity during the period of service and that the lien consequently was tantamount to the employee leaving the organization, lest the question of the petitioner being permitted to indulge in industrial activity should not have arisen. I agree with this contention of the learned counsel for the respondents that the lien in the present case was tantamount to the discharge or relieving the petitioner from the services. The lien was operative to the extent of the petitioner’s right to come back into service. The petitioner who was discharged from services by granting lien with effect from 23-08-1994 cannot claim that he was an employee from that day onwards, so much so the standing orders do not apply to him as he was not an employee. In the absence of the application of the standing orders, the office order dated 23-08-1994 including clause 6 thereof determining the terms and conditions of the lien would come into play. As already pointed out, clause 6 of the lien empowers the respondents to terminate the services of the petitioner deeming that the petitioner has left the services of the respondents voluntarily. 18. In the present case, as rightly submitted by the learned counsel for the respondents, the petitioner was given considerable leeway to return to duty; the petitioner did not choose to do so. The petitioner was expected to join duty on or before 25-08-1999, the petitioner did not join duty. The respondents waited for more than a month till 30-09-1999 and passed the impugned order. In the light of clause 6 of the office order dated 23-08-1994, the respondents are entitled to consider that the petitioner has left the services voluntarily. The petitioner cannot question such an assumption on the part of the respondents. 19. The petitioner inter-alia contends that he has addressed letters seeking extension of time after 25-08-1999. The respondents denied the same. In the light of clause 6 of the office order dated 23-08-1994, the respondents are entitled to consider that the petitioner has left the services voluntarily. The petitioner cannot question such an assumption on the part of the respondents. 19. The petitioner inter-alia contends that he has addressed letters seeking extension of time after 25-08-1999. The respondents denied the same. The petitioner failed to prove that he was justified in not reporting to duty after 25-08-1999. The petitioner is guilty of not reporting to duty by 25-08-1999 and cannot turn around later and claim that the deemed relinquishment of office of the petitioner is incorrect. I am afraid that the impugned order cannot be interfered with. 20. Inter-alia the learned counsel for the petitioner contended that the petitioner has put in more than 22 years of service with the respondents and that the petitioner is entitled to service benefits like gratuity and other terminal benefits. The learned counsel for the respondents fairly conceded that the petitioner is entitled to such benefits. He pointed out that the respondents in fact never denied such benefits to the petitioner and that it was the petitioner who declined to accept those benefits. I therefore clarify that the petitioner shall be entitled to benefits due to him as if he voluntarily left the services of the respondents with effect from 26-08-1999 including the service benefits like gratuity and other terminal benefits. On merits, the petitioner is not entitled to the relief sought for by him. This writ petition is accordingly dismissed. There shall be no order as to costs. However, the petitioner shall be at liberty to make an application to the employer for the terminal benefits including gratuity within one (1) month from today. The respondent shall clear such an application within two (2) months from the date of receipt of the necessary application from the petitioner.