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2013 DIGILAW 927 (JHR)

Saraswati Mehra @ Saaswati Mahar v. Hindustan Copper Ltd.

2013-07-31

APARESH KUMAR SINGH

body2013
ORDER Heard counsel for the parties. 2. By the impugned order dated 7.11.1988, Annexure6, the petitioner was terminated from service. The petitioner's name has been removed form the roll of the officers of the company and her services stood terminated. 3. The petitioner, at the relevant point of time, was working as Matron under the respondentCorporation. It is contended on behalf of the petitioner that she had proceeded on leave after making an application on 30.4.1988 in the office of Acting Chief Medical Officer, enclosing there with a telegram that her mother had died. The petitioner thereafter extended her leave by way of telegram dated 25.5.1988. It was followed by another letter dated 1.6.1988 stating that she had fallen sick and was undergoing treatment. According to the petitioner she was pregnant at that point of time. Thereafter the petitioner was served with a notice asking her to explain the reasons for unauthorized absence. In response to the same the petitioner sent a letter dated 9.9.1988 enclosing medical certificates dated 10.5.1988 and 27.5.1988 respectively with request for leave. Thereafter on 15.9.1988 again she was informed of her continued absence in an irregular manner for prolonged period and was advised to report for duty by 26.9.1988 after expiry of the period of rest advice contained in the medical certificate dated 27.5.1988. She was also asked to submit a medical certificate of the Civil Surgeon/Chief Medical Officer, Lucknow where she was staying during her absence from duty for allowing her to join duty. It is submitted that thereafter she again sent a letter on 19.9.1988 informing that she requires to undergo further treatment and would try to submit her joining on 26.9.1988. This was followed by another telegram sent form Lucknow dated 7.10.1988 with a request to extend the medical leave. However, it is submitted on behalf of the petitioner that the respondents even after such repeated communications have struck her name off the roll of the officers of the company and terminated her treating her absence to be abandonment of service. 4. Learned counsel for the petitioner, therefore, assailed the impugned order on the ground that it has been done without any departmental proceeding for alleged misconduct or unauthorized absence from duty. It, therefore, suffers from violation of principal of natural justice. 4. Learned counsel for the petitioner, therefore, assailed the impugned order on the ground that it has been done without any departmental proceeding for alleged misconduct or unauthorized absence from duty. It, therefore, suffers from violation of principal of natural justice. Learned counsel for the petitioner further submits that the impugned order has been issued by an authority, who is not competent to terminate the services of the petitioner as she was appointed by the members of the Board of Director. 5. Learned counsel for the respondents, on the other hand, has supported the impugned order. It is submitted that the chronology of the case indicated in the impugned order itself shows that she was never sanctioned any leave and had proceeded on her own simply after making an application in the office of the Acting Chief Medical Officer. She was, therefore, given repeated notices on 3.8.1988 followed by letter dated 15.9.1988 to report for duty alongwith medical certificate duly issued by the Civil SurgeoncumChief Medical Officer, Lucknow. It is submitted that the medical certificates annexed with letter 9.9.1988 were dated 10.5.1988 and 27.5.1988. The petitioner even after expiry of the period of rest advice, as per medical certificate dated 27.5.1988, did not submit her joining and no explanation was furnished on her behalf. In such circumstances, the petitioner, after giving due notice through letters issued by the office of the respondents, was held to be in unauthorized absence without any information to join duty. Her absence was, therefore, treated to be an act of abandonment from service and, therefore, she has been terminated by the impugned order. It is further submitted that after issuance of the impugned order on 7.11.1988 after almost seven years she raised an industrial dispute, which was referred for adjudication before the Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 17 of 1995. The award was answered against the petitioner as she does not come in the category of workman. The award was rendered on 5.5.2005 itself and even almost two years thereafter the writ petition has been preferred in March, 2007. In such circumstances, it is submitted that the act of the petitioner of remaining in continued unauthorized absence without any explanation or sanction of leave amounts to abandonment of service. The award was rendered on 5.5.2005 itself and even almost two years thereafter the writ petition has been preferred in March, 2007. In such circumstances, it is submitted that the act of the petitioner of remaining in continued unauthorized absence without any explanation or sanction of leave amounts to abandonment of service. At this stage after almost 25 years of her termination, this Court should not interfere in the impugned order as the petitioner has approached this Court after a long delay. 6. Learned counsel for the petitioner has relied upon a judgment rendered by the Hon'ble Supreme Court in the case of P.V.K. Distillery Ltd. Vs. Mahendra Ram, reported in 2009 (5) SCC 705 , para 25 of the said judgment, in support of her contention that on account of pendency of the case before the Labour Court, the delay in approaching this Court should not be treated to be a ground to deny relief. 7. On the other hand, learned counsel for the respondents has relied upon a decision in the case of Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association, reported in 2000( 5) SCC 65 to submit that the principal of natural justice should not be stretched to such an extent that even when the petitioner has not submitting her joining after repeated notices being issued to her, the employer is precluded from terminating the service of such an employee. In the instant case, according to him, several notices were also issued before she had been terminated in November, 1988 itself. 8. I have heard counsel for the parties at length and gone through the relevant materials on record. The chronology of facts given in the impugned order have already been referred to in the opening paragraph of this judgment. The petitioner admittedly had left duty without any sanction of leave for a period from 2.5.1988 to 17.5.1988 apparently on a message received by her regarding death of her mother. However, this was followed by a telegram on 25.5.1988 to extend the leave without any reason being assigned for such extension. The respondents, after considerable length of time, on 3.8.1988 informed her about the continued unauthorized absence and advised her for reporting duty within seven days. In her response, she sent letter dated 9.9.1988 enclosing therewith medical certificates of 10.5.1988 and 27.5.1988 . The respondents, after considerable length of time, on 3.8.1988 informed her about the continued unauthorized absence and advised her for reporting duty within seven days. In her response, she sent letter dated 9.9.1988 enclosing therewith medical certificates of 10.5.1988 and 27.5.1988 . The certificate of 27.5.1988 admittedly advised her rest for certain period, which was to be over by 26.9.1988. However, thereafter again the petitioner did not join duty and in the meantime the petitioner was informed again on 15.9.1988 to report for duty with a medical certificate from Civil SurgeoncumChief Medical Officer, Lucknow, as she had remained absent for a prolonged period. The petitioner, however, did not submit her joining thereafter and continued on leave by sending a letter dated 19.9.1988 that she is still under treatment. Thereafter the impugned order has been issued on 7.11.1988. For the period after 26.9.1988 there is no further medical treatment prescription or certificate on record to show that the petitioner was continuing under medical treatment. In sum and substance the petitioner continued in unauthorized absence as her leave was never sanctioned. In such circumstances, the employer had no other option then to treat her act as amounting to voluntary abandonment of service. Thereafter her services were terminated. The petitioner, thereafter, almost seven years raised an industrial dispute, which was referred for adjudication in Reference Case No. 17 of 1995. The reference, however, was answered against her as she was treated not to be workman under Section 2(s) of Industrial Dispute Act. After the award rendered on 5.5.2005, the present writ application has been preferred in March, 2007 after little less than two years. In such facts and circumstances, this Court is not satisfied that any grounds for exercise of discretionary jurisdiction is made out to quash the impugned order or direct reinstatement of the petitioner in service. The judgment relied upon by the petitioner also does not come to her aid as in the present case even the industrial dispute was raised after almost seven years of the impugned termination and the writ petition has also been preferred after almost two years of the award rendered in the said reference. 9. Accordingly, this writ petition is dismissed.