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Regional Manager, U.P.S.R.T.C. Meerut v. Sukhpal Singh & Another - WRIT - C No. 5640 of 2002  RD-AH 6477 (23 March 2006)
Civil Misc.Writ Petition No. 5640 of 2002
Regional Manager, U.P.S.R.T.C. Meerut
Sukhpal Singh and another
Hon.Shishir Kumar, J.
By means of the present writ petition, the petitioner has approached this Court for issuing a writ of certiorari quashing the award-dated 26.3.1999 published on 18.10.2000 passed by the respondent No.2 (Annexure 1 to the writ petition).
The facts arising out of the present writ petition are that the respondent No.1 was appointed as a Cleaner in the year 1978 and was working in the Depot workshop, U.P. State Road Transport Corporation Saharanpur. The work and conduct of the respondent No.1 was never satisfactory. The respondent No.1 was in a habit of absconding from service without any prior permission. Earlier to this he remained absent from duty from 16.6.1982 to 7.10.1982 i.e. for 140 days without any prior information to the petitioner or any authority and no application for leave was ever given by the respondent No.1. But taking a lenient view the leave was sanctioned but he was warned that he has to improve his conduct in future otherwise strict action will be taken against him. As stated above, as the respondent No.1 is habitual absconder from duty, he left the workshop on 16.12.1985 without any information to the authorities. Even no application of illness was ever submitted by the respondent No.1. The senior foreman of the Depot has submitted a report on 16.12.1986 to the service manager regarding the absence of the respondent No.1. On 8.4.1986, a charge sheet was sent by registered post. Copy of the same has been annexed as Annexure 3 to the writ petition but the said charge sheet has been returned back with a report of the postman that in spite of visiting several times between 10.4.1986 to 17.4.1986, the respondent does not meet at the address given in the service record. A letter was again sent on 25.4.1986 directing the respondent No.1 to join the duties. Then ultimately, a publication was made in the ''Dainik Doon Darpan' on 28.4.1996. In spite of the aforesaid fact, the respondent No.1 has not joined, therefore, it was presumed that the respondent No.1 has abended the service and then by order dated 21.5.1986, the services of the respondent No.1 were terminated.
The respondent No.1 for a lapse of one and half years after the order of termination submitted an application that he was ill and was not in a position to join and if he is permitted to join the duties with continuity of service, he is ready to forego the back wages but the services of the respondent No.1 were already terminated on 21.5.1986, therefore, no question to permit the respondent No1 to join the duties. Then the respondent No.1 has raised a dispute in the year 1992 before the Labour Court and the Labour Court has passed an order in favour of the respondent No.1 on 26.3.1999 and had directed that the respondent No.1 be reinstated with continuity of service with 50% back wages.
It has been submitted on behalf of the petitioner that the respondent-workmen was habitual absentee without any notice without permission from the employer and he was also punished earlier and his working and performance was not satisfactory and again on 16.12.1985, the respondent No.1 without any notice and information without making any leave application has absented from duty. The registered letters directing the respondent No1 to join on the post were sent but that could not be served and then a publication in the newspaper was made directing the petitioner to join services but in spite of the aforesaid fact, the respondent No.1 has not joined the service and as such, by order dated 21.5.1986 the services of the respondent No.1 was terminated.
It has also been submitted on behalf of the petitioner that no evidence in support thereof regarding the illness with documentary prove was filed by the respondent No.1. Only a fitness certificate has been submitted in which it has been mentioned that the respondent No.1 was suffering from tuberculosis but in spite of the aforesaid fact, the Labour Court has given an award of reinstatement with 50% back wages.
It has also been submitted on behalf of the petitioner that in spite of the fact that the Labour Court has recorded a finding to this effect that "workmen has not filed any documentary evidence to establish that he had been sending leave applications from his house or hospital, similarly, he has not filed any medical certificate for a period in which he remained absent." Petitioner submits that if this finding was recorded then the Labour Court has no jurisdiction to give an award of reinstatement with continuity of service and 50% back wages. In view of the aforesaid fact, the petitioner submits that the award of the Labour Court is liable to be set aside.
Sri Ajay Sharma, Advocate, who appears for the respondents submits that as the petitioner was suffering from tuberculosis and was not in a position to join the duties and immediately after recovery from the disease the respondent No.1 has submitted an application with fitness certificate, which clearly disclose the disease that the respondent-workmen was suffering from Tuberculosis and an application to this effect was also submitted by the workmen to forego his back wages in case he is permitted to join by the petitioner.
I have heard learned counsel for the petitioner and counsel for the respondents and have perused the record.
From the record, it is clear that the performance of the respondent-workmen was not satisfactory and earlier he has also committed the same offence, absconding from duty without any information or by filing any application for leave or with the permission of the officer concerned. Again on 16.12.1985, the respondent-workmen without any permission has absented from the workshop and remained absented up to 23.9.1986. The petitioner has made various efforts to serve the notice to the workmen to join the services. A due care to this effect has also been taken by the petitioner to publish the information in the newspaper directing the respondent No.1 to join the duties but in spite of the aforesaid fact, the respondent No.1 has not joined. In my opinion, it will amount an abandonment of service by the respondent No.1. As regarding the validity of the award given by the Labour Court, if the Labour Court has recorded a finding that the workmen has not filed any documentary evidence to establish that he has ever made any application for leave from hospital or from house and he has not filed any medical certificate in support thereof regarding his absence, as such, in my opinion, the finding recorded by the Labour Court is perverse and against the evidence on record. If this finding has been recorded, the Labour Court have no jurisdiction to give an award in favour of the workmen of reinstatement with 50% back wages. The award of the Labour Court is illegal due to the fact that the respondent- workman has already filed an application to forego his back wages. Then in my opinion, the Labour Court was having no jurisdiction to award 50% back wages.
In view of the judgment in Vivekanand Sethi Vs. Chairman J.K.Bank Ltd. reported in 2005, Supreme Court Cases (Labour and Service) 689, the Apex Court has clearly held that if a person without any leave or without any permission from the employer has absented for a long period and no information to this effect is given to the employer concerned, it will amount to abandonment of service. As the whereabouts of the employee were not known, therefore, if the disciplinary proceedings have been initiated and opportunity has not been given to the charge employee, that cannot be treated to be illegal.
The similar controversy regarding abandonment of service has taken attention by the Apex Court in Dr. Gurjeewan Garewal (Mrs.) Vs. Dr. Sumitra Dash (Mrs) and others reported in (2004) 5 Supreme Court Cases, 263, the Apex Court has held that even after expiry of sanctioned leave if an employee does not join, it will be deemed to have vacated the post. Another judgment in Dr.Lakhte Mustaffa Kazmi Vs. State of U.P. and another reported in (2003) 2 UPLBEC 1351 has taken the similar view.
In view of the aforesaid fact, I am of the opinion, that award dated 26.3.1999 (Annexure 1 to the writ petition) cannot be sustained and is liable to be set aside.
The writ petition is allowed. There shall be no order as to costs.
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