National Engineering Industries Ltd. Vs.
Hanuman  INSC 160 (25 July 1967)
25/07/1967 WANCHOO, K.N. (CJ)
WANCHOO, K.N. (CJ) MITTER, G.K.
CITATION: 1968 AIR 33 1968 SCR (1) 54
Industrial Disputes Act, 1947 (14 of 1947),
ss. 33 and 33A--Standing Orders providing for automatic termination of services
for over-staying leave beyond certain period-S. 33 whether applies when
services terminated in above manner--Application under s. 33A, whether lies.
Constitution of India, Art, 136-Appeal by
special leave against order of Labour Court--Supreme Court will interfere with
finding of fact by quasi-judicial Tribunal only when they are perverse.
The respondent was a workman in the appellant
company. On the ground of over-staying his leave for more than eight days the
company, relying on the relevant provision in the Standing Orders, treated his
services as having teen automatically terminated. The workman made an
application under s. 33A of the Industrial Disputes Act before the Labour
Court. The respondent's version that he had asked for extension of leave on
medical grounds and had sent an application through another workman was
believed by the Labour Court. That court therefore held that there was no
automatic termination of the respondent's services and that he was entitled to
make an application under s. 33A. The company appealed to this Court under Art.
136 of the Constitution.
HELD:(i) Ordinarily this Court is slow to interfere
with findings of fact recorded by quasi-judicial Tribunals in an appeal under
Art. 136 of the Constitution. But this Court does so if it is shown, ex facie,
that the finding recorded is perverse. In the present case the respondent had
been totally unable by evidence produced by him to establish that his absence
beyond the period of leave origi- nally granted was due to continued illness
and therefore the finding of the Labour Court in his favour in this respect was
perverse. [56D-E; 57C] (ii) Standing Order (i) in Section G on which the
appellant company relied in inartistically worded, but when the standing order
provides that a workman will lose his lien on his appointment in case he does
not join his duty within eight days of the expiry of his leave, it obviously
means that his services are automatically terminated on the happening of the
contingency. [57G] Where a workman's service terminates automatically under the
standing order s. 33 would not apply and so an application under s. 33A would
not be maintainable, as there is no question in such a case of the
contravention of s. 33 of the Act. [58C-D] Chandri Bai Uma v. The Elephant Oil
Mills Ltd.,  1 L.L.J. 370 and Sahajan v. A. Firpo Company Ltd.,  II
L.L.J. 686, approved.
Raghunath Enamels Ltd., v. Sri Surendra
Singh,  I L.L.J. 261, disapproved.
Yeshwant Sitaram Rane v. Goodlass Wall
Limited,  I L.L.J. 505 and Kanaksing Ramsing v. Narmada Valley Chemical
Industries Limited,  I L.L.J. 377, distinguished.
Buckingham and Carnatic Company Limited, v.
Venkatayya and Anr.  II L.L.J. 638 4 S.C.R. 265, applied.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 549 of 1967.
Appeal by special leave from the Award dated
December 23, 1966 of the Labour Court, Rajasthan, Jaipur in Complaint No.
6 of 1965.
Niren De, AdI. Solicitor--General, and B. P.
Maheshwari, for the appellant.
M.K. Ramamurthi, Shyamala Pappu, R.
Nagaratnam and Vineet Kumar, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, C.J.-This is an appeal by special leave in an in- dustrial matter and
arises in the following circumstances.
Respondent Hanuman was in the service of the
appellant. He took leave from 3rd to 9th April, 1965 and in that connection a
certificate from the Employees' State Insurance Dispensary (hereinafter
referred to as the Dispensary) was produced. He should have joined on 10th
April, 1965. but he did not do so. His case was that he had sent another
certificate from the Dispensary on April 10, 1965 for further leave through one
Prahlad Singh. Thereafter he was given a fitness certificate on April 19, 1965
and was required to join on 20th April, 1.965. He appeared to report for duty
on 20th April, 1965, but he was not allowed to join on the ground that his
service stood terminated. As an industrial matter was pending at the time in
which he was concerned as a workman, he made an application under s. 33-A of
the Industrial Disputes Act, No. 14 of 1947, (hereinafter referred to as the
Act) for reinstatement.
The case of the appellant on the other hand
was that Hanuman respondent was on leave from April 3 to April 9, 1965 on the
basis of the certificate from the Dispensary. The appellant however contended
that no certificate was received thereafter on April 10, 1965 through Prahlad
Singh as alleged by Hanuman. Further Hanuman did not appear to rejoin till
April 20, 1965. Consequently in view of s.o.
(i) in Section G of the Certified Standing
Orders Hanuman lost his lien on his appointment. The appellant's case thus was
that Hanuman's service stood terminated automatically under the Standing Orders
and no order as such was passed by the appellant terminating his service. In
consequence there was no contravention of s. 33 of the Act and therefore
Hanuman's application under s. 33-A was not maintainable.
Two questions thus arose before the labour
court. The first was whether Hanuman continued ill from April 10 to April 19.
1965 and whether he had sent the certificate
in support of that illness from the Dispensary, and the second was whether the
application was maintainable under s. 33-A of the Act in view of the 56 alleged
automatic termination of Hanuman's service under the Standing Orders. On the
first point the labour court held that Hanuman had continued ill from April 10
to April 19, 1965 and that he had sent the certificate through Prahlad Singh on
April 10, 1965. On the second question the labour court seems to have held that
the service of Hanuman was not automatically terminated under the Standing
Orders and in any case the appellant should have taken his explanation and so
there was denial of natural justice for the service of Hanuman was terminated
without any enquiry. The labour court therefore decided in favour of Hanuman
and ordered his reinstatement with all back wages.
In the present appeal, the appellant raises
two points. It is first contended that the finding of the labour court that
Hanuman continued ill from April 10 to April. 19, 1965 was perverse. Secondly,
it is contended that the service of Hanuman stood automatically terminated
under the relevant standing order; as such s. 33 was not contravened and no
application under s. 33-A lay.
Ordinarily this Court is slow to interfere
with findings of fact recorded by quasi judicial tribunals in an appeal under
Article 136 of the Constitution. But this Court does so if it is shown ex
facie, that the finding recorded is perverse.
It does appear to us in this case that the
finding that Hanuman continued ill from April 10 to April 19, 1965 is perverse.
It is true that Hanuman stated that he had sent the certificate through Prahlad
on April 10, 1965. In support of his statement he examined Prahlad Singh and
Girraj Prasad who was in-charge of the
Dispensary at the time when evidence was given in 1966. Prahlad Singh did not
support Hanuman and was treated as hostile. Prahlad Singh had given an
affidavit in favour of Hanuman but in his statement before the labour court he
said that he did not remember the date when Hanuman fell ill and did not know
on what date Hanuman had given him the certificate. It may be mentioned that
the first medical certificate was sent through Prahlad Singh on April 3, 1965,
but Prahlad Singh's evidence does not prove, that he gave the second
certificate to the foreman of the appellant on April 10, 1965. As for Dr.
Girraj Prasad he seems to have stated in his examination-in-chief that Hanuman
was under his treatment from April 3 to April 19, 1965 and was given a fitness
certificate to join from April 20, 1965. In cross- examination, however, he
admitted that he had not issued the three certificates dated April 3, 10 and
19, 1965 and that he had not examined Hanuman on these three dates. He further
stated that he had given his evidence on the basis of the record of the
Dispensary. But it seems that the record of the dispensary was not before him
when he gave the evidence, for he admitted that 57 he had not been shown either
the original certificate or the copies thereof. His evidence therefore was
worthless in so far as corroboration of Hanuman's statement was concerned.
The doctor who actually gave the certificates
was never examined and no reason was given why he could not be examined. It is
also remarkable that the fitness certificate which, according to Hanuman, was
taken by him when he appeared on April 20, 1965 to join his duty has not been
produced. It is not Hanuman's case that he had given that fitness certificate
to the appellant and the appellant had suppressed that also. In the
circumstances, it seems to us that the finding of the labour court that Hanuman
continued ill from April 10 to April 19, 1965 is perverse, for both the
witnesses produced by Hanuman in support of his case had not corroborated his statement.
There is nothing on the record besides the mere statement of Hanuman to prove
that he continued ill from April 10 to April 19, 1965. Even the fitness
certificate was never produced before the labour court and it seems that the
record of the dispensary was also never produced before the labour court;
Girraj Prasad though he stated that he was
giving evidence on the basis of the record, did not refer either. to the
original certificates or the copies thereof before giving his evidence. In
these circumstances we cannot accept the finding of the labour court to the
effect that Hanuman continued ill from April 10 to April 19, 1965 in the face
of the appellant's denial that no certificate was sent to the appellant on
April 10, 1965.
As to the second contention raised by the
appellant, it appears from the standing order (i) in Section G that a workman
who does not report for duty within eight days of the expiry of his leave loses
his lien on the appointment.
There is dispute between the parties as to
what these words in the standing order; which evidences the conditions of
service, mean. So far as Hanuman is concerned he admitted in his statement in
cross-examination that under the standing order of a workman remained absent
from duty for more than eight days his service stood terminated. This shows
what the workman understood the standing order in question to mean. The
standing order is inartistically worded, but it seems to us clear that when the
standing order provides that a workman will lose his lien on his appointment in
case he does not join his duty within 8 days of the expiry of his leave, it
obviously means that his services are automatically terminated on the happening
of the contingency. We do not understand how a workman who has lost his lien on
his appointment can continue in service thereafter. Where therefore a standing
order provides that a workman would lose his lien on his appointment, if he
does not join his duty within certain time after his leave expires, it can only
mean that his service stands automatically terminated when the contingency
58 Reliance in this connection was placed on
certain cases and we shall refer to them now. In Chandrabai Uma v. The Ele-
phant Oil Mills Ltd.(1) the standing order provided that a workman would lose
his appointment unless he returned within 8 days of the expiry of the leave
and, gave explanation to the satisfaction of the authority granting leave of
his inability to return before the expiry of leave. The Labour Appellate Tribunal
held in that case that where a standing order provided for automatic
termination of service, s. 23 of the Industrial Disputes (Appellate Tribunal)
Act, 1950 would not apply. That decision in our view lays down the correct law.
Section 33 of the Act corresponds to s. 23 of the Industrial Disputes
(Appellate Tribunal) Act, 1950. The position therefore would be the same under
S. 33 of the Act.
Where therefore a workman's service
terminates automatically under the standing order, s. 33 would not apply and so
an application under s. 33-A would not be maintainable, as there is no question
in such a case of the contravention of s. 33 of the Act. But the words in the
standing order in that case were slightly different, for they specifically
provided that the workman would lose his appointment, and it is argued on
behalf of the respondent that that case would not in the circumstances apply.
But as we have already held there is no difference between saying that
"the workman's lien would stand terminated" as in the present case
and that "the workman would lose his appointment" as in that case.
The next case to which reference may be made
is Raghunath Enamel.v Ltd. v. Sri Surendra Singh (2). In that case the Labour
Appellate Tribunal distinguished its earlier decision in Chandrabai Uma's
case(1) because the words in that case were that if a workman remained absent
for a certain period he would lose his lien and not that he would lose his
appointment. The Labour Appellate Tribunal seems to have held that losing lien
is different from losing appointment.
With respect it seems difficult for us to
appreciate what difference there is, for, we think, that once a workman loses
his lien on his appointment he loses his appointment.
We cannot therefore accept the distinction which
was made by the Labour Appellate Tribunal in that case.
In Sahajan v. A. Firpo Company Limited(3) the
words of the standing order provided that "if the workman remains absent
beyond the period of leave originally granted or subsequently extended he shall
lose lien on this appointment...." In that case the Labour Appellate
Tribunal followed the case of Chanda bai Uma(1) and not the case of Raghunath
Enainels Ltd.,(1) though one of the members of the Tribunal was common to both.
This (1)  I I.L.J. 370.
(2)  I L.L.J. 261.
(3)  II L. L. J. 686.
59 case is on all fours with the present case
and was in our opinion rightly decided.
The next case to which reference may be made
is Yeshwant Sitaram Bane v. Goodlass Wall Limited(1). That case was decided on
its peculiar facts which have no parallel in the present case. There the
employee had applied for such leave which was due to him. But the employer did
not grant the leave due and treated the service as automatically terminated as
the employee had not joined within 15 days from the expiry of the original
leave. It was on these facts that the Labour Appellate Tribunal interfered.
That case therefore stands on its own facts.
The next case to which reference may be made
is Kanaksing Ramsing v. Narmada Valley Chemical Industries Limited.(1) There
also the words of the standing order were different and it provided for placing
the workman on the list of Badlis if he appeared within 15 days of the expiry
of his leave. That case therefore has no application to the facts of the
The last case to which reference may. be made
is Buckingham and Carnatic Company Limited v. Venkatayya and another(1).
That case arose under the Employees' State
Insurance Act (34 of 1948). The words of the standing order there were specific
and laid down that "any employee who absents himself for eight consecutive
working days without leave shall be deemed to have left the company's service
without notice thereby terminating his contract of service." In the face
of those words, s. 73 of the Employees' State Insurance Act was held
inapplicable. Though the case is not on all fours with the present case because
it deals with a provision of another law, the reasoning in that case would
apply in the present case. We are therefore of opinion that Hanuman
respondent's service stood automatically terminated for he did not appear for
eight days after the expiry of his leave on April 9, 1965. In this view of the
matter s. 33 cannot be said to have been contravened and s. 33-A will not
It is however urged that some difference is
made by the existence of another provision in the Standing Orders. In Appendix
'D' of the Standing Orders one of the Major Misdemeanours is "absence
without permission exceeding ten consecutive days." That in our opinion is
an alternative provision and the appellant in this case was free to resort to
any one of the provisions, unless it is shown that resort to one particular
provision was due to mala. fide. This is not the case of the respondent here.
In the circumstances the earlier standing order in Section G must be held to
(1)  I L.L.J. 505.
(2)  I L. L. J. 377.
(3)  I L.L.J. 638= 4 S.C.R. 265.
60 have full force and effect and Hanuman
respondent's service stood automatically terminated when he did not appear
within 8 days of the expiry of his leave which was on April 9, 1965.
We therefore allow the appeal and set aside
the order of the labour court reinstating Hanuman. The automatic termination of
his service under the relevant standing order would thus stand. In view of the
order of this Court dated March 20, 1967 made at the time of granting special
leave, we order the appellant to pay the costs of the respondent. Further this
Court had ordered then that stay would be granted on condition that the
appellant would pay full wages to the respondents pending disposal of the
appeal. We therefore order that whatever wages have been paid to the respondent
upto now shall not be recovered by the appellant.
G.C. Appeal allowed.