High Court Punjab-Haryana High Court

K. K. Sharma vs The Presiding Officer on 1 September, 2009

Punjab-Haryana High Court
K. K. Sharma vs The Presiding Officer on 1 September, 2009
C.W.P. No.10732 of 2000                            -1-

 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
             HARYANA AT CHANDIGARH

                                 C.W.P. No.10732 of 2000
                                 Date of Decision:01.09.2009

K. K. Sharma                                             .....Petitioner

                                  Versus


The Presiding Officer, Central Government Industrial Tribunal-cum-
Labour Court, Chandigarh and another                 ...Respondents

Present: Mr. Atul Lakhanpal, Sr. Advocate with
Mr. R.S. Chahal, Advocate
for the petitioner.

Mr. D.S. Nalwa, Advocate
for respondent No.2.

CORAM:HON’BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see
the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest?

-.-

K. KANNAN J.(ORAL)

1. The award that is challenged in this case is rejection of a

reference sought for by the workman that he had been unjustly

terminated from service. It was a case of absence from duty beyond

the period for which he had sought for leave. The contention of the

workman was that he proceeded on leave on 29.08.1986 but he fell ill.

His parents had also died and he reported for duty on 05.02.1987

when it was informed to him by the management that notice had been

sent to him, directing him to rejoin duty and ultimately as per the

terms of Bipartite Settlement, his services were discontinued treating

him to be voluntarily retired.

2. Before the Labour Court, the workman sought to contend
C.W.P. No.10732 of 2000 -2-

that he had valid justification for his failure to turn up to duty. He

also contended that the management had not taken steps to ascertain

the correct address and send the notice to him. The Labour Court. on

examination of the document tendered before it, found that the

registered notice had been sent and it had been returned without

service. It referred to the effect of the service of notice to last known

address and the circumstances which would justify a presumption of

valid service if the registered letter had been sent to the last known

address. The Labour Court found that the service must have been

taken as having been effected and found no valid justification to

uphold the workman’s plea.

3. Learned counsel appearing for the workman argued that

there was actually no valid service at all. He refers to the postal

endorsement in Ex. M-5, which contained the address at village and

post office Nalter, Dehragopipur, District Kangra and the postal return

that the addressee had been on long leave. According to the learned

counsel, this was not the last known address and even the

management’s another notice sent on 20.01.1987 had been sent at

H.No.68, Subhash Nagar, Jammu and that was the last known address.

Incidentally, that notice had also been not served. Learned counsel

refers to a judgment of the Hon’ble Supreme Court in The Regional

Manager, Central Bank of India Vs. Vijay Krishna Neema & Ors

2009(5) S.C.C. 567 that principles of natural justice of having to serve

a notice ought not to be taken as mere empty formality. In that case,

the Hon’ble Supreme Court was dealing with a situation where it was

brought out through evidence that the employee had not been served
C.W.P. No.10732 of 2000 -3-

because of an incorrect address. It was also brought out before the

Hon’ble Supreme Court that the officer concerned knew about the

latest address of the employee, but it had not been sent to that address.

Finding that even the registered notice, as required under the terms of

Shastri Award, had not been issued, it held that there was no proper

notice and found against the management.

4. In this case, we do not have any similar situation as what

happened in the case before the Hon’ble Supreme Court. The

workman’s contention that the address mentioned in Ex.M-5 was not

the correct address or was not the last known address, is a contention

which is made for the first time before this Court. Such a contention

had not been taken even during the enquiry before the Labour Court.

Nor was this a case where it was stated that only the address at Jammu

was the last known correct address. It was perhaps possible that the

management attempted to serve the workman on a different occasion

in yet another address but that did not make it the only last known

address. On the other hand, what is contended is that the management

had not taken proper steps to ascertain the correct address and serve it

on him. If the workman had been lax in not letting know the

management a change in address, he cannot take his own lapse to his

advantage. The notice had been sent by registered post and if it was

not served, it was only on account of the fact that the workman had

not given the actual address where he was living.

5. Before the Labour Court, the attempt had been to show that

had justifying reasons for leave without prior sanction and further that

no departmental enquiry had been conducted. The law is well settled
C.W.P. No.10732 of 2000 -4-

now that for habitual absence or prolonged absence beyond the

sanctioned period of leave if the terms of engagement provide for a

particular mode of determining the service, it shall so operate. In

Punjab & Sind Bank V. Skattar Singh 2001 (1) SCT 265 the Hon’ble

Supreme Court held that the Bipartite Settlement between a bank and

the employees based on Shastri Committee Award that provided

where an employee absented himself from duty continuously for 90

days or more beyond the period of leave sanctioned, all that was

expected, was that the bank should serve notice calling upon the

employee to report for duty and if within 30 days, the employee did

not report for duty or offer satisfactory explanation, he could be

deemed to have voluntary retired. It was held in the said judgment

that constitution of any independent enquiry was not necessary. The

position of law has been reiterated even in the judgment in Canara

Bank’s case (supra) referred to above and cited by the learned

counsel. As observed already, the notice had been sent by registered

post and there was no plea at any time that there was any other last

known address than what was mentioned in the notice that was sent to

the workman.

6. The award of the Labour Court is, under the circumstances,

justified and there is no merit in the writ petition. The writ petition is

dismissed. There shall be, however, no direction as to costs.

(K. KANNAN)
JUDGE
September 01, 2009
Pankaj*