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*