REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7312 OF 2008
[Arising out of SLP (Civil) No. 13894 of 2006]
M.P. State Electricity Board & Anr. ...Appellants
Versus
S.K. Yadav ...Respondent
JUDGMENT
S.B. SINHA, J :
1. Leave granted.
2. Whether respondent should have been granted back wages in the facts
and circumstances of this case is the question involved in this appeal which
arises out of a judgment and order dated 22.06.2005 passed by the High
Court of Madhya Pradesh at Jabalpur in Writ Petition No. 975 of 2001.
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3. The basic fact of the matter is not in dispute.
Respondent herein is a Homeopathic Doctor. He was appointed as a
Homeopathic Assistant in the Homeopathic Dispensary which used to be
run by the appellant. However, the Dispensary was closed. He was asked
to join the Head office as Office Assistant Grade – II. He protested
thereagainst. He went of leave with effect from 10.09.1991. It is alleged
that he remained unauthorisedly absent on and from 10.09.1991 upto
1.12.1993. In the meanwhile, he filed several representations as regards the
decision of the management to transfer him in the post of Office Assistant
Grade – II in the Head Office upon closure of the Homeopathic Dispensary.
4. A chargesheet was issued to him on or about 12.07.1994 in respect of
the following charges:
“Charge No. 1 – Officiating on the abovesaid
responsible post, Sri S.K. Yadav, exercising
irresponsible behaviour, remained absent w.e.f.
11.9.91 from his duty without permission of his
Senior Officer and without giving written or oral
information in unauthorized manner. Even charge
of all the homeopathic medicines and commodities
of Dispensary which was under you, without
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handing over the charge to anybody else, kept the
keys with you in unauthorized manner. Dr. Yadav
was informed to be present on his duty vide Letter
No. 01-04/CMO/224, Dated 20.0.91 (sic) of Chief
Medical Officer, M.P.E.B., but neither he
presented himself on duty nor thought it necessary
to reply the letter of Chief Medical Officer.
Thus, Sri S.K. Yadav under provisions of
M.P. Civil Service Rules and under para no. 24(2)
of provisions of M.P. Civil Services Leave Rules
(Classification and Appeal) Rules, 1966 which has
been admitted by the Board vide its Notification
No. 01-01 Five /1620/81/98/68 dated 21.4.82, has
made himself eligible, violating the above
provisions for serious disciplinary action.
Charge No. 2 – That Sri Yadav had been
directed to give his clarification for remaining
absent continuously from duty vide this Office
Letter No. 02-07/one/Estd. 1782 dated 16.11.1993.
Sri S.K. Yadav on 01.12.93 in the afternoon
submitted information of his being present in the
office of undersigned, but he did not produce any
clarification for his undisciplined action.
Thereafter, Sri S.K. Yadav was found absent from
his duty from 7.12.93 without any prior
information and permission.
Thus, act of Sri Yadav, i.e., remaining
absent continuously from his duty without prior
information or permission in unauthorized manner,
is grave misconduct contrary to Rule 3 and ….of
Madhya Pradesh Civil Services (Conduct) Rules,
1965, which has been enforced by the Board vide
its Notification No. S/111/G-213, dated 28.2.68 on
its employees and under part 12/1/P of Standard
Standing Order.
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Charge No. 3 – On 1.12.93 in spite of being
present on duty, Sri Yadav remained disinterested
towards the works of Electricity Board. Sri Yadav
was informed vide this office letter No. 02-
07/one/Estd./53 Dated 11.1.94 that you will work
under the guidance of Section Officer, but it was
found that you were not found on your allotted
work in the office and it was also found that you
remained absent from office, putting your
signature on Attendance Register from 10.30 a.m.
to 5.30 p.m. on regular basis, violating all the
Office Directions.”
5. A disciplinary proceeding was initiated in respect of the
aforementioned charges. Respondent was, however, exonerated of Charge
No. 3. Charges No. 1 and 2 having been proved, a penalty of reduction of
pay to its minimum and stoppage of increments for a period of five years
was passed against him.
Respondent filed an application under Section 31(3) read with
Section 61 of the Madhya Pradesh Industrial Relations Act, 1960 (for short
“the Act”) before the Labour Court. The said application was allowed in
terms of an award dated 29.05.1999, whereby the Presiding Officer, Labour
Court passed the following award:
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“Hence, allowing the applicant’s application,
disputed order dated 21.9.96 passed by the office
of Opposite Parties, on account of being illegal
and unjust, I do reject the same and Opposite
Parties are being directed that disputed order dated
21.9.96 on account of being rejected, applicant is
being declared entitled for receiving all his
interests and profits of his earlier post before
21.9.96 from the Opposite Parties.”
6. In the said award, the learned Labour Court discussed in details about
the correctness or otherwise of the allegations made against the respondent
by the department as also the report of the Inquiry Officer.
An appeal preferred thereagainst was dismissed by the Industrial
Tribunal by an order dated 3.08.2000.
A writ petition was preferred thereagainst. By reason of the
impugned judgment, the said writ petition has been dismissed.
Appellants are, thus, before us.
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7. Mr. Aditya Kumar Dubey, learned counsel appearing on behalf of the
appellants, would contend that in the peculiar facts and circumstances of
this case, the respondent was not entitled to any back wages.
8. Mr. P.S. Patwalia, learned senior counsel appearing on behalf of the
respondent, on the other hand, contended that keeping in view the fact that
the wages upto February, 1992 had been paid, it is not a case where the back
wages should be denied to him.
9. The terms and conditions of the service are governed under the M.P.
Electricity Board (General Service) Regulations, 1952 framed under the
Electricity (Supply) Act, 1948. It is also not in dispute that the Standing
Order framed in terms of the provisions of the Madhya Pradesh Industrial
Employment (Standing Orders) Act, 1961 is applicable.
Respondent filed an application before the Labour Court in terms of
Sub-section (3) of Section 31 of the Act, which reads as under:
"31. Notice of change - (1) *** ***
(2) *** ***
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(3) A representative of employees or an
employee desiring a change in respect of an
industrial matter specified in Schedule II or any
other matter arising out of such change may make
an application to Labour Court in such manner as
may be prescribed.”
10. The Labour Court while adjudicating on such a complaint is entitled
to determine the question relevant to the dispute in terms of Section 61(1)
(A)(a) and 61(2) of the Act, which reads as under:
“61. Powers of Labour Court – (1) In addition
to powers conferred under other provisions of this
Act, a Labour Court shall have power to –
(A) decide –
(a) dispute regarding which application has
been made to it under sub-section (3) of Section
31 of the Act;
*** *** ***
(2) For the purposes of deciding a dispute under
paragraphs (A) and (B) of sub-section (1) it shall
be lawful for the Labour Court to determine
questions of fact relevant to the dispute.”
11. It is in exercise of that power, the learned Labour Court invoked
clause (b) of paragraph 8 of the Standing Order, which reads as under:
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“(b) An employee who desires to obtain leave of
absence shall apply to the Manager or the Officer
authorized by him. It shall be duty of the Manager
or the officer to pass orders thereon on two days in
a week fixed for the purpose; provided that, if the
leave asked for is of an urgent nature, i.e.,
commences on the date of the application or
within three days thereof, orders for the grant or
refusal of leave shall be communicated without
delay.”
We may also notice clause (e) of the said paragraph, which is as
under:
“(e) An employee remaining absent beyond the
period of leave originally granted or subsequently
extended shall be liable to loose his lien on his
post and shall be deemed to have left the services
from the date of his unauthorized absence unless
he returns within ten days of the expiry of the
sanctioned leave and or explains to the satisfaction
of the Manager or the officer authorized by him,
his inability to resume immediately on the expiry
of his leave. An employee who so looses his lien
but reports for duty within 30 days of the expiry of
his leave shall be kept as a badli if he so desires
and his name shall be entered in the badli
register.”
Inter alia on the aforementioned premise as also on the ground that
ordinarily only a fine can be imposed for being unauthorisedly absent, it
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was held that the charges against the respondent cannot be said to have been
proved.
12. It is not in dispute that the respondent joined his post on 24.07.1989.
It was furthermore not in dispute that till February, 1992, his wages had
been paid. The learned Labour Court as also the Industrial Court inter alia
proceeded on the premise that the respondent had been filing applications
for grant of leave although an order thereupon was required to be passed by
the appropriate authority in terms of the statutory order, i.e., twice in a
week, and the same having not been done, leave must be deemed to have
been granted and in that view of the matter, the respondent cannot be said to
have remained unauthorisedly absent.
13. The Standing Order framed in terms of Madhya Pradesh Industrial
Employment (Standing Orders) Act, 1961 has the force of a statute.
Paragraph 12 of the Standing Order provides for disciplinary action on the
ground of commission of misconduct on the part of an employee. Clause
(4) of Paragraph 12 thereof provides that no punishment shall be imposed
on an employee unless proved guilty of misconduct in an enquiry conducted
in the manner specified therein. Punishments which can be imposed upon a
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delinquent employee have been provided in Clause (3) of Paragraph 12 of
the Standing Order. The Labour Court opined that the punishment imposed
upon the respondent had not been prescribed in the Standing Order.
14. The Labour Court in terms of the provisions of the Act exercises
jurisdiction as is specified therein. It was entitled to enter into the question
of fact as also the legality or otherwise of the disciplinary proceedings and
the quantum of punishment imposed.
15. We, therefore, do not intend to interfere with the order of the Labour
Court setting aside the penalty imposed upon the respondent.
16. The question, however, which arises for consideration is as to
whether in the peculiar facts and circumstances of the case the back wages
should have been directed to be paid.
Unauthorised absence for a long time is a serious misconduct. If
respondent was aggrieved by and dissatisfied with the decision of the
management in regard to closing down of the `Dispensary’, he should have
taken recourse to such remedies which were available to him. He could
have gone on leave provided the same was due to him in law. It is not in
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dispute that in terms of Clause (b) of Paragraph 8 of the Standing Order the
applications filed by the workman were required to be considered and an
order thereon should have been passed within the period specified therein.
Mr. P.S. Patwalia, however, when questioned, could not point out any
consequences emanating therefrom. It is, therefore, directory in nature.
17. It is now a well-settled principle of law that where a public authority
is required to pass an order in terms of the statute within a period stipulated
therefore, non-compliance whereof would not vitiate the ultimate order,
must be held to be directory in nature and not imperative.
18. The Labour Court, therefore, in our opinion, proceeded on a wrong
premise that by not refusing to grant leave, the same would be deemed to
have been granted. The Standing Order does not contemplate such a
situation. The question as to whether leave has been granted or not will
again depend upon the facts and circumstances of each case and no legal
inference can be drawn therefrom.
19. We, therefore, are of the opinion that in a case of this nature, interest
of justice would be subserved, and in particular, having regard to the nature
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of penalty imposed upon the respondent, if the period from 11.09.1991 to
30.11.1993 during which the respondent did not perform any duty, should
be directed to be treated as period on leave.
20. We may only notice that even, according to the department, the
period of leave should be treated in the following terms:
"Type of leave Duration Total days
Extraordinary Leave 19.9.91 to 14.3.92 178
(without Pay) 178 days on 13.11.90
converted into half pay
holiday)
15.3.92 to 3.4.92 20
4.4.92 to 23.4.92 20
24.4.92 to 13.5.92 20
(accepted as per page 17 Sub Rule 24 of the
Holiday Rules Book of the Board)
Unauthorized leave 14.5.92 to 30.11.93 568"
(without pay)
21. We, therefore, allow this appeal in part directing that the period from
11.09.1991 and 30.11.1993 shall be treated to be as if the respondent was on
leave available to him in law. The salary paid to the respondent for the
months of December, 1991 to February, 1992 shall be adjusted accordingly.
No costs.
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………………………….J.
[S.B. Sinha]
…………………………..J.
[Cyriac Joseph]
New Delhi;
December 16, 2008