JUDGMENT
K.J. Joseph, J.
1. The petitioner is running a medical mission hospital at Perunnai. The second respondent joined service as Compounder under the petitioner on December 25, 1969. She had been in the service of the petitioner for about 18 years. While so, she had applied for leave of two years on loss of pay from July 1, 1988 to June 30, 1990 on medical grounds, which was sanctioned by the petitioner. She had rejoined duty on July 1, 1990. Thereafter, again she had applied for leave for one year from July 19, 1990 on medical grounds. Even without waiting for the sanctioning of the leave, she left for Dubai, to join her husband who was working there. Thereupon, the petitioner issued a memo to
the second respondent in her permanent address. But the same was returned unserved. Again the management issued a memo directing the second respondent to appear before a medical board, as she had taken leave on medical grounds. That was also not served on her. Therefore, the management, as per the order dated December 21, 1990, terminated her service with effect from July 19, 1990, the date on which she had abandoned the service.
2. In April 1991, even before the expiry of the leave applied for, she returned to India and reported for duty. Then it was made known to her that her services had already been terminated with effect
from July 19, 1990 and, therefore, she was not permitted to rejoin duty. When the matter was taken up before the Government, it referred the dispute to the first respondent.
3. Before the first respondent, the petitioner contended that the second respondent had absented herself from duty on July 19, 1990 and since she continued her unauthorised absence, her services were terminated on December 21, 1990 giving effect to it from July 19, 1990. She went abroad for taking an assignment in Dubai. These contentions were denied by the second respondent. According to her, she had applied for leave on medical grounds. She was got examined by the Medical Officer attached to hospital of the petitioner. She had been under treatment for gynaecological problems. She left for Dubai not to take any foreign assignment, but only to have her treatment done there, for her husband was working there. She had been there for treatment and she returned to India to undergo a hysterectomy operation, which was done in the hospital under the petitioner itself. There was no justification for the management to deny her employment and not to sanction the medical leave applied for.
4. The first respondent posted the case for evidence to May 7, 1994. Even though the second respondent was present on that day, there was no representation on behalf of the management. Therefore, the case was adjourned to June 4, 1994. On that day also, there was no representation for the management. Therefore, the first respondent declared the petitioner as ex-parte. Ex-parte evidence was adduced by the second respondent who was examined as WW 1 and fifteen documents were produced to substantiate her case. Ext. W2 was the leave application submitted by the second respondent on July 19, 1990. The same was accompanied by Ext. W9 medical certificate issued by the Medical Officer of the hospital under the petitioner dated July 18, 1995. Exts. W4 to 6, 10, 11 and 12 were produced to prove that she was undergoing treatment in the Government Hospital at Dubai. The health card issued by the Foreign Government Hospital to show her physical condition while she was in Dubai was also produced. She gave evidence that the operation could not be done in Dubai and, therefore, she along with her husband returned to India and got done the operation in the Mission Hospital under the petitioner. On the basis of the above evidence,
the first respondent came to the conclusion that the petitioner was not justified in terminating the service of the second respondent and denying her employment and that there was no evidence adduced by the management, either documentary or oral, controverting the evidence adduced by the second respondent. In the light of that conclusion, the first respondent set aside the order of termination dated December 21, 1990 and the management was directed to reinstate the second respondent with continuity of service, but without any back-wages. The first respondent also held that the management would be at liberty to take disciplinary proceedings against the second respondent for leaving the country without intimation to the management. Ext. P1 is the award dated June 29, 1994.
5. The petitioner-management did not file an application to set aside the ex-parte order, within the time stipulated. On January 20, 1995, the petitioner filed Ext. P2 petition to set aside the ex-parte award dated June 29, 1994 by condoning the delay of 214 days in filing the said petition. Ext. P2 was supported by Ext. P3 affidavit, wherein the petitioner admitted that in August 1994 itself, the management was aware of the passing of the award and that it was believing that the Advocate would be filing an application to set aside the ex-parte award, they did not take any steps to file an application to that effect. The first respondent thereupon passed Ext. P4 order rejecting the request to condone the delay of 214 days in filing the application. The challenge is directed against Exts. P1 and P4.
6. Heard both sides at length.
7. The short question that needs my answer is, whether there is any legal infirmity in Ext. P1 award passed by the first respondent.
8. Admittedly, the petitioner did not appear before the first respondent on May 7, 1994 and June 4, 1994, to which dates the case was posted for trial. No explanation was also offered by the petitioner for its absence on those dates. Even in the original petition, no reason seemed to have been stated for its absence on the dates when the case was posted for trial before the first respondent. Under such circumstances, I do not find any reason to interfere with Ext. P1 award on merits.
9. As can be seen from Ext. P1, the second respondent gave evidence regarding the
circumstances under which she was constrained to go abroad. She also gave evidence that she was not well at the time when she had applied for leave. Ext. W2 was supported by Ext. W9 medical certificate issued by the Medical Officer attached to the hospital under the petitioner. Ext. W9 would positively show that the second respondent was having gynaecological problems. Under such circumstances, she left for Dubai to join her husband. Documents were produced before the first respondent to show that she was undergoing treatment in the Government Hospital at Dubai. Before the first respondent, there was no evidence at all to prove that the second respondent had left for Dubai for taking any assignment under a foreign employer. That statement continued to be an allegation without any proof. Whatever it be, the first respondent was fully justified in not accepting the case of the petitioner that the second respondent left India for accepting any foreign assignment. The evidence adduced before the first respondent proved that the application submitted by the second respondent before the management was bona fide and that she was not doing well at the time when she applied for medical leave.
10. But the first respondent found fault with the second respondent for leaving the country without obtaining prior sanction from the management and for that misconduct on the part of the second respondent, the petitioner was directed to take disciplinary proceedings against her. It was with that rider, the first respondent ordered reinstatement of the second respondent in service, that too without any back-wages. Therefore, the right of the mamagement to take disciplinary action for the alleged misconduct on the part of the second respondent was left open.
11. The first respondent found that the order terminating the service of the second respondent was issued in violation of the principles of natural justice since no opportunity was given to defend her case. Admittedly, no charges were framed against the second respondent and no opportunity was afforded to her to explain such charges, though, as contended by the petitioner, the second respondent was absent from duty from July 19, 1990 onwards. If an opportunity was given to her, she could have produced documents before the management and proved that the application was made for bona fide reasons. The petitioner has no case that they have framed any charge or ordered.
any domestic enquiry in regard to the misconduct on the part of the second, respondent. Therefore, I see no justification to interfere with Ext. P1, in this proceeding at the instance of the petitioner, who did not even adduce any evidence or appear before the first respondent when the case was posted for evidence.
12. The next contention raised by counsel for the petitioner is that Ext. P4 is illegal. Under the Industrial Disputes Rules, such an application should be filed within 30 days from the date of publication of the award in the Gazette. Admittedly, in this case, no such application was filed within the time stipulated under law. Ext. P3 affidavit would amply prove that the petitioner was aware of the passing of Ext. P1 award as early as in August, 1994 from the office of the Secretary, Labour and Rehabilitation Department, Trivandrum. In spite of that, no steps had been taken by the petitioner to get the ex-parte decree set aside. The only reason stated in Ext. P3 was that the petitioner made enquiries with the counsel appearing on its behalf and believed the statement made by the counsel that he would be filing an application to set aside the ex-parte award. Ext. P1 award was published in the Kerala Gazette on November 1, 1994. Under Section 17 (2) of the Industrial Disputes Act, the said award has become final and thereafter the Labour Court has become functus officio. The Labour Court has no jurisdiction to entertain an application after 30 days of publication of the award. It has been held so by in C.J. Thomas and Anr. v. Labour Court and Anr. (1993-I-LLJ-278) (Ker). In this case, Ext. P1 award was published in the Gazette on November 1, 1994 and the application to set aside the ex-parte award was filed only on January 20, 1995, long after the publication of the award in the Gazette. Sufficient grounds were also not stated to condone the delay, especially the delay after coming to know of the passing of the award in August 1994. Therefore, the first respondent rightly, in my view, declined to entertain Ext. P2. This Court has jurisdiction to interfere with the matter under its extraordinary jurisdiction, as held in FACT Employee’s Associations FACT Ltd., (1977-I-LLJ-182). But I see no justification to interfere with Ext. P4 order at the instance of the petitioner.
Exts. P1 and P4 are perfectly legal. The original petition fails and hence the same is dismissed, but, in the circumstances, without any order as to costs.