Krishna Iyer, J. - (1.) This is an appeal, by special leave, from a judgment of the High Court in Writ Appeal by a Division Bench which confirmed the judgment of a learned single Judge of that court who, in turn, refused to interfere with the award of the Industrial Tribunal.
(2.) The facts briefly are:that the 2nd respondent was an employee under the appellant for a long number of years. There was no blemish in his service, and Shri Sachin Choudhary for the appellant has very fairly stated that there was no complaint against the services of the 2nd respondent while he was employed by it. But the 2nd respondent fell ill and applied for leave. It so happened that his illness persisted for a long time and the Management, quite rightly, granted him leave from time to time. On 4th November 1963 his leave expired and on 5th November, 1963 the Management, invoking a clause in the contract of employment, terminated his employment. It is that order of termination that was set aside by the Industrial Tribunal and affirmed from court to court up to now. The particular clause in the contract which was relied on by the Management stated that: It was open to the employer to determine the employment at any time without any notice or payment in lieu of notice in the event of ........... "you become from any cause incapacitated by a longer period than two calendar months from properly discharging your duties." The courts below held, and quite rightly in our view, that since the employee was all along on leave granted by the employer no question of incapacity or being incapacitated from properly discharging his duties arose. It is obvious that when an employee is on leave he is not called upon to discharge any duties and therefore the question of the capacity to discharge duties does not fall for consideration. The clause relied upon comes into play only when an employee who has to discharge his duties fails to do so and the employer makes a judgment of the situation and comes to the conclusion that it is on account of an incapacity which will last longer than two months that the failure to discharge his duties has arisen. We are, therefore, satisfied that the clause could not have been invoked and the termination of service was bad in law.
(3.) Even so, the further question arises as to whether the employee should be recompensated with full wages and other benefits until the date of reinstatement. We have to be realistic in this jurisdiction although in industrial law when termination of service is found to be illegal the ordinary rule is reinstatement. We direct reinstatement in affirmance of the order passed by the High Court and the Industrial Tribunal. But the High Court as well as the Industrial Tribunal have also awarded full wages and other benefits during the period the employee"s services had stood terminated. It is right for us to remember - and Shri Sen Gupta has reminded us of the proposition - that sitting in appeal under Art. 136 against an order of the High Court passed under Article 226 we should not lightly interfere with the direction made in the judgment of the High Court unless there is some substantial error, manifest injustice or exceptional circumstance. None having been pointed out, we affirm the finding of the High Court regarding payment of back wages and other benefits up to the date the High Court passed its final order in Division Bench, viz., 30th November, 1971.;