- (1.) CHALLENGE in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court dismissing the writ petition filed by the appellant questioning the correctness of the Award dated 28. 1. 1998 passed in Industrial dispute No. 111 of 1987 passed by the Presiding Officer, central Government Industrial Tribunal-cum-Labour Court, kanpur, Uttar Pradesh (in short, 'the Tribunal' ). The award was passed in the reference made by the Central Government, ministry of Labour, referring the following dispute for adjudication of the Tribunal: "whether the action of the management of New india Assurance Company Limited in removing Sri Vipin behari Lal Srivastava, typist, Allahabad from service w. e. f. 15. 6. 1985, is legal and justified? If not to what relief the concerned workman is entitled?"
(2.) THE controversy lies within a very narrow compass. The respondent was working as a permanent typist at the allahabad branch of the appellant-New India Assurance Co. Ltd. Alleging that he had unauthorizedly remained absent for more than 600 days, a charge sheet was issued. An Enquiry officer was appointed and after completion of enquiry and on consideration of the enquiry report, the respondent was removed from service by order dated 15. 6. 1985. Thereafter, a dispute was raised and the reference was made, as noted above. The Tribunal came to hold that during the period in question, i. e. , 25. 9. 1982 to 5. 6. 1984, the respondent was suffering from Tuberculosis and he had applied for medical leave and since the management did not pass any order on his leave applications, the concerned workman cannot be held responsible and, therefore, he was not absent unauthorizedly from duty. Accordingly, the order of removal was set aside and order was passed directing reinstatement with full back wages and consequential benefits including continuity of service. The same was challenged before the High Court. By the impugned order, the High Court observed that though the respondent had remained absent, his absence with leave stood condoned by virtue of the letter dated 3. 8. 1984 issued by the branch Manager of the appellant Company by which the respondent was called back to work. It was further observed that the Tribunal had also recorded that the management did not pass any order on the leave application and, therefore, it had to be implied that leave had been sanctioned. But it was noted that by virtue of a stay order passed in a writ petition, the proceedings before the Tribunal had remained stayed for about six years and, therefore, the respondent was not entitled to back wages for the whole period, but was entitled from 28. 1. 1998 i. e. from the date of the award. A Letters Patent appeal was filed before the Division Bench of the High Court which dismissed holding the same to be not maintainable. In the present appeal, the order passed by the learned single Judge has been questioned. Learned counsel for the appellant submitted that there was no condonation of the absence of the leave as has been noted by the Tribunal and the High Court; on the contrary, in the letter in question it was categorically stated that the prayer for leave even without pay cannot be granted. Therefore, he was directed to join the duty immediately and failing which it was to be presumed that he was not interested in the job and it shall also be presumed that he had abandoned the job. It was also pointed out that with a view to test the correctness of the stand that respondent was ailing, the Deputy Medical officer was sent to the house of the respondent along with a senior officer but the respondent was found absent and it was gathered that he was hale and healthy. With reference to the relevant Rules, it is submitted that there was no scope for claiming leave as a matter of right and sick leave can only be granted on certain conditions being fulfilled which were not fulfilled by the respondent.
(3.) IN response, learned counsel for the respondent submitted that the respondent was suffering from tuberculosis for which there is ample material. The authorities insisted on a certificate from the Chief Medical officer but did not write directly to the said Officer though requested by the respondent. Several applications for leave were made but they were not dealt with by the appellant and, therefore, the Tribunal and the High Court were justified in directing reinstatement. The main basis for conclusion of the High Court for assuming condonation of the absence is the letter dated 3. 8. 1984. The same needs to be quoted in full. It reads as follows: JUDGEMENT_252_TLPRE0_2008Html1.htm ;