P.B.SAWANT - (1.) THIS is a petition under Article 227 of the Constitution of India challenging the order dated 24-3-1970 passed by the Industrial Court, Maharashtra in Appeal (IC) No.82 of 1969 under the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the said Act.).
(2.) BRIEFLY the facts leading to this petition are as follows :--- The petitioner was employed as a weaver, from the year 1960, with the first respondent---Textile Mills. On an application made for leave for 30 days, the petitioner was granted leave for 16-8-1967 to 15-9-1967. The petitioner thereafter proceeded to his native place. The petitioner enjoyed the leave at his native place and thereafter by his letter dated 14-9-1967 he applied for extension of leave for about 20 days. Along with the application for extension of leave the petitioner had sent a medical certificate of one Dr. Singh to the effect that the petitioner was suffering from jaundice. The said application for extension of leave was received by the first respondent-Mills on 18-9-1967 and by their reply dated 22-9-1967 the first respondent-Mills informed the petitioner that the extension of leave was refused on the ground that there was shortage of labour. This reply was received by the petitioner on 26-9-1967. By consent of the parties we have taken the said reply dated 22-9-1967 on record in this petition. The petitioner thereafter recovered from his illness on or about 3-10-1967 and, therefore, on that day he started for Bombay from his native place reaching Bombay on 5-10-1967. Thereafter he reported for duty to the first respondent-Mills on 6-10-1967 but the first respondent-Mills did not allow him to resume duty. The petitioner, therefore, by his letter dated 9-10-1967 made on approach to the first respondent-Mills under section 42(4) of the said Act calling upon the first respondent-Mills to allow him to resume duty. By their reply dated, 17-10-1967 the first respondent-Mills informed the petitioner that he had lost his lien over his substantive employment in terms of Standing Order No.11 of the Standing Orders applicable to the petitioner. The petitioner thereafter filed his application before the third Labour Court, Bombay on 8-11-1967 being Application No.579 of 1967. The Labour Court by its order dated 24-4-1969 held that the application for extension of leave made by the petitioner was refused by the first respondent-Mills on improper grounds and that the first respondent-Mills was not justified in not allowing the petitioner to resume his duty, and in view of the fact that he had made an application a day earlier to the day when the original leave granted to him was to expire and the said application was supported by a medical certificate, the petitioner had not lost his lien on his appointment automatically under the said Standing Order No.11 as contended by the employer. The Labour Court further held after appreciating the evidence led before it that the petitioner was really ill during the relevant period and he was prevented from joining duty by genuine illness. In the result the Labour Court set aside the action taken by the first respondent-Mills in treating the services of the petitioner as having been terminated on the ground of loss of lien and granted re-instatement to the petitioner with continuity of service and fullback wages from 6-10-1967, i.e., the day on which the petitioner reported for duty after returning from leave, till reinstatement. Aggrieved by this order the first respondent Mills preferred an appeal to the Industrial Court being Appeal No.82 of 1969 under section 84 of the said Act. The Industrial Court confined its decision only to the interpretation of the said Standing Order No.11 and held that in view of the fact that the petitioner had not returned within eight days of the expiry of the leave, and given an explanation, to the satisfaction of the authority granting leave, of his inability to return before the expiry of leave, the said Standing Order No.11 had come into operation and the petitioner had lost his lien on the appointment. The Industrial Court, therefore, held that the action of the management in treating the services of the petitioner to have come to an automatic termination was valid. In the result the Industrial Court set aside the order passed by the Labour Court. The Industrial Court however did not go into the other question, viz., whether the petitioner was genuinely ill during the relevant period and whether there was a justifiable reason for not returning for duty either immediately after the expiry of the leave originally granted or during the period of eight days after the expiry of the original leave. It is this order dated 24-3-1970 passed by the Industrial Court has been challenged in this petition. Mr. Shetty who appears for the petitioner has urged that the view taken by the Industrial Court that the services of the petitioner came to be automatically terminated on the failure of the petitioner to return within eight days of the expiry of the original leave and to give an explanation to the satisfaction of the authority is erroneous, and that in view of the fact that the petitioner was prevented from resuming duty on account of the uncontrollable circumstances, viz. his illness, it should be held that the said Standing Order No.11 had not come into operation. On the other hand, Mr. Jahagirdar who appears for the first respondent---Mill has contended that the provisions of the said Standing Order No.11 are very clear and that as per the said provisions, and employee has either to resume his duty immediately on the expiry of the leave originally granted to him or if for some reason he cannot do so, he has to return to his duty in any case within eight days of the expiry of the leave and further give an explanation to the satisfaction of the authority granting leave. If he fails to do so, the effect of the provisions of the said Standing Order is that his services come to an end automatically. There is no discretion left in the management in that behalf after the said period of eight days. In other words, it is the contention of Mr. Jahagirdar that even if there are valid reasons disabling an employee to return to duty and give an explanation within eight days after the expiry of the leave originally granted, it is not obligatory for an employer to take into account the said reasons. On behalf of both the petitioner and the first respondent-Mills, various decisions of the Supreme Court as well as of this Court were cited before us. Before we consider the said decisions, it is necessary to re-produce here the said Standing Order No.11 which is as follows : "Service for the total period of 12 months in a mill shall qualify an operative for a total period of one monthss leave. Grant of such leave shall depend on the exigencies of the mill and shall be at the discretion of the Company. Any operative who desires to obtain leave of absence shall apply to an officer or officers appointed for the purpose by the Company. It shall be the duty of such officer or officers to obtain the orders, on such application, of the authority appointed by the Company on two days in a week fixed for the purpose : provided that if the leave applied for is of an urgent nature, that is, to commence on the date of the application or within three days thereof, the orders of the authority empowered to grant leave shall be obtained without any delay. If the leave asked for is granted, a leave pass shall be issued to the operative. If, however, the leave is refused or postponed, the fact of such refusal or postponement and the reasons therefore shall be recorded in writing in a register to be maintained for the purpose, and if the operative so desires a copy of such entry in the register shall be supplied to him. If the operative after proceeding on leave desires an extention thereof he shall make an application for the purpose to the authority granting leave either in writing or orally or through any other person. In any case, a written reply either of the grant or refusal of extension of leave shall be sent to the operative if his address is available and if such reply is likely to reach him before the expiry of the leave originally granted to him. If the operative remains absent beyond the period of leave originally granted or subsequent try extended, he shall lose his lien on his appointment unless (1) he returns within eight days of the expiry of the leave and (2) gives explanation to the satisfaction of the authority granting leave of his inability to return before the expiry of leave. In case the operative loses his lieu on the appointment, he shall be entitled to be kept on the badli list."
(3.) IT is, therefore, clear from the provisions of Standing Order in question that if an employee after proceeding on leave desires extention of leave he has to make an application for such extension before the expiry of the leave originally granted to him. On such application being made the employer has to communicate to the employee whether the extension of the leave applied for is granted or not. The obligation to communicate to the employee is conditional in that the employer is required to send his communication only if it is likely to reach the employee before the expiry of the leave originally granted to him. IT is also clear that if for any reason the employee is unable to resume duty immediately on the expiry of the leave, then he may return within eight days of the expiry of the original leave and give an explanation to the satisfaction of the authority of his inability to return before the expiry of the original leave. If, however, he fails to do either of these two things, viz. to return to the duty immediately after the expiry of the leave originally granted or to return within eight days of the expiry of the leave and give satisfactory explanation he shall lose his lien on his appointment. In the present case, there is no dispute that the application for extention of leave was made on 14-9-1967 and the leave originally granted was to expire on 15-9-1967. The application for extension was further received by the first respondent-Mills on 18-9-1967, i.e., within eight days of the expiry of the leave originally grant. That application was accompanied by a medical certificate and the extension applied for was for 20 days and the said 20 days were to expire on 5-10-1967. A reply to the said application for extension was given by the first respondent-Mills on 22-9-1967 and was received by the petitioner on 26-9-1967. In the reply the only reason given was that there was shortage of labour and there was no reference whatsoever to the reason given by the petitioner in the application for extension of leave. It is further not disputed that the employee reported for duty to the respondent-Mills on 6-10-1967, i.e., immediately after the expiry of the extension of leave which was applied for the petitioner and the first respondent-Mills relying on the provisions of the said Standing Order refused to accept the petitioner in employment.;