Supreme Court of India
M.P. STATE ELECTRICITY BOARD & ANR.versusS. K. YADAV
- Citation
- 2008 INSC 1446
- Decided
- 16 December 2008
- Disposal
- Case Partly allowed
- Bench
- S B SINHA
Holding
The Supreme Court upheld the Labour Court’s order setting aside the penalty and directed that the period of absence be treated as extraordinary leave and unauthorised leave without pay, with appropriate salary adjustment.
Summary
The respondent, S.K. Yadav, a Homeopathic Assistant, was transferred after the closure of his dispensary and protested, subsequently remaining absent from duty from 10 September 1991 to 1 December 1993. A disciplinary proceeding found him guilty of two charges and imposed a penalty of reduction of pay to the minimum and stoppage of increments for five years. Yadav filed an application under Section 31(3) of the Madhya Pradesh Industrial Relations Act, 1960 before the Labour Court, which set aside the penalty, treating the period of absence as leave and directing adjustment of salary. The Industrial Tribunal and the High Court upheld the Labour Court’s order. On appeal, the Supreme Court partially allowed the appeal, affirmed the Labour Court’s decision, held that unauthorised long‑term absence is serious misconduct but, because the Standing Order’s time‑limit for deciding leave applications is directory, the period of absence should be treated as extraordinary leave and unauthorised leave without pay, with salary for December 1991 to February 1992 to be adjusted accordingly.
Issues considered
- Whether the penalty of reduction of pay and stoppage of increments imposed on the respondent was valid under the Standing Orders.
- Whether the period of unauthorised absence should be treated as leave and whether back wages are payable.
- Whether non‑compliance with the statutory time‑limit for deciding leave applications vitiates the order.
Legislation cited
- Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961s. Clause 3 of Paragraph 12, s. Clause 4 of Paragraph 12, s. Paragraph 12, s. Paragraph 8(b), s. Paragraph 8(e)
- Madhya Pradesh Industrial Relations Act, 1960s. Section 31(3), s. Section 61(1)(A)(a), s. Section 61(2)
Subjects
unauthorised absencedisciplinary actionstanding ordersback wageslabour courtpenalty reductionleave entitlementdirectory provisionindustrial relations
Judgment
[2008] 17 S.C.R. 665
M.P. STATE ELECTRICITY BOARD & ANR. A
~ v.
S. K. YADAV
(Civil Appeal No.7312 of 2008)
DECEMBER 16, 2008
8
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
Madhya Pradesh Industrial Employment (Standing
Orders) Act, 1_961- ss. 31(3), 61 and para 12 cl.(3), (4) para
8 cl(b) - Unauthorised absence for more than two years - c
Penalty of reduction of pay to its minimum and stoppage of
increments for five years imposed - Set aside by courts below
- Interference with - Held: Order of labour court setting aside
penalty imposed not interfered with - As regard grant of back
wages, unauthorised absence for a long time is serious
D
misconduct - In case order on application by workman for
-...- grant of leave is not passed within the period specified,
ultimate order would not be vitiated - It is directory in nature
- Labour Court proceeded on a wrong basis that by not
refusing to grant leave, it would be deemed to have been
granted - In the interest of justice, period of absence to be E
treated as period on extraordinary leave and unauthorized
leave without pay - Salary already paid to be adjusted
accordingly.
Respondent-employee remained unauthorisedly
absent on and from 10.9.1991 upto 1.12.1993. Disciplinary F
1
proceeding was initiated against him. Penalty of
reduction of pay to its minimum and stoppage of
increments for period of five years was imposed.
Respondent filed an application. -Both the Labour Court
and the Industrial Tribunal held the respondent was not G
unauthorisedly absent and set aside the penalty
imposed. High Court also upheld the order. Hence the
)
present appeal.
<(
Partly allowing the appeal, the Court
665 H
666 SUPREME COURT REPORTS [2008] 17 S.C.R.
A HELD: 1.1. 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
8 of an employee. Clause (4) of Paragraph 12 thereof
provides that no punishment shall be imposed on an
employee unless proved g·uilty of misconduct in an
enquiry conducted in the manner specified therein.
Punishments which can be imposed upon a delinquent
C 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. The Labour Court
. in terms of the provisions of the Act exercises jurisdiction
as is specified therein. It was entitled to enter into the
D question of fact as also the legality or otherwise of the
disciplinary proceedings and the quantum of punishment
imposed. The order of the Labour Court setting aside the
penalty imposed upon the respondent is not interfered
with. [Paras 13 and 14JJ672-G-H; 673-A-C] b
E 1.2. 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
F available to him. He could have gone on leave provided
the same was due to him in law. 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
G specified therein. [Para 16] [673-D-E]
1.3. Where a public authority is required to pass an
order in terms of the statute within a period stipul.ated
therefore, non-compliance whereof would not vitiate the
ultimate order, must be held to be directory in nature and
'
H not imperative. [Para 17] [673-G]
'
M.P. STATE ELECTRICITY BOARD & ANR. v. S.K. 667
YADAV
1.4. The Labour Court proceeded on a wrong A
~ 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 B
case and no legal inference can be drawn therefrom.
{Para 18] (673-H; 674-A]
,..., 1.5. In the instant case, interest of justice would be
subserved if the period from 11.09.1991 and 30.11.1993
during which the respondent did not perform any duty c
shall be treated to be period on leave available to him in
law. The type of leave would be extraordinary leave and
unauthorized leave without pay. The salary paid to the
respondent for the months of December, 1991 to
February, 199~ shall be adjusted accordingly. [Paras 19,.
20 and 21] (674-B-G] D
CIVIL APPELLATE JURISDICTION: Civil Appeal No.7312
of 2008.
From the Judgment and final Order dated 22.06.2005 of
. the High Court of Madhya Pradesh at Jabalpur in Writ Petition E
' No. 975 of 2001.
Aditya Kumar Dubey, Sanjit Dutta, Naseem Akhtar and
Ashiesh Kumar for the Appellant.
P.S. Patwalia, Deepak Goel and S. Janani for the
Respondents. F
' The Judgment of the Court was delivered by
S.S. 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
G
and order dated 22.06.2005 passed by the High Court of
) Madhya Pradesh at Jabalpur in Writ Petition No. 975 of 2001.
3. The basic fact of the matter is not in dispute.
Respondent herein is a Homeopathic Doctor. He was· H
668 SUPREME COURT REPORTS (2008] 17 S.C.R.
A 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
8 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 G~ade - II in the Head Office upon _,....
closure of the Homeopathic Dispensary.
c 4. A chargesheet was issued to him on or about
12.07.1994 in respect of the following cha~ges:
"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
D 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 handing over the
charge to anybody el$e, kept the keys with you in
unauthorized manner. Dr. Yadav was informed to be
E present on his duty vide Letter No. 01-04/CM0/224, 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 l~tter of Chief Medical Officer.
Thus, Sri S.K. Yadav under provisions of M.P. Civil.
F Service Rules and under para no. 24(2) of provisions of
M.P. Civil Services Leave Rules (Classification and
Appeal) Rules, 1~66 which has been admitted by the
Board vide its No~ification No. Ot-01 Five /1620/81/98/68
dated 21.4.82, has made himself eligible, violating the
G above provisions for serious disciplinary action.
.. :1Charge No .. 2 - That Sri Yadav had been directed
J6 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
H . afternoon submitted information of his being present in the
M.P. STATE ELECTRICITY BOARD & ANR. v. S.K. 669
YADAV [S.B. SINHA, J.]
office of undersigned, but he did not produce any A
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 li3
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 C
Standing Order. ·
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 D
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." E
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 F
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 G
29.05.1999, whereby the Presiding Officer, Labour Court
passed the following award:
"Hence, allowing the applicant's application, disputed
order dated 21.9.96 passed by the office of Opposite
H
670 SUPREME COURT REPORTS [2008] 17 s.c.9 .
A 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, t-
applicant is being declared entitled for receiving all his
interests and profits of his earlier post before 21.9.96 from
the Opposite Parties."
B
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.
c 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.
D Appellants are, thus, before us.
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.
E 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.
F 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
G (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:
H
M.P. STATE ELECTRICITY BOARD & ANR. v. S.K. 671
YADAV [S.B. SINHA, J.]
"31. Notice of change - ( 1) *** *** A
(2) *** ***
(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 8
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, C
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 - o
(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 E
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 p~ragraph 8 of the Standing Order, which
reads as under: F
"(b) An employee who desires to obtain leave of absence
shall apply to the Manager or the Officer authorized by ~im.
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,
1
G
i.e., commences on the date of the application or wi thin
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: H
672 SUPREME COURT REPORTS [2008) 17 S.C.R. e
A "(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
8 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 bad Ii ,,.
if he so desires and his name shall be entered in the-badli
c 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 was held that the charges against the
respondent cannot be said to have been proved.
D
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 h~d 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
E grant of leave although an order thereupon was required Jo 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
F 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
G of misconduct on the part of an employee. Clause (4) of
f-
Paragraph 12 thereof provides that no punishment shall be ~
,._
I
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 delinquent
,.
H employee have been provided in Clause (3) of Paragraph 12
:
M.P. STATE ELECTRICITY BOARD & ANR. v. S.K. 673
YADAV [S.B. SINHA, J.]
of the Standing Order. The Labour Court opined that the A
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 B
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. c
.,., 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 D
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
dispute that in terms of Clause (b) of Paragraph 8 of the E
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, F
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 G
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 H
,,
674 SUPREME COURT REPORTS [2008) 17 S.C.R.
A 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,
B having regard to the nature 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. .J L
20. We may only notice that even, according to the
C department, the period of leave should be treated in the
following terms:
"Type of leave Duration Total days
Extraordin1ary Leave 19.9.91 to 14.3.92 178
D (without ~'ay) 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
E 24.4.92 to 13.5.92 20
(accepted as per.page 17 Sub Rule
24 of the Holiday Rules Book of the
Board)
F Unauthorized leave 14.5.92 to 30.11.93 568"
(without pay) ...
21. We, therefore, allow this appeal in part directing that I
~
the period from 11.09.1991 and 30.11.1993 shall be treated r
\
G 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.
N.J. Appeal partly allowed.
H
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