Holding

The employee's absence was unauthorized and not condoned; therefore, the removal from service stands.

Summary

The respondent, a permanent typist, was removed from service on the ground of unauthorized absence. The Industrial Tribunal held that he was suffering from tuberculosis, had applied for sick leave and that the employer had not acted on his applications, thus ordering reinstatement with back wages. The Allahabad High Court, relying on a letter dated 03‑08‑1984, held that the employer had condoned the absence and upheld the removal, limiting back wages. On appeal, the Supreme Court examined the letter and found no condonation; it emphasized that sick leave requires a proper medical certificate, which was absent, and held the absence to be unauthorized, not abandonment. Consequently, the Court set aside the High Court’s order and maintained the removal from service. The appeal was allowed.

Issues considered

Whether the employee's absence constituted unauthorized absence or abandonment under the Industrial Disputes Act, 1947.
Whether the letter dated 03‑08‑1984 amounted to a condonation of the employee's absence without leave.
Whether the employee was entitled to sick leave without a valid medical certificate as required by the service rules.
Whether the Tribunal’s award of reinstatement and back wages was legally valid.

Legislation cited

Industrial Disputes Act, 1947

Subjects

Industrial Disputes Actunauthorized absencesick leavecondonationreinstatementback wagestermination of servicemedical certificate

Judgment

[2008)3 S.C.R. 175

.. y

NEW INDlA ASSURANCE GO. LTD. A
v.
VIPIN BEHAR! LAL SRIVASTAVA
(Civil Appeal No. 5213 of 2006)
FEBRUARY 21, 2008
B
[DR. ARIJIT PASAYAT AND 5.H. KAPADIA, JJ.)
' -f
Industrial Disputes Act, 1947 - Removal from service -
Unauthorised absence - Re-instatement with back wages by
c
·tribunal holding that the workman was ailing and had applied
for sick leave - Order upheld by High Court holding that
employer had condoned absence without leave - On appeal,
held: There was no condonation of absence without leave -
Case of unauthorized absence made out and not of
abandonment - Thus, order of Departmental Authorities D
-.y directing removal from service upheld.
Respondent-permanent typist was removed from
service for unauthorised absent from service. In the
reference, the tribunal held that the respondent was
suffering from tuberculosis and had applied for medical E
leave but the management did not pass any order on the
leave app,lications as such the workman was not absent
unauthorisedly from duty. It set aside the termination
f _,, order and directed reinstatement with back wages.
High Court held that though respondent remained F
absent but the appellant-company condoned his absence
without leave by letter dated 03.08.1984 by calling him back
to work. However, since the- proceedings before the
tribunal were stayed for six years respondent was not
entitled to back wages for the whole period. The Division G
Bench of High Court upheld the order. Hence the present
appeal.
Allowing the appeal, the Court

175 H
~
176 SUPREME COURT REPORTS [2008] 3 S.C.R.

'
A HELD: 1.1 A bare look at the letter dated 03.08.1984
shows that there was no condonation of the absence
without leave as held by the High Court. On the contrary,
it was clearly indicated that no leave was due and even
leave without pay could not be granted. Therefore,
B direction was given to join back immediately failing which
certain presumptions were to be drawn. The case of the •
appellant was really not of abandonment but of an +
unauthorized absence. [Paras 7 and 8] [180-A, 8]
1.2 Sick leave can be granted only on the production
c of a medical certificate from a Registered Medical
Practitioner clearly stating as far as possible the diagnosis
and probable duration of treatment. There was no such
indication in the certificates purported to have been
furnished by the respondent. It is to be noted that the
D respondent even did not join after receipt of the letter
dated 3.8.1994. [Para 10] [180-G; 181-A]
"( .
1.3 In view of the factual position, when tested on
the touchstone of the principles of law and governing
E rules, the inevitable conclusion is that the impugned order
of the High Court passed by the Single Judge dismissing
the writ petition, cannot be sustained and is set aside. The
order passed by the departmental authorities directing
removal of the respondent from service is maintained.
F
[Para 12] [182-G; 183-A] .. ~ I-

Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. and
Ors. 2005 (5) SCC 337 - referred to.
CIVILAPPELLATE JURISDICITON: Civil Appeal No.5213
of 2006
G
From the final Judgment dated 10/2/2006 and 20/1/2006
of the High Court of Judicature at Allahabad in SA No. 125/
2006 and CWP No. 17204/1998. .....
Dinesh Mathur, Sunil Murarka, Saurabh Jain and K. Rajeev
H r
NEW INDIA ASSURANCE CO. LTD. v VIPIN BEHARI 177
LAL SRIVASTAVA [DR. ARIJIT PASAYAT, J.]
• "' for the Appellant. A
Shrish Kumar Misra and Ajay Kr. Singh for the
Respondent.
- The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to B
·~
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- c
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:
D
• 1'. "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?"
E
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
f -<-
days, a charge sheet was issued. An Enquiry Officer was F
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
G
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
H
178 SUPREME COURT REPORTS [2008) 3 S.C.R.

A removal wa~ 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
B without 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
c 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.
0
A Letters Patent Appeal was filed before the Division Bench of _. •
the High Court which dismissed holding the same to be not
maintainable.
3. In the present appeal, the order passed by the learned
E Single Judge has been questioned.
4. 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 ..,
F leave even without pay cannot be granted. Therefore, he was
directed to join the duty immediately and failing which it was to
be presurr,ed 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
G 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
H of right and sick leave can only be granted on certain conditions
NEW INDIAASSURANCE CO. LTD. v. VIPIN BEHARI 179
,. LAL SRIVASTAVA [DR. ARIJIT PASAYAT, J.]
" being fulfilled which were not fulfilled by the respondent. A
5. 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 B
• applications for leave were made but they were not dealt with
1
by the appellant and, therefore, the Tribunal and the High Court
were justified in directing reinstatement.
6. The main basis for conclusion of the High Court for c
assuming condonation of the absence is the letter dated
3.8.1984. The same needs to be quoted in full. It reads as
follows:

.
'THE NEW INDIAASSURANCE CO. LTD.
REGISTERED D
"'
3rd August 84

Mr. V.B.L. Srivastava
Sr. No. 6074
51, Talab Nawal Rai E
New Bairadhana
Allahabad
Dear Sir,
t
This is with reference to your letter of 31st ultimo. You are F
aware that no leave is due & we cannot grant you any further
leave even without pay. You are, therefore, required to join your
duty immediately, failing which we shall presume that you are
no more interested in the job & we shall also presume that you
have abandoned the job. G
Thanking you,
Yours faithfully,
,..
Sd/-
Sr. Divisional Manager" H
180 SUPREME COURT REPORTS [2008] 3 S.C.R.

A · 7. A bare look at it shows that there was no condonation of
the absence without leave as held by the High Court. On the
contrary, it was clearly indicated that no leave was due and even
leave without pay cannot be granted. Therefore, direction was
given to join back immediately failing which certain presumptions
B were to be drawn as noted above.

8. The case of the appellant was really not of abandonment
but of an unauthorized absence.

9. The Rules governing "leave" read as follows

C "(1) General Principles Governing Grant of Leave:

The following general principle shall govern the grant of
leave to the employees:

(a) Leave cannot be claimed as a matter of right.
D
(b) Leave shall be availed of only after sanction by
the competent authority, but one day's casual leave
may be availed of without prior sanction in case of
unforeseen emergency, provided the head of the
office is promptly advised of the circumstances under
E which prior sanction could not be obtained ... "

(4) Sick Leave:

(c) Sick Leave can be granted to an employee only
on production of a medical certificate from a
F Registered Medical Practitioner, which term would
include Homeopathic, Ayurvedic and Unani doctor
also provided they are registered medical
practitioners.

G (d) The certificate should state as clearly as possible
the diagnosis and probable duration of treatment
"

10. As noted above, sick leave can be granted only on the
production of a medical certificate from a Registered Medical
H Practitioner clearly stating as far as possible the diagnosis and
NEW INDIAASSURANCE CO. LTD. v. VIPIN BEHARI 181
LAL SRIVASTAVA [DR. ARIJIT PASAYAT, .J.)
,. (

probable duration of treatment. There was no such indication in A
the certificates purported to have been furnished by the
respondent. It is to be noted that the respondent even did not
~
join after receipt of the letter dated 3.8.1994. The charges
against the respondent, inter alia, were as follows:

.. "(i) willful insubordination and disobedience of lawful and B
-f reasonable orders of his superiors
(ii) absence without leave, without sufficient grounds or
proper or satisfactory explanation
(iii) absence from his appointed place of work without c
permission or sufficient cause"
11. In Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd.
& Ors. [(2005) 5 SCC 337] this Court, inter alia, observed as
follows:
t ,., D
"14. What fell for consideration before the Industrial Tribunal
was the interpretation and/or applicability of the said
settlement. The Industrial Tribunal committed an e.rror of
record insofar as it proceeded on the basis that the said
settlement had not been proved. The settlement being an E
admitted document should have been considered in its
proper perspective by the Industrial Tribunal. Clause (2) of
the said settlement is a complete code by itself. It lays
·f down a complete machinery as to how and in what manner
the employer can arrive at a satisfaction that the workman F
has no intention to join his duties. A bare perusal of the
said settlement clearly shows that it is for the employee
concerned to submit a proper application for leave. It is
not in dispute that after the period of leave came to an end
in June 1983, the workman did not report back for duties.
G
He also did not submit any application for grant of further
leave on medical ground or otherwise. It is in that situation
)>- the memorandum dated 2.11.1983 was issued and he
was asked to join his duties. It is furthermore not in dispute
that despite receipt of the said memorandum, the workman
H
182 SUPREME COURT REPORTS [2008] 3 S.C.R.
...

A did not join duties pursuant whereto he was served with a
notice to show cause dated 31.12.1982. He was required
to resume his duties by 15.1.1984. The Bank received a
telegram on 17.1.1984 and only about a month thereafter
he filed an application for grant of leave on medical ground.
B It is not the case of the workman that any leave on medical
,
ground or otherwise was due to him. Opportunities after
~
opportunities indisputably had been granted to the
workman to explain his position but he chose not to do so
except filing applications for grant of medical leave and
c that too without annexing proper medical certificates.
18. Mere sending of an application for grant of leave much
after the period of leave was over as also the date of
resuming duties cannot be said to be a bona fide act on
the part of the workman. The Bank, as noticed hereinbefore,
D in response to the lawyer's notice categorically stated
"' ..
that the workman had been carrying on some business
elsewhere.
19. We cannot accept the ·submission of Mr. Mathur that
only because on a later date an application for grant of
E medical leave was filed, the same ipso facto would put an
embargo on the exercise of the jurisdiction of the Bank
from invoking clause 2 of the bipartite settlement.
20. It may be true that in a case of this nature, the principles i-

F of natural justice were required to be complied with the
same would not mean that a full-fledged departmental
proceeding was required to be initiated. A limited enquiry
as to whether the employee concerned had sufficient
explanation for not reporting to duties after the period of
leave had expired or failure on his part on being asked so
G
to do, in our considered view, amounts to sufficient
compliance of the requirements of the principles of natural
justice." _.,.

12. In view of the factual position, when tested on the
H touchstone of the principles of law and governing rules, the
NEW INDIA ASSURANCE CO. LTD. v. VIPIN BEHARI 183
LAL SRIVASTAVA [DR. ARIJIT PASAYAT, J.]
inevitable conclusion is that the impugned order of the High Court A
passed by the learned Single Judge dismissing the writ petition,
i.e. C.W.P. No. 1720/1998, by order dated 20.1.2006 cannot
be sustained and is set aside. The order passed by the
departmental authorities directing removal of the respondent
from service is maintained. · B
-<1> 13. The Appeal is allowed without any order as to costs.
_,
N.J. Appeal allowed.
1

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