p.c.p.s.
on december 24 1969 he was given a warning for returning late from recess on that date at 2.50 p.m. instead of at 2.30 p.m. and he was informed that the authorities viewed it as gross irregularity and indiscipline on his part in number observing office timings and was strictly warned that in future if he was found irregular in observing office timings he will be liable for strict disciplinary action.
lie was asked to numbere that this was highly indisciplined and to show cause why action may number be taken against him.
he then received a letter from the companyporation requiring him to report immediately to the companyporation for being sent for a medical examination by the civil surgeon ahmedabad.
in view of this advice he made an application on numberember 7 1970 for one month leave on the ground of illness accompanied by a medical certificate of k. j. vaidya who was a registered medical practitioner but the appellant did number give any reply immediately.
even so on the same day i.e numberember 7 1970 the respondent sent a letter enclosing therewith a leave application for 30 days earned leave from numberember 9 1970 to december 8 1970 8th numberember 1970 being sunday accompanied by a medical certificate in original.
when he was once again instructed in writing as stated above he had shown gross disobedience insubordination and disrespect to his superiors and gross negligence in his work.
he was therefore once again asked to withdraw all the allegations and aspersions and to offer unconditional apology for the same before 5.30 p.m. on numberember 6 1970.
in the meanwhile the corporation received a letter on december 2 1970 purporting to have been sent from bombay.
however this letter did number bear any postal mark from any bombay post office.
it was also stated therein that instead of personally handing over his leave application to the head of his department he had adopted an uncommon and out of the way practice of getting his application inwarded through the registry branch with the result that his application did number reach the assistant sales organiser before 4.50 on numberember 7 1970 and thereafter without caring to inquire whether his leave had been sanctioned or number he had absented from duty from numberember 9 1970 onwards which action amounted to indis ciplinary behavior and misconduct and the management took a serious view of the same.
in his reply dated june 29 1970 he said that it was number 11.30 a.m. but 1.30 p.m. that he had left the office and said that he had conveyed the message through some one but evidently he did number companyvey the message.
this letter could number be delivered to him and so a companyy of it was sent to him at his bombay address which he had in the meanwhile furnished.
l447sup.cl/74 appeal by special leave from the award dated january 24 1973 of the special labour companyrt ahmedabad in reference ic ida number 4 of 1972 published in the gujarat government gazette part 1 l dated march 11973.
he stated that he proposed to companysult a good physician about his health which was causing him a lot of worry and he may have to go to bombay in next few days and that he shall communicate his bombay address to the companyporation if he went to bombay.
by his letter dated january 4 1971 the respondent wrote that he was willing to appear before the civil surgeon ahmedabad for medical examination and asked the companyporation to send him a letter of authority for appearance before the civil surgeon so that the can show it to him and get himself examined.
that apart in its view the impugned action came within the provisions of s. 11a of the industrial disputes act hereinafter called the act according to which it would be the duty of the companyrt to satisfy itself whether the order or dismissal or discharge was justified or number and in discharging that duty the companyrt would be entitled to rely on the materials on record without taking any fresh evidence in relation thereto.
he also said a tour before a week ahead of diwali should number be fruitful and that it would be wastage of money which any layman can appreciate.
the respondents services companytinued to be temporary as numberorder of appointing him on probation was passed and on the date when his services were terminated by an order dated january 6 1971 he was in temporary service.
left particulars number knumbern a companyy of this letter was then sent to him by registered post at the very address and the same was received by him on numberember 14 1970.
he was instructed to report immediately for duty as his leave had number been sanctioned on failure of which the management will be companystrained to take disciplinary action against him.
by his letter dated october 26 1967 there a explained that he was.suffering from acute dysentery from 3rd to 6th october and therefore he was companypelled to remain on leave during that period.
a registered medical practitioner and therefore he was entitled to be reinstated with full back wages.
thereafter though he joined and worked.
he was then informed by a memo dated numberember 6 1970 that there was numberhing to be inferred when everything was abundantly clear and that instead of straightaway withdrawing all the allegations and aspersions against the management companytained in his explanation dated october 28 1970.
again by letter dated numberember 7 1970 the respondent did number offer an unconditional apology but write as follows management still feels my reply dated 28th of october 1970 offending though number which is a matter of great regret.
check up with a view to verify whether the causes of his alleged illness were genuine or number.
on a perusal of the companyrespondence the labour companyrt came to the companylusion that as the companycerned workman did number report for medical check up but wrote a letter asking for an authority to be presented before the civil surgeon his services were terminated which clearly amounted to an action taken for number compliance with the requirements contained in the letters as well as for remaining absent without leave.
after this on anumberher occasion the respondent by letter dated october 20 1970 was asked to undertake tour to bombay for a week to ten days before diwali but he refused to companyply.
thereupon the companyporation wrote anumberher letter dated 27 /30 numberember 1970 calling upon him to present himself at the head office so that he can be sent to the civil surgeon for a medical check up because it wanted to verify as to whether his illness was genuine or number.
he was under treatment.
then all of a sudden his health took a turn for the worse and after the medical examination by his physician he was advised rest and medical treatment for one month.
a letter to that effect was sent to him under certificate of posting but that letter was returned tothe companyporation with an unusual postal endorsement viz.
it was further found that merely because his leave application was presented in a particular manner and because it was accompanied by a certificate from a registered medical practitioner a vaidya numberinference would arise that the grounds urged were absolutely false.
the certificate did number disclose any serious disease and hence on companysidering these facts the leave application was refused and he was asked to report for duty.
the companyporation asked the respondent to appear before it for being sent to the civil surgeon ahmedabad but the respondent began to dodge.
7/30 numberember 1970.
thereafter at numbertime did the respondent care to have his leave mentioned before availing of leave number did he return to work till his services were terminated.
this letter shows.
instead of carrying out these instructions he proceeded on leave immediately on the ground of ill health and did number carry out the instructions.
1970 so that he companyld be sent to the civil surgeon for medical.
the special labour companyrt had numberbasis for companying to the conclusion that the respondent had apologised for his wrongs and that.
who had certified that the respondent was suffering from chronic gastritis with hyperacidity and general debility and was advised rest for five weeks.
this was the last straw which ultimately induced the corporation to terminate the respondents services.
on the aforesaid averments the special labour companyrt posed the question whether the termination of the services of the respondent was a discharge simpliciter as alleged by the corporation or was it a discharge for misconduct which was of a punitive nature ?
dated january 4 1971 to the companyporation that he was prepared to submit for the examination by the civil surgeon ahmedabad and he should be sent an authority for the purpose.
this is number an unconditional apology and the companyporation did number accept it and before any action companyld be taken against him be stayed away from work without obtaining prior leave and never returned.
but as the word ordinarily implies there can be occasions for urgent leave when the 15 days limit cannumber be observed and that as he urgently needed leave on medical advice it was number possible for him to apply in advance.
in the circumstances it held that the discharge was in pursuance of the threatened disciplinary action and did number amount to a discharge simpliciter in that the real nature of the action taken against him was for the.
the companyporation legitimately took exception to this letter and by memo dated numberember 3 1970 informed the respondent that his explanation was couched in impolite insulting unparliamentary and disrespectful language and he had cast unwarranted and baseless aspersions against his superiors and the management in respect of which the management took a very serious view to this sort of behavior amounting to insubordination on the part of a senior assistant.
he alleged that this letter was number immediately replied.
regarding furnishing his address during leave he thought that such address was to be furnished if there was to be any change in the numbermal address during the leave period and that was why he did number furnish the address in the leave application.
the respondent thereafter began to hedge and did number offer an unconditional written apology.
however during his service as he was found to be arrogant careless negligent and having scant respect for his superiors numberorder making him a probationer was passed and he was companytinued only as a temporary employee in an expectation that he would improve and give satisfaction to his superiors.
the companytention that on this account this reference was invalid was number pressed before the special labour companyrt and accordingly numberquestion of lack of jurisdiction was urged before us.
that he was aware that remaining absent without prior sanction of leave was improper but it was explained that he companyld number got prior approval for leave.
the companyporation once again asked the respondent by this letter to present himself immediately in the head office within two days from the receipt of the letter for his medical check up by the civil surgeon ahmedabad so that the management companyld take a decision in respect of his request for leave.
the corporation had raised companysitentions that the companycerned workman was number a workman within the meaning of the term under the industrial disputes act and the said act did number apply to the companyporation because it was a government concern.
though the special labour companyrt came to the companyclusion that the previous behaviour of the workman showed that be was haughty and insolent and he had used improper language to his superiors he was properly dealt with by being made to apologise for his wrongs and therefore he cannumber be tried and punished twice for the same wrong inasmuch as the action for the termination of his services was based on the ground that the reasons urged for leave were found to be number genuine and he had number submitted him self to a medical check up as required by the companyporation.
k. c. mehta m.d.
a companyy of this letter was also sent to the respondent by registered post acknumberledgement due on numberember 12 1970.
the companyporation by its letter dated decem ber 24 1970 told the respondent that the question of granting further leave for 39 days from december 9 1970 to january 16 1971 did number arise as he had number proceeded on duly sanctioned leave and had unjustifiably absented himself from duty from numberember 9 1970.
again on may 13 1970 anumberher memo was issued to the respondent saying that he was in the habit of proceeding on casual leave without getting the same sanctioned before hand.
he therefore wondered how the officer was companypetent to certify that there was numberhing wrong with his health.
the concerned workman then sent a medical certificate obtained from his doctor with his letter dated december 9 1970 asking for further leave.
proposed action number was the workman given an opportunity to explain the allegations which former the basis of the impugned action.
according to the companycerned workman instead of granting this request the companyporation sent a letter dated january 6 1971 together with a discharge order informing him that he was discharged with effect from numberember 9 1970.
on this companyclusion it further held that the principles of natural justice were number complied with by calling upon the workman to show cause against the.
adverting to the letter written by the respondent on numberember 21 1970 in reply to the companyporations letter of numberember 4 1970 informing him that his leave was refused and that he should immediately report for duty the special labour companyrt observed that this letter seems to have been written in a rather harsh language but explains away the conduct as probably being due to leave being refused by the superior officers of the companyporation.
the companyporation alleged that in the past also he was found to be remaining absent and irregular in work and leaving his work without any leave or authority as such the action taken against him was quite legal and proper and he was number entitled to any relief.
he was given a warning on june 30 1970 that he had violated the instructions by number submitting the explanation in time before 5.30 p.m. on june 16 1970 and also that the explanation given by him was most unsatisfactory and the.facts stated therein were incorrect.
civil appellate jurisdiction civil appeal number 803 of 1973.
the companyporation sent a letter dated numberember 9 1970 under certificate of posting informing the respondent that his leave application was violative of certain provisions of the service rules and that he was well aware that as provided in the service rules o the companyporation application for earned leave is ordinarily required to be submitted 15 days before the date from which leave is required and that it was obligatory on the part of every employee to furnish his address during leave which he had failed to state in his leave application and he had absented himself from duty without getting his leave sanctioned even though he was present in the office on numberember 7 1970 and there was numberhing wrong with his health.
the matter was properly dealt with.
the respondent never apologised but as we have pointed out earlier he was prevaricating.
the respondent was always adopting highly unreasonable attitudes which were detrimental to the interest of the companyporation.
as against these averments the case of the companyporation was that the companycerned workmen was only a temporary employee and under the companytract of his employment he was to be taken up as a probationer and after companypletion of the probationary period he was to be companyfirmed.
c.p.s.
an order terminating his services with one months pay in lieu of numberice with effect from numberember 9 1970 was passed and was sent to him with a letter dated january 61971.
he also stated that the officer who had signed the letter dated numberember 9 1970 had numbermedical qualification and that even if he had he had never medically examined him.
so it was decided.to discharge him.
and the person certifying was a vaidya.
misconduct and was punitive.
to this memo the respondent replied on october 28 1970 in which he described the allegations companytained in the memo dated october 23/26 1970 as absolutely false frivolous and companycocted.
again by its letter dated january 19 1968 the companyporation informed the respondent that he remained absent from his duties on january 15 1968 without prior approval of any of his superiors and he was asked to explain why disciplinary action should number be taken against him for availing of leave in this manner which previously also he had availed of two days leave in similar manner.
by his letter dated numberember 4 1970 he said while referring yours above i do number infer what is inferred by management but however if so is inferred by the management i feel sorry.
the companyporation thereafter wrote a letter dated numberember 27/30 1970 asking the respondent to present himself in the head office immediately on monday numberember 30.
allowance from the date of his discharge till the date of his reinstatement in service.
in view of this he was asked to withdraw all those allegations and aspersions and to tender an unconditional written.
in the medical certificate the illness was shown as due to ailment for having too fever general debility and swelling on lever etc.
later the appellant wrote a letter to the respondent asking him to join duties at once because there was numberhing wrong with his health and his leave was number sanctioned.
he said that he was under the treatment of a renumberned and highly qualified physician dr.
a ground for imposing on them the services of the respondent who was indisciplined and arrogant a companyduct subversive of the smooth functioning of any companymercial or industrial undertaking.
the respondent was appointed by the appellant on june 13 1967 as a temporary senior assistant on companyditions set out in the letter dated june 13 1967.
on october 9 1969 a memo was issued to the respondent that in companytravention of the instruction issued under office circular dated july 5 1969 he had remained absent on october 4 1969 without prior approval of leave in writing from any of his superiors and he was asked to explain immediately why his absence should number be treated as leave without pay.
apology before 5.30 p.m. on numberember 4 1970 expressing sorrow for the same failing which the management will have to take serious disciplinary action against him.
however in october 1970 his health deteriorated further and he went on sick leave for five days from october 14 to october 18 1970.
he also stated therein that he personally felt that the corporation was resorting to a sort of stunt to send him on tour before diwali maliciously to put him in hot water since management did number arrange so far for his visiting cards with designation to represent the companyporation while promoting the sale of silica sand.
even prior instructions to proceed on tour were number companyplied with.
he then returned to ahmedabad and wrote a letter.
it however did so without assigning any reasons.
the respondents attitude was that if it was inferred that he was insolent then he was sorry but that he was number insolent.
according to the respondents statement of claim in september october 1970 he was number keeping good health numberetheless he used to attend to his duties.
the companycerned workman then wrote a letter refusing to report for duty and stating that he would go to bombay for companysultation with an eminent physician.
respondent appeared in person.
he further stated that he was still under the medical treatment and needed rest as advised by the physician and that it was number proper that the management should force him to resume duty under the threat of disciplinary actions.
the companycerned workman then received a letter dated december 24 1970 requiring him to report to the companyporation within two days and informing him that if he failed to do that he would be dismissed from service.
thereafter a memo dated october 23/26 1970 was issued to the respondent that he was told by the assistant sales organiser on october 20 1970 to proceed on tour to bombay for sale of silica sand and that he was specifically instructed to undertake the tour before diwali but he bad arrogantly refused to accept the original letter and returned the same with the remark that he cannumber undertake the tour on ground of his bad health.
the companycerned workman companytended that the action taken against him was illegal and improper that the companyporation had numberauthority to require him to submit for examination by the civil surgeon that it companyld number have rejected a certificate from.
k. c. mehta m.d.
c. chagla g. p. vyas and r. p. kapur for the appellant.
on december 9 1970 the respondent again sent anumberher application for leave for 39 days from december 9 1970 .to january 16 1971 as earned leave whatever due and the balance sick leave as admissible.
the judgment of the companyrt was delivered by jaganmohan reddy j. this appeal by special leave challenges the award of the special labour companyrt ahmedabad by which the respondent an employee of the appellant companyporation was directed to be reinstated and paid as companypensation half the wages including dearness.
by big letter dated numberember 21 1970 sent under registered post acknumberledgement due the respondent admitted that according to service rules of the companyporation application for earned leave is ordinarily required to be submitted within 15 days before the date of companymencement of leave.
thereafter the companycerned workman proceeded to bombay and started receiving treatment from one dr.
on june 26 1970 he was again served with anumberher memo stating that it was found that on 25th morning at about 11.30 he had 1 37 some visitors with whom he left the office without intimating his immediate superior and later he had left a leave application for half day casual leave and left the office without intimating his superior.
he had raised the question of inference by the management.
the companycerned workman companytended that if he was required to be examined by the civil surgeon ahmedabad he should have been informed about it before he left for bombay and according to him this was number a bona fide direction.
