P.W.V. Rowe Vs. Chairman, Lab­our Court, Chittagong, 31 DLR (AD) (1979) 119

Judge: D.C. Bhattacharya,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Aminul Huq,,

Citation: 31 DLR (AD) (1979) 119

Case Year: 1979

Appellant: P.W.V. Rowe

Respondent: Chairman, Lab­our Court

Subject: Labour Law,

Delivery Date: 1977-1-14

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Syed A.B.M. Husain C.J.
Ahsanuddin Chowdhury J.
Kamaluddin Hossain J.
D. C. Battacbarya J.
Fazle Munim, J.
 
P.W.V. Rowe
.....................Petitioner
Vs.
Chairman Lab­our Court, Chittagong
…….....Respondents
 
Judgment
January 14, 1977
 
Employment of Labour (Standing Orders) Act (VIII of 1965)
Section 5(3)
Loss of lien to appointment of a worker—
Worker does not automatically lose his lien to his appointment of his failure to return within 10 days of the expiry of his leave.
 
Case Referred to-
National Engineering Industries Ltd. v. Hamman, AIR 1968 (SC) 33.
 
Lawyers Involved:
Syed Ishtiaq Ahmed, Senior Advocate with A.Y. Salehuzzaman, Advocate, instruct-by M. R.  Khan, Advocate-on-Record—For the petitioner.
Aminul Huq, Advocate-on-Record — For the Respondent No. 2.
 
JUDGMENT
 
D. C. Bhattacharya, J.
 
This petition for special leave is against an order of a Bench of the High Court dismissing summarily an application of the petitioner under Article 102 of the Constitution, by which the validity of the order of reinstatement of Respondent No. 2, an employee of the Company, of which the petitioner is the Chairman and Manag­ing Director, made by the Labour Court of Chittagong under section 23 (1) (b) of the Employment of Labour (Standing Orders) Act, 1965, was challenged.
 
2. Respondent No. 2 appears to have gone on leave for a period of 14 days with effect from 13-1-76. On the expiry of the leave she applied for its extension on the ground of illness, whereupon she was asked by the company to report to the Medical Officer of the Company on 2. 2. 76. Respondent No. 2, however, did not produce herself before the Medical Officer as directed by the Com­pany and then the Company by a letter dated 9. 2. 76 informed her that, on account of her failure to report to duty within 10 days from the expiry of the leave, she had lost her lien to her appointment under, section 5(3) of the Employment of Labour (Standing Orders) Act, 1965. Thereafter Respondent No. 2 returned to her duty on 14-2-76 but she was not allowed to resume her duty. She thereafter filed a Complaint Case under section 25 of the Act after complying with the necessary formality as to submitting a prior grievance petition to her employer.
 
3. The Labour Court, having come to the finding in the said Complaint Case that Respondent No, 2 had sufficiently explained her inability to return earlier and that the employer did not fairly deal with her case, held that the loss of lien imposed by the employer upon Respondent No. 2 was illegal and malafide and pursuant to such findings, directed her reinstatement in her for­mer post with full back wages and conti­nuity in service. The petitioner having moved the High Court in writ jurisdiction against the said order of the Labour Court, the High Court has summarily rejected the Petitioner's application on the view that the Labour Court had taken a reasonable view of the matter With regard to the provisions of section 5 (3) of the Employment of Labour (Standing Orders) Act, 1965.
 
4. Mr. Syed Ishtiaq Ahmed, learned Counsel appearing on behalf of the petition­er for special leave to appeal against the said order of the High Court, has urged two points, firstly, that the High Court did not take the correct view of the law as embodied "in section 5 (3) of the Employment of Labour (Standing Orders) Act, 1965 and ought to have held that on the failure of Respondent No. 2 to join her post within 10 days from the expiry of leave, her service had automatically terminated and secondly, that the findings of the Labour Court, that Respondent No. 2 had satisfactorily explained her failure to resume her duty after the expiry of leave and that the loss of lien imposed by the employer was illegal and melafide, were perverse  as there was no corroboration of the evidence of the complainant, and that the High Court should have set aside the said finding. In support of both these conten­tions learned Counsel relied upon a decision of the Supreme Court of India in the case of. National Engineering Industries Ltd. v. Hamman AIR 1968 (SC) 33.
 
5. On the first question, learned Counsel has cited the following observation of the Indian Supreme Court made in judgment referred to above at page 35 as to the inter­pretation of the Standing Order under the Industrial Disputes Act, 1947, under which the said case arose:
 
"The Standing Order is inartistically worked, but it seems to us clear that when the Standing Order provides that a workman will lose his lien on his appointment in case he does not join his duty within 8 days of the expiry of his leave, it obviously means that his services are automatically terminated on the happening of the contingency. We do not understand how a workman who has lost his lien on his appoint­ment can continue in service there­after. Where, therefore, a standing order provides that a workman would lose his lien on his appointment, if he does not join his duty within certain time after his leave expires, it can only mean that his service stands automatically terminated when the contingency happens."
 
It appears to us that the provision of section 5(3) of the Employment of Labour (Standing Orders) Act, 1965, which controls the present case, is different from that of the Indian Standing Order considered in the said case and we think that the former provision does not bear the same interpre­tation as has been given to the Indian Standing Orders, as will appear from a perusal of the said provision, which is quoted below:
 
“5. (3) If the worker remains absent beyond the period of leave originally granted or subsequently extended, he shall be liable to lose his lien to his appointment unless he returns within ten days of the expiry of his leave and explains to the satisfaction of the em­ployer his inability to return earlier; Provided that in case any worker losses his lien to his appointment under this section he shall not be deprived of the benefits and privileges which have alre­ady accrued to him under the law due to his past services and, in addition, he shall also be kept on the badly list, if any;
 
Provision further that if such a worker fails to "explain to the satisfaction of the employer the reason of his failure to return at the expiry of the leave, the employer may, on consideration of extenuating circumstances, if any, sus­pend him, as a measure of punishment, for a period not exceeding seven days from the date of his return and the worker shall not be entitled to wages for such periods of unauthorized absence and of suspension but he shall not lose the lien to his appointment."
 
6. It is evident that the words used in the said provision indicate that the worker does not automatically lose his lien to his appointment on his failure to return within 10 days of the expiry of his leave and give a satisfactory explanation of his inability to return earlier, but on the happening of such a contingency he "shall be liable to lose his lien". The second proviso to sub-section (3) as has been quoted above also   shows that on the failure to give satisfactory ex­planation the loss of lien is not automatic.
 
7. When one's service is liable  to be, 'terminated' on the happening of  certain event it is obviously not automatically put to an end on the happening of such event but it requires a further act on the part of the authority to finally terminate his service on such ground.
 
8. Clause (d) of sub section (3) of Section 17 of the Act provides that absence without leave for more than 10 days is a kind of misconduct and a worker may be dismissed or otherwise dealt with under sub-section (1) and (2) of section 17 read with section 18 of the Act. If absence without leave for more than 10 days is misconduct and a pro­ceeding is to be drawn up for dismissal or for other kind of punishment for such abse­nce, it does not stand to reason that if there Is such absence after leave has once been taken, there shall be automatic termi­nation of service and no opportunity should be given to explain his inability to return to join his service after the expiry of the leave. From a consideration of the provision, of section 5(3) of the Employment of Labour (Standing Orders) Act in the light of the other provisions of the Act it does not appear to us that, same interpretation should be given to the said provision, as has been given to the Indian law by the Supreme Court; of India in the case of National Engineering Industries Ltd.  Vs.  Hanuman, AIR 1968 (SC) 33.
 
9. On the second question also the learned Counsel has pointed out that the Supreme Court of India in the aforesaid case interfered with a finding of fact recorded by the Labour Court, on the view that such finding having lacked in proper corroboration was perverse. We have great doubts whether the principle, as has been enunciated in the said decision on this question, can be invoked in the present case. Under the Indian Law, the Supreme Court of India examined the propriety of the finding of the Labour Court directly in an appeal under Article 136 of the Constitution. In the instant case the finding of the Labour Court is challenged under Article 102 of the Constitution and the High Court exa­mined the validity of the finding of the Labour Court in its Writ jurisdiction. In the present case the Labour Court on a consi­deration of a number of documents, namely, the series of applications, telegram and medi­cal certificate, which where contemporaneous, came to the finding that the employee sa­tisfactorily explained her inability to join her post after the expiry of leave and that the employer was rather unjust and harsh in refusing to consider the employee’s case on merits. We do not think that the High Court was wrong in refusing to interfere with the said finding in exercise of its writ jurisdiction. The decision of the Supreme Court of India, as has been cited by the learned Counsel for the petitioner, has, in our opinion, no manner of application to the facts of the instant case.
 
For the foregoing reasons we do not find any substance in any of the two contentions urged by the learned Counsel and the peti­tion is dismissed.
 
Ed.