Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 812

SUPREME COURT OF INDIA
UDAY UMESH LALIT, VINEET SARAN, JJ.
Anjana Mittal - Appellant
Versus
Oil And Natural Gas Corporation Limited - Respondent
Civil Appeal No. 5937 of 2019 [Arising Out Of Special Leave Petition [C] No. 30953 of 2018]
With
Oil And Natural Gas Corporation Limited - Appellant
Versus
Anjana Mittal - Respondent
Civil Appeal No. 5938 of 2019 [Arising Out Of Special Leave Petition [C] No. 548 of 2019]
Decided on : 30-07-2019

Advocates Appeared:
For the Appellant(s) :Paramjeet Singh Patwaliya, Meena Choudhary Sharma, B.S. Toman, Sudhir Mendiratta, J.P. Cama, Abhishek Puri, Yasharth Misra, P. N. Puri, Advocates
For the Respondent(s):P. N. Puri, Sudhir Mendiratta, Advocates

IMPORTANT POINT
A habitual absentee cannot claim full back-wages after reinstatement in service.

Headnote:Labour and Industrial Law – Reinstatement – Quantum of back-wages – 30% back-wages awarded by High Court – Since period of absence was regularized by Management by converting the same as period of leave, as such, same could not be ground for termination – During period of seven years, appellant remained absent for nearly 5.4 years – This would clearly indicate that appellant was a habitual absentee – Medical Board constituted by Corporation also found that period of leave granted on the basis of many of medical certificates submitted by appellant was disproportionate to severity of ailments – An employee who remained absent from duty for such long periods, averaging to over 281 days in a year, continuously for seven years, would not be entitled to any substantial back wages – By choosing a wrong forum of filing writ petition, appellant had spent more than fourteen years in approaching correct forum which was Labour Court – Appellant ought to have known that she was a workman – Ends of justice would be met if appellant is paid 10% back wages, along with benefit of reinstatement and all other consequential benefits – However, considering conduct of appellant, respondent-Corporation would not be obliged to take work from her, and in lieu thereof she may be paid her salary from this date till date of her superannuation. (Paras 10, 11, 12 and 13)
       Facts of the Case:
       Respondent-Corporation was directed by Labour Court to reinstate appellant with full back wages and all consequential benefits. Challenging said order, respondent-Corporation filed a Writ Petition before High Court of Uttarakhand at Nainital, which was partly allowed to the extent that termination of appellant was held to be illegal, but instead of full back wages, appellant was found entitled to back wages only to the extent of 30% with all other consequential benefits in terms of Award of Labour Court.
       Findings of the Court:
       By choosing a wrong forum of filing a writ petition, appellant had spent more than fourteen years in approaching the correct forum, which was Labour Court. Appellant ought to have known that she was a workman and would be covered under Industrial Disputes Act, but had initially chosen not to approach Labour Court. Challenging the termination order which was passed in year 1994, she approached Labour Court only in year 2008, which was after fourteen years.
       Result : Appeals disposed of with directions.

JUDGMENT :

VINEET SARAN, J.

Leave granted.

2. Special Leave Petition (c) No.30953 of 2018 is treated as a lead petition.

3. This case has a chequered history. The appellant was appointed as a temporary Assistant Grade-III in the respondent-Corporation in the year 1983. Up to the year 1986, she worked on the said post and had taken normal permissible leaves. However, from the year 1987 to 1993 she was absent for 1968 days in those seven years. The said absence was expost facto sanctioned as medical leave. In the meantime, on 06.01.1990, the appellant was promoted as temporary Assistant Grade-II. Then on 01.12.1992, Medical Board was constituted by the Corporation which found that the period of leave granted on the basis of many of the medical certificates submitted by the appellant was disproportionate to the severity of the ailments. Then on 26.05.1994, a notice was issued to the appellant requiring her to show cause as to why action under Regulation 24 of the Terms and Conditions of Appointment and Service Regulation, 1975 (for short “1975 Regulation”) relating to termination of services of a temporary employee be not taken by the respondent-Corporation on her continued absence. In response thereto, the appellant submitted her reply on 01.06.1994. Then on 01.07.1994, holding her reply to be unsatisfactory, the respondent-Corporation terminated her services w.e.f. 01.12.1993.

4. Challenging the said order dated 01.07.1994 passed by the respondent-Corporation, the appellant filed Writ Petition No.6742 of 2001 before the Allahabad High Court, which was subsequently transferred to the Uttarakhand High Court at Nainital. By the judgment and order dated 26.08.2004, the High Court dismissed the writ petition filed by the appellant and upheld the validity of the termination order. Against the said order, Special Appeal No. 55 of 2004 was filed before the Division Bench of the High Court, which was dismissed on 29.06.2006 on the ground of maintainability, holding that the appellant was a Workman and the case would be one of an Industrial dispute. Consequently, on 22.10.2008, the appellant made a reference of the dispute to the Central Government Industrial Tribunal-cum-Labour Court (for short “Labour Court”). The said dispute was registered as Industrial Dispute No. 53 of 2009 with the Labour Court, New Delhi. The reference was to the effect as to whether the action of the management of the respondent-Corporation to terminate the services of appellant, was legal and justified. The reference was decided by the Labour Court on 07.08.2018, whereby it was held that the termination of the appellant by the respondent-Corporation was illegal and void. It was also held that the appellant had worked in the respondent-Corporation for more than eleven years and thus could not be treated as temporary employee, as such the provisions of Regulation 24 of 1975 Regulation were not attracted and thus the respondent-Corporation was directed to reinstate the appellant with full back wages and all consequential benefits.

5. Challenging the said order, the respondent-Corporation filed a Writ Petition No.3015 of 2017 before the High Court of Uttarakhand at Nainital, which was partly allowed to the extent that termination of the appellant was held to be illegal, but instead of full back wages, the appellant was found entitled to back wages only to the extent of 30% with all other consequential benefits in terms of the Award of the Labour Court.

6. Aggrieved by the said judgment, the appellant has filed this Special Leave Petition No. 30953 of 2018. The respondent-Corporation has also filed a separate Special Leave Petition No. 548 of 2019.

7. The facts, as stated above, are not disputed by the parties. Shri P.S. Patwalia, learned Senior Counsel appearing for the appellant has submitted that the appellant, before her termination, had worked with the respondent-Corporation for more than eleven years and thus she could not be treated as a temporary employee especially

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2019 Supreme(SC) 812

IMPORTANT POINTA habitual absentee cannot claim full back-wages after reinstatement in service.

IMPORTANT POINT
A habitual absentee cannot claim full back-wages after reinstatement in service.