The termination of employment due to failure to return to duty within fifteen days of the expiry of sanctioned leave is deemed to be voluntary leaving of service and not a dismissal, discharge, removal or suspension within the meaning of section 16 of the C.P. and Berar Industrial Disputes Settlement Act, 1947.

T.C. Shrivastava, J.

1. This petition under Article 226 or Article 227 of the Constitution has been filed by the Burhanpur Tapti Mill to quash the order of the Assistant Labour Commissioner dated 30-8-1956 and the order of the State Industrial Court, dated 12-10-19-56 confirming that order.

2. The respondent No. 3 Latur was employed as a sweeper in the mill belonging to the petitioner. He was granted leave on 23-2-1956 for the period extending from that date to 7-3-1956. On the expiry of leave the respondent No. 3 did not return to work. On 14-3-956 he made an application through the Rashtriya Mill Majdoor Sangh, Burhanpur, requesting for extension of leave. A telegram asking for extension was also sent by him on that date. On 14-3-1956 the petitioner refused the grant of leave and intimated the union about it. Later on 26-3-1955 he again applied for extension of leave, which was refused on 28-3-1956. Respondent No. 3 did not appear for work till 10-4-1956 and the petitioner treated him as having left the service under Standing Order 13 (4).

3. The respondent No. 3 then approached the Assistant Labour Commissioner, who ordered his reinstatement. An appeal against the order was rejected by the State Industrial Court.

4. Shri Dabir for the petitioner contends that the order of the Assistant Labour Commissioner was without jurisdiction and should, therefore, be quashed.

5. Clauses 3 and 4 of the Standing Order No. 13 which are material to this case are as follows:--

13 (3) If an operative after proceeding on leave desires an extension thereof, he shall submit a written application for the purpose to the Manager or the officer or officers authorised by the Manager for the purposes, A written reply either of the grant or refusal of extension of leave shall be sent to the operative at the address given by him if such reply is likely to reach him before the expiry of the leave originally granted to him.

(4) Any operative remaining absent beyond the period of leave originally granted to him or subsequently extended, shall lose his lien on his appointment unless he returns within eight days of the expiry of the sanctioned leave and explains to the Manager or the authority granting leave of his inability to return before the expiry of leave as well as for his failure to apply in 'writing for extension of leave. Any operative losing his lien on his appointment shall, if he returns before 15 days of the expiry of the leave, be entitled to be kept on the Badli list, if he so desires. Any operative not reporting for duty within 15 days of the expiry of the sanctioned leave shall be treated as having left the service from the date he was due to return to work.

It appears from the language of clause (3) that the application for extension of leave has to be made before the expiry of the leave, every application should normally be made leaving enough time to have reply regarding the extension. The respondent No. 3 did not apply within time. He applied seven days later through the union and the reply refusing leave was sent to him on that address. Still the respondent No. 3 did not appear.

6. Clause (4) of the Standing Order No. 13 provides that unless an employee returns within eight days of the expiry of the sanctioned leave, he loses his lien on his appointment. The respondent No. 3 did not appear at all in this case within the period. All that he did was to send an application through the Union. The State Industrial Court wrongly observed that mere application for leave within the period was enough. It is necessary that the employee must' return personally to the duty if he wants to continue his lien. This the respondent No. 3 did not do and, therefore, his lien was terminated from his appointment. Further, the clause provides that if he returns after seven days but before fifteen days he would be entitled to be kept on the Badli list. This also the respondent No. 3 did not do. Then the clause goes on to provide lastly that if he does not return