U P STATE ROAD TC Vs. PRESIDING OFFICER

JUDGEMENT

(1.) This writ petition is directed against the award dated 24.5.2006 given by Presiding Officer, Labour Court, U.P., Bareilly in Adjudication Case No. 95 of 1997. The matter which was referred to the Labour Court was as to whether action of petitioner employer terminating the services of its workman respondent No. 2, Hardayal w.e.f. 9.1.1996 was just and valid or not. Respondent No. 2 was conductor. Admittedly since 1.5.1995 he was not coming on duty. The employer pleaded that the workman was given notices on 31.8.1995 and 15.11.1995 that in case he did not join within a month, he would be deemed to have resigned, and as he did not join hence his services were terminated by order dated 9.1.1996, copy of which is Annexure-II to the writ petition. Case of the respondent No. 2 was that he was ill. Labour Court held that termination without inquiry was illegal and set aside the same with 50% back wages. Learned Counsel for legal representatives of respondent No. 2 states that late respondent No. 2 crossed the age of superannuation in 2005. Accordingly, there was no question of reinstatement of respondent No. 2 under interim order dated 3.11.2006 passed in this writ petition, which is quoted below:

(2.) In my opinion absence without leave is misconduct and services may be terminated on this misconduct after providing opportunity of hearing.

(3.) The workman had given an application for leave on the ground of illness from 1.5.1995 to 12.5.1995 through registered post as mentioned in para-9 of the impugned award. This fact is admitted by the petitioner-employer. Thereafter, in the same paragraph of the impugned award it is mentioned that intimation of illness/application for leave on this ground was given by the workman to the employer for the period from 13.5.1995 to 3.6.1995 through U.P.C. (Under Postal Certificate) and similar intimation/application for the period from 4.6.1995 to 14.7.1995 was given under U.P.C. It is further mentioned in the same para that the workman stated in his evidence before the Labour Court that he gave two more similar applications for leave on medical ground for the periods from 15.7.1995 to 14.8.1995 and 15.8.1995 to 2.9.1995. Regarding these two leave applications even U.P.C. was not filed. First of all sending letter/application through U.P.C. does not raise presumption of service. In this regard, reference may be made to Shiv Kumar v. State of Haryana, 1994 4 SCC 445 , wherein the notices by the management to workman were sent through certificate of posting which fact was disputed and in that context Supreme Court observed "We have not felt safe to decide the controversy at hand on the basis of the certificates produced before us, as it is not difficult to get such postal seals at any point of time." The said authority has been quoted with approval in Fakir Mohd. v. Sita Ram, 2002 AIR(SC) 433 Secondly, there is not even an allegation that after 2.9.1995 any application for leave or intimation of illness was sent by the workman. The Labour Court did not even mention that what was the nature of illness of the workman even though it referred to some medical certificates filed by the workman. What the Supreme Court has said in the above authority regarding U.P.C. can also be said about medical certificates of private doctors produced by interested parties. Unscrupulous private doctors may issue such certificates at any time showing any type of complicated undetectable disease. Labour Court held that the employer should have referred the workman to the C.M.O. for getting him examined medically. This was not the duty of the employer.