(1.) IN this writ application a former employee of the Utkal Ayurvedic Co -operative Pharmacy Limited has approached the certiorari jurisdiction of this Court for the quashing of an order passed by the opposite patty No, 1 terminating the services of the petitioner with effect from 8.4.76 as voluntary abandonment of service and of the award passed by the Labour Court upon reference and seeks a mandamus to the opposite party No. 1 to restore him to service and for payment of full back wages and other benefits.
(2.) THE facts in a nutshell are the petitioner joined service under opposite party No. 1 as a Clerk on 1. 7. 60. From time to time he was posted as and held various posts like Accounts Clerk, Cashier, Propaganda Van inharge, Package Clerk, Despatch Clerk and Salesman etc. While serving at Angul he applied on 19.12.75 for leave from 9.1.76 to 12.1.76 to perform his mother's sradha which was falling on 10.1.76 and to appear in a proceeding before the Consolidation Officer. His prayer for leave was refused. He made a fresh prayer on 26.12.75. When he did not receive any reply, he left Angul on 9.1.76 sending an intimation to the management telegraphically. While he was at Berhampur, he was taken ill and sought for extension of leave from time to time. The management by their letter dated 4. 2, 76 sanctioned his leave from 9.1.76 to 20.1.76 and asked him to join as there was no leave due to him. The petitioner, however, sought one month's leave from 22.1.76 on the ground of his illness. On 26.2.76 the management asked him to join his post at Angul within three days. The petitioner has alleged that his prayer for extension which was on the ground of his illness, supported by medical certificate, was not duly considered by the management. By order dated 5.3.76 the petitioner was transferred to Bhubaneswar and was asked to hand over charge to one Arjun Muni on 10.3.76. He again applied, for leave. On 11.3.76 he was required to hand over charge to Arjun Murfi. In compliance with the said direction, the petitioner went to Angul and handed over charge to Arjun Muni on 12.3.76 and was back at Berhampur. While at Berhampur he received the order dated 8. 4. 76 (Annexnre -1) passed by the Administrator of opposite party No. 1 to the effect that his absence from 21.1.76 to 7.4.76 was treated as unauthorised absence from duty on loss of pay and with effect from 8. 4, 76 he was treated to have voluntarily abandoned service. The petitioner's name was removed from the register. The petitioner has alleged that the order as per Annexure -1 violated the principles of natural justice and was retrenchment of the petitioner from service. The requirements of Section 25F of the Industrial Disputes Act,. 1947 (for short the 'Act') not having been complied with, the order was also invalid. It has been alleged that no disciplinary proceeding was started, no charges were framed or enquiry was made.
(3.) THE petitioner alleged before the tribunal that he was subjected to victimisation and unfair labour practice as he was the Secretary of the Union. His prayer for leave was supported by unimpeachable medical certificate. No enquiry having been made the order (Annexure -1) was liable to be struck down. The management based their case on Clause 21 of the Subsidiary Rules to the effect that if an employee remained absent for more than 10 days, his name would be removed from the Muster Roll treating his absence as voluntary abandonment from service. Annexure -1 was passed, according to the management, under the said provision. No oral evidence was adduced by the management before the Labour Court. Reliance was placed on certain documents. The petitioner, however, examined himself and placed documentary evidence for the consideration of the Labour Court. The petitioner contended before the Labour Court that the order Annexure -1 was violative of the principles of natural justice. There was no subsidiary rule as contended for. Assuming there was such a subsidiary rule that being unilateral was not binding on the petitioner. Lastly, assuming that the case came under the subsidiary rule and the rule governed the petitioner, the order amounted to retrenchment and was hit by Section 25F (a)&(b) of the Act. The Labour Court obviously relied upon Standing Order No. 36, though there is no specific finding to that effect but the trend of its decision shows it. Standing Order No. 36 provided that if an employee remained absent for 10 days after exhausting all types of leave for his credit, he would lose service. The Labour Court held that the petitioner had no justifiable reasons to remain absent from duty and had abandoned his service. The reference was answered in favour of the management and against the petitioner.