Supreme Court of India
ANJANA MITTAL versus OIL AND NATURAL GAS CORPORATION LIMITED on 30 July 2019
[2019] 10 S.C.R. 353
ANJANA MITTAL
v.
OIL AND NATURAL GAS CORPORATION LIMITED
(Civil Appeal No.5937 of 2019)
JULY 30, 2019
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Labour Laws:
Termination of service – In terms of Regulation 24 of Termsand Conditions of Appointment and Service Regulations, 1975(Service Regulations of respondent- Corporation) – On the groundof her continued absence – Initially the employee/workman resortedto Writ jurisdiction for challenging the termination order – Petitionhaving been dismissed on the ground of maintainability, raised thedispute before Labour Court – Labour Court held the terminationas illegal and directed reinstatement with full back wages – In writpetition, order of the Labour Court was upheld so far as finding ontermination order, but instead of full back wages granted back wagesonly to the extent of 30% – Appeal to Supreme Court – Held:Termination of the employee/workman in terms of Regulation 24,treating her as a temporary employee was not justified in law – Theabsence having been regularized, the same could not be the groundfor termination – However, the facts of the case show that theemployee was a habitual absentee – Therefore, ends of justice wouldbe met if the employee is paid 10% of back wages alongwith benefitof reinstatement – Considering her conduct, since the employerwould not be obliged to take work from her, therefore, in lieu ofreinstatement, she may be paid salary from the present day till thedate of her superannuation (i.e. from July 30, 2019 till May 2020).
Disposing of the appeals, the Court
HELD: 1. High Court has rightly held that the terminationof the appellant in terms of Regulation 24 of the Terms andConditions of Appointment and Service Regulations 1975 ,treating the appellant as a temporary employee, was not justifiedin law and thus could not be sustained, as she had been inemployment for over eleven years. [Para 9] [357-G-H]
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A2. The finding of the High Court, that in a case of termination,formal domestic enquiry is not required is misconceived, is alsocorrect, as the order of termination has serious civil consequencesto an employee, and thus such termination should not be withoutfollowing the process of law and holding an inquiry. The HighCourt has also rightly held that since the period of absence wasBregularized by the Management by converting the same as periodof leave, and as such the same could not be the ground fortermination. [Para 10] [358-B-C]
3. Even if it is taken that the appellant was not temporary but deemed to be permanent, yet an employee who remainedCabsent from duty for such long periods, averaging to over 281days in a year, continuously for seven years, would not be entitledto any substantial back wages. The Medical Board constitutedby the Corporation also found that the period of leave granted onthe basis of many of the medical certificates submitted by theDappellant was disproportionate to the severity of the ailments.[Para 11] [358-E-F]
4. Even though the said absence was converted as leave(which was ex-post facto granted in her favour) yet the fact remainsthat she was a habitual absentee, which would be a material factwhile considering the question of payment of back wages to her.E[Para 12] [359-B]
5. The ends of justice would be met if the appellant is paid10% back wages, along with the benefit of reinstatement and allother consequential benefits. Considering the conduct of theappellant, the respondent-Corporation would not be obliged toFtake work from her, and in lieu thereof she may be paid her salaryfrom date of the present judgment till the date of hersuperannuation, i.e. May 2020. Thus, the appellant may be treatedas reinstated but may not be required to work in the Organisationof respondent-Corporation. [Para 13] [359-C-D]
GCIVIL APPELLATE JURISDICTION: Civil Appeal No.5937 of2019
From the Judgment and Order dated 14.06.2018 of the High Courtof Uttarakhand at Nainital in Writ Petition (M/S) No. 3015 of 2017With
HCivil Appeal No. 5938 of 2019.
P. S. Patwalia, J. P. Cama, Sr. Advs., Ms. Meena ChaudharySharma, Dhruv Sheoran, Ms. Harshika Verma, Ms. Natasha Dalmia,Sudhir Mendiratta, Abhishek Puri, Yasharth Misra, Surbhi Gupta, V.Sidharth, Manan Gambhir, P. N. Puri, Advs. for the appearing parties.
The Judgment of the Court was delivered by VINEET SARAN, J.
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1. Leave granted.
2. Special Leave Petition (c) No.30953 of 2018 is treated as alead petition.
3. This case has a chequered history. The appellant was appointedas a temporary Assistant Grade-III in the respondent-Corporation in theyear 1983. Up to the year 1986, she worked on the said post and hadtaken normal permissible leaves. However, from the year 1987 to 1993she was absent for 1968 days in those seven years. The said absencewas ex-post facto sanctioned as medical leave. In the meantime, on06.01.1990, the appellant was promoted as temporary AssistantGrade-II. Then on 01.12.1992, Medical Board was constituted by theCorporation which found that the period of leave granted on the basis ofmany of the medical certificates submitted by the appellant wasdisproportionate to the severity of the ailments. Then on 26.05.1994, anotice was issued to the appellant requiring her to show cause as to whyaction under Regulation 24 of the Terms and Conditions of Appointmentand Service Regulation, 1975 (for short “1975 Regulation”) relating totermination of services of a temporary employee be not taken by therespondent-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-Corporationterminated her services w.e.f. 01.12.1993.
4. Challenging the said order dated 01.07.1994 passed by therespondent-Corporation, the appellant filed Writ Petition No.6742 of 2001before the Allahabad High Court, which was subsequently transferredto the Uttarakhand High Court at Nainital. By the judgment and orderdated 26.08.2004, the High Court dismissed the writ petition filed by theappellant and upheld the validity of the termination order. Against thesaid order, Special Appeal No. 55 of 2004 was filed before the DivisionBench of the High Court, which was dismissed on 29.06.2006 on the A
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Aground of maintainability, holding that the appellant was a Workman andthe case would be one of an Industrial dispute. Consequently, on22.10.2008, the appellant made a reference of the dispute to the CentralGovernment Industrial Tribunal-cum-Labour Court (for short “LabourCourt”). The said dispute was registered as Industrial Dispute No. 53 of2009 with the Labour Court, New Delhi. The reference was to theBeffect as to whether the action of the management of the respondent-Corporation to terminate the services of appellant, was legal andjustified. The reference was decided by the Labour Court on 07.08.2018,whereby it was held that the termination of the appellant by therespondent-Corporation was illegal and void. It was also held that theCappellant had worked in the respondent-Corporation for more than elevenyears and thus could not be treated as temporary employee, as such theprovisions of Regulation 24 of 1975 Regulation were not attracted andthus the respondent-Corporation was directed to reinstate the appellantwith full back wages and all consequential benefits.
D5. Challenging the said order, the respondent-Corporation filed aWrit Petition No.3015 of 2017 before the High Court of Uttarakhand atNainital, which was partly allowed to the extent that termination of theappellant was held to be illegal, but instead of full back wages, theappellant was found entitled to back wages only to the extent of 30%with all other consequential benefits in terms of the Award of the LabourECourt.
6. Aggrieved by the said judgment, the appellant has filed thisSpecial Leave Petition No. 30953 of 2018. The respondent-Corporationhas also filed a separate Special Leave Petition No. 548 of 2019.F7. The facts, as stated above, are not disputed by the parties. Shri F7. The facts, as stated above, are not disputed by the parties. ShriP.S. Patwalia, learned Senior Counsel appearing for the appellant hassubmitted that the appellant, before her termination, had worked withthe respondent-Corporation for more than eleven years and thus shecould not be treated as a temporary employee especially when in theyear 1990 she was promoted from the post of Assistant Grade-III toGAssistant Grade-II. It has thus been contended that Regulation 24 of the1975 Regulation relating to services of temporary employee could notbe applicable to the present case and has rightly been held to be so. Ithas also been contended that the period of absence of the appellantfrom the year 1987 to 1993, though on the higher side, was duly ex-postHfacto sanctioned as leave by the respondent- Corporation and as such the same could not be the ground for termination. He has alsoemphasized the fact that during this period, the appellant was in fact alsopromoted in the year 1990 as Assistant Grade-II. Mr. Patwalia hascontended that the impugned termination order was wholly unjustifiedand has rightly been set aside by the Tribunal after granting full backwages and consequential benefits. He has submitted that the order ofthe High Court, insofar as it provides for only 30% of back wagesinstead of 100% back wages, is wholly unjustified and no suchdeduction in back wages was warranted in the facts of the present case.
8. Per contra, Shri J.P. Cama, learned Senior Counsel appearingfor the respondent-Corporation vehemently submitted that in the factsof the present case, where the appellant admittedly remained absent for1968 days between 1987 to 1993 (seven years), the termination order ofthe appellant was fully justified and since the appellant was a temporaryemployee, the Regulation 24 of 1975 Regulation would be attracted. Hehas contended that the appointment letter of the appellant was astemporary Assistant Grade-III and even promotion order dated 06.01.1990categorically states that the same was also as temporary AssistantGrade- II. He has contended that the Medical Board constituted on01.12.1992 has clearly found that she had taken excessive leave onbasis of medical certificates submitted by the appellant and as such,after a show cause notice was issued and her reply not having beenfound satisfactory, she was rightly terminated w.e.f. 01.12.1993. It hasbeen vehemently urged that when the appellant had remained absent fora substantial period during the period of seven years 1987 to 1993, thequestion of reinstatement would not arise, as the respondent-Corporation cannot be saddled to take work from an employee whodoes not work and at best, if the termination order is not to be sustained,she could be awarded any lump sum amount in lieu of back wages, andalso as compensation in place of reinstatement. The counsel for both theparties have submitted that the appellant would, in any case, be retiringin May, 2020.
9. Having heard learned Senior Counsel for the parties at lengthand on perusal of record, we are of the view that the High Court hasrightly held that the termination of the appellant in terms of Regulation24 of the 1975 Regulations, treating the appellant as a temporaryemployee, was not justified in law and thus could not be sustained, asshe had been in employment for over eleven years. The delay of over 14
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Ayears in making the reference has been condoned by the High Courtholding that she was agitating her rights as she had approached the HighCourt by filing the writ petition against her termination. This aspect shallbe dealt by us at a later stage.
10. The finding of the High Court, that in a case of terminationBformal domestic enquiry is not required is misconceived, is also correct,as the order of termination has serious civil consequences to anemployee, and thus such termination should not be without following theprocess of law and holding an inquiry. In our view, the High Court hasalso rightly held that since the period of absence was regularized by theManagement by converting the same as period of leave, and as such theCsame could not be the ground for termination.
11. The last question which the High Court has decided is withregard to the payment of back wages. It has been held that instead offull back wages, the appellant would be entitled to only 30% back wages,along with all consequential benefits as has been awarded by the LabourDCourt. In our opinion, this issue requires consideration of this Court.Admittedly, the appellant continued to remain absent for long periodsbetween the years 1987 to 1993. There is no dispute about the fact thatduring this period of seven years, the appellant remained absent for 1968days, which comes to an average of over 281 days per year. In effect, inEthis seven years period, she remained absent for nearly 5.4 years. Thiswould clearly indicate that the appellant was a habitual absentee. Evenif it is taken that the appellant was not temporary but deemed to bepermanent, yet an employee who remained absent from duty for suchlong periods, averaging to over 281 days in a year, continuously for sevenyears, would not be entitled to any substantial back wages. The MedicalFBoard constituted by the Corporation also found that the period of leavegranted on the basis of many of the medical certificates submitted bythe appellant was disproportionate to the severity of the ailments.
12. We say so also because, by choosing a wrong forum of filinga writ petition, the appellant had spent more than fourteen years inGapproaching the correct forum, which was the Labour Court. Theappellant ought to have known that she was a workman and would becovered under the Industrial Disputes Act, but had initially chosen not toapproach the Labour Court. Challenging the termination order whichwas passed in the year 1994, she approached the Labour Court only in H
the year 2008, which was after fourteen years. We have also to takeinto account that the appellant remained on leave during seven yearspreceding her termination for an average period of 281 days in a year.Even though the said absence was converted as leave (which wasex-post facto granted in her favour) yet the fact remains that she wasa habitual absentee, which would be a material fact while consideringthe question of payment of back wages to her.
13. Though, we are not interfering with the setting aside of thetermination order, but in the facts and circumstances of this case, in ourconsidered view, the ends of justice would be met if the appellant is paid10% back wages, along with the benefit of reinstatement and all otherconsequential benefits. It is, however, made clear, that considering theconduct of the appellant, the respondent-Corporation would not be obligedto take work from her, and in lieu thereof she may be paid her salaryfrom this date till the date of her superannuation, which according to thelearned counsel for the parties would be in May 2020. We make it clearthat the appellant may be treated as reinstated but may not be requiredto work in the Organisation of respondent-Corporation.
14. With the aforesaid modifications in the impugned judgmentand order of the High Court dated 14.06.2018, we dispose of both theappeals. No order as to costs.
Kalpana K. Tripathy
Appeals disposed of.
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