Anjana Mittal vs Oil and Natural Gas Corporation Limited

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5937 OF 2019 [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO. 30953 OF 2018] ANJANA MITTAL …..APPELLANT

VERSUS

OIL AND NATURAL GAS CORPORATION LIMITED ……RESPONDENT WITH

CIVIL APPEAL NO. 5938 OF 2019 [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO. 548 OF 2019]

OIL AND NATURAL GAS CORPORATION LIMITED …..APPELLANT VERSUS

ANJANA MITTAL ……RESPONDENT

JUDGMENT

VINEET SARAN, J.

Signature Not Verified Digitally signed by INDU MARWAH Date: 2019.07.31 12:27:54 IST

Reason: Leave granted.

2

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 Grade­III in the

respondent­Corporation 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 Grade­II. 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 3

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

respondent­Corporation 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 respondent­Corporation terminated her

services w.e.f. 01.12.1993.

4. Challenging the said order dated 01.07.1994 passed by

the respondent­Corporation, 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 4

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 Tribunal­cum­Labour 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 respondent­Corporation 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 respondent­Corporation 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 5

the respondent­Corporation 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

respondent­Corporation 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 6

termination, had worked with the respondent­Corporation for

more than eleven years and thus she could not be treated as a

temporary employee especially when in the year 1990 she was

promoted from the post of Assistant Grade­III to Assistant

Grade­II. It has thus been contended that Regulation 24 of

the 1975 Regulation relating to services of temporary

employee could not be applicable to the present case and has

rightly been held to be so. It has also been contended that the

period of absence of the appellant from the year 1987 to

1993, though on the higher side, was duly ex­post facto

sanctioned as leave by the respondent­ Corporation and as

such the same could not be the ground for termination. He

has also emphasized the fact that during this period, the

appellant was in fact also promoted in the year 1990 as

Assistant Grade­II. Mr. Patwalia has contended that the

impugned termination order was wholly unjustified and has

rightly been set aside by the Tribunal after granting full back

wages and consequential benefits. He has submitted that the 7

order of the High Court, insofar as it provides for only 30% of

back wages instead of 100% back wages, is wholly unjustified

and no such deduction in back wages was warranted in the

facts of the present case.

8. Per contra, Shri J.P. Cama, learned Senior Counsel

appearing for the respondent­Corporation vehemently

submitted that in the facts of the present case, where the

appellant admittedly remained absent for 1968 days between

1987 to 1993 (seven years), the termination order of the

appellant was fully justified and since the appellant was a

temporary employee, the Regulation 24 of 1975 Regulation

would be attracted. He has contended that the appointment

letter of the appellant was as temporary Assistant Grade­III

and even promotion order dated 06.01.1990 categorically

states that the same was also as temporary Assistant Grade­

II. He has contended that the Medical Board constituted on

01.12.1992 has clearly found that she had taken excessive 8

leave on basis of medical certificates submitted by the

appellant and as such, after a show cause notice was issued

and her reply not having been found satisfactory, she was

rightly terminated w.e.f. 01.12.1993. It has been vehemently

urged that when the appellant had remained absent for a

substantial period during the period of seven years 1987 to

1993, the question of reinstatement would not arise, as the

respondent­Corporation cannot be saddled to take work from

an employee who does 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, and also as compensation

in place of reinstatement. The counsel for both the parties

have submitted that the appellant would, in any case, be

retiring in May, 2020.

9. Having heard learned Senior Counsel for the parties at

length and on perusal of record, we are of the view that the

High Court has rightly held that the termination of the 9

appellant in terms of Regulation 24 of the 1975 Regulations,

treating the appellant as a temporary employee, was not

justified in law and thus could not be sustained, as she had

been in employment for over eleven years. The delay of over

14 years in making the reference has been condoned by the

High Court holding that she was agitating her rights as she

had approached the High Court by filing the writ petition

against her termination. This aspect shall be dealt by us at a

later stage.

10. The finding of the High Court, that in a case of

termination formal domestic enquiry is not required is

misconceived, is also correct, as the order of termination has

serious civil consequences to an employee, and thus such

termination should not be without following the process of law

and holding an inquiry. In our view, the High Court has also

rightly held that since the period of absence was regularized

by the Management by converting the same as period of leave, 10

and as such the same could not be the ground for

termination.

11. The last question which the High Court has decided is

with regard to the payment of back wages. It has been held

that instead of full back wages, the appellant would be entitled

to only 30% back wages, along with all consequential benefits

as has been awarded by the Labour Court. In our opinion, this

issue requires consideration of this Court. Admittedly, the

appellant continued to remain absent for long periods between

the years 1987 to 1993. There is no dispute about the fact

that during this period of seven years, the appellant remained

absent for 1968 days, which comes to an average of over 281

days per year. In effect, in this seven years period, she

remained absent for nearly 5.4 years. This would clearly

indicate that the appellant was a habitual absentee. Even if it

is taken that the appellant was not temporary but deemed to

be permanent, yet an employee who remained absent from 11

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. The Medical Board constituted by

the Corporation also 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.

12. We say so also because, by choosing a wrong forum of

filing a writ petition, the appellant had spent more than fourteen

years in approaching the correct forum, which was the Labour

Court. The appellant ought to have known that she was a

workman and would be covered under the Industrial Disputes Act,

but had initially chosen not to approach the Labour Court.

Challenging the termination order which was passed in the year

1994, she approached the Labour Court only in the year 2008,

which was after fourteen years. We have also to take into account

that the appellant remained on leave during seven years preceding

her termination for an average period of 281 days in a year. Even

though the said absence was converted as leave (which was ex­ 12

post facto granted in her favour) yet the fact remains that she was

a habitual absentee, which would be a material fact while

considering the question of payment of back wages to her.

13. Though, we are not interfering with the setting aside of the

termination order, but in the facts and circumstances of this case,

in our considered view, the ends of justice would be met if the

appellant is paid 10% back wages, along with the benefit of

reinstatement and all other consequential benefits. It is, however,

made clear, that considering the conduct of the appellant, the

respondent­Corporation would not be obliged to take work from

her, and in lieu thereof she may be paid her salary from this date

till the date of her superannuation, which according to the learned

counsel for the parties would be in May 2020. We make it clear

that the appellant may be treated as reinstated but may not be

required to work in the Organisation of respondent­Corporation.

15. With the aforesaid modifications in the impugned

judgment and order of the High Court dated 14.06.2018, we

dispose of both the appeals. No order as to costs. 13

………………………..J. [Uday Umesh Lalit]

………………….…….J. [Vineet Saran]

New Delhi Dated: July 30, 2019