Rajasthan High Court - Jaipur
Rajasthan Bank Employees' Union vs Regional Manager, Punjab National Bank on 14 August, 2001
Equivalent citations: (2001)IILLJ1513RAJ, 2001(3)WLC593, 2002(1)WLN297
Bench: Ar. Lakshmanan, Bhagwati Prasad
JUDGMENT
1. This special appeal has been filed against the judgment dated July 12, 1999 passed by a learned single Judge of this Court, whereby the learned single Judge has dismissed the writ petition.
2. The case as set up by the petitioner (appellant) in the writ petition is that the members of the petitioner Union were to participate in a demonstration to be held before the Parliament on March 27, 1987. For participating in this demonstration, casual leave was sought by the members of the petitioner Union. According to the petitioner, no order refusing the casual leave was made by the competent authority on the applications made for such leave.
3. The case of the petitioner Union is that those employees who had applied for casual leave had, leave to their credit. They applied for leave being granted. The leave was sought for attending the demonstration. No order of rejection of the leave application has ever been made or communicated to the workmen.
4. The respondents contested the writ petition and it was contended on behalf of the respondents that no leave was sanctioned to any of the employees/workmen who remained absent on March 27, 1987. In the absence of leave having been sanctioned, it is not just and proper for the employees to presume that the casual leave applied for has been sanctioned. No one can claim leave as a matter of right, may be that the leave was to the credit of the employee, Sanctioning of leave is the prerogative of the employer. It was contended on behalf of the respondents that the document Annexure 1 produced by the petitioner clearly shows that the authorities of the Bank had made it clear that those who will make themselves absent on March 27, 1987 will not be paid for that day if they choose to remain absent from the Bank. If in the existence of such a notice the members of the petitioner Union choose to neglect it then the answering respondents were within their rights to treat the members of the petitioner Union absent from duty and for that they were not required to be paid any salary on the principle of 'no work, no pay'. This action was not without the knowledge of the members of the petitioner Union because Annexure 1 had already been issued/passed.
5. Learned single Judge, after considering the case of both the parties, came to the conclusion that in terms of the Bipartite. Settlement between the parties the casual leave cannot be claimed as a matter of right and it has also been found that there is no provision for deemed sanction of grant of leave. Leave was required to be obtained before hand. The members of the petitioner Union have remained absent from duty on March 27, 1987 and for that if salary has been deducted then it cannot be said that the principle of 'no work, no pay' cannot be applied in this case. The learned single Judge has also held that no factual matrix has been pleaded in the writ petition. In the absence of specific facts regarding the number of workmen who had applied for leave gravity of the question cannot be judged. The learned single Judge has found that the issue is so trivial to be considered in exercise of the jurisdiction under Article 226 of the Constitution of India.
6. The petitioner Union in the appeal has raised the point that the casual leave is a leave which can be claimed to meet special or unforeseen circumstances. The leave was to the credit of the members of the petitioner Union and it cannot be refused as has been contended by the respondents. The appellant has relied upon a decision of the Bombay High Court rendered in the case of Bombay University and College Teachers Union and Anr. v. University of Bombay (Writ Petition No. 1941 of 1982, decided on August 5, 1986) reported in Rajasthan Bank Employees Union Samachar page 9, wherein the Bombay High Court has held as under:
"It is not permissible for the administration to treat the absence of the teachers as absence without permission. The teachers had applied for casual leave to show their solidarity to the textile employees, who were on strike for a considerable length. The teachers had not remained absent without informing the administration but on the other hand the teachers applied for casual leave. In case the employees are entitled to take the casual leave, men it is difficult to appreciate how the administration can refuse applications on the ground that their absence would be treated as one without pay."
7. The appellant has further contended that the respondents have not placed on record any order refusing the applications. The applications for leave were made by the members of the petitioner Union. In the absence of any order of rejection, how it will be deemed that the application was refused when no such order was produced in the Court, notwithstanding the fact that understanding to this effect was given. In these circumstances, it should be deemed that the application has been allowed. The contention of the respondents that the leave should be deemed to have been refused is against the provisions of the Bipartite Settlement. According to this Settlement making of an application prior to the grant of leave is not mandatory and thus, its rejection vide Annexure 1 cannot be deemed to be effective in law.
8. The petitioner claims that it had a right to demonstrate peacefully for its right and in this connection it places reliance on Supreme Court decisions i.e. AIR 1963 SC 812 and AIR 1962 SC 1166 wherein it has been held that whereas the right to go on strike is not fundamental right, right to demonstrate peacefully is a fundamental right. The order to refuse leave having not been communicated the reasons for refusal of leave are not available with the petitioner to challenge the same. However, before such refusal an opportunity could have been afforded to the petitioner so as not to deny them the principle of natural justice. If at all any order has been passed that remained on the file of the respondents. It can be said that no order was passed.
9. We have heard the learned counsel for the parties and have also perused the record.
10. The provisions of the Bipartite Settlement have been quoted by the parties in their pleadings and in Clause 13.23 it has been provided that:
"13.23. Casual leave shall be non-cumulative except as provided in Clause 13.31 under sick leave. Ordinarily the previous permission of the sanctioning authority shall be obtained before taking such leave. When this is not possible, the said authority shall be informed as soon as practicable in writing or if writing is not possible, orally or through any person, of the employee's absence from work, reason thereof and of the probable duration of such absence. In any event a written application shall be submitted to such authority latest on the day the employee resumes duty. In no case will an employee take casual leave on frivolous grounds."
11. Casual leave ordinarily should have been obtained by previous permission of the sanctioning authority. It has been further provided in Clause 13.24 that casual leave is only intended to meet special or unforeseen circumstances for which provision cannot be made by exact rules. Clause 13.24 of the Bipartite Settlement thus reads as under:
"13.24, Casual leave is only intended to meet special or unforeseen circumstances for which provision cannot be made by exact rules. Holidays except Saturdays and Sundays shall not be prefixed or suffixed to casual leave without the previous permission of the officer granting such leave."
12. In the back drop of the Bipartite Settlement it has to be seen whether any contingency existed as provided in the Bipartite Settlement. The petitioner is claiming that they had a right to ask for casual leave and in fact they had asked for the leave which should have been granted.
13. According to the Bipartite Settlement the casual leave can be asked for to meet special or unforeseen circumstances. The demonstration cannot be said to be an unforeseen circumstance. The event of demonstration was known to the petitioner and its members before hand. Such events are planned in advance. In this back-ground previous knowledge of the fact to the petitioner and its members had to be presumed. Having knowledge about the event of demonstration it cannot be said that it was an unforeseen circumstance and the employees could not apply for leave before hand. Prior sanction of the leave is provided in Clause 13.23 of the Bipartite Settlement. Having not sought previous permission it cannot treat that it was a leave under unforeseen circumstance.
14. Now it remains whether it is a special circumstance. If it is claimed that it is a special circumstance then the speciality has to be indicated. No effort has been made by the petitioner to show that it was such a special occasion that those who participated were forced to do so without getting the leave sanctioned. Thus, on these counts it cannot be said that the casual leave which was intended to meet unforeseen circumstance was the leave which could be asked for by the members of the petitioner.
15. In any case no circumstance has been shown where previous sanction of the leave can be claimed to be dispensed with. Further there is nothing to indicate that it was not possible to inform this to the authority. No foundation has been laid by the appellant to bring his case in the relaxation provided under Clause 13.23 of the Bipartite Settlement.
16. The very existence of the casual leave to the credit of the members of the petitioner Union cannot mean that they have a right to claim such leave treating their requirement to be special. That being the position the application of the members of the petitioner Union was not in accordance with the Bipartite Settlement. Further it cannot be said that the happening of event was not known to the members of the petitioner Union before hand and it has no occasion to apply for such leave before hand. If the members of the petitioner Union had knowledge of the event before hand and any intention to participate in such event was there then there was every opportunity available with the members of the petitioner Union to ask for previous permission of the sanctioning authority. Having not done so there is violation of Clause 13.24 of the Bipartite Settlement. The leave which was sought for was casual leave and it only meant to meet special or unforeseen circumstances and the circumstance for which the members of the petitioner Union are seeking this leave as of right is not borne out from the facts and circumstances of the case to be one covered under Clause 13.23 of the Bipartite Settlement. -
17. The Hon'ble Supreme Court in State Bank of India v. Anjan Sanyal and Ors. reported in 2001-I-LLJ-1687 has held that an order passed by the Bank authorities cannot be interfered with by the High Court only if the order passed was impermissible by the Rules. Right to refuse the leave can be seen in the Bipartite Settlement. By Annexure 1 it was already indicated that those absent will be treated unfavourably. Thus, it cannot be said that the authorities in refusing the leave have erred and if the leave is refused then there is no way out then not to pay salary to the members of the petitioner Union. As and when there is an absence the employers have been vested with the right not to pay salary to the workmen. Support can be had from another decision of the Hon'ble Supreme Court delivered in the matter of H.M. T. Ltd. v. H.M. T. Head Office Employees' Association and Ors. reported in AIR 1997 SC 585 : 1996 (11) SCC 319, wherein it has been observed as under:-
"24. In view of the aforesaid decision and inasmuch as the strike in the present case in all the five undertakings at Bangalore has been held to be illegal, therefore, no wages for the strike period could have been awarded in favour of the workers."
18. The only exception which has been held to be there for making payment is that where the worker is intended to discharge his duties, but he was restrained from that, which is not the case here. The workmen applied for leave to participate in the demonstration notwithstanding the order Annexure 1 has been passed. Leave in the aforesaid circumstances cannot be claimed as of right and thus, in these circumstances it cannot be said that in refusing the leave as prayed for by the members of the petitioner Union any illegality was committed by the respondents. The order of the learned single Judge is passed in right earnest feeling there is no provision in the Bipartite Settlement which gives a right to an employee to seek sanction of the leave in the manner in which the members of the petitioner Union sought. No details about the number of applications and magnitude of injury have been provided. In this back-ground, no relief was granted to the petitioner and its members and we feel rightly so.
19. In this view of the matter, there is no force in the writ petition and the same is dismissed.