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3. In response to the summons served upon them, both the defendants appeared through their counsels and filed their respective written statements. The 1st defendant in her written statement though admitted that she was appointed as an Engineer with the plaintiff- Company, but, she contended that the agreement that was got executed by her was undated. She was initially appointed as an Engineer for specialised training for a period of twelve weeks. However, she stated that, probationary period was for one year, including the specialised training. She admitted that the provisional appointment order was issued to her on 10.4.2007 and stated that she had successfully completed the period of probation and the posting was also confirmed on 10.4.2008. She stated that a tripartite agreement was entered into and signed by her and defendant No.2 on 29.5.2007. She highlighted that one of the terms of the said agreement permits an employee to go on unauthorised absence also. She contended that, after successful completion of the probationary period of one year i.e., from 10.4.2007, she being an employee of the plaintiff-Company, was entitled to avail unauthorised leave without pay and study leave and the period of absence or leave should have been excluded. She stated that she had valid reasons for her alleged absence. The ill-health of her mother and her (defendant No.1) marriage and her subsequent pregnancy were all made her to be away from her employment. However, she contended that she has been regularly intimating and informing the plaintiff about all these developments, including through her various letters. She stated that she has availed leave with the concurrence of the plaintiff and she has never committed any breach nor violated any of the rules. With this, she prayed for dismissal of the suit.

12. In the light of the above, it is the argument of learned counsel for the appellant/plaintiff that the evidence of PW-1 and DW-1 clearly go to show that the defendant No.1 after joining the plaintiff-Company, had served the plaintiff-Company only for a period of thirteen months and thereafter, she did not attend. Though she has forwarded some excuses for her unauthorised absence, but, the same was not falling within the parameters of Agreement at Ex.P-3. PW-1 has further stated that, considering her continued unauthorised absence without any sanctioning of the leave, the plaintiff-Company has terminated her from the services vide its order of termination dated 16.1.2009, which she did not challenge. Further, her act of remaining away from the services with no proper reasoning and excuse would result in she leaving the services of the Company without any valid reasons. As such, as per the terms of the Agreement at Ex.P-3, she is liable to compensate the appellant-Company, subject to a maximum amount of `3 lakhs. As such, though the plaintiff is entitled for recovery of a sum of `3,28,959/-, the trial Court at least should have decreed the suit for a sum of `3 lakhs with interest thereupon. However, the trial Court ignoring the recitals and without properly appreciating the evidence led before it, has merely showing unwarranted sympathy towards defendant No.1, has dismissed the suit filed by the plaintiff.

Explanation : Portion of less than a month's service put in shall be ignored for the purpose." A reading of Clause IV (7) in its explanation go to show that in computing the term of five years for which the defendant No.1 herein is liable to serve as per sub-clause (7) of Clause IV of the Agreement, the period during which she was unauthorisedly absent or was on authorised leave without pay and study leave, has to be excluded. Confining to the present case on hand, more emphasis would be given to the words `unauthorised absence' used in the said explanation. Thus, the said Clause-IV, sub-clause (7) of the Agreement, does not prohibit or bar for an employee remaining unauthorisedly absent from attending to his/her employment. It only says that, in such an event, where an employee goes on unauthorised absence, his/her mandatory service period of five years would be proportionately extended. As such, even though the plaint averment, as well the evidence of PW-1 is to the effect that defendant No.1 had remained unauthorisedly absent from the date 2.7.2008, but, as observed above, explanation to sub-clause (7) of Clause-IV of the Agreement does not debar the defendant No.1 to be unauthorisedly absent. However, the cost should be paid, for which, there would be an extension of the compulsory service period over five years. As such, the first leg of the argument of the learned counsel for the appellant that the defendant No.1 ought not to have remained unauthorisedly absent from attending to her work and that she should have at least made an application in that regard to the plaintiff, is not acceptable.

15. Assuming for a moment that the expectation of the plaintiff is that the employee should have intimated about her leave by filing necessary application, then, the defence of defendant No.1, both in her written statement and her evidence, would go to show that she claims to have submitted several representations in writing to the plaintiff periodically expressing her inability to attend to her duties and praying for leave. Though her said contention has remained and confined to her pleading and evidence, but, she could not able to prove the same. Still, if the expectation of the employer that an application has to be submitted by the employee with regard to going on leave or seeking for permission to remain away from the duty, then, such an act, in my view, cannot be called as unauthorised absence. It is because the absence on the part of the employee without any authority or authorisation would only result into an unauthorised absence, but, not being away from the work duly intimating her employer and obtaining a leave thereof.