IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

APPELLATE SIDE

Present:

The Hon’ble Justice ShampaDutt (Paul)

WPA 25066 of 2022

Sri Debasish Guha

vs.

The State of West Bengal & Ors.

For the Petitioner : Mr. Balai Chandra Paul,

Ms. Tithi Roy.

For the Respondent No.3 : Mr. Soumya Majumder, ld. Sr. Adv.

Mr. Sandip Kundu,

Mr. Malay Kr. Seal.

Judgment reserved on : 01.07.2026

Judgment delivered on : 27.07.2026

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ShampaDutt (Paul), J.:

1. The writ application has been preferred praying for quashing of the

impugned award dated 17.06.2022 passed in case No. 03/2018 by the

Second Industrial Tribunal, Kolkata.

2. The petitioner’s case is that he was appointed by the respondent No. 3 on

01.08.1993 and he was made permanent on and from 0 1.02.1994.

3. On 19.06.2012, the petitioner met with a severe accident resulting in

severe injuries on head, eyes and also other parts of the body for which he

had to undergo an operation for the same. After long treatment he was

advised to take full rest and after recovery, the petitioner was advised to

join his duty with light job.

4. The petitioner states that in spite of the advice of the Doctor, he had to do

his duty as usual as per the order of the management of the company and

as a result, after completion of his duty he felt various problems, resulting

in absenteeism in his duty.

5. It is further stated that when he demanded for light job and/or changing

his duty as per advice of the Doctors, he was not allowed to enter the

factory premises on and from 05.09.2014, which was fully illegal and/or

unjustified.

6. It is further stated that due to his frequent absence, the company referred

his case to the Medical Board, wherein 6(six) Doctors examined and

submitted a report to the company, which was produced by the company

before the respondent Tribunal and marked as exhibit H2/1.

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7. The petitioner further states that in spite of his regular visit to the

company to join his job, neither was he allowed to join his duty nor was

any show cause/charge sheet issued to the petitioner in accordance with

the provisions of the standing order of the company for his alleged

absenteeism.

8. Having no other alternative, he raised an industrial dispute on 18.12.2017

before the Labour Department, wherein due to the adamant attitude of the

management, the matter was not settled and as such the petitioner filed

an application on 26.02.2017 under S ection 2A(2) of the Industrial

Disputes Act, 1947, before the respondent tribunal, being No. 3/ 2018.

9. After hearing both the parties, the impugned award was passed. Vide the

impugned order, the learned Tribunal held as follows:-

“So considering the entire materials on record as

discussed above, I hold that the petitioner has

failed to prove his allegation that by way of

refusal of employment w.e.f. 05.09.14, the O.P.

company has terminated his service and it has

also been proved that as per the standing orders

of the O.P. company, the O.P. company has not

terminated the service of the petitioner and the

O.P. company has submitted that it has not

terminated the service of the petitioner in any

way, and the petitioner intentionally left the said

service by remaining absent for a long time

unauthorisedly without prior sanction of leave

and the record also shows that the petitioner did

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not submit proper leave applications to regularise

his long unauthorised absence to the O.P.

company.

Accordingly, I hold that the petitioner himself has

left the said service and he is not entitled to get

any relief in this case as prayed for and he is

also not entitled to get any back wages as he has

not regularised his unauthorised long absence in

the OP company.”

10. The learned Tribunal then dismissed the said case No. 03 of 2018.

11. Being aggrieved the present writ application has been preferred challenging

the said award.

12. Both parties have filed their respective written notes.

13. The petitioner herein has argued that after joining his duty, the

management of the company without considering the medical certificates,

forced the workman to do the heavy work including night duty and as a

result, he faced various problems, resulting in his absence to report for

duty.

14. As the petitioner demanded for avoiding the night duty, he was not allowed

and/or refused to join in his duty on and from 05.09.2014.

15. The termination of service by the way of refusal was made without issuing

any show cause/charge sheet and/or holding any enquiry as per the

service Rules of the Company.

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16. It is submitted that in spite of Doctor’s advice, the petitioner was given

night duty and that from the cross examination of the Company’s

evidence, the workman’s duty was not changed, as the union did not give

consent.

17. It is further stated that the findings of the learned Tribunal is thus not in

accordance with law and the same is liable to be set aside on the ground

that the petitioner’s termination of service by way of refusal was made:-

i) Without giving any opportunity to detend.

ii) No show cause/charge sheet as well as enquiry was held

in terms of the service rules of the Company.

iii) No notice was served in terms of Section 25(F) of the I.D.

Act, 1947.

iv) Non consideration of the medical reports as well as

service Rules by the company and also by the Tribunal.

18. The petitioner superannuated on 31.01.2026.

19. The contesting responden t herein, being the respondent n o.

3/company/establishment has argued that the writ petitioner joined as a

workman in the factory of the company at Belur on 01.02.1994, in the

capacity of 12’ Shear Helper. The said duty was a shifting duty. The

factory is a round the clock factory.

20. The petitioner met with an accident on 19

th

June, 2012 far away from

the factory premises, and suffered severe injuries.

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21. The company disbursed the medical expenses to the workman. The

petitioner was insured under the Employees’ State Insurance Act, 1948,

yet the company had borne the medical treatment expense of the writ

petitioner at the material point of time. The petitioner did not produce any

documentary evidence of being treated at the ESI Hospital.

22. It is further stated that the petitioner resumed service on 11

th

February,

2013. It is the evidence of the petitioner before the learned Tribunal that

he was suffering from drowsiness because of the effect of medicine, even

after resuming duties on 11

th

February, 2013. It is also admitted that even

after resuming duties, he continued to remain absent because of his

incapability to perform duties due to the effect of medicines.

23. It is stated that the petitioner was admitted on 5

th

September, 2014, when

he again became ill. Thereafter the doctors advised him bed rest for one

month.

24. The petitioner admits to have been suffering also from morbidities of high

blood pressure and high sugar as well.

25. It is submitted that the petitioner had requested the management of the

company for a lighter job thereby exhibiting his complete lack of interest

to continue his service in the post which he was holding at the time

of resumption of duty on 11

th

February, 2013.

26. The company had written a letter dated 15

th

September, 2014, intimating

the writ petitioner that he was absenting without permission or sanction,

with effect from 5

th

September, 2014. To this, the petitioner had replied on

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18

th

September, 2014 stating that his health condition was not good and

doctor had prescribed him to take bed rest for four weeks. The company by

a letter dated 20

th

September, 2014 advised the petitioner to report in

person to justify the severity of his illness.

27. It is further argued by Mr. Majumder, learned senior counsel appearing

for the respondent/establishment that the writ petitioner had been

examined at the Howrah District Hospital on 26

th

November, 2014 and had

been issued a certificate of fitness dated 27

th

November, 2014

recommending light job and to avoid night duty. The said certificate

cannot therefore be treated as a certificate of fitness for the nature of

job required to be performed by the writ petitioner. The writ

petitioner’s claim for being able to resume duties is thus contrary to

records.

28. Mr. Majumder, further argues that the company had a subsisting

settlement with the trade unions representing the workers of the factory

with regard to placement of the workers in various departments and

shifting them from one duty to another. The petitioner was a member of

M/s. Aditya Birla and Hindalco Industries Limited , Belur Works

Employees' Union, which had entered into an agreement with the

management on 28th November, 2014 , regarding such placement and

shifting of duties of workmen. The union however did not communicate

any request or probability of the petitioner's placement/deployment or

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non-allotment of night shift duty to him, in spite of the management

referring the issue to the union by honouring the Industrial settlement.

29. It is the further case of the respondent/establishment that the petitioner

continued to remain absent. Only on 9th February, 2015, he submitted a

letter to the company, which he contradicted as a matter of fact in his

cross examination before the learned Tribunal. The writ petitioner had

evidently involved himself in a family business having a trade license along

with his mother; which will reveal from his cross examination before the

learned Tribunal.

30. It is further stated that learned Tribunal on proper appraisal of the

evidence and on proper reasoning rightly dismissed the case on coming to

the conclusion that the management of the company had not terminated

the petitioner from service with effect from 5

th

September, 2014.

31. On hearing learned counsels for the parties and on perusal from the record

including the impugned award, this Court finds that the learned Tribunal

made relevant observations, which are extracted and reproduced herein

below for convenience:-

“(i) After the petitioner was declared medically fit after the said

accident, the O.P. company allowed him to join on 11.02.13 in

the O.P. company, and though the O.P. company has not

admitted in its written statement and evidence of the OPW-I in

chief regarding allowing the petitioner to work light job after

the said accident in 2012, the OPW-1 has admitted in his

cross examination that after the accident in question,

the workman was posted by giving light assignment by

adjusting his times and the workman joined and worked

there.

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So it is proved through the above admitted facts that when after

the said accident in 2012, the O.P. company allowed the

petitioner to join on 11.02.13 in the O.P. company after he was

medically declared fit, the O.P. company gave him light job by

adjusting his times and then the workman joined and worked

there.

(ii) After the said accident in 2012, the O.P. company allowed him

to join the duty on 11.02.13 when he was declared medically

fit but thereafter he started absenting himself frequently

from duty in an unauthorised manner and since

05.09.14 he started absenting continuously as per

allegations of the O.P. company.

The O.P. company has proved on letter dt. 15.09.14 as the

Exbt.B and the petitioner also has proved this letter as the

Exbt.I and this letter dt. 15.09.14 mentions that since

05.09.14 the petitioner would not attend his duty in an

unauthorised manner and without prior sanction of

leave and sufficient cause and for this reason the

petitioner was directed by the O.P. company to report to

the Head-HR immediately and explain the reason of the

said absence. So this letter dt. 15.09.14 ment ions that

the petitioner was directed to show cause or explain the

reason of his unauthorised absence from 05.09.14.

The petitioner has mentioned in his written statement that the

O.P. company never issued any show cause notice to him to

explain his conduct during the period of his service but this

allegation of the petitioner is not correct in view of this

Exhibit B and I and by this letter the petitioner was directed

to explain the reason of his continuous absence from 05.09.14.

(iii) The Exbt. 7 shows that the O.P. company by this order

informed the petitioner w.e.f 05.09.14 he had been absenting

himself in an unauthorised manner for whom the company

issued one letter dt. 15.09.14 advising him to report and

submit explanation and in response to the letter, the

petitioner sent one e-mail on 18.09.14 stating about his

ill health and advice of doctor to take bed rest for four

weeks and he already reported about his sickness to the

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Medical Department and the Mechanical Department and

by this letter the O.P. company informed the petitioner that as

he had been working in this factory for last 22 years, he must

be aware that as per the standing orders of the company, no

worker is allowed to absent himself from work unless he has

the previous sanction from his Manager and in case of the

sudden illness, a definite message to that respect in

writing must be sent to the Time Office but h e failed to

comply the above standing orders and information to the

Medical Department and the Mechanical Department are

not required as per the standing orders and he did not

submit the sick certificate of a doctor within 48 hours.

(iv) The petitioner has proved his letter dt. 26.02.15 sent to

the O.P. company as the Exbt 8 and in this letter he has

mentioned that after recovery from accident he joined

his duty but became sick and then he was treated by the

medical board and the medical board suggested for light job

and avoiding night duty and then he addressed the O.P.

company for light job but the O.P. company told him to wait till

the reply from the unions was received, and the petitioner has

mentioned in this letter that the O.P. company has not been

allowing him to enter the factory and by hand delivery the O.P.

company has not been receiving any letter from him. But this

Exbt.8 issued by the petitioner to the O.P. company

mentions that it was given by him by hand delivery to

the O.P. company. So the allegation of the petitioner that by

hand delivery the O.P. company has not been receiving any

letter from him is not correct.

(v) The most interesting exhibited document of this case is the

certificate of fitness on medical ground issued by the medical

board of the Howrah District Hospital and as per this

certificate (Exbt.H/1), on 26.11.14 the petitioner was examined

by the said medical board and according to their opinions, the

petitioner was found to be medically fit and they also

opined that no loco motor disability was found at

present and prescribed for light job and avoiding night

duty. This medical certificate is confusing and

contradictory because once the medical board has found

the petitioner as medically fit and again they have

opined for light job and avoiding night duty.

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(vi) A completely medically fit person can be allowed only to

work before any place of employment. So if th e

petitioner was found completely medically fit, then why

the said doctors opined for his light job of the petitioner

and advised for his night duty! Naturally the question

arises as to whether on 26.11.14 after examination by the

medical board the petitioner was found completely medically fit

or not and if he was found completely medically fit then

the doctors would not opine for light job and avoid night

duty, and a completely medically fit person will have no

problem to perform any kind of job like befor e and he

will have no problem also to work in night shift . But the

said doctors have opined for light job for the petitioner with a

direction to avoid the night duty, and such type of opinion

means scientifically that after examination on 26.11.14

the petitioner was confirmly not found completely

medically fit for which the opinion of light job with a

direction to avoid night duty was given by the said

doctors.)

So considering the above contradictory, opinions of the

doctors of the said medical board, I have no hesitation to hold

that the said opinions of the doctors are not correct and

genuine scientifically and the same are biased and on the

basis of this report it cannot be confirmly held as to whether

the petitioner was found complet ely medical fit after

examination on 26.11.14 or whether he was unfit or half fit for

which light job with a direction to avoid night duty was

prescribed by the said doctors.”

32. The learned Tribunal also held that the petitioner violated point No. 23 of

the Standing Orders of the respondent/company, as he remained absent

without prior intimation.

33. Finally the Tribunal considering the entire materials on record as

discussed above, held that the petitioner has failed to prove his allegation

that by way of refusal of employment w.e.f. 05.09.14, the respondent/

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company has terminated his service and it has also been proved that as

per the standing orders of the O.P. company, the O.P. company has not

terminated the service of the petitioner in any way, and that the

petitioner intentionally (voluntarily) left the said service by remaining

absent for a long time unauthorisedly without prior sanction of leave

and the record also shows that the petitioner did not submit proper leave

applications to regularise his long unauthorised absence to the O.P.

company.

34. Accordingly, the tribunal held that the petitioner himself has left the said

service and he is not entitled to get any relief in this case as prayed for and

he is also not entitled to get any back wages, as he has not regularised his

unauthorised long absence in the OP company.

35. In the written notes filed on behalf of the petitioner herein the case of the

petitioner has been reiterated, as made out in the writ petition.

36. The respondent no. 3/company on filing their written notes has argued as

noted above, relying upon the following judgments:-

i. West Bengal Central School Service Commission and Ors. Vs

Abdul Halim & Ors. (2019) 18 SCC 39, Para 29,30,31,32,33.

“29. The High Court in exercise of its power to issue

writs, directions or orders to any person or authority

to correct quasi-judicial or even administrative

decisions for enforcement of a fundamental or legal

right is obliged to prevent abuse of power and

neglect of duty by public authorities.

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30. In exercise of its power of judicial review, the

Court is to see whether the decision impugned is

vitiated by an apparent error of law. The test to

determine whether a decision is vitiated by error

apparent on the face of the record is whether the

error is self-evident on the face of the record or

whether the error requires examination or argument

to establish it. If an error has to be established by a

process of reasoning, on points where there may

reasonably be two opinions, it cannot be said to be

an error on the face of the record, as held by this

Court in Satyanarayan Laxminarayan

Hegde v. Millikarjun Bhavanappa

Tirumale [Satyanarayan Laxminarayan

Hegde v. Millikarjun Bhavanappa Tirumale , AIR

1960 SC 137] . If the provision of a statutory rule is

reasonably capable of two or more constructions and

one construction has been adopted, the decision

would not be open to interference by the writ court. It

is only an obvious misinterpretation of a relevant

statutory provision, or ignorance or disregard

thereof, or a decision founded on reasons which are

clearly wrong in law, which can be corrected by the

writ court by issuance of writ of certiorari.

31. The sweep of power under Article 226 may be

wide enough to quash unreasonable orders. If a

decision is so arbitrary and capricious that no

reasonable person could have ever arrived at it, the

same is liable to be struck down by a writ court. If

the decision cannot rationally be supported by the

materials on record, the same may be regarded as

perverse.

32. However, the power of the Court to examine the

reasonableness of an order of the authorities does

not enable the Court to look into the sufficiency of

the grounds in support of a decision to examine the

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merits of the decision, sitting as if in appeal over the

decision. The test is not what the Court considers

reasonable or unreasonable but a decision which the

Court thinks that no reasonable person could have

taken, which has led to manifest injustice. The writ

court does not interfere, because a decision is not

perfect.

33. In entertaining and allowing the writ petition,

the High Court has lost sight of the limits of its

extraordinary power of judicial review and has in

fact sat in appeal over the decision of Respondent

2.”

ii. Satyanarayan Laxminarayan Hegde and Ors. Vs Millikarjun

Bhavanappa Tirumale, 1959 SCC OnLine SC10.

37. On hearing the parties and on perusal of the materials on record including

the impugned award, it is evident that:-

(i) On 01.08.1993, the petitioner was appointed as 12’ sheer helper and

confirmed in service on 01.02.1994.

(ii) On 19.06.2012, he met with a serious accident.

(iii) He joined after the accident on 11.02.2013 on being declared

medically fit.

(iv) Thereafter the petitioner was absent for a long period without any

proper application or following the official procedures, for 27 days in

2013 and 59 days in 2014.

(v) Since 15.09.2014 he stopped attending /reporting for work, in

spite of being asked to do so/report, on plea of illness.

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(vi) As such, the respondent/company sent him before a medical board,

constituted by the District Medical Officer, Howrah, which declared

him fit but advised light job and to avoid night duty.

(vii) The tribunal refused to consider such a medical (fitness) certificate,

wherein contradictory facts were stated.

(viii) The tribunal’s view was that if could not do the job he was appointed

for, the fitness certificate was not a proper one, and rightly so.

38. Finally the tribunal held that in this case there was no illegal

termination, but voluntary abandonment of service by the petitioner.

39. It is thus clear that the petitioner refused to join his job, if he was not

given light job and was not given night duty.

40. The fitness certificate is not a proper medical certificate considering that

the medical board/Doctors did not find him fit for normal work/job for

which he was appointed.

41. The fact that the petitioner was permitted to join after his accident

on 11.02.2013, proves that the respondent/company did not refuse

employment.

42. Subsequently the petitioner on and from 05.09.2014 refused to work

if not given light job and was not given night duty, without even any

sanctioned leave for his continued absence.

43. The respondent company’s letter dated 15.09.2014 (Exhibit B) and the

petitioner’s Exhibit 1, show that respondent/company asked the petitioner

to report to the Head HR immediately and explain (show cause) for his

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absence. The letter was admittedly received by the petitioner but he

refused to work if not given light job and no night duty.

44. This letter (Ext. B) too proves that the respondent/company was all

along ready and willing to let the petitioner to join.

45. But as the petitioner refused to join, his conduct could be treated as

voluntary resignation and the company is then only obligated to clear the

final dues to which the petitioner/workman is entitled under the law on

voluntary abandonment of service.

46. As there was no termination of service, there was no show cause, charge

and/or any enquiry/disciplinary proceedings initiated.

47. The order/award dated 17.06.2022 passed by the Second Industrial

Tribunal, Kolkata, thus being in accordance with law requires no

interference.

48. WPA 25066 of 2022 is dismissed.

49. Applications, if any, connected thereto stand disposed of consequently.

50. Interim order, if any, stands vacated.

51. Photostat certified copy of this Judgment, if applied for, be given to the

parties on priority basis upon compliance of all formalities.

[Shampa Dutt (Paul), J.]