Judgement by Ms. Rekha Sharma, J. Delhi High Court. WP (C) 253/2007.
It is the famous case regarding: –
1.Taking leaves during notice period
2.Payment of service bond
Ghanshyam was an employee of DMRC since 28.02.2004 & were worked as DSL Mechanic. Since he found the nature of job arduous, he resigned.
Issues in case: –
1.Non – acceptance of his resignation letter
2.Non – sanction of his leaves on specified dates
3.Non – release of salary from 01.10.2006 onward
Facts of case: –
1.He resigned on 15.09.2006 & requested to waive off notice period of 3 months which was mentioned in clause 8 of his appointment letter. He wished to get relieved from services w.e.f. 01.11.2006 by subsequent application.
2.DMRC responded on 15.12.2006 with refusal to accept his resignation & also refused to waive off notice period.
3.DMRC stated that Mr. Ghanshyam was absent from duties on 24.09.06, 25.09.06, 03.10.06 & 16.10.06 without intimation. And also stated that he has not served 3 months’ notice period as per clause 8 of his appointment letter.
4.DMRC also refused to waive off service bond amount of Rs. 40000 as mentioned as per clause 9 of his appointment letter. The service bond was applicable from date of joining for 3 years i.e. up to 27.02.2007.
5.DMRC demanded Rs. 40000 of service bond & Rs. 12020 for not servicing notice period.
Held That: –
1.There was no dispute regarding clause 8 of appointment letter regarding 3 months’ notice period.
2.Clause 8 does not include any prohibition clause regarding leaves during notice period.
3.The petitioner had applied for leaves on 24.09.06, 25.09.06, 29.09.06 but no communication was made by DMRC for applied leaves. Also it was found that the petitioner was not well & had submitted medical certificate from G T B Hospital for the period of 10.11.06 to 05.12.06.
4.DMRC could not produce any service bond executed by the petitioner as per clause 9.
5.It was held that there is no bar in taking leaves during notice period & hence no question of any short period notice.
6.DMRC was directed to check the leave records & pass an order for deduction of salary in case of unauthorized absenteeism.
Management Lessons: –
1.The decision regarding acceptance or refusal of resignation must be made as early as possible. In this case it was informed from 3 months after date of resignation.
2.During post-communication in case of resignation, the employee must be made aware of his rights & liabilities during notice period, including the period of notice period.
3.Waive off of notice period was not a right in hands of employee, but it is discrimination of an employer.
4.There was no dispute regarding time of notice period i.e. 3 months in this case. It was clearly held in the judgement. (Page 4, para 1)
5.In case of unauthorized leaves / uninformed absent from duty; must be informed to employee in writing stating the deduction of salary. No Work – No Pay was also held this this case.
6.All policies must be legally drafted but the language of same shall be easy to understand by lay-man, otherwise employee may contest against irrelevant legal language. It is laid down in well know principle ‘ignorantia facit excusat’ (ignorance of fact is excusable).
7.Policy manual (with essential extracts of all policies) shall be handover to new joiner at the time of joining with sign on acknowledgement of policy manual. Policies must be explained properly. It seems that No leave policy was shared by DMRC during the proceeding.
8.In case the employer wants to take service bond, then it must be in written format with properly drafted terms & conditions. “A glance at clause 9 indicates that the demand for sum of Rs. 40000 can be made only if an employee has executed a bond”. (page 5, para 2).
The judgement of Delhi HC in this famous case of Ghanshyam Vs. Delhi Metro Railway Corporation will be referred as milestone in future for the question of taking leaves during notice period as well as for payment of service bond. But whether an employee can take leaves during notice period & validity of service bond is still based on facts & circumstances of each situation/nature of job/work responsibilities.
Judgement Analyzed By,
Shailendra M Deshpande
Advocate & Trademark Attorney
+91 98900 32603
