Madras High Court
Anglo French Textiles A Unit Of ... vs The Presiding Officer, Labour Court And ... on 22 March, 2004
ORDER K.P. Sivasubramaniam, J.
1. The Petitioner has filed this writ petition for the issuance of a writ of Certiorari to call for the records relating to the award dated 3.9.1996 passed by the first respondent in I.D.No.24/94 and quash the same.
2. The Management is the petitioner before this court.
According to the management, the second respondent was a worker, working in the Winding Department. He was placed under suspension for two charges. Ultimately, by letter, dated 26.3.1991, the period of suspension from 22.12.1990 to 31.3.1991 was treated as substantive punishment and he was permitted to resume work with effect from 1.4.1991. Though the said letter was received by the employee on 30.3.1991, however, he failed to report for duty from 1.4.1991 onwards and accordingly his name was struck off from the rolls from 6.5.1991, in terms the Standing Order No.15(a) of the petitioner Mill, deeming that the second respondent had voluntarily abandoned his service. The Management further contends that the employee failed to report for duty after 1.4.1991 for eight consecutive working days and hence it is deemed that the employee had abandoned his service. However on 10.7.1993 nearly two years after the abandonment of his service, the employee raised a dispute and sought for conciliation. As the conciliation had failed, the dispute was referred before the Labour Court.
3. The Labour Court had considered the pleadings and the evidence and held that the management relied on Rule.15 and that Rule will not entitle the management to terminate the service of the employee without holding an enquiry into the allegation. Aggrieved against the order of the Labour Court, the management has come forward with the present writ petition.
4. Learned Counsel for the writ petitioner/management contends that even though the second respondent had received the final orders dated 26.3.1991 containing the direction to the employee to rejoin duty on 1.4.1991, it was never complied by the employee, even though the said order was received by the workmen on 30.3.1991. Having waited for one and half month, the name was struck off from the muster rolls. Thereafter the second respondent/employee had represented by his letters dated 20.5.1991 and 15.10.1991 questioning only his suspension. He never expressed his desire either to join duty nor did he explain his remaining absent even after 1.4.1991. He did not express his desire to join duty. Lawyer's Notices dated 14.3.1992 and 1.6.1992 were also sent which were acknowledged on 16.3.1992 and 2.6.1992 respectively. In the said notices also, the employee has not expressed his desire to join duty nor chose to give reasons for his absence from duty after 1.4.1991. The Labour Court held that assuming that the second respondent/employee was not justified in being absent, and that the petitioner/management ought not to have terminated the services of the second respondent/employee on the ground that the employee had abandoned his service without holding an enquiry. In support of her contention that the requirement for enquiry in case of abandonment was not an inviolable rule and cannot be put in a straight jacket formula, learned counsel appearing for the petitioner/management relied on the decision of Supreme Court in U.P.State Bridge Corporation Ltd & Ors. V. U.P.Rajya Setu Nigam Karamchari Sangh .
5. I have considered the submission of Learned Counsel for the petitioner and there is no representation for or appearance by the second respondent/employee even though the hearing was adjourned on several occasions on 8.3.2004, 11.3.2004, 16.3.2004, 17.3.2004, 18.3.2004 and to-day. The facts stated above disclose that the employee was charged on certain misconduct and by Order dated 26.3.1991 final orders were passed, by treating the period of suspension as substantive punishment. The charge itself is unauthorised absence. A perusal of the order, discloses that he was permitted to resume work with effect from 1.4.1991 and informed that if he was found guilty of any such misconduct in future, a serious view will be taken and that he will be liable for severe punishment including dismissal if warranted and the same had also been served on the employee on 30.3.1991, as seen from the acknowledgement filed by the petitioner/management.
6. It is also seen that the employee had never made any attempt to join duty nor did he complain that he was prevented from joining duty. Nor did he place any evidence before Labour Court to show that he made genuine attempts to join duty and that the management not having considered the same, terminated his service. In fact, a perusal of his representations dated 20.5.1991 and 15.10.1991 as well as Lawyer's notices dated 16.3.1992 and 1.6.1992 disclose that the second respondent/employee has not at all offered any explanation as regards his failure to join duty even after 1.4.1991. Therefore, in such circumstances, abandonment from duty by the employee is clearly established.
7. In the background of the above facts, the point for consideration is, as to whether any further enquiry is warranted. It is true that in terms of clause 15 of the Standing Order, the management is entitled to treat the absence of the employee for more than eight consecutive days as 'abandonment of service'. It is also true that such terms or clauses in Standing Orders have been held to be violative of principles of natural justice by Supreme Court as well as this court in number of Judgments and that termination of service could be effected only after enquiry.
8. But the facts and circumstances of this case clearly disclose that there is absolutely no justification for the conduct or the stand taken by the second respondent/employee. The earlier enquiry itself was on a charge of unauthorized absence. Not only he refuses to receive the charge-sheet, but also a proper enquiry was conducted and he was let-off leniently treating the period of suspension as punishment and was asked to join duty on 1.4.1991. In spite of the fact that he was asked to join duty on 1.4.1991, he has not joined duty. He has adopted a habit of absenting himself from duty often, and there were earlier proceedings against him. As stated earlier, even in the subsequent correspondence, he has not made any effort to explain as to why he did not join duty on 1.4.1991. In the said background the findings of the Labour Court to the effect that the Labour Court was able to see that some one stood in the way of the second respondent from reporting for duty on 1.4.1991 and that there was a slip between the cup and the lip and that in the view of the Labour Court, the slip was certainly not due to the second respondent etc., are not only surmises but also perverse and which cannot be sustained. Merely because as a legal issue, clause 15(a) cannot be valid, it cannot be lead to the position that even in a case of this type that though the employee can refuse to join duty without offering any explanation, the management should have to strictly conduct enquiry before termination from service.
9. Requirement of compliance of principles of natural justice has to be appreciated in the light of the facts of each case. In this case the employee is proved to be a chronic absentee and even earlier he was charge-sheeted for unauthorised absence. He would not even condescend to receive the charge memo. Even so, an enquiry is conducted and at that time itself he could have been dismissed from service. On the otherhand, the period of suspension is treated as punishment and he is directed to join duty. But he will continue to remain absent nor would explain as to why he was not joining duty. It is apparent that he does not want to work and at the same time receive the backwages and all benefits. The provisions of I.D. Act which are meant for the welfare of the employees are not meant for blatant and unconscionable exploitation by the worker. The finding by the Labour Court that somebody should have prevented him from joining duty is a specimen example of perverse nature and based on no evidence at all.
10. With the result I am inclined to set aside the findings rendered by the Labour Court, and accordingly, the writ petition is allowed. No costs.