Telangana High Court
Hindustan Cocacola Beverages Private vs The Presiding Officer, Labour Courti on 21 June, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.3108 OF 2013
ORDER
This Writ Petition has been filed by the petitioner against the order of the Presiding Officer, Labour Court-I, Hyderabad in I.D.No.67 of 2010 published on 03.01.2013 vide G.O.Rt.No.1384 dt.15.12.2012.
2. Brief facts leading to the filing of this Writ Petition are that respondent No.2 was initially working with M/s. The Spectra Structural Pvt. Ltd., which was engaged in the business of sale and distribution of soft drinks and was taken over by the petitioner company. Pursuant to the purchase of the said business by the petitioner company, the services of respondent No.2 herein were also transferred to the petitioner company with effect from December 26, 1997 without any interruption/break in service. Respondent No.2 was employed as an Operator in the production department and as such, the nature of his duties called for regular and punctual attendance, as otherwise, the manufacturing process of the petitioner company would be seriously affected and the sale of soft drinks etc., would be hampered. Since W.P.No.3108 of 2013 2 respondent No.2 absented from duty unauthorisedly for a long duration of 154 days continuously from February, 2008 to July, 2008, a show- cause notice dt.21.07.2008 was issued to the 2nd respondent as to why action should not be taken against him. Respondent No.2 vide letter dt.28.07.2008 replied giving reasons of his family circumstances and health problems for unauthorised absence. The petitioner company ordered enquiry into the charges levelled against respondent No.2 with a view to afford an opportunity to the 2nd respondent to defend himself and also appointed an enquiry officer to conduct an enquiry. Accordingly, the enquiry officer conducted enquiry on 09.08.2008 and 16.08.2008 and the 2nd respondent accepted the charges levelled against him and pleaded guilty. Thereafter, the enquiry officer submitted his report on 25.08.2008 holding respondent No.2 guilty of the charges as levelled against him vide show-cause notice dt.21.07.2008. Respondent No.2 submitted his explanation to the final show-cause notice dt.04.09.2008 vide his letter dt.06.09.2008. However, the petitioner was not satisfied with the said explanation and therefore dismissed him from service vide dismissal order dt.17.09.2008. In the earlier enquiry, proceedings initiated for unauthorised absence in the year 1993, the 2nd respondent had tendered an apology for unauthorised absence and also W.P.No.3108 of 2013 3 assured that he would not commit any misconduct in future and he shall fully abide by any action that may be taken by the management. Thereafter, the 2nd respondent was taken back into service. However, the 2nd respondent again remained absent unauthorisedly for 154 days in the year 2008 and therefore, after conducting the enquiry, the 2nd respondent's services were again terminated and challenging the same, the 2nd respondent filed an ID before the Labour Court-I, Hyderabad, in which the Labour Court has directed the petitioner company to issue fresh appointment to the 2nd respondent. Challenging the same, the petitioner company has filed the present Writ Petition.
3. In spite of service of notice, the 2nd respondent is not present nor did he file his counter. In view of the same, the learned counsel for the petitioner is heard at length and this Court proceeds to adjudicate the matter as under on the basis of the said arguments and also on the basis of the material on record.
4. The learned counsel for the petitioner submits that the 2nd respondent has never been sincere towards his work and even in the earlier occasion, the unauthorised absence has been condoned on tendering of an apology by respondent No.2 and on the assurance given W.P.No.3108 of 2013 4 by the 2nd respondent that the same would not be repeated. However, the 2nd respondent has again remained unauthorisedly absent for a continuous period of 154 days, thereby hampering the manufacturing process of the petitioner, warranting termination of the services of the 2nd respondent by the petitioner company. The learned counsel submits that the Tribunal has not considered or appreciated the facts in proper perspective and has erroneously directed the petitioner company to give fresh appointment to respondent No.2. He relied upon various case law to submit that where the presence of the employee was essential and the employee remains absent unauthorisedly for a very long period without a proper and reasonable explanation for the same, the company is left with no option but to terminate the services of such an employee and such termination is valid.
5. Having regard to the rival contentions and the material on record, this Court finds that though the 2nd respondent has pleaded family problems and also health grounds as the reasons for his unauthorised absence of 154 days in a period of six months, he has not produced any evidence in support of the same. It is also noticed that though the dismissal order is dated 17.09.2008, the 2nd respondent raised the I.D. W.P.No.3108 of 2013 5 before the Labour Court after more than two years. Therefore, the 2nd respondent has not been vigilant in pursuing his remedies.
6. The 2nd respondent has also agreed/admitted that he was absent unauthorisedly, i.e., without taking any leave and also assured that he would abide by the decision of the management.
7. The Hon'ble Supreme Court in the case of Delhi Transport Corporation Vs. Sardar Singh1 has held that absence without leave can be treated as 'leave without pay' for maintaining correct record of service, but that does not mean that the absence could not be treated as unauthorised by the employer. The Hon'ble Supreme Court has also held that treating unauthorised absence as 'leave without pay' is not the same as sanctioned or approved leave and therefore, such unauthorised leave should not be sanctioned.
8. The learned counsel for the petitioner has placed reliance upon this decision to argue that respondent No.2 should not be allowed to be reinstated into service.
1 (2004) 7 SCC 574 W.P.No.3108 of 2013 6
9. Having regard to the fact that though the 2nd respondent put in appearance before this Court through his counsel, none appeared for him on any date of hearing and has also not filed any counter in this matter, it is presumed that the 2nd respondent is not interested in pursuing the proceedings in this case. Taking the submissions of the petitioner company into consideration, the award dt.02.11.2012 in I.D.No.67 of 2010 on the file of the Presiding Officer, Labour Court-I, Hyderabad is accordingly set aside.
10. The Writ Petition is accordingly allowed. No order as to costs.
11. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 21.06.2022 Svv