Madras High Court
Management Of India Pistons Repco Ltd., ... vs Presiding Officer, Third Additional ... on 22 September, 2003
Equivalent citations: (2004)IIILLJ216MAD
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
JUDGMENT R. Jayasimha Babu, J.
1. The appellant-employer issued a notice to the respondent-workman, who had been working in the appellant-company from the year 1964, on November 25, 1981 informing him that on a perusal of his attendance records, his attendance was found to be very unsatisfactory. The details of his unauthorised absence from 1977 to 1981 were set out. Thereafter, it was stated that in the view of the appellant-management, no useful purpose would be served in continuing him in employment and that "the management has, therefore, proposed to discharge you from service in terms of the Standing Order Clause 14 applicable to this company." The employee was called upon to submit a representation as to why the proposed action should not be given effect to." The employee submitted an explanation on November 30, 1981, claiming that his unauthorised absence, so called, was during the period which was covered by the medical certificate, which he had furnished. On January 12, 1982, the employer referred to the explanation given by the employee and denied that it had not accepted the medical certificate furnished by the employee; that his absence was deliberate; that the employee was not repentant; that he had not held out any assurance that he would be regular in future and, therefore, "the management is left with no other alternative than to dispense with your services." In the same letter, it was also further arrayed by the management that "the employee's services are terminated with immediate effect for habitual absence ........"
2. Standing Order Clause 14 referred to in the employer's letter of November 25, 1981 is part of the Model Standing Orders, the employer not having Standing Order of its own being governed by the Model Standing Order. That Standing Order Clause 14 reads thus:
"14. Termination of employment of workmen.- (1) Subject to the provisions contained in Standing Order 17, no employer shall dispense with the service of any, workman with not less than one year of continuing service except for a reasonable cause and without giving such workman atleast one month's notice or wages in lieu of such notice.
(2) In cases of retrenchment as defined in Section 2(oo) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), the provisions of the said Act shall apply:
Provided that no such notice shall be necessary in the case of badli and apprentices.
(3) No order of termination of service of a workman shall be made unless the workman is informed in writing of the reasons for the termination of his services and is given an opportunity to show cause against such termination. A copy of the said order shall be communicated to the workman.
(4) Where the employment of any workman is terminated by or on behalf of the industrial establishment, the wages earned by him shall be paid before the expiry of the second working day from the day on which his employment was terminated or the same shall be made available to him by the drawer of the wages, in case he does not turn up for receiving the wages."
It is to be noticed that Standing Order Clause 14 in Sub-clause (2) specifically provides that in case of retrenchment as defined in Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter will be referred to as the Act in short) the provisions of that Act will apply.
3. Section 2(oo) of the Industrial Disputes Act, which defines "retrenchment" reads thus: 2(oo), 'Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein ; or
(c) termination of the service of a workman on the ground of continued ill-health.
The word "retrenchment" as defined in Section 2(oo) of the Act, includes termination by the employer of the service of the workman "for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action." Exceptions are provided in Sub- Clauses (a), (b), (bb) and (c) of Section 2(oo) of the Act.
4. The effect of termination brought about by an employer, taking recourse to the Model Standing Order Clause 14, is to invite the application of the provisions governing retrenchment in the Industrial Disputes Act, and, more particularly, Section 25-F of the Act. That Section reads as under:
"25-F, Conditions precedent to retrenchment of workmen. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette)."
5. A reference having been made to the Additional Labour Court, Madras, at the instance of the respondent/workman regarding justification for his non-employment, the employer took the stand that what had been done was in fact to punish the workman by way of: dismissal for the misconduct of habitual absence. The employer, while admitting that it had not conducted any enquiry prior to the termination, offered to produce evidence before the Labour Court. The Labour Court, recorded the evidence and held that the employer had proved the habitual absence of the workman, further held that the termination was effective, but prospectively with effect from the date of the award of the Labour Court and not from the date on which termination had been effected by the employer. He, therefore, awarded to the workman the wages for the period from the date of the order of termination passed by the employer till the date of the award.
6. The workman as also the employer challenged that award, one contending that the view taken that it was dismissal was erroneous, and the other contending that the order of termination should be treated as one which relates back to the actual date on which it was passed, and not being the one which is operative only prospectively. Although the workman, in reply to the very first notice issued by the employer as also in his claim statement before the Labour Court and even in the ground raised by him in the writ petition that was decided by this Court, did not specifically plead the case on the basis that the termination under Standing Order Clause 14 that point was argued before the learned single Judge and it found acceptance. The learned Judge, in the order under appeal, has held that the termination of the respondent/workman was in reality under Standing Order Clause 14 and as admittedly, there was no compliance with Section 25-F of the Industrial Disputes Act, the termination could not be upheld. The learned Judge also noticed the fact that the employee had attained the age of superannuation and, therefore, the question of reinstatement would not arise. The monetary relief that had been granted by the Labour Court, namely, wages from the date of the order of termination passed by the employer till the date of the award of the Labour Court was, however, sustained. He also permitted adjustment of amounts that had been paid to the workman during the pendency of the matter in this Court against the amount directed to be paid by the Labour Court.
7. Before us, the learned counsel for the employer submitted that it is settled law, that Courts look at the substance and not merely the form, and even though the employer had in the very first communication to the workman had mentioned Standing Order Clause 14, what had been done by the employer in reality was to punish him for misconduct of habitual absence, such habitual absence being a misconduct enumerated in Model Standing Order Clause 16 and the absenteeism being the reason set out in the order of termination. Learned counsel further submitted that the Labour Court was right in upholding the termination on the ground that it was punishment for misconduct. It was his further submission, that the law, which the Labour Court had relied on regarding the date from which the order of termination is to take effect, had changed, in view of the later decisions of the Supreme Court and that the order of termination was necessarily to be given effect to only from the date on which it was passed, and not from the date on which the award upholding the termination was passed.
8. It is no doubt true that what is to be examined in the proceedings brought before the Court is the substance and not merely the form, as the object of the proceedings in a Court is to secure justice to the parties in accordance with law. Technicalities will not ordinarily be allowed to stand in the way, and justice will be rendered to the party, who is entitled to the relief so long as that relief is one which the party may claim and is entitled to receive in accordance with law.
9. Here, we are dealing with the contest in between an employer and a workman. Standing Orders govern the employer as also the workman. The Standing Orders contain specific provisions which provide for termination without an enquiry, and other provisions, which enumerate misconduct, set out the procedure to be followed for enquiring into alleged misconduct, and the penalties that may be imposed. The management must be presumed to be fully aware of the contents of the Standing Orders and to have understood the distinction among different provisions in Model Standing Order. The very first letter written by the management to the workman on November 25, 1981 in which it proposed to take action against him, in unmistakable terms referred to Standing Order Clause 14. The letter does not read like a charge sheet although the factum of his absence is set out. It does not even set out that his records establish his habitual absence, which is one of the misconducts enumerated in Standing Order Clause 16. It does not also indicate that what the employer is proposing to do is to inflict a punishment, what it does say is that the management is unhappy with his poor record of attendance and, therefore, it wishes to discharge him from service under Clause 14 of the Standing Order. After the employee gave his representation, the employer stated that it had no other alternative than to dispense with his service and also stated that the termination was being given effect to immediately for his habitual absence. The words "habitual absence" did not find a place in the first letter.
10. Even in the representation that was given by the workman, the fact that he had been absent for the periods mentioned in the first letter was not disputed. The employer however did not even thereafter direct that enquiry be held to the misconduct of habitual absence. The employer's action was consistent with what it had set out to do, namely, to take action under Standing Order Clause 14, which only required the employer to issue a notice in writing to the workman informing him of the reasons for termination of the service of the workman, and give him an opportunity to show cause against that proposal. That is exactly what the employer did, and the employer cannot now be allowed to turn around and claim that his action was in reality to be regarded as one taken under Standing Order Clause 17 by way of infliction of punishment for misconduct.
11. The reality, therefore, is that the employer consciously chose to act under Standing Order Clause 14 and it was only when the implication of the action under the Standing Order, which had apparently not been taken notice of at the time of termination, was realised, the employer sought to take the stand that was in fact an order of dismissal.
12. The fact that the workman did not specifically plead such a case based on Standing Order Clause 14 before the Labour Court, having regard to the circumstances of this case, cannot be treated as an estoppel preventing him from raising this issue on the basis of the undisputed materials on record when the matter was heard by the learned single Judge. The learned Judge has taken note of the substance of the case and has rightly held that the employer's action was one which was taken in terms of Standing Order Clause 14. It being an admitted position that there was no compliance with Section 25-F of the Act, the further relief granted by the learned single Judge, to which we have already adverted to, was in no way violative of law or of any of the rights of the management.
13. The writ appeals are, therefore, dismissed. No costs.