Madras High Court
V. Mohamed Saliha vs The Management Of A. Abdul Shukoor And ... on 8 March, 1990
Equivalent citations: (1990)2MLJ5
JUDGMENT S. Nainar Sundaram, J.
1. This writ appeal directed against the order of the learned sing Judge in W.P. No. 4085 of 1980. That was as petition preferred by the first respondent questioning the Award of the second respondent I.D. No. 270 of 1978. By that Award, non-employment of the appellant by the (SIC) respondent was held to be not justified, and the was a direction for reinstatement of the appellant with continuity of service, back wages and other attendant benefits. It will be convenient if we refer to the parties as per their array in the writ petition. The first-respondent was in the employ of the petitioner as a van driver. The finding rendered by the second respondent in the industrial dispute is to the effect that the employment of the first respondent with the petitioner commenced on 29.5.1973. According to the first-respondent, his services were terminated without any reasonable cause in April, 1978. According to the petitioner, the first-respondent left the services on his own altar an accident in which the van driven by the first respondent was involved. The petitioner did not put forth a case be any disciplinary action and an order of dismissal following after the finding in the disciplinary action going against the first respondent. Equally so, the petitioner did not advance a case that the services of the first -respondent were retrenched after satisfying the provisions there for under the Industrial Disputes Act, 1947, hereinafter referred to as the Act. The simple case of the petitioner was that after the accident the first-respondent abandoned the services under the petitioner. Before the second respondent, the parties placed their evidence, oral and documentary, in the course of the industrial adjudication, in support of their respective cases. That was the subject matter of scrutiny and assessment by the second-respondent and the second-respondent came to the conclusion that the case of the petitioner that the first respondent abandoned the services cannot be accepted and it is a case of termination of the services of the first respondent by the petitioner. Thus finding that the non-employment of the first-respondent by the petitioner is not justified, the second-respondent passed an award, as already referred to. The award of she second-respondent was put in issue in the writ petition.
2. The learned single Judge, who dealt with and disposed of the writ petition, countenanced a stand, out forth on behalf of the services of the first-respondent without any enquiry by the petitioner, there ought to have been an opportunity afforded to the petitioner to substantiate its case, that the termination of the services of the first-respondent was not wrongful and for that purpose there ought to be an enquiry and this has got to be done by the second-respondent and the second-respondent, having not indulged in such an enquiry there is need to frown "upon the award passed by second-respondent. As a result, the learned single Judge allowed the writ petition and remitted the matter back to the second-respondent to hold an enquiry and render a finding as to whether the termination of the services of the first respondent was wrongful or not.
3. Mr. T. Fenn Walter, learned Counsel for the first-respondent, would submit that the case of the petitioner having been one of abandonment of services by the first-respondent and not termination of services on disciplinary action on charges of misconduct and once that case has been found against, there was no necessity or warrant for remitting the matter back to the second-respondent to probe into the matter to find out as to whether the termination is wrongful or not. Accordingly to the learned Counsel for the first-respondent, this contingency will arise only when the specific case of the petitioner was one of dismissal for charges of misconduct and there was an omission to hold an enquiry and render a finding thereon. This contention of the learned Counsel for the first respondent is not without substance. The petitioner did not put forth a specific case that the services of the first-respondent were terminated on a account of charges of any misconduct or dereliction of duty. It is also not the case of the petitioner that termination followed any disciplinary action. It is also not the case of the petitioner that though the services of the first-respondent were terminated on charges of misconduct, there was an omission to hold an enquiry into such charges, and hence the petitioner should be afforded an opportunity to substantiate such charges, by leading evidence before the second-respondent for the first time. The plain case of the petitioner was abandonment of services by the first-respondent. This case of abandonment of service by the first-respondent has not been accepted by the second-respondent. On the other hand, the finding of the second-respondent is that it was a case of termination of services.
4. The learned single Judge did not differ from the view of the second-respondent that the petitioner has not substantiated the case of abandonment of services by the first-respondent. Yet, the learned single Judge proceeded to hold that an enquiry ought to have been held to find out whether the termination of the services of the first respondent by the petitioner was wrongful or otherwise, as if the case of the petitioner was that the services of the first-respondent were terminated on charges of misconduct. When the specific case of the petitioner was one of abandonment of services by the first-respondent, and the petitioner never came in his pleadings anywhere near termination of services on charges of misconduct, it will not be proper to proceed with that specific case of the petitioner and direct an enquiry as to whether the termination was wrongful or otherwise. It would have been a different matter if the petitioner had put forth a specific plea that the services of the first-respondent were, in fact, terminated on charges of misconduct; but, however, it was found that there was no enquiry held into the charges and the petitioner made a request before the second-respondent to substantiate the charges by leading evidence therefor. The pronouncement relied on by the learned single Judge could have no application at all to the facts of the present case with the specific plea put forth by the petitioner.
5. Here we find a case where the specific plea of the petitioner of abandonment of services by the first-respondent could not be accepted and the result is the termination of the services of the first-respondent by the petitioner would only come under the category of termination for reasons other than a punishment inflicted by way of disciplinary action. It is not a case of voluntary retirement. That case has been found against on facts. It is not a case of retirement on superannuation. It is not a case of termination of services on the ground of continued ill-health. To put it in other words, it will be a case of retrenchment. Admittedly, the provisions relating to retrenchment, as contemplated in the Act, were not complied with. This is not a case where there is a need for an enquiry into charges of misconduct alleged against the first-respondent by the petitioner and which enquiry was omitted to be held by the petitioner and in these circumstances requiring the second-respondent to hold an enquiry into the charges and render a finding as to whether the termination was wrongful or otherwise. The case of the petitioner having proceeded on an unambiguous stand that the first-respondent abandoned the services and that having been found against, and the provisions of the Act relating to retrenchment, not having had been complied with, the non-employment of the first-respondent by the petitioner must be held to be not justified in law.
6. In the above view, we are obliged to interfere in writ appeal to set a side the order of the learned single Judge in W.P. No. 4085 of 1980. But, with regard to restoration of the award of the second-respondent, as it was given, we have formed an opinion on fact that in the present case, instead of ordering reinstatement of the first respondent back into the service of the petitioner, there should be a direction with regard to payment of compensation. For this modification, we give the following reasons: There was an accident on 6.2.1978. At that time, the first-respondent was driving the van involved in the accident. The result of the accident was that a third party was killed. It will be embarassing to the petitioner to take back the first respondent in services. There has been an estrangement in. the relationship. The petitioner must have lost confidence in the first respondent. There is long lapse of time. We are told by Mr. T. Fennwalter, learned Counsel for the first-respondent, that his client, as on date, is aged fifty years. At the maximum, he may have services with the petitioner for another eight years. Hence, we consider it appropriate, on the facts of the present case, to award compensation in lieu of reinstatement and other benefits. The termination of the services of the first-respondent happened in April, 1978. His emoluments at that time were Rs. 410 per month. We consider it reasonable and just to award a lumpsum compensation of Rs. 55,000 (rupees fifty-five thousand) only, in lieu of reinstatement and other benefits awarded by the second respondent.
7. Accordingly, this writ appeal is allowed; the order of the learned single Judge in W.P. No. 4085 of 1980 is set aside; and we restore the award of the second-respondent in I.D. No. 270 of 1978, subject to the modification that the first respondent shall be paid a compensation of Rs. 55,000 (Rupees fifty-five thousand) only, in lieu of reinstatement and other benefits. The petitioner shall pay the above compensation within a period of three months from today to the first-respondent, failing which the said amount will carry interest at 12 per cent per annum from the lapse of the period of three months from today. No costs.