Madras High Court
Kalivaradan P. vs Presiding Officer, Ii Additional ... on 6 August, 2001
Equivalent citations: (2002)ILLJ443MAD
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. Petitioner was appointed as a daily rated employee in the second respondent Board at Pondicherry and he was sent for training in Footwear Course at Calcutta from March, 1984 to August, 1984. Thereafter the petitioner was appointed as Manager (Leather) at Leather Goods Emporium, Pondicherry from August 28, 1984 to April 22, 1988. On April 22, 1988 the petitioner was forced to handover charge to one M. Palanivelu and no alternative employment was given to the petitioner. Petitioner made representation to the second respondent to reinstate the petitioner into service but he did not receive any reply. Therefore, the petitioner issued a lawyer's notice on October 11, 1988 requesting reinstatement with continuity of service. The second respondent replied through the lawyer's notice dated November 3, 1988 stating that the petitioner was transferred to Yanam from Pondicherry on April 21, 1988 and that the petitioner was orally informed about the same. Since the petitioner was not willing to join at Yanam and had wilfully avoided joining the duty at Yanam, another person was appointed on October 6, 1988. Therefore the petitioner was not offered employment on the ground that he voluntarily abandoned his service. The petitioner therefore approached the Labour Conciliation Officer by a letter dated December 7, 1988. A reply was filed by the second respondent dated May 3, 1989 denying the allegations made in the petition. Since the conciliation failed, the petitioner filed the claim statement before the Labour Court in I. D. No. 6 of 1990. The said I.D. was disposed of by the impugned award dated June 9, 1992 by awarding compensation of Rs.25,000 since the petitioner was denied employment without following the provisions of Section 25-F of Industrial Disputes Act.
2. The claim statement was opposed by the second respondent by filing a counter. It is the case of the 2nd respondent that the petitioner was employed as salesman on daily rated basis on oral orders. The statement of the petitioner that he was appointed as Manager (Leather) at Leather Goods Sales Emporium on completion of training course was denied. In fact by letter dated May 30, 1988 the petitioner has admitted that he was working as sales assistant on the date when he abandoned his, service. According to the 2nd respondent, it is not true to say that the petitioner was not forced to handover charge to one Palanivelu on April 22, 1988 and thereafter he was not given any alternative employment. It is the specific case of the second respondent that one Palanivelu was transferred from Yanam to Pondicherry and the petitioner was given oral order to work at Yanam on daily wages. Since the petitioner did not join the work at Yanam, some other person had been posted in that place. Therefore the claim of the petitioner that his services were terminated is totally unsustainable.
3. Based upon the claim petition and the Counter of the second respondent, the first respondent Labour Court, Pondicherry framed the following points for consideration:
Whether Thiru P. Kalivaradan is a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 and whether the non-employment of the said worker is justified under law?
4. The Labour Court on appreciation of evidence of one Palanivelu who was transferred from Yanam to Pondicherry in the place of the petitioner found that the petitioner was a daily rated employee and he was transferred from Pondicherry to Yanam by oral orders in the place of one Palanivelu and in fact on the similar order Palanivelu reported to duty at Pondicherry whereas the petitioner did not join the duty at Yanam, and therefore, some other person who was appointed in the said place. The Labour Court also based upon the proceedings Ex.B-3, dated October 6, 1988 placing Maheswara Rao at Yanam in the place of the petitioner and the official correspondence Ex.B-1, dated April 21, 1988 indicating the transfer of the petitioner to Yanam as early as on April 22, 1988, accepted the same as evidence to sustain the oral order of transfer of the petitioner from Pondicherry to Yanam. Holding so the Labour Court also found that the petitioner was not unilaterally terminated by the second respondent ,and that the petitioner had failed to attend the duty as per the instructions of the 2nd respondent. The Labour Court also found that since the petitioner himself has abandoned his service he was not terminated by the second respondents as there was no allegation of misconduct against the petitioner. The Labour Court also found that after the order dated April 22, 1988 the petitioner had approached the second respondent only on May 30, 1988 and there was no explanation from the petitioner for his absence from the said period. The Labour Court further found that the petitioner is a workman within the meaning of Section 2(s) of Industrial Disputes Act. Therefore taking into consideration of the fact that the petitioner was only a daily rated employee, he is entitled to receive the compensation of Rs. 25,000 since the provisions of Section 25-F of the Industrial Disputes Act has not been complied with.
5. The learned counsel for the petitioner Ms. Anna Mathew would challenge the said award on the ground that when once the Labour Court comes to the conclusion that the petitioner is a workman under the provisions of Section 2(s) of Industrial Disputes Act and also after having coming to the conclusion that the provisions of Section 25-F of Industrial Disputes Act have not been complied with, the Labour Court ought to have ordered reinstatement with back wages. The learned counsel would also contend that even the 2nd respondent has not established the service of the transfer order on the petitioner to claim that the petitioner has abandoned his service. The learned counsel would further contend that even if it is considered as abandonment of service, notice must be issued to the petitioner so as to submit his explanation before the order of termination. In support of the said submission the learned counsel would rely upon the decision of the Apex Court reported in D.K. Yadav v. J.M.A. Industries Limited, , and the subsequent, decision of the Apex Court reported in Uptron India Limited v. Shammi Bhan and Anr., . Therefore, the learned counsel submitted that the award of the Labour Court is liable to be set aside and the petitioner is entitled to reinstatement with back wages.
6. Mr. K.K. Sashidaran, the learned Government Pleader of Pondicherry appearing on behalf of 2nd respondent would submit that petitioner was a salesman on daily rated basis and he was not appointed in a regular and sanctioned post and that the petitioner was orally transferred to Yanam from Pondicherry and he did not report to duty and on the other hand, one Palanivelu was transferred from Yanam to Pondicherry and he joined the duty at Pondicherry. Since the petitioner did not report to duty, another person was appointed as sales assistant at Yanam. The learned counsel submitted that since the petitioner has abandoned his service, it cannot be called as the case of termination to follow Section 25-F of Industrial Disputes Act. The learned counsel submitted that the decisions cited by the learned counsel for the petitioner relates to appointment on permanent basis and as against the regular post. Therefore, the learned counsel for the 2nd respondent submitted that on merits, the Labour Court has come to the conclusion that the petitioner did not join the duty at Yanam even though he was instructed orally to take charge forthwith and one Palanivelu had joined the duty at Pondicherry and therefore the petitioner has abandoned his service. Such findings of the Labour Court is supported by the evidence of one Palanivelu and the documents marked on the side of the 2nd respondent as Exs.B-1 to B-3.
7. In the petition before the Conciliation Officer the petitioner has stated that he was appointed as a daily rated employee in the second respondent Board and the petitioner was appointed as Manager (Leather) at Leather Goods Sales Emporium, Pondicherry from August 28, 1984. Even though such a claim has been made by the petitioner, no document has been produced before the Conciliation Officer or the Labour Court to prove the same. On the contrary, it is the case of the second Appellant that the petitioner was appointed as sales assistant on a daily rated basis. Therefore, the right of the petitioner in challenging the non employment and seeking for reinstatement has to be decided only in the light of the fact that the petitioner is only a daily rated employee. The learned counsel for the petitioner submitted that the Apex Court has considered the unauthorised absence in the case reported in D.K. Yadav v. J.M.A. Industries Limited, (supra). That was a case where the petitioner was appointed permanently as per the provisions of the Standing Orders. According to Clause 13(2)(iv) of the Certified Standing Orders, if an employee remains absent continuously for more than 8 days without leave or prior information or intimation or previous permission from the management -
shall be deemed to have left the service of the company on his own account and lost his lien on his appointment. While considering the said certified standing order, the Supreme Court has observed that it is incumbent on the part of the 1 management to give notice to the workmen before the non-employment. The learned counsel drew my attention to para. 14 of the said order wherein the Supreme Court has observed as follows:
"It is thus well-settled that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee 2 workman visits with Civil consequences of jeopardising not only his/ her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/ work man fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry connected complying with the principles of natural justice."
8. As already pointed out, in the present case the petitioner was appointed on daily rate basis. Even though the claim of the petitioner that after the training, he was appointed as Manager (Leather) Leather Goods Emporium, Pondicherry was denied by the 2nd respondent, it is for the petitioner to establish the said fact. I do not find any evidence on the side of the petitioner to substantiate his claim that he was appointed on permanent basis. Therefore, the finding of the Labour Court that the petitioner has abandoned his service cannot be considered as without any material. Even the petitioner has stated in his claim statement that he was forced to hand over charge to one Paianivelu on April 22, 1988. Therefore it is clear from the above that Paianivelu was transferred from Yanam to Pondicherry and the petitioner was transferred from Pondicherry to Yanam and the petitioner did not report to duty at Yanam. According to the 2nd respondent, the petitioner was orally informed to hand over charge to Paianivelu on April 22, 1988 and there was no explanation from the petitioner as to why the petitioner has kept silent till October 11, 1988. It is seen that the petitioner has sent a letter to the 2nd respondent on May 30, 1988 seeking employment. Even this letter has not been referred to in the petition given to the Conciliation Officer and marked on the side of the petitioner. Only on October 11, 1988 the petitioner has issued a lawyer's notice. Therefore, in any considered view, the evidence let on the side of the Management through one Paianivelu that the petitioner was orally instructed to join at Yanam and the said Paianivelu was transferred from Yanam to Pondicherry in the place of the petitioner and the petitioner did not report to duty at Yanam is acceptable one. Therefore Exs.B-1 to B-3 marked on the side of the 2nd respondent would go to show that the petitioner was transferred from Pondicherry to Yanam and one Paianivelu was transferred from Yanam to Pondicherry and the petitioner did not report to duty and he absented himself unauthorisedly. Therefore, I do not find any reason to interfere with the findings of the Labour Court.
9. The learned counsel for the petitioner submitted that since the Labour Court found that the petitioner is a workman, the petitioner ought to have been given an opportunity before his services were terminated. As rightly pointed out by the learned counsel for the respondent that it is not a case of termination since the petitioner was appointed only on a daily rated basis and when he was instructed to join at Yanam, he did not report to duty at Yanam. The Supreme Court in the judgment reported in State of U. P. and Ors. v. Ajay Kumar, while considering the question of regularisation of the service has held that for seeking regularisation there must exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Similarly the Supreme Court in the judgment reported in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors., has held that when persons were appointed to the posts not in accordance with any rules and as against non- existing posts on temporary daily wage basis, they have no right to the posts. If the above principles as laid down by the Apex Court are followed, the petitioner who was appointed on a daily rated basis, has no right to the said post. Therefore, the contention of the learned counsel for the petitioner that the petitioner should be given notice before his services were terminated cannot be accepted. Since the petitioner has abandoned his service, this issue cannot be considered as termination of service and the petitioner has not explained as to why he kept silent and has not joined the duty from April 22, 1988 till December 7, 1988. Therefore, the decision cited by the learned counsel for the petitioner are not applicable to the facts of the present case. Accordingly I hold that the findings of the Labour Court that the petitioner has abandoned the service on his own accord and seeking employment is not justifiable is correct.
10. Coming to the direction of the Labour Court in awarding compensation of Rs. 25,000 since there was non compliance of Section 25-F of Industrial Disputes Act, the Labour Court found that the petitioner was a workman within the meaning of Industrial Disputes Act. Though the Labour Court found that the non-employment of the petitioner is justified under law, the Labour Court also found that the petitioner was a workman and due to non compliance of the provisions of Section 25-F of Industrial Disputes Act, the petitioner is entitled to compensation. The said relief was granted by the Labour Court after taking into the fact the petitioner was appointed on a daily rated basis and he cannot be equated with that of the other workmen who insist upon the compliance of the provisions of Section 25-F of Industrial Disputes Act. Such a finding is given by the Labour Court only to meet the ends of justice. I do not find any merit in the contention of the learned counsel for the petitioner that when once the Labour Court comes to the conclusion that the petitioner is a workman and the provisions of Section 25-F of Industrial Disputes Act have not been complied with, the petitioner is entitled to reinstatement of service with back wages. Such a submission would be accepted in a case where the petitioner was appointed on a regular basis as per Rules. Since the petitioner was appointed on a daily rated basis and he did not join the duty at Yanam and he abandoned his service and he absented himself unauthorisedly, I do not find any reason to accept the submission of the learned counsel for the petitioner that a fair and impartial domestic enquiry is required to be conducted and the petitioner is entitled to any opportunity of hearing. Further there was no explanation from the petitioner as to absence from April 22, 1988 till December 7, 1988 when the petitioner raised an industrial Dispute. I see no reason to interfere with the findings of the Labour Court, Accordingly this writ petition is dismissed. No costs.