The petitioner was appointed as Steno-typist in the Commercial Department of the 2nd respondent in its Bombay Office on 18.05.1970 and her service was confirmed with effect from 01.12.1970. She was transferred to Chennai on 22.03.1977. According to her, after she joined duty at Chennai, the Officials at Chennai have started giving troubles to her in her work. Since she was not paid earned wages, she had to file a case under the Payment of Wages Act against the 2nd respondent. Again, she had to file another case before the City Civil Court, Chennai in respect of her seniority. Because of these cases, the situation was further aggregated, it is stated.
2. The petitioner further claims that because of the unbearable work conditions at Chennai, her health got spoiled and therefore, she was forced to go on leave including medical leave for various problems. Each and every time, whenever she went on leave, it was sanctioned as her request was supported by medical certificate. While so, the Financial Controller/Director Finance of the 2nd respondent issued a show cause notice on 07.08.1986 calling upon her to explain as to why her service should not be terminated on the ground that she had availed leave for a number of days due to prolonged and continuous ill-health. The petitioner submitted her explanation on 26.08.1986. Not satisfied with the same, by order dated 19.09.1986, she was terminated from the service of the 2nd respondent. Challenging the same, she claims that she preferred an appeal to the Managing Director. But, the same has not been disposed of despite representations. Therefore, she raised an Industrial Dispute before the Assistant Labour Commissioner (Central) and the Conciliation failed. On the basis of the failure report to the Government of India, the dispute was referred to the Industrial Tribunal, Tamil Nadu for adjudication. The dispute was taken on file in I.D.No.29 of 1991 wherein, the petitioner filed her claim statement and the 2nd respondent filed a detailed counter statement.
3. Before the Industrial Tribunal, the petitioner examined herself as WW1 and on the side of the 1st respondent management one Mr.Parthasarathy was examined as MW1. Totally 8 documents were exhibited on the side of the management. Having considered the materials available on record Industrial Tribunal, by award dated 21.05.1997 dismissed the Industrial Dispute. Challenging the same, the petitioner has come forward with this writ petition.
4. Before the Industrial Tribunal, the following were contentions of the petitioner:-
(i) The Industrial Tribunal was in error in holding that the termination was only a termination simplicitor and not a dismissal or punitive action for any misconduct.
(ii) The order of termination attaching stigma to the same and so the same is liable to be set aside since no charge framed and no opportunity to defend was given to defend the charges and thus the same is in violation of the principles of natural justice.
(iii) Under
Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the termination of the petitioner amounts to retrenchment which should have been preceded by disciplinary action. In the case on hand, no such disciplinary proceedings were initiated and therefore, the retrenchment is illegal. Thus, the petitioner is entitled for reinstatement in service with backwages as
Section 25(f) of the Act was not followed.
5.No counter has been filed by the 2nd respondent. However, the contention of the learned counsel for the 2nd respondent are as follows:-
(i) The order of termination imposed on the petitioner is termination simplicitor and not dismissal as a punitive action for any misconduct.
(ii) As per Regulation 48 of Air India Employees Service Regulations, the 2nd respondent is empowered to terminate any employee without assigning any reason by giving 30 days notice in writing or pay in lieu of notice. It is in exercise of the said power under Regulation 48, having regard to the fact that the petitioner has fallen ill and so she could not attend office properly and as a result the work in the office could not be performed in time, the management passed the impugned order of termination.
(iii) Since the impugned order of termination is a termination simplicitor, there was no need to frame any charge and afford any opportunity to the petitioner to defend the charges.
(iv) Since the order of termination cannot be stated to be arbitrary , illegal or discriminatory, it cannot be found fault with in any manner.
(v) In view of the proviso to
Section 2 (oo) of the Act, termination of service of a workman on the ground of continued ill-health cannot be termed as retrenchment. Thus, the order of termination in this case, would not amount retrenchment. Therefore, the question of following
Section 25(f) of the Act would not arise.
6.I have heard both the learned counsel for the petitioner/workman and the learned counsel for the 2nd respondent/management and have also perused the records carefully.
7.Admittedly, the petitioner was terminated from service with effect from 19.09.1986 and there was no charge memorandum or enquiry preceding the same. The said termination was on the ground that the petitioner was in continuous ill health. Ex.M.5 reveals that the petitioner was on medical leave between April 1977 and September 1986 as detailed below.
April 1977 to March 1978 52 April 1978 to March 1979 90 April 1979 to March 1980 84 April 1980 to March 1971 125 April 1981 to March 1982 66 April 1982 to March 1983 25 April 1983 to March 1984 93 April 1984 to March 1985 107 April 1985 to September 1986 Nil
8.It is not disputed in the claim statement of the petitioner that the petitioner was not in good health during the said period. When it is an admitted case of the petitioner that she was suffering from bad health and so, she had to go on medical leave for such a long period. Admittedly, she attended Office only for 556 days in a period of 9 years. On this ground, the Management has terminated her from service.
9.It is contended by the petitioner that since the said termination is not a termination simplicitor on medical ground but the termination with stigma the same would fall within the scope of retrenchment as defined in
Section 2(oo) of the Industrial Disputes Act. To appreciate the said arguments, it is worthwhile to extract the relevant portion of the order of termination which is as follows:-
After taking all the factors into consideration it no more remains disputed that you have since 1981 had a very poor attendance record and that since April 1985 till date you have not attended to your office duties at all, due to your prolonged and continuous ill-health. Accordingly, your services are being terminated with immediate effect.
10.The leaned counsel would submit that the reading of the above would go to show that the termination is not only on the ground of continuous bad health but also on the ground of absence for a long period. The allegation that the petitioner was absent for a long period, is a serious one attaching stigma to her and so the order cannot be termed as an order of termination simplicitor.
11.The learned counsel for the first respondent would submit that the termination was not on the ground of long medical leave but only on the ground of continuous ill-health. He would point out that the statement contained in the order about the absence of the petitioner is only narration of events and that is not the reason for termination. In my considered opinion, a reading of the entire order of termination would go to show that there are two parts in it. First part is in respect of narration of her absence due to prolonged and continuous ill-health. However, the second part relates to conclusion which would make it crystal clear that the dismissal was only on prolonged and continuous ill-health. One cannot expect the management to simply state that the petitioner was terminated from service due to prolonged and continuous ill-health without narrating the nature of the ill-health, the nature of the prolonged leave, etc. There is nothing wrong in narrating the same in the order.
12.The Honble Supreme Court in Workmen of Bangalore W., O. & Silk Mills Co. v. Its Management (1962 (1) LLJ 213) has held as follows:-
The discharge of the concerned workmen on grounds of health could not be considered by way of retrenchment as defined in S.2(oo) of the Industrial Disputes Act (Introduced by Ordinance 5 of 1953). The consent award must be read along with the dispute referred to in connexion with which it had been made. That dispute concerned payment of bonus to workmen discharged as being no longer required. If therefore clearly contemplated workmen who were surplus but who were otherwise fit and willing to continue in service if their services had been needed. Under the award the company agreed to pay gratuity only to workmen who had been discharged on the ground of that their services were no longer required and not to any whose services had been terminated for any other reasons. When a worker is discharged on the ground that he is medically unfit, it cannot be said that they had been discharged on the ground that their services were no longer required; on the contrary, they were not in a condition of health to continue in service at all. Their physical condition prevented them from rendering the service for which they had been employed. The reason for their discharge was that they could not render the services required of them and which under the contracts of service they were bound to render. Their services cannot be said to have been terminated on the ground that such services were not required.
13.In the case on hand, though there are certain narrations about the continued absence of the petitioner, a comprehensive reading of the entire order would leave no doubt that the order of termination is one of a termination simplicitor attaching no stigma.
14.Under
Section 2(oo) of the Industrial Disputes Act, termination of service of the workman on the ground of continued ill-health does not amount to retrenchment. Therefore,
Section 25-F of the Act need not be followed. A perusal of Regulation 48 of the Air India Employees Service Regulation would reveal that the second respondent is empowered to terminate any employee without assigning any reason by giving 30 days notice in writing or pay in lieu of notice. But at the same, the said power cannot be exercised in an arbitrary manner. In the case on hand, it cannot be said that the order of termination is arbitrary in any manner. The very fact that the petitioner had attended office only for 557 days in 9 years period would clearly go to establish that the petitioner was having bad health and so, she was not able to discharge her duties. It is not as though the management took a hasty decision to terminate the petitioner. As a matter of fact, though the petitioner attended office only for 52 days during the year 1977 and 1978, the management did not take any action against her. It appears that the management granted medical leave and also rendered medical help to the petitioner. During the year 1978-1979, the petitioner attended only 90 days even then, the management did not take any action to terminate the petitioner or even issued any charge memorandum. Likewise, every year till 1986, the petitioner attended the office only for a lesser number of days. It could be noticed that during 1982, she attended the office only for 25 days. Having waited for about 9 years and having analysed everything about the health of the petitioner, the management has taken the action to terminate her from service by invoking the power under Regulation 48. It cannot be stated to be either arbitrary or unreasonable.
15.The learned counsel for the petitioner has cited number of judgments to substantiate that the order of termination without a charge memorandum is illegal and therefore, the same is liable to be set aside. I dont want to burden this judgment by quoting all those judgments relied on by the learned counsel for the petitioner since, on facts, I agree with the findings of the Industrial Tribunal, Tamil Nadu, Chennai that the order of termination is only a termination simplicitor and the same does not carry any stigma. If once such a factual finding is arrived, there can be no difficulty to hold that the order of termination is sustainable under law though the same is not preceded by a charge memo and enquiry.
16.In respect of the opportunity to be given to ascertain the health of the petitioner, I would like to refer to the judgment in Municipal Corporation v. P.S.Malavenkar (1978 (2) LLJ 168) wherein, the Honble Supreme Court has taken the view that even assuming that the order of termination is punitive, it cannot be struck down because the management availed opportunity open to it before the Labour Court to let in evidence justifying the action taken by the management. Further, in paragraph No.8, the Honble Supreme Court has observed as follows:-
8.But even if the view were taken that the impugned order of termination of service of the respondent was punitive in character and could not have been passed save and except as a result of a disciplinary inquiry held under cl.(2) of Standing Order 21 read with Standing Order 23 the impugned order cannot be struck down as invalid on the ground of non-compliance with the requirement of these Standing Orders, since the appellant availed of the opportunity open to it before the Labour Court and adduced sufficient evidence justifying the action taken by the management. The appellate produced satisfactory evidence to show that the impugned order terminating the services of the respondent was justified and hence the impugned order must be sustained despite its having been passed without complying with the requirements of cl.(w2) of Standing Order 21 read with Standing Order 23. We are fortified in this view by a catena of decisions of this Court where it has been consistently held that no distinction can be made between cases where the domestic enquiry is invalid or defective and those where no enquiry has in fact been held as required by the relevant standing orders and in either case it is open to the employer to justify his action before the Labour Tribunal by adducing all relevant evidence before it.....
17.The learned counsel for the petitioner relies on the judgment of a Constitution Bench of the Hon'ble Supreme Court in T.N.Cements Corporation Ltd., v. N.Pandurangan (2006(1) LLN 964) wherein, it has been held that though it is within the powers of the Corporation, as per the regulation to terminate an employee without enquiry still reasonable notice or pay in lieu thereof should be issued.
18.Relying on the said judgment, the learned counsel would submit that since no reasonable opportunity was given to the petitioner in this case, the termination order is illegal. But, I am unable to persuade myself to accept the said argument of the learned counsel for the petitioner. In the case on hand, the Regulation 48 empowers the management to dismiss any employee from service without assigning any reason. As I have already held, such power could not be exercised in an arbitrary manner and that is the reason why the Honble Supreme Court has held that a reasonable notice must be given to the workman. In the case on hand, the termination cannot be stated to be arbitrary because, from the records, it could be seen that the management had waited for 9 years for her to improve her health to attend the office regularly. Since there was no marked improvement in the health of the petitioner and since she was not able to discharge her duties, the said power under Regulation 48 was used and so, she was terminated, in which, I do not find any arbitrariness or unreasonableness.
19.In the case on hand, before the Industrial Tribunal, the parties were allowed to let in sufficient evidence to substantiate their stands taken. The Industrial Tribunal has considered the entire evidence and has come to the conclusion that the termination is justifiable. The power of this Court under
Article 226 of the Constitution of India is very limited inasmuch as this Court cannot re-appreciate the entire evidence to come to a different conclusion then that of the conclusion arrived at by the Industrial Tribunal so as to substitute the same in the place of the conclusion arrived at by the Industrial Tribunal. Having gone through the entire evidence and other materials placed before me, I do not find any perversity in the finding of the Industrial Tribunal on the factual aspects also. For the foregoing reasons, I find no reason to interfere with the order of the Industrial Tribunal.
20.In the result, the writ petition fails and accordingly, the same is dismissed. No costs.
04.08.2009 kmk/jbm Index; Yes/No Internet: Yes/No To
1.The Presiding Officer, Industrial Tribunal, Chennai 600 104.
2.The Management of Air India, Rep. By its Manager, (Southern India) Chennai 600 008.
S.NAGAMUTHU,J.
Jbm Pre Delivery Order made in W.P.No.15147 of 1998 04.08.2009