ARUNA MILLS LIMITED Vs. INDUSTRIAL TRIBUNAL AND ANR

JUDGEMENT

(1.) In this writ application that is challenged is the order of the President of the Industrial Tribunal passed in Appeal (I.C.) No. 18 of 1975, wherein it was held that the order of termination of the respondent's services was a penal one and contrary to the provisions of S. 73 of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act) and it was ordered his reinstatement in service with full back wages and emoluments available to the post that he was entitled to hold. The petitioner is a public limited company engaged in the business of manufacturing textiles at Ahmedabad. The respondent was working as a junior clerk in the Weaving Department of the petitioner-company. On October 26, 1970, the respondent had requested the salesman of the company for leave on October 27, 28, and 29, 1970. The leave was refused by the sales man on the ground of pressure of work in the department as the mill was to remain closed form October 30, 1970 for 3 days on account of Divali holidays. The respondent did not report on duty on October 27, 1970. On October 27, 1970 he did not send any intimation of his sickness and on October 28, 1970, he send a certificate of Dr. R. C. Shah through clerk Mr. Shukla. There was no written application for leave accompanying the certificate of sickness. On December 2, 1970 a show cause notice was issued to the respondent for showing cause as to why he should not be dismissed form service on the ground of remaining absent without leave, on October, 27, 28, and 29, 1970. It was also stated in his notice that the respondent was in habit of remaining absent without leave. A departmental inquiry was held and the Manager passed a speaking order stating that respondent failed to apply for leave as per standing order and in past also on a number of occasions had remained absent without getting leave sanctioned and so it was not in the interest of the company to continue him as clerk in the employment and found him unfit to be retained in service and terminated his services by an order of discharge simpliciter under the clerks standing order No. 10. This order was passed on December 17, 1970. On December 18, 1970 an order was served upon the respondent stating that he had remained absent without leave on October 27, 1970 and was in habit of remaining absent without leave and, therefore, his services were terminated by a notice of 14 days from January 1, 1971. On December 31, 1970 an order was served on the respondent by the Manager stating that for the reasons given in the Notice, dated December 18, 1970, his services were terminated and he was relieved from the service from January 1, 1971. It appears that against this order of termination the respondent had written an approach letter to the company bringing to the notice of the company that he had not been given proper and legal notice of discharge. In reply to this letter the Manager of the company wrote a letter, dated January 1, 1971. It is stated therein that there was a mistake in giving 14 days' notice for termination of his services and, therefore, the order of termination, dated December 31, 1970 was cancelled and a fresh order of discharge as per the standing orders had been passed and the same was enclosed with that letter. This order of termination of the services of the respondent is dated, January 19, 1971 and it is stated therein that the services of the respondent were terminated by paying one month's salary in lieu of notice with immediate effect. The respondent made an application No. 211 of 1971 to the Labour Court, Ahmedabad under Ss. 78 and 79 of the Bombay Industrial Relations Act, challenging the order, dated January 19, 1971 by which his services were terminated and contending that the said order was penal and not an order of termination simpliciter. The Labour Court held that the impugned order was not punitive and was an order of discharge simpliciter. Being aggrieved by the order of the Labour Court the respondent filed Appeal (I.C.) No. 18 of 1975 in the Industrial Court presided by the President. The learned President came to the conclusion that the order of termination of the services of the respondent was penal and contrary to the provisions of S. 73 of the Act and, therefore, set aside the order of termination of the services of the reinstatement with back wages.

(2.) It is this order which is challenged by Mr. Nanavati, appearing for the petitioner, and, the contention of Mr. Nanavati is that the Industrial Court has erred in holding that the impugned order was contrary to the provisions of S. 73 of the Act. The contention of Mr. Nanavati is that the provisions of S. 73 of the Act have not been properly interpreted by the Tribunal and the attention of the Tribunal had not been drawn to the Supreme Court's decision in Buckingham and Carnatic Co. Ltd. v. Venkatayya and another. He also contended that the order of termination of the services of the respondent was not a penal one but was order of discharge simpliciter.

(3.) We shall proceed on the assumption that the order of termination of the services of the respondent is penal. It was not contended before the Tribunal that the departmental inquiry suffered from any infirmity and, therefore, the only question that was agitated was whether the impugned order was passed by way of penalty or was an order of discharge simpliciter. Having come to the conclusion that the impugned order was passed by way of penalty, the Tribunal construed the provisions of S. 73 of the Act and the construction which the Tribunal has put is as follows :