MANAGEMENT NAGAPATTINAM PERMANENT FUND LTD Vs. ASSISTANT COMMISSIONER OF LABOUR APPELLATE AUTHORITY UNDER TAMIL NADU SHOPS AND ESTABLISHMENT ACT TIRUCHIRA PALLI

JUDGEMENT

(1.) The second respondent herein, who was the Assistant Manager of the petitioner Permanent Fund, absented himself from duty without leave or permission from 6.5.1982 to 8.5.1982. An explanation was called for from him for his unauthorized absence from duty on the dates abovementioned and on 12.5.1982, the second respondent submitted an explanation setting out the circumstances under which he was obliged to be absent. That explanation was placed before the meeting of the Board of the Fund and a resolution was passed on 15.5.1982 terminating the services of the ' second respondent on the ground that the explanation submitted by the second respondent was not acceptable and the second respondent himself expressed a desire to be relieved on settlement of his accounts forthwith. A month notice terminating the services of the second respondent with effect from 15.7.1982 was also given to the second respondent on 10.6.82. A reply was sent by the second respondent on 18.6.1982 to the effect that he had already explained the circumstances which obliged him to go on leave between 6.5.1982 to 8.5.1982 and that cannot be a reason for terminating his services. Thereafter, at a meeting of the Board of Directors of the Fund held on 13.7.1982, in accordance with the earlier notice sent by the Fund on 10.6.1982, resolution No.360 was passed terminating the services of the second respondent. A copy of that resolution along with a cheque for Rs.133.05 was sent by the Fund to the second respondent. On 19.7.1982, the second respondent, while acknowledging the letter dated 14.7.1982 sent by the Fund enclosing a copy of the resolution No.360 dated 13.7.1982, returned the cheque stating that he proposed to take further action in the matter. Thereafter, the second respondent preferred an appeal against the order of termination of his services before the first respondent herein contending that there had been no reasonable cause for disposing with his services and that he was also not guilty of any misconduct. While disposing of the appeal, the first respondent found that the second respondent had enough leave to his credit and even if there was a failure on the part of the second respondent to apply for an extension of leave, that would not be a reasonable cause for dispensing with the services of the second respondent. Adverting to the stand taken by the Fund that the second respondent was also relieved from the Fund on his own request expressed by him when he appeared on 15.5.1982, the first respondent found that though the second respondent did not deny his participation in the Board meeting on 15.5.1982, yet, in the absence of anything in writing to show that the second respondent expressed a desire to be relieved, the claim that the services of the second respondent were terminated on his own request cannot be upheld. In that view, the first respondent set aside the order of termination of the services of the second respondent. To quash this order, the petitioner has come up before this Court praying for the issue of a writ of certiorari.

(2.) The learned Counsel for the petitioner raised only one contention in support of this writ petition. According to him, at the time when the second respondent appeared before the meeting of the Board of the Fund on 15.5.1982, he had expressed a desire to be relieved and this was accepted by the Fund and in accordance therewith, the services of the second respondent were terminated and therefore, the second respondent cannot have any cause for complaint against the termination of his services by the Fund. Reliance in this connection was placed by the learned Counsel for the petitioner upon Exs. A-3, A-5 and R-5 as clearly establishing the inference that the termination of the services of the second respondent was also on his own request. On the other hand, the learned Counsel for the second respondent submitted that in the absence of anything in writing to show that the second respondent desired or wanted to be relieved, it cannot be said that his services were terminated at his own request and therefore, the order setting aside the termination of the services of the second respondent cannot be taken exception to.

(3.) Thus, the principal question that arises for consideration is whether the termination of the services of the second respondent in the Fund was as a result of a request made in that regard by the second respondent and the acceptance thereof by the Fund. There is no dispute that with reference to the absence of the second respondent from the Fund between 6.5.1982 and 8.5.1982, a charge memo was issued to him and he was also called upon to submit an explanation. Equally, there is no dispute that after having submitted an explanation, the second respondent had also appeared before the Board of the Fund at its meeting held on 15.5.1982. Indeed, in the order of the first respondent, it is stated that the second respondent did not deny his participation in the meeting of the Board of the Fund held on 15.5.1982. What transpired at that meeting remains to be considered. While, according to the Fund, the second respondent, when he appeared before the Board of the Fund at its meeting on 15.5.1982, expressed a desire to be relieved on settlement of his accounts, the second respondent would state that he did not make any such offer, though he was present on that day before the Board. It is in this connection that the three documents, reliance upon which was placed by the learned Counsel for the petitioner, are relevant. Ex.A-3 is the notice terminating the services of the second respondent. It is dated 10.6.1982. The second paragraph therein is significant. After referring to the absence of the second respondent between 6.5.1982 and 8.5.1982, the letter proceeds to state that the explanation dated 12.5.1982 submitted by the second respondent was not acceptable and that he had also expressed a desire to leave the Fund provided his accounts were settled forthwith. This letter winds up by saying that the second respondent is given a month notice for termination of his services with the Fund with effect from 15.7.1982. Ex.A-4 dated 18.6.1982 is the reply sent by the second respondent to the Fund regarding the notice of termination dated 10.6.1982. Therein, the second respondent has reiterated the explanation already submitted by him on 12.5.1982 and has stated that the absence away from duty without leave between 6.5.1982 and 8.5.82 cannot be a reason for terminating his services, especially when he had put in 12 years and more of service under the Fund and when he had sufficient leave as well to his credit. There is no demur in Ex.A-4 that the second respondent did not express a desire to be relieved from the Fund on settlement of his accounts as stated in Ex.A-3. This conduct of the second respondent is very significant, in that, if really the second respondent did not express a desire to be relieved as stated in Ex.A-3, then, in his reply under Ex.A-4, he would have taken exception to this statement made in Ex.A-3 to the effect that he had expressed a desire to leave the Fund on settlement of his accounts. The ordinary conduct of a person, who did not make the statement attributed to him, would be to violently protest against that. The second respondent had not done so. This probabli-ses that the second respondent appeared before the Board of the Fund at the meeting held on 15.5.1982 and expressed that he should be relieved, subject, of course, to his accounts being settled. This is also further fortified by Ex.A-5 dated 14.7.1982. In that letter addressed by the Fund to the second respondent herein, a copy of the resolution No.360 passed by the Board at its meeting held on 13.7.1982 had also been sent along with the cheque for Rs.l33.05 towards the salary due to the second respondent. The copy of the resolution refers to the second respondent having appeared before the Board on 15.5.1982 and stated that if the amounts due to him are all paid, he had no objection to be relieved from the service of the Fund. Ex.A-5 letter terminating the services of the second respondent with effect from 15.7.82 and the copy of the resolution had been received by the second respondent as seen from Ex.A-6. While acknowledging the receipt of the letter dated 14.7.1982, the second respondent writes to state that he is returning the cheque as he proposed to take further action in the matter. Even in this letter under Ex.A-6, the second respondent has not in any manner chosen to question the correctness of the contents of the resolution referring to the second respondent appearance before the Board of Directors on 15.5.1982 and expressing a desire to be relieved, if the amounts due to him are all settled and paid. In the absence, therefore, of any protest or objection raised by the second respondent either to Ex.A-4 or to Ex.A-6, it is not improbable that when the second respondent appeared before the meeting of the Board of the Fund on 15.5.1982, he had expressed his willingness to be relieved on payment of whatever amounts were due to him from the Fund. There is also one other circumstance which would further strengthen the expression of a desire to be relieved made by the second respondent before the meeting of the Board of the Fund on 15.5.1982. Ex.R-5 dated 3.9.1980 shows that the second respondent had explained certain charges already framed against him and had also indicated that the Secretary of the Fund was prejudicially disposed towards him. That letter winds up by saying that the second respondent had no objection to leave the Fund provided arrangements are made for the immediate refund of the security deposit with interest, and the Provident Fund contribution before leaving. The contents of Ex.R-5 also indicate that the second respondent has been contemplating the idea of quitting the services of the Fund even long before and when another opportunity in that regard presented itself on 15.5.1982, when he appeared before the Board with a view to substantiate his explanation for his absence without leave between 6.5.1982 and 8.5.82, he had reiterated his desire as shown by Exs.A-3 and A-5 and that had been accepted by the Board of Fund and the services of the second respondent have been terminated and this had also been communicated to the second respondent under Ex.A-3 and the resolution accompanying Ex.A-5 to which, as pointed out earlier, no exception was taken by the second respondent. A consideration of the aforesaid correspondence that passed between the petitioner and the second respondent clearly discloses that the termination of the services of the second respondent was only at his own request made by him at the time when he appeared before the Board of the Fund on 15.5.1982.