P R SUBRAMANIAM Vs. DEPUTY COMMISSIONER OF LABOUR

JUDGEMENT

(1.) THE subject matter of the writ petition is an order of the first respondent, the Deputy Commissioner of Labour (Appeals), Madras, dated March 31, 1986 passed under Section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as 'the Act')

(2.) THE case of the petitioner as seen from the affidavit filed in support of the petition is hereunder: The petitioner joined the services in the second respondent-company, a public limited company, in its factory at Mettupalayam, as a Works Manager. The petitioner was given a responsible post in commissioning the plant for the production of wattle extract. The petitioner tendered his resignation during the month of October, 1968, on the ground that he was not given the necessary facilities. However, the second respondent-company persuaded the petitioner to withdraw his resignation and consequently, on the withdrawal of the resignation, revised terms of service by various office orders were issued in favour of the petitioner. Subsequently, the petitioner was also promoted as General Works Manager of the factory. According to the petitioner, the relationship with the Managing Director of the second respondent-company got strained and the Managing Director started to humiliate the petitioner by various means. In the month of November 1982, the petitioner was informed that he should either resign from service or his services would be terminated. The petitioner did not resign from the service. The petitioner was directed to go to Madras, and the petitioner was also informed that they had proposals to appoint a new General Manager at the factory. Since the petitioner was shifted to work in the Head Office at Madras, he handed over the charge on November 18, 1982. When he came to Madras, he found that he was not given even a proper seat in the Head Office and even the transport facilities were denied to him. According to the petitioner, he was not given any assignment and no papers were circulated to him. The Managing Director of the Company suggested to the petitioner to go on leave for a period of three months and accepting the suggestion of the Managing Director, the petitioner went on leave for three months. The petitioner joined duty again and met the Managing Director who insisted that the petitioner should resign from the company and the petitioner was not obliging the Managing Director and went for reporting duty. The compliant of the petitioner is that he was not provided any chair and table and none of the Office people was willing to speak to him. He was in effect treated like unwelcome guest in his own office. After January 1984, the salary was not paid to him and he went to the Managing Director who informed that the same would be paid once a decision regarding his future was taken. On June 29, 1984, the petitioner received a registered letter terminating the services of the petitioner on the ground that he has been staying away from duty since January 15, 1984 without any prior permission or prior intimation to the management. It was also stated in the letter that the continued, long, and unauthorised absence amounted to abandonment of service on the petitioner's own accord and the management has lost confidence reposed in the petitioner. 2a. The petitioner filed an appeal before the first respondent, the Deputy Commissioner of Labour (Appeals ). The petitioner challenged the order before the first respondent on the ground that there was no communication from the second respondent that the petitioner was staying away from service on his own and the order of termination passed is against the provisions of Section 41 (2) of the Act. The case of the petitioner before the first respondent was that the order of termination was punitive in character and there was no enquiry before the order of termination was passed and further the order was stigmatic in character. The writ petitioner also raised an objection that the second respondent has no right to adduce fresh evidence before the authority and the charges levelled against the petitioner were not proved. The second respondent contended before the authority that the termination of the petitioner was in terms of the agreement and the termination was for a reasonable cause. According to the second respondent, the order of termination was not punitive in character and it is not a stigmatic order on the character of the writ petitioner. The second respondent contended before the authority that the termination was not for misconduct committed by the petitioner and hence, the question of conducting a prior enquiry before the termination of the petitioner from service did not arise at all. The second respondent examined two witnesses on their side and they were also cross-examined on behalf of the writ petitioner. The authority, after considering the evidence on record, found that the petitioner was absenting himself from duty from January 14, 1984 and there was no sanction order for the extended leave. The authority relied upon a decision reported in 1983 (1) LLN 387 and held that the unauthorised absence for over continuous spell of ten days would entitle the employer to terminate the services of the employee. The authority, therefore, concluded that the second respondent was legally correct in terminating the services of the petitioner by treating the case of voluntary abanomment by the writ petitioner himself. The authority, on the question whether there should be an enquiry prior to the termination of the writ petitioner on the ground that there was a 'loss of confidence', held that it was not necessary that the allegation of 'loss of confidence' should be proved by recording satisfactory evidence in the prior enquiry conducted for that purpose. The authority relied upon decisions in 1975-I-LLN page 159 and 1983-I-LLN page 387 and held that the there is no justification in setting aside the order of termination for the reason that no enquiry was conducted in this case before issuing the order of termination.

(3.) MR. K. Chandru, learned counsel for the petitioner submitted that the view of the authority that the allegation of 'loss of confidence' need not be proved by recording evidence in an enquiry conducted prior to the order of termination is illegal and is not sustainable in law. Learned counsel submitted that the order of termination stating that there was a long continuous and unauthorised absence by the petitioner which amounted to abandonment of his service and the statement in the order of termination that the management has lost confidence in the petitioner clearly show that the order cast a stigma on the petitioner and without a prior enquiry held under the provisions of the Act, the order of termination passed which is of a stigmatic character is not sustainable in law. He further contended that the view of the authority that there need not be a prior enquiry is also not correct in law. He relied upon a decision of this Court in Mngt. B. A. Pvt. Ltd. v. A. C. W's. Compensation II Mds. and Anr. (1988-I-LLJ-203) and also another decision of this Court in Spencer and Co. Ltd. Madras v. B. Vajravelu and Anr. (1990-I-LLJ-569) and a decision of a Division Bench of this Court in Rallis India Ltd. Mad. v. M. N. Rao and Anr. (1991-II-LLJ-505) (Mad ).