D SEERALAN Vs. FACIT ASIA LID

JUDGEMENT

(1.) THE appellant was entertained into the services of the first respondent on January 21, 1974 and he was put in charge of packing and forwarding the products of the first respondent. It is stated that his services were upgraded as Supervisor in 1976. But the fact has emerged - and that has found acceptance at the hands of the Additional Labour Court, Madras, hereinafter referred to as the Labour Court, which adjudicated the industrial dispute between the appellant and the first responded and the learned single judge who dealt with the writ petition direct against the award of the Labour Court - that the appellant was a workman within the meaning of the Industrial Disputes Act, 1947, hereinafter referred to as the Act. On July 29, 1977 the appellant was visited with a letter of termination from service. THE body of the communication ran as follows.

(2.) WHETHER the termination of services of the petitioner for alleged loss of confidence was not bona fide and whether it was only a cloak for dismissal for misconduct of theft " The Labour Court answered point No. 1 holding that the appellant was doing only clerical and manual work and therefore he was a workman within the meaning of the Industrial Disputes Act, 1947. On point No. 2 the Labour Court opined that the termination of the services of the appellant was the result of loss of confidence on the part of the first respondent and that it is not a cloak for dismissal for misconduct of theft. As a result, the Labour Court Passed an award dismissing the reference holding that the non-employment of the appellant was justified. The appellant preferred W.P. No. 3513 of 1979 to this Court, challenging the award of the Labour Court. The learned single, Judge who heard and disposed of that writ petition found no warrant for interference and as a result, the writ petition was dismissed. That is how the appellant is now before us by way of this writ appeal directed against the order of the learned single judge. 2. Mr. M. G. R. Prasad, learned counsel for the appellant, would submit that though the order of termination of services of the appellant by the first respondent was apparently innocuous, , yet it was nothing short of a punitive action and this was made clear by the elaborate stand expressed by the first respondent both before the Labour Court and before the learned single Judge. That the first respondent justified the termination of services of the appellant on the ground that the appellant was responsible for the unauthorised removal and disposal of the products of the first respondent is quite clear, when we advert to the stand expressed by the first respondent before the Labour Court as well as in the writ petition. Paragraphs 5 to 7 of the counter-statement of the first respondent before the Labour Court are relevant and they run as follows

(3.) BEFORE the learned single Judge, the first respondent did not pursue the line of defence taken before the Labour Court that the appellant was not a workman, and hence that question stands concluded. If the appellant was a workman, the Standing Orders having statutory force alone should given, and no term of appointment could prevail over the Standing Order. This position is not being disputed before us. With regard to the powers of the first respondent to take punitive action, there are Standing Orders - Clause No. 31, which governs such actions, and admittedly that was not adhered to. The only justification put forth for the action taken by the first respondent against the appellant was loss of confidence, which allegation, we find could only be in the punitive sphere. The Standing Orders as such do not specifically contemplate taking of any action on the ground of loss of confidence. The only Standing order which could have relevance in this context is clause 26 and it speaks about termination of services on reasonable cause. It is not the case of the first respondent that the action taken by it against the appellant was under clause 26 of the Standing Orders. Assuming that clause 26 of the Standing Orders could be invoked, we find that it contemplates termination of services of any permanent workman on reasonable cause by one month's notice in writing or by payment of one month's wages in lieu thereof. It further says that the reasons for the termination of the services shall be recorded in writing and shall be communicated to the workman at the time of discharge. Admittedly, these things did not take place in the instant case. Here the action taken by the first respondent against the appellant cannot fit into this clause 26 of the Standing Orders. This obliges us to hold that punitive action has been resorted to by the first respondent against the appellant without adhering to the relevant Standing Order, namely, Clause 31 for taking disciplinary action for misconduct and hence on this ground the action taken by the first respondent will have to be frowned upon.