BATA INDIA LTD Vs. LABOUR COURT ALLAHABAD

JUDGEMENT

(1.) THE award dated 26/7/1984 passed in Adjudication case no. 73 of 1981 is under challenge in the present writ petition. The said adjudication ariscs out of an industrial dispute raised by the respondent no. 3 Sri Jagat Pratap Singh on account of his termination from service by a letter dated 26/3/1980, filed as annexure-8 to the writ petition, under clause 27 of the Standing Order applicable to respondent no. 3. The said order of termination was grounded on the reasons thai because the respondent no. 3 absented very often, therefore, no useful purpose would be served by retaining the respondent no. 3 in the employment. The Labour court in its award dated 26/7/1984 had held that the punishment of termination was disproportionate and that the same is a major punishment within the meaning of clause 22 of the Standing Order, necessitating disciplinary proceeding.

(2.) SRI Tarun Agarwal, learned counsel for the petitioner contends that the services of respondent no. 3 was terminated under clause 27 of the Standing Order on account of the habit of respondent no. 3 of absenting himself very frequently. It was admitted case of the petitioner that before termination no inquiry was held. In the written statement, therefore, it was pleaded that the question can be decided on the basis of documents only and that the petitioner would be proving the same in the course of trial. According to Sri Tarun Agarwal, on production of adequate documents and oral evidence the fact of habitual absenteeism by the respondent no. 3, has been proved and the learned Labour Court had come to a finding that the respondent No. 3 was a habitual absentee. Therefore, according to him the learned labour Court ought not to have interfered with the order of termination. His primary contention was that the termination was not an order of dismissal or removal within the meaning of clause-22 of the Standing Order and it is simply an order of termination under clause 27 of the Standing Order. Alternatively he pleads that by reason of proving the fact that the petitioner is a habitual absentee the Labour Court having come to such a finding, the necessity of holding domestic inquiry has been fulfilled and absence of the domestic inquiry, in the facts and circumstances of the case, would not invalidate the order of termination.

(3.) SRI Rakesh Tewari, learned counsel appearing on behalf of respondent no. 3 contends that the order of termination is not an order of termination within the meaning of clause-27 of the Standing Order, since the said order does not give one month's notice nor the same pays one month's salary in lieu of the notice. According to him the order of termination is an order within the meaning of clause-22 of the standing Order and, therefore, can not be sustained without domestic inquiry. According to him in order to attract clause-22 of the Standing Order absence should amount to 'misconduct'. It is not a case of the respondent No. 3 that the respondent no. 3 was absent unauthorisedly. Referring to the fact he contends that nowhere it has been pleaded that the respondent no. 3 was unauthorisedly absent. Inasmuch as according to him all the leaves were subsequently sanctioned and he was declared on 'leave without pay'. Unless the absence is unauthorised the same does not form misconduct. His further contention was that absenteeism is minor miscond. ua for which warning is called for and unless there are three warnings absenteeism would not ripen to a misconduct within the meaning of clause-22 of the Standing Order. Referring to clause-27 Sri Tewari supports his contention that though it has been contended that two warnings were issued but none of these warnings were received by his client. That apart in order to attract clause-22 there must be three warnings. Even according to the petitioner's case, as contended by Sri Tewari there were only two warnings. His further contention was that by reason of sanctioning of leave even if there was any misconduct the same was condoned and could not have been re-opened.