E.M.E. Edwards St. George School v. Presiding Officer,Industrial Tribunal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04..08.2009PRESENTTHE HONOURABLE MR. JUSTICE S.NAGAMUTHUW.P.No.15147 of 1998E.M.E. Edwards St. George School,Campus- Staff Quarters 738/740, P.H.Road, Shenoy Nagar,Chennai – 600 030... PetitionerVs.1.The Presiding Officer,Industrial Tribunal,Chennai – 600 104.2.The Management of Air India,Rep. By its Manager,(Southern India)Chennai – 600 008. ... RespondentsPetition filed under Article 226 of the Constitution ofIndia, for issuance of a Writ of Certiorarified Mandamus, callingfor the records relating to the award dated 21.05.1997 passed bythe first respondent in I.D.No.20 of 1991 quash the same and directthe second respondent to reinstate the petitioner with continuityof service, full back wages and attendant benefits.For petitioner: Mr.V.Ajay KhoseFor R.1: Mr.N.G.R.Prasad For R.2: CourtORDERThe petitioner was appointed as Steno-typist in theCommercial Department of the 2nd respondent in its Bombay Office on18.05.1970 and her service was confirmed with effect from01.12.1970. She was transferred to Chennai on 22.03.1977. Accordingto her, after she joined duty at Chennai, the Officials at Chennaihave started giving troubles to her in her work. Since she was notpaid earned wages, she had to file a case under the Payment ofWages Act against the 2nd respondent. Again, she had to file anothercase before the City Civil Court, Chennai in respect of herseniority. Because of these cases, the situation was furtheraggregated, it is stated. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner further claims that because of theunbearable work conditions at Chennai, her health got spoiled andtherefore, she was forced to go on leave including medical leavefor various problems. Each and every time, whenever she went onleave, it was sanctioned as her request was supported by medicalcertificate. While so, the Financial Controller/Director Finance ofthe 2nd respondent issued a show cause notice on 07.08.1986 callingupon her to explain as to why her service should not be terminatedon the ground that she had availed leave for a number of days dueto prolonged and continuous ill-health. The petitioner submittedher explanation on 26.08.1986. Not satisfied with the same, byorder dated 19.09.1986, she was terminated from the service of the2nd respondent. Challenging the same, she claims that she preferredan appeal to the Managing Director. But, the same has not beendisposed of despite representations. Therefore, she raised anIndustrial Dispute before the Assistant Labour Commissioner(Central) and the Conciliation failed. On the basis of the failurereport to the Government of India, the dispute was referred to theIndustrial Tribunal, Tamil Nadu for adjudication. The dispute wastaken on file in I.D.No.29 of 1991 wherein, the petitioner filedher claim statement and the 2nd respondent filed a detailed counterstatement.3. Before the Industrial Tribunal, the petitioner examinedherself as WW1 and on the side of the 1st respondent management oneMr.Parthasarathy was examined as MW1. Totally 8 documents wereexhibited on the side of the management. Having considered thematerials available on record Industrial Tribunal, by award dated21.05.1997 dismissed the Industrial Dispute. Challenging the same,the petitioner has come forward with this writ petition. 4. Before the Industrial Tribunal, the following werecontentions of the petitioner:- (i) The Industrial Tribunal was inerror in holding that the termination wasonly a termination simplicitor and not adismissal or punitive action for anymisconduct. (ii) The order of terminationattaching stigma to the same and so the sameis liable to be set aside since no chargeframed and no opportunity to defend was givento defend the charges and thus the same is inviolation of the principles of naturaljustice.(iii) Under Section 2(oo) of theIndustrial Disputes Act, 1947 (hereinafterreferred to as “the Act”), the termination of https://hcservices.ecourts.gov.in/hcservices/ the petitioner amounts to retrenchment whichshould have been preceded by disciplinaryaction. In the case on hand, no suchdisciplinary proceedings were initiated andtherefore, the retrenchment is illegal. Thus,the petitioner is entitled for reinstatementin service with backwages as Section 25(f) ofthe Act was not followed.5.No counter has been filed by the 2nd respondent. However,the contention of the learned counsel for the 2nd respondent are asfollows:-(i) The order of termination imposed on thepetitioner is termination simplicitor and notdismissal as a punitive action for any misconduct.(ii) As per Regulation 48 of Air IndiaEmployees’ Service Regulations, the 2nd respondent isempowered to terminate any employee without assigningany reason by giving 30 days notice in writing or payin lieu of notice. It is in exercise of the said powerunder Regulation 48, having regard to the fact thatthe petitioner has fallen ill and so she could notattend office properly and as a result the work in theoffice could not be performed in time, the managementpassed the impugned order of termination.(iii) Since the impugned order of terminationis a termination simplicitor, there was no need toframe any charge and afford any opportunity to thepetitioner to defend the charges.(iv) Since the order of termination cannot bestated to be arbitrary , illegal or discriminatory, itcannot be found fault with in any manner.(v) In view of the proviso to Section 2 (oo)of the Act, termination of service of a workman on theground of continued ill-health cannot be termed asretrenchment. Thus, the order of termination in thiscase, would not amount retrenchment. Therefore, thequestion of following Section 25(f) of the Act wouldnot arise.6.I have heard both the learned counsel for thepetitioner/workman and the learned counsel for the 2ndrespondent/management and have also perused the records carefully.7.Admittedly, the petitioner was terminated from servicewith effect from 19.09.1986 and there was no charge memorandum orenquiry preceding the same. The said termination was on the ground https://hcservices.ecourts.gov.in/hcservices/ that the petitioner was in continuous ill health. Ex.M.5 revealsthat the petitioner was on medical leave between April 1977 andSeptember 1986 as detailed below.“April 1977 to March 197852April 1978 to March 197990April 1979 to March 198084April 1980 to March 1971125April 1981 to March 198266April 1982 to March 198325April 1983 to March 198493April 1984 to March 1985107April 1985 to September 1986Nil”8.It is not disputed in the claim statement of thepetitioner that the petitioner was not in good health during thesaid period. When it is an admitted case of the petitioner that shewas suffering from bad health and so, she had to go on medicalleave for such a long period. Admittedly, she attended Office onlyfor 556 days in a period of 9 years. On this ground, the Managementhas terminated her from service. 9.It is contended by the petitioner that since the saidtermination is not a termination simplicitor on medical ground butthe termination with stigma the same would fall within the scope of“retrenchment” as defined in Section 2(oo) of the IndustrialDisputes Act. To appreciate the said arguments, it is worthwhile toextract the relevant portion of the order of termination which isas follows:-“After taking all the factors intoconsideration it no more remains disputed thatyou have since 1981 had a very poor attendancerecord and that since April 1985 till date youhave not attended to your office duties at all,due to your prolonged and continuous ill-health.Accordingly, your services are being terminatedwith immediate effect.”10.The leaned counsel would submit that the reading of theabove would go to show that the termination is not only on theground of continuous bad health but also on the ground of absencefor a long period. The allegation that the petitioner was absentfor a long period, is a serious one attaching stigma to her and sothe order cannot be termed as an order of termination simplicitor. 11.The learned counsel for the first respondent wouldsubmit that the termination was not on the ground of long medicalleave but only on the ground of continuous ill-health. He wouldpoint out that the statement contained in the order about theabsence of the petitioner is only narration of events and that isnot the reason for termination. In my considered opinion, a reading https://hcservices.ecourts.gov.in/hcservices/ of the entire order of termination would go to show that there aretwo parts in it. First part is in respect of narration of herabsence due to prolonged and continuous ill-health. However, thesecond part relates to conclusion which would make it crystal clearthat the dismissal was only on prolonged and continuous ill-health.One cannot expect the management to simply state that thepetitioner was terminated from service due to prolonged andcontinuous ill-health without narrating the nature of the ill-health, the nature of the prolonged leave, etc. There is nothingwrong in narrating the same in the order. 12.The Hon’ble Supreme Court in Workmen of Bangalore W., O.& Silk Mills Co. v. Its Management (1962 (1) LLJ 213) has held asfollows:-“The discharge of the concerned workmenon grounds of health could not be considered byway of “retrenchment” as defined in S.2(oo) ofthe Industrial Disputes Act (Introduced byOrdinance 5 of 1953). The consent award must beread along with the dispute referred to inconnexion with which it had been made. Thatdispute concerned payment of bonus to workmen“discharged as being no longer required.” Iftherefore clearly contemplated workmen who weresurplus but who were otherwise fit and willing tocontinue in service if their services had beenneeded. Under the award the company agreed to paygratuity only to workmen who had been dischargedon the ground of that their services were nolonger required and not to any whose services hadbeen terminated for any other reasons. When aworker is discharged on the ground that he ismedically unfit, it cannot be said that they hadbeen discharged on the ground that their serviceswere no longer required; on the contrary, theywere not in a condition of health to continue inservice at all. Their physical conditionprevented them from rendering the service forwhich they had been employed. The reason fortheir discharge was that they could not renderthe services required of them and which under thecontracts of service they were bound to render.Their services cannot be said to have beenterminated on the ground that such services werenot required.”13.In the case on hand, though there are certain narrationsabout the continued absence of the petitioner, a comprehensivereading of the entire order would leave no doubt that the order oftermination is one of a termination simplicitor attaching nostigma. https://hcservices.ecourts.gov.in/hcservices/

14.Under Section 2(oo) of the Industrial Disputes Act,termination of service of the workman on the ground of continuedill-health does not amount to retrenchment. Therefore, Section 25-Fof the Act need not be followed. A perusal of Regulation 48 of theAir India Employees Service Regulation would reveal that the secondrespondent is empowered to terminate any employee without assigningany reason by giving 30 days notice in writing or pay in lieu ofnotice. But at the same, the said power cannot be exercised in anarbitrary manner. In the case on hand, it cannot be said that theorder of termination is arbitrary in any manner. The very fact thatthe petitioner had attended office only for 557 days in 9 yearsperiod would clearly go to establish that the petitioner was havingbad health and so, she was not able to discharge her duties. It isnot as though the management took a hasty decision to terminate thepetitioner. As a matter of fact, though the petitioner attendedoffice only for 52 days during the year 1977 and 1978, themanagement did not take any action against her. It appears that themanagement granted medical leave and also rendered medical help tothe petitioner. During the year 1978-1979, the petitioner attendedonly 90 days even then, the management did not take any action toterminate the petitioner or even issued any charge memorandum.Likewise, every year till 1986, the petitioner attended the officeonly for a lesser number of days. It could be noticed that during1982, she attended the office only for 25 days. Having waited forabout 9 years and having analysed everything about the health ofthe petitioner, the management has taken the action to terminateher from service by invoking the power under Regulation 48. Itcannot be stated to be either arbitrary or unreasonable. 15.The learned counsel for the petitioner has cited numberof judgments to substantiate that the order of termination withouta charge memorandum is illegal and therefore, the same is liable tobe set aside. I don’t want to burden this judgment by quoting allthose judgments relied on by the learned counsel for the petitionersince, on facts, I agree with the findings of the IndustrialTribunal, Tamil Nadu, Chennai that the order of termination is onlya termination simplicitor and the same does not carry any stigma.If once such a factual finding is arrived, there can be nodifficulty to hold that the order of termination is sustainableunder law though the same is not preceded by a charge memo andenquiry.16.In respect of the opportunity to be given to ascertainthe health of the petitioner, I would like to refer to the judgmentin Municipal Corporation v. P.S.Malavenkar (1978 (2) LLJ 168)wherein, the Hon’ble Supreme Court has taken the view that evenassuming that the order of termination is punitive, it cannot bestruck down because the management availed opportunity open to itbefore the Labour Court to let in evidence justifying the actiontaken by the management. Further, in paragraph No.8, the Hon’bleSupreme Court has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ “8.But even if the view were taken thatthe impugned order of termination of service ofthe respondent was punitive in character andcould not have been passed save and except as aresult of a disciplinary inquiry held under cl.(2) of Standing Order 21 read with StandingOrder 23 the impugned order cannot be struckdown as invalid on the ground of non-compliancewith the requirement of these Standing Orders,since the appellant availed of the opportunityopen to it before the Labour Court and adducedsufficient evidence justifying the action takenby the management. The appellate producedsatisfactory evidence to show that the impugnedorder terminating the services of the respondentwas justified and hence the impugned order mustbe sustained despite its having been passedwithout complying with the requirements of cl.(w2) of Standing Order 21 read with StandingOrder 23. We are fortified in this view by acatena of decisions of this Court where it hasbeen consistently held that no distinction canbe made between cases where the domestic enquiryis invalid or defective and those where noenquiry has in fact been held as required by therelevant standing orders and in either case itis open to the employer to justify his actionbefore the Labour Tribunal by adducing allrelevant evidence before it.....”17.The learned counsel for the petitioner relies on thejudgment of a Constitution Bench of the Hon'ble Supreme Court inT.N.Cements Corporation Ltd., v. N.Pandurangan (2006(1) LLN 964)wherein, it has been held that though it is within the powers ofthe Corporation, as per the regulation to terminate an employeewithout enquiry still reasonable notice or pay in lieu thereofshould be issued.18.Relying on the said judgment, the learned counsel wouldsubmit that since no reasonable opportunity was given to thepetitioner in this case, the termination order is illegal. But, Iam unable to persuade myself to accept the said argument of thelearned counsel for the petitioner. In the case on hand, theRegulation 48 empowers the management to dismiss any employee fromservice without assigning any reason. As I have already held, suchpower could not be exercised in an arbitrary manner and that is thereason why the Hon’ble Supreme Court has held that a reasonablenotice must be given to the workman. In the case on hand, thetermination cannot be stated to be arbitrary because, from therecords, it could be seen that the management had waited for 9years for her to improve her health to attend the office regularly. https://hcservices.ecourts.gov.in/hcservices/ Since there was no marked improvement in the health of thepetitioner and since she was not able to discharge her duties, thesaid power under Regulation 48 was used and so, she was terminated,in which, I do not find any arbitrariness or unreasonableness. 19.In the case on hand, before the Industrial Tribunal, theparties were allowed to let in sufficient evidence to substantiatetheir stands taken. The Industrial Tribunal has considered theentire evidence and has come to the conclusion that the terminationis justifiable. The power of this Court under Article 226 of theConstitution of India is very limited inasmuch as this Court cannotre-appreciate the entire evidence to come to a different conclusionthen that of the conclusion arrived at by the Industrial Tribunalso as to substitute the same in the place of the conclusion arrivedat by the Industrial Tribunal. Having gone through the entireevidence and other materials placed before me, I do not find anyperversity in the finding of the Industrial Tribunal on the factualaspects also. For the foregoing reasons, I find no reason tointerfere with the order of the Industrial Tribunal. 20.In the result, the writ petition fails and accordingly,the same is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarkmk/jbmTo1.The Presiding Officer,Industrial Tribunal,Chennai – 600 104.2.The Management of Air India,Rep. By its Manager,(Southern India)Chennai – 600 008.1 cc To Mr.V.Ajaykhose, Advocate, SR.35548.1 cc To Mr.N.G.R. Prasad, Advocate, SR.35474.W.P.No.15147 of 1998 KGK(CO)RVL 20.08.2009