AI Structured Summary
Not yet generated for this judgment
Judgment
A.H. Joshi, J.—This is a Writ Petition filed by the employer.
A dispute was referred for adjudication to Labour Court-II at Panaji, u/s 10 of Industrial Disputes Act.
The term of reference was as follows:
(1) Whether the action of the Management of M/s. Cidade-de-Goa, unit of M/s. Fomento Resorts & Hotels Limited, Dona Paula, Goa in terminating the services of their workman Shri Rohidas Naik, Carpenter, with effect from 16.04.2006, is legal and justified?
(2) If not, to what relief, the workman is entitled?"
According to the workman, it was a case of punitive action i.e. the dismissal, in disguise of termination simplicitor. The employer however, in reply, contended that it was a case of termination simplicitor keeping in terms of contract of service on account of poor performance and not a case of dismissal in disguise as alleged.
In the process of submission, learned Advocate for the Petitioners was directed to isolate the findings which have led to the adverse Order.
Learned Advocate, has in turn, brought to the notice of the Court, the following findings:
...In the instant case, on plain reading of the termination order on record (Exhibit-W/2) terminating the services of the Workman it appears that the services of the Workman were terminated on account of his unsatisfactory performance, however the oral as well as the documentary evidence on record clearly shows that the services of the Workman were terminated on account of poor performance as well as irregular attendance and unauthorized absenteeism of the Workman.
(Quoted from page No. 162 of Writ Petition Paper book)
...
Hence in view of the above discussions, I hold that the order of Termination of the Workman is illegal since it has been passed by a person who is not competent to sign the same. The said termination order also casts a stigma on the Workman and the same has been passed without following the principles of natural justice and hence it is illegal, unjustified and bad in law.
(Quoted from page No. 163 of Writ Petition Paper book)
In order to substantiate the challenge, it is urged that the Judgment and Award passed by the Labour Court is erroneous.
Learned Advocate for the Petitioners submitted that the employer had, in fact, condoned the lapses on the part of the workman on account of absence without leave and that said condonation was in turn pleaded in the written statement. He, therefore, relied upon contents of Para 7 of the written statement which reads as follows:
...
It is stated that as regards the attendance, the Workman habitually used to remain absent without obtaining leave of absence in breach of the Service Rules in force and used to apply for regularization of absence. The Workman used to furnish flimsy reasons such as personal work, urgent work, etc. for remaining absent. It is stated that the Company condoned the Workman''s misconduct of remaining absent without leave. It is therefore stated that there remained no misconduct of absence without leave for taking any disciplinary action against him.
(Quoted from page No. 40 & 41 of Writ Petition Paper book)
On scrutiny it is seen that the finding recorded by the Labour Court is simply based on version of witnesses brought before the Court by the employer itself which is relied upon by Labour Court.
This admitted part of statement of witnesses is relied in the Judgment/Award at internal page 17 at running page 161 of paper book. Relevant portion reads as follows:
The Employer in its Written Statement filed in the present proceedings stated that the termination of services of the Workman was on account of his poor performance. However, the first witness of the Employer namely Shri Prakash Pednekar, Deputy Chief Engineer, in his cross examination stated that the services of the Party-I had been terminated not only because of poor performance but also on the ground of irregular attendance of the Workman. The second witness of the Employer namely Smt. Zarine Lobo HR-Executive, in her cross examination stated that the termination of the services of the workman was on account of his poor performance as well as unauthorized absenteeism.
The Labour Court has then discussed the plea taken by the employer in the written statement and cross matched the evidence as follows : The party-II in its Written Statement filed in the present proceedings at Exhibit � 13 as well as in the termination order at Exhibit W/2 stated that the services of the Workman were terminated on account of his poor performance. However, oral as well the documentary evidence on record clearly shows that the termination of the services of the Workman by the Employer/Party-II was not only on the ground of poor performance but also on the ground of irregular attendance and unauthorized absenteeism of the Workman. The expression "poor performance and irregular attendance as well as unauthorized absenteeism" has two different meanings. Irregular attendance and unauthorized absenteeism is a misconduct under the Model Standing Order. It requires that the principles of natural justice should be followed while taking action for the same as it casts stigma on the services of the Workman. In the instant case the Employer has also produced the documents i.e. Attendance Records of the Workman for the preceding three years (Exhibit E/3-Colly) alleging that the Workman was irregular in attending his duties. However, the Employer has failed to issue any show cause notice or a chargesheet pertaining to his misconduct or irregular attendance or held an enquiry as prescribed by the law."
(Sub-paragraphing is done for convenience. Portion is quoted from page 161 of the paper book of the Writ Petition).
It is in the background of above quoted discussion the learned Labour Court found that the termination was thus on account of misconduct and was affected without following the principles of natural justice and hence declared the termination to be contrary to law and ordered reinstatement in services with full back wages.
The Award impugned is seen to be based on reasons and well found on record.
There is no error of law or jurisdiction crippling in. No interference is called for.
Petition is dismissed.