Sri Bharathi Mills (Unit of NTCTN and P) and Others vs N.S. Mohan

A.S. Anand, C.J.—This writ appeal is directed against the judgment of the learned single judge in W.P. No. 6056 of 1988 decided on

26.6.1991.

The respondent-writ petitioner had put in issue the order of termination of his services by the appellants herein. A number of pleas were raised

before the learned single judge in support of the writ petition. The learned single Judge, however, considered two basic aspects of the case and

allowed the writ petition. The first question considered by the learned single judge was with regard to the alleged violation of Rule 25 of the

Conduct, Discipline and Appeal Rules of the Corporation, and the second question was that since the employer, while imposing the penalty of

termination of service, had taken into account the objectionable past conduct of the employee without putting him to notice and without making the

objectionable past conduct as a part of the charge memo, the termination was bad.

Mr. Sanjay Mohan, learned Counsel for the appellants, submitted that the interpretation placed by the learned single Judge on Rule 25 (Supra)

is not correct. Learned Counsel submitted that the employer was entitled to take into account the past conduct, since the employee had been

perpetually negligent, before imposing the penalty.

It is not disputed by the learned Counsel for the appellants that the employee had not been put on notice about the intention of the employer to

take the past conduct into consideration. We have gone through the counter affidavit filed by the employer and we find that the past conduct of the

writ petitioner was taken into consideration, not for the purpose of determination of any mitigating or extenuating circumstance to impose the

punishment, but for imposing the extreme penalty itself. Since the past conduct or record of service has been taken as an act on the part of the

employee warranting the extreme penalty without the employee being put to notice, the learned single Judge was perfectly justified in holding that

the principles of natural justice had been violated by the impugned proceedings : The view of the learned single Judge on that aspect is

unexceptionable and is in accordance with the Judgment of a Division Bench of this Court in. Management of Madras Fertilisers Ltd. v. First Addl.

Labour Court (1990) 1 L.L.J. 298, and the view of the Supreme Court in Associated Cement Companies Ltd. Vs. T.C. Shrivastava and Others, .

A Bench of this Court had occasion to consider the aforesaid two judgments in Engine Valves Ltd. v. Labour Court, Madras and Anr. (1991)1

L.L.J. 372, and opined that where reference was made to the past record of service only with a view to find out whether there was any mitigating

or extenuating circumstance in favour of the employee, the desirability of putting the employee on notice need not be insisted upon. But where the

past conduct on record of service is taken as an act by itself to impose the punishment, that cannot be done without putting the employee to notice.

We are, therefore, in agreement with the learned single Judge that the impugned order stood vitiated on account of the violation of the principle, of

natural justice. Since, we are upholding the order of the learned Single Judge, on that ground, we refrain from expressing any opinion on f he

question of interpretation of Rule 25 (Supra), and leave that issue open to be interpreted and decided in an appropriate case at an appropriate

time.

Thus, for what we have said above the writ appeal fails and is dismissed.