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Judgment
K. Chandru
The Writ Petition is filed by the petitioner management, which is a courier company seeking to challenge an award passed by the 2nd
respondent Labour Court made in I.D. No. 484 of 1997 dated 31.7.2006. By the impugned award, the Labour Court directed reinstatement of
the 1st respondent in service with backwages, continuity of service and other attendant benefits. The Writ Petition was admitted on 20.1.2007.
Pending the Writ Petition, interim stay was granted.
It is seen from the records that the workman was employed as a Temporary Field Staff by the petitioner on 1.8.1990 at the regional office. His
service was confirmed on 22.5.1995 in the post of Supervisor-Operations. However, by an order dated 24.10.1996, he was terminated from
service without assigning any reason and he was offered the payment of one month pay in lieu of notice.
The case of the workman is that workman was transferred to Dindigul for a short period. Subsequently, on 9.4.1996, he was asked to work at
Egmore Branch and was designated as Branch Manager. He was subsequently transferred to Tiruppur Branch on 14.4.1996. Though the
workman was directed to join duty on 18.9.1996 at Tiruppur branch, due to personal inconvenience, he applied for casual leave for a period of 10
days from 18.9.1996 to 27.9.1996. This leave was sanctioned by the petitioner management. After the leave period, he joined at Tirupur Branch.
But he got a telephonic message from his house to rush to Chennai on 10.10.1996. He left for Chennai and found that his wife was suffering from
severe jaundice. As he had to look after her, he had applied for leave for 10 days from 14.10.1996 to 25.10.1996 and during the leave period, he
also telephoned the office regarding his absence. However, he was asked to come to the regional office and when he went to the regional office, he
was given the order of termination. Subsequently, he raised an industrial dispute before the Labour Officer on 7.2.1997.
The labour Officer after holding conciliation meeting between the parties, as he could not bring about mediation, gave a failure report. On the
strength of the failure report, he filed a claim statement dated ''nil'' (July 1997). The said dispute was registered by the 2nd respondent Labour
Court as I.D. No. 484 of 1994. Notice was issued to the petitioner management.
The petitioner management filed a counter statement dated ''nil'' (January 1999). The stand taken by the management was that the workman had
abandoned his work and termination was by way of penalty and hence it cannot be contended that it was a retrenchment. They also took a stand
that he was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act as he was employed in a capacity of supervisor. He
was incharge of supervising the accounts and was drawing a salary of Rs. 1945/-. Since the workman had absented himself for more than a month,
his termination was necessitated.
Before the Labour Court, the workman examined himself as W.W. 1 and on his side, 13 documents were filed and marked as Ex.W. 1 to W.
On the side of the petitioner management, one Ravi Kumar was examined as M.W. 1 and on their side, 13 documents were filed and marked
as Ex.M.1 to Ex.M.13.
The Labour Court held that it is not a nomenclature which determines the status of the workman, but the real duties attached to the post alone
will decide as to whether a person is a workman or not. The Labour Court after referring to Ex.W.5 held that the nature of duties is of a clerical
nature. This was fortified by the oral evidence of the workman. Therefore, considering these materials, the Labour Court found that the 1st
respondent workman comes within the meaning of Section 2(s) of the Industrial Disputes Act. For the abandonment of the employment, the court
found that there was no enquiry for terminating the service of the workman. No reason was given in the order of termination of service of the
workman. Hence, even for this termination, which comes within the meaning of Section 2(oo) of the I.D. Act, the condition precedent provided u/s
25F of the I.D. Act was violated. Hence, the workman is entitled to the relief as stated above.
The petitioner company is a courier service. Inasmuch as it is a commercial establishment coming within the purview of the Tamil Nadu Shops
and Establishments Act, 1975 and inasmuch as the workman has completed more than 6 months of service, then as per Section 41 of the Tamil
Nadu Shops and Establishments Act, the employer can dispense him with service only for reasonable cause and after giving one month notice or
wages in lieu of notice. It is also stated that such notice is not necessary where the services of such person are dispensed with on a charge of
misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose.
In the present case, Ex.W. 10 offering one month pay in lieu of notice, does not assign any reason. Though for the first time in the counter
statement such a stand was taken, no attempt was made to prove the same before the Labour Court. Though the petitioner management wanted to
contend that the termination was by way of penalty, they ought to have satisfied the Labour Court by leading evidence to prove the misconduct
committed by the workman. They were confident of establishing that he was not a workman within the meaning of Section 2(s) of the Industrial
Disputes Act and therefore did not take any pleadable evidence on the so-called punishment imposed to the workman. Since the finding of the
Labour Court was that he was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, this Court is not inclined to interfere
with such finding of fact. The only question to be decided is whether it was a case of punishment. The management is not able to show any contract
between the parties that in case of absence for a specified period of days, the service can be terminated, even in which case the unauthorised
absence is a misconduct for which they ought to have conducted an enquiry and if not, should have lead any evidence before the Labour Court
after getting permission from the Labour Court for doing so. In the absence of the same, this Court do not find that any case is made out to
interfere with the impugned award. Hence, the writ petition stands dismissed. No costs. The connected Miscellaneous Petition is closed.