An employer can terminate the services of a workman on the ground of his continued absence without leave or permission in terms of the Standing Orders without holding a domestic enquiry.

Satyeshwar Roy, J.

1. The petitioner-Company has challenged the validity of the order dated 3rd December, 1983 as contained in Annexure-11 in Reference Case No. 20 of 1981 by which respondent No. 1 held that the departmental proceeding initiated against the workman-respondent No. 2 was not fair and proper and Annexure-12, the award dated 28th January 1984 by which respondent No. 1 held that the order of discharge passed against respondent No. 2 was not justified and directed for his reinstatement. In the award, a direction was also given for payment of all back wages to him.

2. The workman at the relevant time was working as a Press Operator under the petitioner. He absented himself without any leave or permission with effect from 19th December, 1970. According to the petitioner, in view of his continued unauthorised absence, on 8th January, 1971 a charge sheet against the workman was drawn up and it was sent to his address at Jamshedpur as also his home address. The workman did not file any show cause and the departmental proceeding proceeded ex parte. The workman was found guilty of absence without permission or leave. By order dated 5th March, 1971 he was discharged.

3. On the 4th February, 1980 the workman for the first time wrote to the management that he had been arrested by the police on 19th December, 1970 in connection with a murder case and requested the management to allow him to join his duties. The company expressed regret, inter-alia, on the ground that the vacancy had been filled up and it was not possible to take back after nine years.

4. A dispute was raised by respondent No. 2 under the Industrial Disputes Act, 1947 (the Act) and the same was "referred for adjudication to respondent No. 1.

5. The petitioner filed an application for deciding the question of validity of domestic enquiry as a preliminary issue. By order dated 3rd December 1983 as contained in Annexure-11, it was held that the charge sheet had not been served on respondent No. 2 and the domestic enquiry was conducted without any notice to him. The domestic enquiry was held to be not fair and proper. Thereafter the parties led evidence before respondent No. 1 on this point. Respondent No. 1 did not believe the case of the management mat notice was served at the residence of the workman at Jamshedpur and was sent under certificate of posting to his home address. It held that respondent No. 2 had been discharged from service without holding any departmental enquiry and without giving any chance to him to defend himself. In view of this finding, it held that the discharge of respondent No. 2 was bad in law and directed for reinstatement with back wages as contained in Annexure-12.

6. The following facts are not in dispute. Respondent No. 2 never informed the management prior to 4th February, 1980 that he had been arrested in connection with a murder case on 19th December, 1970. He never applied for any leave. Although respondent No. 2 was released from jail as claimed by him on 15th December, 1977 on the ground that nothing was found against him by the Sessions Court, he did not report for duty. He was discharged from service on 5th March, 1971 after a valid departmental enquiry according to the management and without any valid enquiry according to respondent No. 2. He raised an industrial dispute in 1980 and the same was referred for adjudication on 13th May, 1981 to respondent No. 1. Respondent No. 1 has held that charge sheet was never served on respondent No. 2 and no notice of the departmental enquiry was served on him. Nothing could be shown on behalf of the petitioner that these findings could not have been arrived at on the basis of the evidence led by the parties before respondent No.1. We shall have, therefore, to proceed to dispose of the case by holding that respondent No. 2 was discharged from service without any charge sheet being served on him and without notice of any departmental enquiry.

7. It was submitted by Mr.Sinha on be