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2000 Supreme(Cal) 651
High Court Of Calcutta
BHASKAR BHATTACHARYA
GOURANGA ACHARJEE - Appellant
Versus
THIRD INDUSTRIAL TRIBUNAL, WEST BENGAL - Respondent
C. O. 9155 (W) Of 1996
Decided On : 12/21/2000
An employer cannot terminate an employee's service under a standing order provision that grants absolute right to the employer to do so without considering the employee's explanation for overstaying the leave and without following the principles of natural justice.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 10 - RULE 9-C OF THE STANDING ORDER - TERMINATION OF SERVICE FOR OVERSTAYING LEAVE - DISCRETION OF EMPLOYER - PRINCIPLES OF NATURAL JUSTICE - MEDICAL CERTIFICATE FROM NON-EMPANELLED DOCTOR - CONSIDERATION OF PAST ABSENCE - APPLICABILITY OF USELESS FORMALITY THEORY.
Fact of the Case:
The employee, who was absent from work for more than 10 days without information, was issued a show-cause notice by the employer and subsequently removed from the list of permanent workers as per Rule 9-C of the Standing Order. The employee challenged the termination of his service by filing a writ petition.
Finding of the Court:
The court held that the employer was not justified in terminating the employee's service under Rule 9-C of the Standing Order since the employee had produced a medical certificate from a non-empanelled doctor to explain his absence and the employer had not considered the same. The court also held that the employer could not take into consideration the employee's past absence for the purpose of invoking Rule 9-C.
Issues: Whether the employer was justified in terminating the employee's service under Rule 9-C of the Standing Order.
Ratio Decidendi: The court held that the employer was not justified in terminating the employee's service under Rule 9-C of the Standing Order since the employee had produced a medical certificate from a non-empanelled doctor to explain his absence and the employer had not considered the same. The court also held that the employer could not take into consideration the employee's past absence for the purpose of invoking Rule 9-C.
Final Decision: The court allowed the writ petition and set aside the award of the Industrial Tribunal. The court also directed the employer to reinstate the employee with full back wages from the date of termination till his superannuation.
( 1 ) IN this writ application, the writ petitioner, an employee, has challenged an award dated November 27, 1995 passed by the 3rd Industrial Tribunal, West Bengal in Case no. VIII-294/88 thereby answering the reference in favour of the employer.
( 2 ) THE following disputes were referred to the Tribunal under Section 10 of the industrial Disputes Act (Act):"1. Whether the termination of service of sri Gouranga Acharjee is justified? 2. To what relief if any is he entitled ?"
( 3 ) THE petitioner was a permanent employee of the private respondent. There is no dispute that the petitioner was absenting from work since March 19, 1987 without information and submitted a medical certificate issued by one Dr. P. N. Mukherjee along with an application stating that due to his sickness he could not resume his duty and inform the employer earlier. On that day viz. April 9, 1987 he was not permitted to join and subsequently a letter dated April 18, 1987 was served upon the petitioner thereby asking him to explain why he should not be discharged from companys service for his absence without information for more than 10 days. It may be mentioned here that April 8, 1987 was the weekly holiday.
( 4 ) THE petitioner answered the said show cause and stated that due to his illness he could not attend office and on April 9, 1987 he intended to join along with a medical certificate praying for condonation of the absence but he was not permitted to join.
( 5 ) BY order dated May 25, 1987 the employer refused to take into consideration the medical certificate issued by a Doctor, who was not the E. S. I, panelled Doctor. Accordingly, the employer concluded that the name of the petitioner should be removed from the list of permanent worker as per Rule 9-C, 1st part of the Companys Standing Order and the petitioner lost lien on the appointment. Under the aforesaid circumstances, the dispute mentioned above was referred to the Tribunal for adjudication.
( 6 ) AT the time of hearing, the petitioner himself deposed in support of his claim while a Junior Supervisor of the Company figured as the witness for the employer.
( 7 ) ULTIMATELY, the learned Tribunal by the award impugned herein has held that the action taken by the Company in terms of provision of rule 9-C of the Standing Order (1st part) by removing his name in the list of permanent worker on losing lien on employment and keeping his name as badli worker was justified. Being dissatisfied, the employee has come up with the instant writ application.
( 8 ) MR. Mukherjee, the learned counsel appearing on behalf of the petitioner has firstly contended that the Tribunal below in passing the award impugned did not take into consideration the real question whether Rule 9-C of the Standing Order (1st. part) is applicable to the fact of the present case or whether the Company was entitled to invoke the same.
( 9 ) MR. Mukherjee further submits that the tribunal did not take into consideration the fact that the medical certificate produced by the petitioner from a non-ESI panelled Doctor cannot be rejected. Mr. Mukherjee lastly submits that the Tribunal could not take into consideration the past conduct of the petitioner while deciding the disputes referred to it.
( 10 ) MR. Ganguly, the learned senior counsel appearing on behalf of the employer has on the other hand supported the award impugned and has contended that the employer was quite justified in refusing to take into consideration medical certificate issued by a non-Empanelled ESI Doctor as the benefit of e. S. I. Act is available to the petitioner. Mr. Ganguly further contends that the past conduct of the petitioner shows that he was not at all interested in the service of the Company and as such the Company rightly invoked Rule 9-C of the Standing Order (1 st part ). According to Mr. Ganguly, the parties are bound by the Standing order of the Company and as such there is no illegality in the award impugned.
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