Non-compliance with Section 25F of the Industrial Disputes Act, 1947 renders a termination unjustified, and the employer must hold a formal enquiry for alleged misconduct.

SAMBUDDHA CHAKRABARTI, J.

1. The petitioner has challenged an Award, dated December 10, 2009, passed by the learned Judge, 5th Industrial Tribunal, West Bengal, in case no. VIII-15 of 2005. By the said Award, the Tribunal directed the respondent no. 3 herein to be reinstated in service with 50% back wages from April 14, 2003, i.e., the date of his absence till the date of reinstatement.

2. The respondent no. 3 was a sales representative and his service was terminated by a letter, dated August 11, 2003. He was also informed that his name had been struck off the rolls of the company. After sending a letter of protest, he raised an industrial dispute over the termination of service before the Labour Commissioner and ultimately the dispute was referred for adjudication to the Tribunal.

3. The case of the workman, the respondent no. 3, was that while working as a sales representative of the writ petitioner herein his service was transferred to different places. To attend the annual sales conference in Kolkata to be held from April 10, 2003 he proceeded to Kolkata but could not return to his place of work as he had suddenly fallen ill. He sent intimations to the company from time to time, the company by a letter dated June 16, 2003, threatened the workman to strike off his name from the rolls of the company. When he went to join the office in New Delhi he was not allowed to do so. Before leaving he sent intimation to the company. By a letter dated June 25, 2003, the management asked the workman to report to the Manager, Human Resources in Delhi on July 10, 2003. But the Manager refused to see him on that date. He was asked to report to Mr. Jain who told him to submit his resignation. Finally, by a letter dated August 11, 2003, the company terminated the service of the workman with immediate effect on the assumption that he was not interested to work and he had abandoned the job on his own.

4. In the written statement before the Tribunal the stand of the company was that the workman had absented himself from duty on April 11, 2003 onwards and did not show any reason for his absence. He did not apply for grant of leave in specific form and in spite of repeated requests in writing he did neither report for duty nor did he appear before the Medical Board of the company nor did he produce any medical paper to justify his long absence.

5. The learned Judge of the Tribunal after considering the both oral and documentary evidence held that the period of absence was not the ground for drawing a conclusion that the workman had abandoned his service. From the oral evidence it cannot be said that he deliberately stayed away from office. On the contrary, there was evidence to show that his absence was due to medical reasons and due to circumstances which was not in his control. The Tribunal was of the view that the management was not justified in drawing an inference that the workman had abandoned his job and held that the order of termination was bad for non-compliance of Section 25F of the Industrial Disputes Act, 1947 (the Act, for short). Ultimately, the Tribunal passed the direction as mentioned above.

6. This finding has been challenged by the petitioner on the ground that in the absence of the leave rules the Tribunal was not justified to decide whether the documents filed by the workman were sufficient or satisfactory to substantiate his absence. According to the petitioner, the Tribunal should have decided the justifiability of termination which was the issue before the Tribunal and the Tribunal failed to advert itself to the same. Consequently, the test applied by the Tribunal was a wrong one which is resulted in the wrong adjudication of the dispute.

7. A further grievance of the petitioner is that the Tribunal has proceeded on the basis that the action of the employer was not a disciplinary one and, therefore, Section 25F of the Act would apply. Termination by way of disciplinary action cannot co-exist with retrenchment.

8. The pet