Termination without due process violates principles of natural justice; reinstatement not justified in absence of misconduct.

JUDGMENT :

M. K. THAKKER, J.

1. This petition is filed under Articles 226 and 227 of the Constitution of India, challenging the award passed by the learned Labour Court, Anand in Termination Application No.1 of 2010, whereby the petitioner– employer has been directed to reinstate the respondent without back wages. The aforesaid award has been confirmed by the learned Industrial Tribunal, Anand in Appeal No.9 of 2016, vide order dated 26.11.2019.

2. It is the case of the petitioner that the respondent was employed with the petitioner–Bank as a Clerk since 26.02.1992. On 01.08.2003, the respondent tendered his resignation, accepted all legal dues, and thereafter requested the Bank to appoint him on a temporary basis. Considering his request, the petitioner–Bank appointed him on a fixed-term basis with effect from 01.09.2003. According to the petitioner, the respondent was irregular in attending duties, frequently misbehaved with customers, and committed several mistakes while discharging his duties as a Clerk-cum-Cashier. Consequently, a warning memo was issued to him. However, as the respondent did not improve his conduct, his services came to be terminated on 22.12.2009, which was challenged by him before the learned Labour Court by filing Termination Application No.1 of 2010 under the BIR Act.

2.1 Since a departmental inquiry had been initiated prior to the termination order, the petitioner examined witnesses, namely Hashmukhbhai Jashubhai Patel, Laljibhai Fulabhai Patel, Rakeshbhai Ramanbhai Solanki, and Khodabhai Dahyabhai Parmar, who were customers of the petitioner–Bank. The learned Labour Court, after considering the evidence adduced by both sides, allowed the Reference and directed reinstatement of the respondent with continuity of service but without back wages. The said award was carried in appeal before the learned Industrial Tribunal by filing Appeal No.9 of 2016, which also came to be dismissed on the ground that the termination order was passed in violation of the principles of natural justice. Both these orders are the subject matter of challenge in the present petition.

3. Heard the learned advocate Mr.U.T.Mishra for the petitioner and the learned advocate Mr.Manan Bhatt for the respondent.

4. Learned advocate Mr. Mishra submitted that the respondent had tendered his resignation and accepted all terminal dues, including gratuity, leave encashment and provident fund. Thereafter, he was re-employed by the petitioner–Bank on a temporary basis, initially for a probation period of six months. It is submitted that after such reappointment, the respondent remained irregular in attending duties and was found to be casually handling calculations of customers’ accounts. Several mistakes committed by him were brought to the notice of the Manager, for which notices and warning memos were issued, calling upon him to improve his conduct and discharge duties diligently. It is submitted by the learned advocate Mr. Mishra despite affording sufÏcient opportunities, no improvement was noticed, and accordingly, a show cause notice dated 22.12.2009 came to be issued. The reply submitted by the respondent on 26.12.2009 was found unsatisfactory, and consequently, the order of termination came to be passed on 26.12.2009.

4.1. Learned advocate Mr. Mishra further submitted that the respondent was a temporary employee and, as per the specific condition in the appointment order, being on probation, his services were liable to be terminated without notice if found unsatisfactory. It is further submitted that the contention of the respondent regarding forcible resignation is baseless, inasmuch as, after voluntarily tendering resignation, he accepted all his dues and subsequently applied for reappointment on a temporary basis, which was duly considered by the Bank, and he continued in service from 2003 to 2009. Learned advocate Mr. Mishra submitted that the learned Labour Court committed an error in discarding the evidence adduced by the petitioner