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2009 Supreme(Mad) 5881
IN THE HIGH COURT OF MADRAS
M.M. SUNDRESH, J
The Chief Signal And Telecommunication Engineer/Construction - Appellant
Versus
The Presiding Officer, Central Government Industrial Tribunal Cum Labour Court And M. Senthil Kumar - Respondent
Writ Petition No. 23983 of 2002
Decided on : 11-12-2009
Advocate Appeared:
For the Appellant : V.G. Suresh Kumar, adv
For the Respondent: K.M. Ramesh, adv
The main legal point established is that an employee cannot be terminated at the whims and fancies of the employer, and malafide exercise in termination is illegal.
Headnote:
Termination - Employment Dispute - Industrial Disputes Act - 25F, 25G, 25N - The appointment of the second respondent was challenged as temporary and contractual in nature, leading to termination. The court analyzed the appointment conditions, statutory rights, and malafide exercise, ultimately ruling in favor of the second respondent for reinstatement with back-wages and continuity of service.
Fact of the Case:
The second respondent was appointed as a lascar and later terminated, leading to a dispute. The court found strained relationship, malafide exercise, and failure to conduct an enquiry before termination.
Finding of the Court:
The court found that the appointment was not purely temporary and contractual, and the termination was illegal due to malafides. The second respondent was reinstated with back-wages and continuity of service.
Issues: The issues involved strained relationship, malafide exercise, and failure to conduct an enquiry before termination.
Ratio Decidendi: The court held that the appointment was not purely temporary and contractual, and the termination was illegal due to malafides. The failure to deny the allegations amounted to acceptance, and the second respondent's appointment entitled him to be considered for absorption.
Final Decision: The court ruled in favor of the second respondent, ordering reinstatement with back-wages and continuity of service.
M.M. Sundresh, J.
The writ petition has been filed challenging the order passed by the first respondent Tribunal passing an award in favour of the second respondent by setting aside the order of removal with reinstatement along with back-wages and continuity of service.
2. The brief facts of the case in a nutshell are as follows:
The second respondent was appointed as a lascar to the Chief Works Manager, Signal and Telecommunication at Podanur on 01.06.1996. His appointed was approved by the Chief Personnel Officer at Chennai by his letters dated 24.04.1996 and 30.05.1996. The said appointment has been made after examining the second respondent medically and thereafter he joined the duty on 01.06.1996.
The order of appointment indicates that the appointment will not confer any right on the second respondent towards claiming regular appointment, the services are liable to be terminated at any time without notice and the further absorption is subject to the terms and conditions stipulated in letters dated 04.06.1977 and 11.03.1987. A reading of the letter dated 04.06.1977 would show that if the service of a lascar is found to be unsatisfactory within three years, the same can be terminated as well as if the services are not required within three years the same can also terminated. A lascar will be eligible for regular absorption after three years of continuous service either in the open line or construction. If after the regular absorption they are not required in the Bungalow due to the transfer of officers concerned, the lascars also should be transferred as lascars only in the existing vacancies and they have to seek further avenue along with office peons as per the existing channel of promotion.
Further the subsequent letter dated 14.06.1987 states even a lascar who has completed one year of service may be considered for absorption in the regular service as office peon etc. If a lascar becomes surplus before the completion of one year, the question of considering his absorption in the regular service does not arise for consideration.
Along with the officer concerned with whom the second respondent was working, he was transferred to Chennai. While he was working in Chennai with effect from 27.02.1998 onwards he was asked to undergo a medical test. The medical officer also gave a fitness certificate on 18.03.1999. However due to the misunderstanding between the second respondent and the officer concerned, no work was given to the second respondent from 13.03.2000 onwards. The second respondent gave a representation to the Appellate Authority on 03.04.2000 and his father also gave another representation on 24.03.2000. In those representations, it has been stated that no work was allotted to the second respondent and a request for confirmation and transfer have been sought by him. However an order of termination was passed on 19.04.2000 stating that he has been terminated with effect from 18.04.2000 in view of the abolition of the post.
Challenging the same, the second respondent sought a reference before the Central Government Industrial Tribunal cum Labour Court and on reference the first respondent has set aside the order of termination and ordered the consequential benefits.
In the claim petition, the second respondent has contented that there was a strained relationship between the second respondent and his officer under whom he was working. Therefore in view of the said position, the second respondent was referred to the medical board and thereafter he was not allowed to attend the work. The officer concerned was bent upon inducting some other third party in the place of the second respondent. The second respondent and his father gave representations to the higher authorities but however instead of taking appropriate action on the complaint made by the second respondent an order of termination was passed against the second respondent.
A counter affidavit was filed stating that the appointment of the second respondent is temp
