The court ruled that the employee, despite managerial designations, was a 'workman' under the Industrial Disputes Act, 1947, and her termination was illegal due to lack of procedural compliance.

ORDER :

D.BHARATHA CHAKRAVARTHY, J.

The Writ Petitions:

These two Writ Petitions assail the award of the Labour Court dated 14.12.2020 made in O.P.No.6 of 2019, in as much the award partly allowed the claim petition and directed reinstatement of the employee – Latha Govindasamy with continuity of service with 50% of back wages and all other attendant benefits.

1.1. W.P.No.8523 of 2021 is filed by the Management - The Manager, Human Resources, Tata Consultancy Services, aggrieved by the portion which denied 50% of back wages. WP.No.34618 of 2022 is filed by the employee.

Factual Background:

2. The factual background in which these Writ Petitions arise are that the employee raised a dispute about the non employment before the Assistant Labour Commissioner – III - Conciliation, Kuralagam, Chennai and the conciliation did not yield any settlement and resulted in a failure report dated 28.01.2018. Thereafter, a claim petition was filed under Section 2 A (2) of the Industrial Disputes Act, 1947, which was taken on file as ID No.6 of 2019. 2.1. The case of the employee is that she joined the services of the management on 23.02.1975 and had put in services of about 23 years. At the time of the dispute, the employee was working as an Associate Consultant. While so, she fell ill due to giddiness and dehydration on 02.05.2017 and she informed the management about the same through an e-mail on 09.05.2017 and submitted her medical records to the Manager, Human Resources on 11.05.2017 and explained about her health conditions to the management. However, on 02.06.2017 it was communicated that she was dismissed from service. The impugned order holds that she is incompetent in her work. It is denied by the employee that she was ever incompetent and it is submitted that on the basis of the performance, she was promoted many times and only pursuant to the exercise of down sizing the organization, she was now dismissed. She therefore issued a legal notice on 23.06.2017 and raised a dispute and since the conciliation failed, the claim petition is filed.

2.2. It is her case that her work is in the nature of clerical and technical. Her non employment is without following the provisions of the Industrial Disputes Act, 1947. Therefore, she prayed for reinstatement with continuity of service, back wages and monetary benefits with further interest at the rate of 18% per annum.

2.3. It is the case of the management that the employee was appointed on 15.03.1995 as a ASA trainee. Thereafter, she was promoted as System Analyst on 25.04.1997. From time to time, further promotions were also given and last in the year 2006 she was granted promotion as Associate Consultant with effect from 01.01.2006 with a gross annualised compensation of Rs.9,37,006/-. The employee was working in the supervisory level and her key responsibility was effective deployment of the project performance, improvement initiatives.

2.4. Since 07.03.2015, the employee could not be allocated to any project, owing to her inability to upgrade the subject knowledge and requisite skill sets. She remained unallocated for 727 days from 07.03.2015 till the date of discharge from service. The employee did not make any efforts during the above said period to upgrade her skills, to enable herself to get allocation in the project. However, she was paid salary during the said period. While so the employee was absent from duty with effect from 02.05.2017. She was directed to report for duty but she failed to report for duty. She only visited the managements office at Llyods Road on 10.05.2017 and submitted the medical certificate and continued to remain absent without the approval of the authorised officials of the management. Therefore, the managemen