1. We have heard the learned counsel Mr Rutul Desai holding brief of Mr P G Desai, learned counsel appearing for the appellant and Mr A K Clerk, learned counsel for the respondent.
Being aggrieved and dissatisfied with the order dated 25.7.2007 passed by the learned Single Judge in Special Civil Application No.423 of 2001, the appellant has preferred this appeal under clause 15 of the Letters Patent on the grounds stated in the memo of Appeal.
2. The brief facts of the present appeal are that the appellant is Surat Municipal Corporation duly constituted under the provisions of the Bombay Provincial Municipal Corporations Act, 1949. As per Resolution No.46 dated 11.5.1992, the respondent was appointed as a trainee and was serving as Primary Health Worker (Male) from 23.3.1994. It was specifically mentioned in the said Resolution that the training period of the respondent would be of one year and within one year if the work of the respondent was not found satisfactory, then the same may be extended for further six months and thereafter during the extended period also if the work of the respondent was not found satisfactory, the appellant Corporation can terminate the services of the respondent without issuing any notice. The service of the respondent was terminated on 8.11.1995 as the respondent has remained absent unauthorisedly. The respondent had filed Reference (LCS) No.783 of 1997 before the Presiding Officer, Labour Court, Surat seeking the relief to reinstate him to his original post with full back wages. It is contended by the respondent that since he was arrested in one criminal offence and as he was in judicial custody, it was not possible for him to attend his duty and so he remained absent from duty.
3. Before the Labour Court, on behalf of the appellant Corporation it was contended that the respondent was a trainee and therefore, no notice was required to be issued before terminating his service. However, the appellant Corporation had issued show cause notice to the respondent but the same had not been accepted by the respondent and had refused the said notice. After hearing the parties, the Labour Court, by its judgment and award dated 18.5.2000 was pleased to partly allow the Reference (LCS) No.783 of 1997 filed by the respondent and the learned Presiding Officer had directed the appellant Corporation to reinstate the respondent to his original post with continuity of service without paying any back wages. Being aggrieved and dissatisfied with the judgment and award of the Labour Court, the appellant herein preferred Special Civil Application No.423 of 2001. The learned Single Judge has disposed of the said Special Civil Application by order dated 25.7.2007 with a direction that the workman should be reinstated in service but without any back wages and without continuity of service. It is this order under challenge by the appellants before this court.
4. The learned counsel for the appellants has submitted that the learned Presiding Officer and the Learned Single Judge ought to have considered that the respondent is not a permanent employee of the Corporation and in case of trainee, no lengthy procedure was required to be followed more particularly when there was clear lapse on the part of the respondent that too during the fixed training period. He has, then submitted that before terminating the services of the respondent, the appellant had already issued show cause notice to the respondent which was returned with the postal endorsement "refused" and, therefore, it cannot be said that the appellant Corporation had not given any opportunity to the respondent as has been observed by the learned Presiding Officer and the learned Single Judge.
5. The learned counsel Mr A K Clerk appearing for the respondent has vehemently submitted that before terminating the services of the respondent, no opportunity of hearing was given to the respondent nor was there any departmental inquiry held against the respondent for which the alleged misconduct against the respondent for remaining absent without leave. He has, then submitted that the Presiding Officer of the Labour Court has rightly observed that the respondent was not paid one month's notice pay in accordance with the Standing Orders and, therefore, there is violation of Section 25-F of the Industrial Disputes Act, 1947. He has also submitted that the respondent was involved in a criminal case and due to the circumstances beyond his control, he had remained absent from duty and hence the same cannot be treated as unsatisfactory work or misconduct.
6. We have considered the above referred submissions made by the learned counsel for the parties in light of the documentary evidence forthcoming on the record and proceedings of this appeal. It is important to note that as per Resolution No.46 dated 11.5.1992, the respondent was appointed as Trainee. As per the approved conditions of the said Resolution No.46, the training period would be of one year and within one year if the training work of the respondent was not found satisfactory then the period of training may be extended and in spite of that if the work of the respondent is not found satisfactory then the appellant Corporation may terminate the service of the respondent. During the training period, the respondent being paid a fixed amount of Rs.1000/- per month towards work charges. Moreover, after the completion of satisfactory training period, the services of the respondent shall be counted from the day on which he was appointed and this training period shall not be counted for the purpose of service period or for any other purposes. Learned counsel for the appellant has submitted that the Presiding Officer of the Labour Court as well as the learned Single Judge appears to have not taken into consideration the above referred resolution No.46 and the approved conditions of the said Resolution dated 11.5.1992 which is part and parcel of the appointment order of the respondent dated 22.3.1994 at Annexure 'A'.
7. We have perused the impugned award dated 18.5.2000 passed in Reference (LCS) No.783/97 and the order dated 25.7.2007 of the learned Single Judge passed in Special Civil Application No.423 of 2001. The learned Presiding Officer of the Labour Court has mainly observed that before dismissing the present respondent from service, no opportunity was given to the respondent nor was there any departmental inquiry held against him and was not paid one month's notice pay in accordance with the Standing Orders and hence there is violation of Section 25-F of the Industrial Disputes Act, 1947 (for short, 'the Act') and so the termination of service of the present respondent is illegal. Learned counsel for the appellant has then submitted that the learned Single Judge has placed reliance on the list of events and accordingly observed that the respondent was terminated from service because he was involved in some criminal case and it is not in dispute before him that the respondent workman was acquitted of the said criminal case. The learned Single Judge has observed that right from 20.4.1995 to 29.9.1995, the appellant Corporation was issuing notices to the workman to show cause or explain as to why he was on leave and further observed that this certainly would show frame of the mind of the authorities of the Corporation. It is relevant to note at this juncture that in the award and the affidavit-in-reply of the respondent dated 17.9.2000 it has come on record that the police had arrested the respondent and sent him to judicial custody and the respondent was acquitted of the charges by the criminal court by order dated 24.7.1996. The said acquittal order had been produced by the respondent before the Presiding Officer, Labour Court but no further details were forthcoming on the record either in the award or in the records and proceedings of this appeal like date of registration of the criminal case and its number, date, time and place of offence, name of the complainant, name of the witnesses, date of arrest of the respondent/accused, the date of filing of Criminal Misc. Application by the respondent/accused for his release on bail if at all filed, or what period he remained in judicial custody etc. Moreover, the acquittal was by way of benefit of doubt or clear acquittal and whether thereafter any appeal had been filed against the said acquittal order before higher forum or not is also not forthcoming on record. Thus, it appears that while discharging their official duty right from 20.4.1995 to 29.9.1995 the appellant Corporation had been issuing notices to the respondent regarding his unintimated and unauthorised absence but we do not find any ill-motive in the said action of the appellant as has been observed by the learned Single Judge that it shows frame of the mind of the authorities of the appellant Corporation.
8. The learned Single Jude has also observed in para 8 of the order that in case of a trainee when it is found that his training was not going on satisfactorily, then such trainee is required to be informed of his shortcomings and the defects so that he can improve and he can have a self-introspection. The learned Single Judge has also observed that in absence of such a communication to the respondent workman, he was unable to hold that the period of training was extended because the first part of the training was not satisfactorily completed. Learned counsel for the appellant argues that to inform regarding the shortcomings and defects, presence of the respondent was required and in the present case the respondent had not completed his training period of one year and the said information by Registered Post with A.D. was issued to the respondent by the appellant but the same was refused by the respondent and this fact had not been considered by the learned Single Judge. We have gone through the record and we find ourselves in agreement with the above referred submissions made by the learned counsel for the appellant and in our view, the learned Single Judge has not properly appreciated the above facts of the case and erred in observing that the shortcomings and defects had not been communicated by the appellant to the respondent.
9. Learned counsel for the appellant has then submitted that it is relevant to note that the respondent was appointed by order dated 22.3.1994 as Trainee for one year and the respondent had joined duty from 25.3.1994 and remained absent unauthorisedly since 4.2.1995 i.e. prior to the completion of the period of one year and on 20.4.1995, the appellant Corporation had issued memo to the respondent which was returned back and so again on 25.5.1995 memo was issued and the same was returned with an endorsement "refused". Learned counsel for the appellant has further submitted that regarding the second memo dated 25.5.1995 which had been returned with the postal endorsement "refused" neither the Presiding Officer, Labour Court had taken any cognizance nor any cognizance was taken by the learned Single Judge though the said question/fact has not at all been challenged by the respondent and for that we will go into the facts on the record chronologically as under:
(i) Annexure 'A' is the undated copy of the written statement filed by the first litigant i.e. Surat Maha Nagarpalika in which in Para 4 it is specifically stated at the initial point of time that the postal article No.1008 dated 25.5.95 was sent by Registered Post A.D. was returned with the postal endorsement "refused".
(ii) The award dated 18.5.2000 is at pages 31 to 38. On page No.33 it is observed by the learned Presiding Officer, Labour Court that number of times, the covers forwarded to second party litigant i.e. the respondent had returned but it appears to us that no cognizance had been taken by the Labour Court to observe that the same was returned with the postal endorsement "refused" as mentioned in the written statement by the first party litigant i.e. the appellant or not. It is important to note that it has also not been observed by the Presiding Officer in the said award that the say of the first litigant i.e. the present appellant in its written statement relating to postal cover returned with postal endorsement "refused" is incorrect.
(iii) In para 3 of the Special Civil Application No.423 of 2001 it is averred by the petitioner/appellant that the Corporation had also issued notice to the respondent but the same had not been accepted by the respondent and the respondent himself had refused to accept the said notice.
(iv) Pages 39 to 44 is the affidavit-in-reply dated 17.9.2000 of the respondent and further affidavit dated 20.11.2005 of the respondent is at pages No. 50 and 51. We have perused both the affidavits of the respondent and so far as the above narrated facts at point No.(iii) relating to postal article returned with the postal endorsement "refused" had not been denied by the respondent or the respondent had not uttered a single word relating to it.
(v) Para 12 at page No.5 of this Letters Patent Appeal reads as under:
"Because the learned single Judge ought to have considered that on 20.4.1995 the Appellant-Corporation had issued the Memo to the respondent which was returned back. It was also required to be considered by the learned single Judge that again on 25.5.1995 the Memo was issued and the same was returned with an endorsement of "refuse".
From the above facts forthcoming on the record, though nothing is mentioned on those facts either in the award of the learned Presiding Officer or in the judgment of the learned Single Judge though it clearly shows that before terminating the services of the respondent, the appellant had issued show cause notice memo dated 25.5.1995 to the respondent but the said show cause notice was returned with postal endorsement "refused". Thus, in our view, it cannot be said that the appellant Corporation had not given any opportunity to the respondent but in fact the respondent had not accepted the said opportunity for the reasons best known to him.
10. It is also important to note that the appointment of the respondent as Primary Health Worker (Male) was purely on training basis and subject to the conditions laid down in Resolution No.46 dated 11.5.1992 which is annexed at Annexure 'A'. As per condition No.5 of the said Resolution dated 11.5.1992, it is clear that if the Corporation found that the Trainee has not satisfactorily completed the training period despite extension of six months, the Corporation shall terminate the services of the Trainee. As referred above, the respondent had joined duty from 25.3.1994 and had remained absent unreportedly and unauthorisedly since 4.2.1995 i.e. he had not completed the training period of one year. As discussed above, the training period was extended because the first part of the training was not satisfactorily completed as he had remained absent unauthorisedly. In para 6 of the affidavit-in-reply the respondent has contended that he was acquitted by the Criminal Court on 24.7.1996. As discussed above, no further data regarding the said criminal case has been forthcoming on record. Even during the judicial custody he could have intimated about his leave to the employer but nothing has been intimated by the respondent about his unauthorised absence to the appellant. Under these circumstances, we fail to understand as to how one can accept the observation of the learned Presiding Officer, Labour Court that the departmental inquiry could be initiated that too for a trainee worker more particularly when the postal article forwarded to the Trainee had been returned with the postal endorsement "refused". From 4.2.1995, the respondent remained absent as per the evidence forthcoming on the record. On 28.8.1997, the respondent had applied to the appellant Corporation stating all the facts and Reference was preferred by the respondent before the Labour Court. There is substance in the submission made by the learned counsel for the appellant that it was required to be considered by the learned Presiding Officer, Labour Court as well as by the learned Single Judge that the respondent had filed Reference after an interval of two years, therefore, the Reference itself was time barred.
11. Learned counsel for the appellant has placed reliance on a decision in Nilesh Bhatt v. Administrative Officer, Nagar Prathamik Shikshan Samiti 1996 (1) GLH 108 in which it has been held that an opportunity of hearing before the termination from service need not be given to the person whose appointment is for a fixed period. In the case on hand, in spite of ample opportunity was given to the respondent, he had refused to accept the postal article as referred above. Learned counsel for the appellant has also submitted that the order passed by the Corporation challenged before the Labour Court was as such not a punitive order in nature but it was merely a discharge simplicitor and, therefore, the appellant Corporation is not required to hold any departmental inquiry against the respondent-Trainee employee. He has placed reliance on a decision of the Apex Court in Viveka Nand Sethi v. Chairman, J & K Bank Ltd. and Others (2005) 5 SCC 337 wherein it is held as under:
"The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When the facts are admitted, an inquiry will be an empty formality.
In the present case, as discussed above, it is indisputably admitted that the postal articles were refused by the respondent and thus no requirement of any further inquiry has arisen. We find ourselves in agreement with this submission of the learned counsel for the appellant.
12. Learned counsel for the appellant has then submitted that section 25F of the Act is also not applicable to the trainee employee as the trainee employee is not a workman and so industrial dispute also would not lie before the Labour Court. We have seen that even the respondent has not led any evidence to the effect that he had completed 240 days in a preceding year and so section 25F of the Act would not be applicable. He has also placed reliance on a decision in State of Punjab v. Jagir Singh AIR 2004 SC 4757 in which it is held that the question of compliance of the provisions of Section 25-F of the Industrial Disputes Act would arise, if the services of the concerned workman were terminated on a ground other than misconduct and therefore, there is no requirement of compliance of the provisions of Section 25-F of the Act. Lastly the learned counsel for the appellant has placed reliance on a decision reported in Swaraj Tractors Division, Punjab v. Raghbir Singh AIR 2004 SC 1234 wherein it is held that nothing on record to show that workman made any attempt to communicate with employer seeking leave of absence and workman remained absent without leave commits misconduct and therefore, the order of termination is valid.
13. It is the case of the respondent that since he was in judicial custody, it was not possible for him to attend his duty as the said circumstances were beyond his control and he remained absent from duty. We do not find any substance in the said submission made by the learned counsel for the respondent as we have already observed as above except the acquittal order from the criminal case against the respondent as forthcoming on record, no further data as narrated in para 7 above were available on record to show that in fact the circumstances were beyond the control of the respondent. Moreover, it is important to note at this juncture that in spite of giving written intimation to the respondent dated 25.5.1995 by Registered A.D. Post and he had refused the said postal article and so now he cannot take advantage by submitting that since he was in judicial custody it was not possible for him to attend his duty without any further data relating to said criminal case lodged against the respondent.
14. When an employee is absent from duty even without prior intimation for a very long period, it prima facie shows the lack of interest in one's work or job. Moreover, in the case on hand, in spite of giving written intimation show cause notice/memo through postal article sent by Registered Post with A.D., the said postal article had been returned with endorsement 'refused' and under the circumstances that shows lack of interest in work then how we can expect anything more from the appellant Corporation. The respondent claims that there was no negligence and because he was in judicial custody and because of unavoidable circumstances he remained absent. But the burden lies on the respondent to prove his case by placing relevant materials on record. As discussed above, except date of acquittal of the criminal case i.e. 24.7.1996, no further data of the said case such as registration of the criminal case and its number, date, time and place of offence, name of the complainant, name of the witnesses, date of arrest of the respondent/accused, the date of filing of Criminal Misc. Application by the respondent/accused for his release on bail if at all filed, or what period he remained in judicial custody etc. are not on record. Hence, the respondent has failed to show his bonafides and interest in his duty to be performed by him more particularly when he had refused to accept the show cause notice/memo sent by post by the appellant.
15. From the above discussion, we are of the considered opinion that the respondent had remained absent unintimated and unauthorisedly and he had deliberately chosen not to resume the duties after the break as he had 'refused' to accept the postal article referred above. It appears that the attention of the Labour Court though was drawn by written reply, the learned Presiding Officer had not touched and not considered that aspect and as the respondent had not denied the fact that the intimation sent to him by Registered Post had been refused by him, in our view, the question of remand of this matter to the Labour Court does not arise at all. The Labour Court thus failed to consider the conduct of the respondent in not joining his duties despite having been asked to do so by Registered Post A.D. The learned Single Judge also has not considered the above facts while deciding the writ petition. We are conscious of the fact that while sitting in Appeal, we can neither reassess the evidence nor can we take a different view on the material on record, but we are of the view that when clear omission of evidence forthcoming on record as discussed above which have also been sidelined, then the same is required to be taken care of at the appellate stage.
16. In the result, this appeal succeeds and is allowed. The impugned award dated 18.5.2000 passed by the Presiding Officer, Labour Court, Surat in Reference (LCS) No.783 of 1997 and the order dated 25.7.2007 passed by the learned Single Judge in Special Civil Application No.423 of 2001 are set aside.