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2003 DIGILAW 1679 (MAD)

The Management v. G. Paramanandam & Another

2003-10-17

A.K.RAJAN

body2003
Judgment :- Both the writ petitions are filed against the award of the Labour Court in I.D.No.24 of 1995 on the file of the Labour Court, Trichirapalli. 2. The petitioner, Mr.Paramandam was working as employee in Branch-in-charge in BHEL in the petitioner management, he misappropriated a sum of Rs.20,897.42; thereafter he was transferred to Thuvarakurichi Branch, and the said amount was recovered from his salary. During the year 1991-92 he was transferred as Branch Manager Thuvakudi Branch, he met with an accident on03.02.1992 and had taken treatment in the hospital as outpatient; the said fact was not informed to the management; on account of this the employee without informing the management closed down the branch for some time; then the management inspected the branch office and found that the workman/employee again misappropriated a sum of Rs.8293-99 and the management informed the same to the workman; the workman also accepted the same and also agreed to make good the loss; he re-paid a sum of Rs.5000/-; the management sent notice to pay the balance amount; in order to avoid further payments, the workman abandoned the service. Inspite of several notices sent by the management, he did not join duty. After some time, the first respondent herein invoked conciliation proceeding as if the management has terminated the workman from service; since the conciliation proceedings failed, the failure reports was submitted to the Government and a reference was made to the Labour Court under Industrial Disputes Act and the workman filed I.D.No.24 of 1995 on the file of the Labour Court, Trichirapalli, for an order of reinstatement with continuity of service and back wages from 1.5.1992 as if he was terminated from service. The management resisted the proceeding by contending that the Labour Court has no jurisdiction to entertain the application since the Management of Sarvodaya Sangam is not an industry as per Section 2 (i) of the Industrial Disputes Act and the management was exempted under Section 2(j)(5) of the Act and the respondent in W.P.No.13157 of 1997 is not a workman under the management; that the I.D.is not maintainable since the first respondent has abandoned the service and there is no order of termination against the first respondent/workman. The Labour Court has passed an award dated 02.07.1997 ordering reinstatement of the respondent/workman without backwages. Aggrieved by the said award, both the management and the workman have filed these writ petitions. 3. The Labour Court has passed an award dated 02.07.1997 ordering reinstatement of the respondent/workman without backwages. Aggrieved by the said award, both the management and the workman have filed these writ petitions. 3. On a perusal of the Award of the Labour Court, it is clear that the Labour Court has invoked Article 311 of the Constitution and has stated that show cause notice was not given and ordered reinstatement of the workman. The employee was not a civil servant and Article 311 of the Constitution has no application whatsoever. The management is Sarvodaya Sangam and the benefit of the civil servant of the Government is not available to the petitioner. On that ground the award is liable to be set aside and hence set aside. 4. On the other hand, Industrial Disputes Act is applicable to the workman/respondent. When a person abandoned the service, the management is bound to issue notice, conduct enquiry and hold that he has abandoned the service. Only after holding such an enquiry, (if the employee did not attend the enquiry, it may render an ex parte finding in the enquiry), the employee can be terminated from service. But in this case neither the management conducted any enquiry nor the workman has given any letter of intention to join duty after the expiry of medical leave. Mere assertion (by the worker) that he wanted to join duty and the management refused to give him work is not sufficient to prove the case of the employee. Therefore, with respect to these aspects, there is pausity of evidence, both on the side of the employee and the on the side of the management. Even though opportunity was given to the management and employee to prove their respective cases, neither of them discharged their duties to prove their case. In the absence of any evidence, either to prove the willingness of the employee to join duty having been given, nor to prove that the worker abandoned the service voluntarily, this Court cannot pass any order at this stage. It is a matter which can be decided only after adducing such evidence. Hence, this matter is remitted back to the Labour Court for fresh disposal on evidence that may be adduced by both the parties. 5. It is a matter which can be decided only after adducing such evidence. Hence, this matter is remitted back to the Labour Court for fresh disposal on evidence that may be adduced by both the parties. 5. In view of the fact that the petition is pending from 1995, the Labour Court is directed to dispose of the matter, within a period of two months from the date of receipt of a copy of this order. Both the employee and the management shall co-operate for the enquiry and they shall not ask for adjournments and the Labour Court shall adjourn the matter only under extraordinary circumstances. 6. It is stated that the employee was reinstated in service in pursuance of the award of the Labour court. It is made clear that, that reinstatement is without prejudice to the final order that may be passed by the Labour Court. With the above observations, the writ petitions are disposed of.