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2010 DIGILAW 940 (BOM)

SHUBHADA PHANSEKAR v. TRA VEL CORP. INDIA LTD.

2010-07-06

D.K.DESHMUKH, R.P.SONDURBALDOTA

body2010
JUDGMENT P.C. :- The facts relevant for deciding this appeal are that the appellant was in the service of the respondent. By order dated 28th June, 1999 her services were transferred to Delhi. Instead of joining the place of transfer, she filed complaint before the Industrial Court challenging the transfer order. That litigation came up to the Division Bench of this Court. On 3rd March, 2000 the Division Bench of this Court dismissed the Letters Patent Appeal filed by the appellant against the transfer order. Thus, the order dated 28th June. 1999 attained finality. On that date. i.e. on 3rd March. 2000. the employer addressed a letter to the appellant asking her to join at Delhi on 13th March, 2000. There was no response received by the employer from the appellant. Therefore, another communication was addressed dated 13th March, 2000 asking her to join by 22nd March, 2000 at Delhi. According to the employer, even to that communication there was no response. Therefore, by order dated 24th March, 2000 services of the appellant were terminated. The appellant feeling aggrieved by that termination order, filed a complaint before the Labour Court under the Unfair Labour Practices Act, making grievance against the termination. The Labour Court decided the complaint. By its order dated 30th August, 2002 the Labour Court dismissed the complaint. The order was challenged in revision before the Industrial Court. The Industrial Court decided the revision by order dated 31st March, 2004. The Industrial Court dismissed the revision. Writ Petition No. 2984 of 2004 was filed before this Court challenging the order of the Labour Court and the Industrial Court. Writ Petition No. 2984 of 2004 was decided by the learned Single Judge of this Court. By order dated 22nd March, 2007, the learned Single Judge dismissed the Writ Petition. Hence, this appeal challenging the order of the Labour Court, the Industrial Court and the learned Single Judge. 2. The learned counsel for the appellant, submits that, the reason for terminating the services of the appellant was that she did not join at the place of transfer and comply with the transfer order. Thus, she was punished for not obeying the transfer order. 2. The learned counsel for the appellant, submits that, the reason for terminating the services of the appellant was that she did not join at the place of transfer and comply with the transfer order. Thus, she was punished for not obeying the transfer order. Relying on the observations of the Supreme Court in its judgment in the case of Novartis India Limited vs. State of West Bengal and others, reported in (2009) 3 see page 124, the learned counsel, submits that if the termination was for alleged misconduct, then it could not have been brought about without holding an inquiry into the alleged misconduct. The learned counsel submits that, therefore the order terminating the services of the appellant is liable to be set aside. 3. We have heard the learned counsel appearing for the respondent employee. So far as the facts are concerned, there is no dispute. Admittedly, the services of the appellant were transferred to Delhi on 28th June, 1999. The appellant went into litigation against that order. That litigation finally terminated on 3rd March 2000, when the Letters Patent Appeal was dismissed by this Court. Therefore, on that day, any interim order that may have been operating against the transfer order ceased to operate. Therefore, really speaking without waiting for any communication from the employer, the appellant should have made it her business to go and join at Delhi, but, she did not do that. The employer on the same day i.e. on 3rd March, 2000 addressed a letter to her permitting her to join at Delhi on 13th March, 2000. The appellant did not even respond to this communication. It is her case that on 14th March, she sent a fax expressing her inability to join at Delhi because of the ongoing exams of her children and seeking 15 days Earned Leave. There is a dispute as to whether this fax message was ever received by the employer. There is also a dispute whether a fax message which is unsigned can be the basis for grant of any leave. There is a dispute as to whether this fax message was ever received by the employer. There is also a dispute whether a fax message which is unsigned can be the basis for grant of any leave. Even assuming everything in favour of the appellant, that the fax message was duly received by the employer on 14th March, 2000 and in that fax message, application was made for leave of 15 days, then, also the fact remains that though the interim order passed by the Court against the transfer order had ceased to operate on 3rd March, 2000, the appellant did nothing on her part either to join at the place of transfer or even to apply for leave to the employer if she was not in a position to join at the place of transfer immediately. On 14th, even assuming that leave was to her credit and she was entitled for grant of leave and assuming that the employer granted that leave on 14th March, leave sought was for 15 days and obviously that leave would start on 3rd March, 2000 and therefore the leave period would end on 18th March, 2000 and the employer had given time upto 22nd March, 2000 by communication dated 13th March, 2000 to the appellant to join at Delhi. We do not find any explanation given by the appellant, why the appellant did not join at Delhi after 18th March, when the period of leave sought by her would be over. Thus, we find that no fault can be found with the action of the employer terminating the services of the appellant for her inability to join at the place of transfer. So far as the submission that non-joining at the place of transfer by an employee amounts to misconduct and therefore if that misconduct is the foundation of the order of termination, then a departmental inquiry is to be held. In our opinion, the submission has no substance. So far as the observations from the judgment of the Supreme Court in Novartis India Limited referred to above is concerned, though the observations have not been made by the Supreme Court for the purpose of deciding the issue before it, those observations have to be read in the facts of that case. So far as the observations from the judgment of the Supreme Court in Novartis India Limited referred to above is concerned, though the observations have not been made by the Supreme Court for the purpose of deciding the issue before it, those observations have to be read in the facts of that case. Insofar as the present case is concerned, the reason that has been given by the appellant for not joining at Delhi after 3rd March, 2000 are on record and the three Courts have concurrently found that these reasons would be unacceptable to any employer. In our opinion, considering the conduct of the appellant of showing total disregard to the discipline in the establishment where she was working, the learned Single Judge exercising extraordinary jurisdiction under the Constitution was perfectly justified in not interfering with the order and in favour of a litigant, like the appellant. We also do not find any reason to disturb the order impugned in the appeal. The appeal is dismissed. Appeal dismissed.