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2012 DIGILAW 586 (MP)

Om Prakash Nagar v. Appellate Authority

2012-06-21

RAJENDRA MENON

body2012
JUDGMENT : Rajendra Menon , J.;- Challengingthe order dated 14.7.2000 passed by the appellate authority exercising powersunder Section 58 of the M.P. Shops and Establishments Rules 1959 andchallenging the action of Respondent No.2 in terminating the services of thepetitioner on the ground of unauthorized absence, petitioner has filed thiswrit petition. Itis the case of the petitioner that he was employed in the establishment of therespondent as a Gate Keeper w.e.f . 1989 and hisservices have been dispensed with w.e.f . 1.9.1997, itis stated that petitioner is victim of Bhopal Gas Tragedy and has sufferedvarious complications and in view of the same, he was absent on certain datesand because of his absence, his services have been terminated without showingany reasons, without issuing any charge-sheet as required under the law. Inter- alia contending that the action taken is unsustainable onthese counts, an appeal was filed under Section 58 of the M.P. Shops andEstablishments Rules, 1959 and the appeal having been dismissed vide orderdated 14.7.2000, petitioner is before this Court. Learnedcounsel for the petitioner took me through the facts of the case and thereasons given in the order Annexure- P6 rejecting the appeal of the petitioner,argued that the services of the petitioner have been dispensed with on thegrounds of unauthorized absence and as the same amounts to misconduct, itcannot be done without issuing charge-sheet to him and accordingly, it wouldamount to retrenchment and if as the pre-conditions for a valid retrenchment asprovided under Section 25 F of the Industrial Disputes Act are not compliedwith, the same is illegal. Accordingly,contending that the action taken for termination without holding any enquiryand without appreciating the facts and circumstances of the case and withoutissuing notice under Section 58 of the M.P. Shops and Establishments Rules 1959, is illegal, interference is sought for. Reliance isplaced on a judgment of this Court in the case ofEveready Industries India Limited and others Vs. P.S.Parihar and another 2003 (4) MPLJ 24 . Shri Piyush Tiwari ,learned counsel appearing for Respondent No.2 refuted the aforesaid and pointedout that a show cause notice was issued to the petitioner for unauthorizedabsence and he submitted two communications admitting his guilt and based on thesame, the action is taken. P.S.Parihar and another 2003 (4) MPLJ 24 . Shri Piyush Tiwari ,learned counsel appearing for Respondent No.2 refuted the aforesaid and pointedout that a show cause notice was issued to the petitioner for unauthorizedabsence and he submitted two communications admitting his guilt and based on thesame, the action is taken. Taking me through order passed by the appellateauthority exercising jurisdiction under Section 58 of the Act, Shri Tiwari submits that thepetitioner himself having admitted his guilt for being absent, no furtherenquiry was needed and as the action taken is in accordance with law, the orderpassed is liable to be upheld. As far as payment of salary to the petitioner isconcerned, Shri Tiwari pointed out that a demand draft was forwarded to the petitioner and the paymentwas received by the petitioner before termination and, therefore, there is nobreach of statutory provision. Havingheard learned counsel for the parties and on perusal of the records, it is seenthat except for contending that the petitioner's services have been dispensedwith without conducting any enquiry, therefore, it amounts to retrenchment,petitioner has not raised any other grounds. Eventhough, it is the case of the petitioner that his termination amounts toretrenchment as defined under Section 2 ( oo ) of theIndustrial Dispute Act but in this case a show cause notice is issued to thepetitioner making allegations of unauthorized absence and on the basis ofadmission of this allegation, the services are terminated. Therefore, thetermination would fall under the exempted clause contemplated under Section 2 ( oo ) (bb) and, therefore, it will not amount toretrenchment. As far as question of grant of opportunity is concerned, it isclear that a show cause notice was issued to the petitioner, the petitionersubmitted his explanation and explanation submitted in Hindi is reproduced bythe appellate authority which reads as under : xxxxxxxxxxxxx Thatapart, in another communication made on 27.8.1997, petitioner has againadmitted the allegations levelled against him. It wasafter considering all these factors that the appellate authority has taken theaction, on finding that the petitioner a Gate Keeper working in Cinema Theatreis absent unauthorizedly and according to his ownadmission, due to ailment he was absent from duty on certain occasions. Consideringall these factors, termination is upheld and in doing so, I am of theconsidered view that the appellate authority has not committed any errorwarranting interference into the matter exercising limited jurisdiction underArticle 226 and 227 of the Constitution. Consideringall these factors, termination is upheld and in doing so, I am of theconsidered view that the appellate authority has not committed any errorwarranting interference into the matter exercising limited jurisdiction underArticle 226 and 227 of the Constitution. Petitioner was working in the Theatreand according to petitioner's own showing before the employer in reply to theshow cause notice, due to ailment of the petitioner, he was not in a position to discharge his duties to the best of his abilities.Once the employer has found that the employee is absent in an unauthorizedmanner for whatever reason, it may be, the employer may always take actionuntil and unless the same is shown to be arbitrary and illegal. Finding theappellate authority under Section 58 of the Shops and Establishment Act, 1959has given a reasonable order to the facts and circumstances of the case, it does not warrant any interference by this Court. Thepetition is, therefore, dismissed.