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Shelter Infra Projects Limited & Another v/s State of West Bengal & Others

    W.P. No. 999 of 2014 & G.A. No. 3343 of 2014 (Original Side)

    Decided On, 07 November 2014

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE BISWANATH SOMADDER

    For the Petitioners: Soumya Majumdar, Arik Banerjee, Shaunak Ghosh, Rajib Mullick, Advocates. For the Respondents: R3, P.B. Chowhdury, Ravi Kumar Dubey, Advocates.



Judgment Text

Biswanath Somadder, J.

A well reasoned award delivered by a learned judge of the First Industrial Tribunal, Kolkata, dated 30th May, 2014, is the subject matter of challenge in the present writ proceeding.

The writ petitioners, in the instant case, are the company and one of its Directors. The genesis of the matter lies in a letter dated 13th August, 2010 issued by the 'CFO' of the company terminating the service of the respondent no.3, who had served the company since 14th May, 1997 in the capacity of a ‘Receptionist-cum-Telephone Operator’. The letter of termination dated 13th August, 2010 is reproduced in its entirety herein below:-

'Date: 13.08.2010

To

Mrs. Susmita Sengupta

16A, Sengarden

Flat No.5

(Nandi Bagan)

P.O. Haltu,

Kolkata-700078

Sub: Termination of employment with CCAP Limited

Ref: Letter No. CCAP:SKD:DK:726

Dear Mrs. Susmita Sengupta,

Please refer appointment letter dated 14.05.1997 for the position of

'Receptionist cum Telephone Operator' in our organisation. This action is based on your deficiencies in performance. Your failure to adhere to the requirements of your job on an ongoing basis and serious complaints regarding your performance from the different departments has serious impact on the operations of the various departments of our organisation. As a consequence, your service is no longer required by the company and that your position with CCAP Limited will be terminated with effect from 13.08.2010. We sincerely regret this action, and can assure you that we have only done so after monitoring your behavior at work for several days. We shall be paying off the ninety days (90) notice period from 13.08.2010. All your dues will be cleared from Accounts Department.

As per your Employment Contract, you are required to clear your IOU, advance if any and do a proper handover of all passwords, files, instruction manuals, confidential documents, stationeries, keys and all other properties belonging to the Company to your Manager/Supervisor which were made available to you previously (the 'Said Clearance') to be completed on 13.08.2010.

We thank you for your valued contributions thus far to CCAP Ltd. and wish you well in your future endeavors.

Sincerely,

(Anjan Ghosh)

CFO'

Upon being terminated from her service, she wrote a letter dated 4th October, 2010 appealing to the company to withdraw the letter of termination and allow her to resume her duty. The company did not respond to the said letter dated 4th October, 2010 which prompted her to approach to the Labour Department, Government of West Bengal. An attempt at conciliation failed due to adamant and non-cooperation attitude of the company. The Labour Department, Government of West Bengal, thereafter, referred the dispute before the Industrial Tribunal, Kolkata, for adjudication of two issues, which are as follows:

'1. Whether the termination of service of Smt. Susmita Sengupta, the workman w.e.f. 13.08.2010 is justified?

2. What relief, if any, is she entitled to?'

The award of the learned First Industrial Tribunal, Kolkata, runs into several pages and this Court refrains from reproducing the same in its entirety, since it is already a matter of record. The operative portion of the award, however, reads as follows:

'That the workman Smt. Susmita Sengupta do get an Award of her reinstatement in service as well as 50% backwages from the date of termination till reinstatement. The management of the company is hereby directed to reinstate Smt. Susmita Sengupta in her original post and also to pay backwages @ 50% per month within two months from the date of publication of the Award.'

It is submitted by the learned counsel appearing on behalf of the petitioners that the Tribunal erred in coming to a conclusion that it was a case of retrenchment, as statutorily defined under the Industrial Disputes Act. He submitted that a plain reading of the letter of termination will clearly go to show that the action against the employee was essentially of such nature that takes it out of the purview of the statutory definition of the word, ‘retrenchment’, in view of the exception provided under sub-section (oo) of section 2 of the Industrial Disputes Act. He also relied on a judgment of the Supreme Court in the case of Chaitanya Prakash and another vs. H. Omkarappa, reported in (2010) 2 Supreme Court Cases 623. Relying on paragraph 18 of the said judgment, he submitted that it is no longer res integra that even if an order of termination referred to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. He further submitted that he relied on the above judgment since the learned Tribunal made an observation, inter alia, to the effect that prior to issuance of the order of termination, the employee was not given an opportunity to defend herself and as such, the principles of natural justice were not adhered to. It was his specific contention that in case of non-stigmatic termination of service, there is no requirement on the part of the employer to follow the principles of natural justice.

On the other hand, the learned counsel appearing on behalf of the respondent no.3, being the concerned employee, submitted that the question as to whether the termination of his client’s service was unjustified or not has been considered in details by the learned Tribunal. He also submitted that the Tribunal led evidence – both documentary and oral – and came to an absolute conclusion, after considering and analyzing the evidence on record, that termination of the service of the employee was not only unjustified, but illegal. He also submitted that the judgment of the Supreme Court, which has been relied on by the learned counsel for the petitioners, was in the context of a probationer, as distinct from the instant case where the employee was in permanent employment of the company for around 13 years. He also submitted that the termination of the employment of his client clearly falls within the statutory definition of the word, 'retrenchment', as provided in sub-section (oo) and such retrenchment is not excluded in terms of clause (bb) of sub-section (oo) under section 2 of the Industrial Disputes Act. He also relied on the two judgments of the Supreme Court, which are as follows:

i) Uptron India Limited vs. Shammi Bhan and Anr., reported in (1998) 6 Supreme Court Cases 538, and

ii) Gammon India Limited vs. Niranjan Dass, reported in 1984 (48) FLR 310.

After considering the respective submissions of the parties, the only question that comes for consideration in the facts and circumstances of the instant case is whether this Court would exercise its discretionary jurisdiction under Article 226 of the Constitution of India to upset the findings on fact as well as law, arrived at by the learned Judge of the First Industrial Tribunal, Kolkata, in the award dated 30th May, 2014.

So far as the contention of the learned counsel appearing on behalf of the writ petitioners with regard to termination of the employee being non-stigmatic in nature and the principles of natural justice being inapplicable in such a case, the issue has been squarely answered by the learned First Industrial Tribunal, Kolkata, in its award dated 30th May, 2014. That apart, when a permanent employee of a company is terminated from his/her service for reason of deficiency in performance upon monitoring of the employee’s ‘behaviour’, it is the highest punishment which can be inflicted upon the employee, irrespective of whether it is stigmatic in nature or not. A permanent employee simply could not have been removed without being given an opportunity to defend himself/herself or at least, answer to the allegations levelled in the letter of termination. The judgment of Supreme Court in the case of Chaitanya Prakash (supra), relied on by the learned counsel for the petitioners, has no manner of application at all in the facts of the instant case since it was rendered in the context of termination of service of a probationer. A probationer is a person who is under a constant watch by his/her employer and a probationer cannot possibly have a case to resist even a non-stigmatic termination on the ground of non-adherence to the principles of natural justice. On the other hand, a permanent employee stands on a totally different footing. A non-stigmatic termination of service of a permanent employee is possible only if there is a non-renewal of contract of employment between the employer and the workman concerned upon its expiry or of such con

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tract being terminated under a stipulation in that behalf contained therein. This is clear from the language of clause (bb) of sub-section (oo) under section 2 of the Industrial Disputes Act. In the facts of the instant case, the termination of service of the permanent employee has not been effected on such basis. As such, as rightly observed by the learned Tribunal, it was a clear case of retrenchment. In such circumstances, this Court will not exercise its discretionary jurisdiction under Article 226 of the Constitution of India to upset the findings on fact as well as law arrived at by the learned Judge of the First Industrial Tribunal Kolkata, in the award dated 30th May, 2014, and the writ application is liable to be summarily dismissed and stands dismissed with costs assessed at 100 gms. In view of the dismissal of the writ petition, being W.P. No. 999 of 2014, the connected application, being G.A. No. 3343 of 2014 is, accordingly, disposed of.
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