w w w . L a w y e r S e r v i c e s . i n



Sun Pharmaceutical Industries V/S State of West Bengal and Others.


Company & Directors' Information:- SUN PHARMACEUTICAL INDUSTRIES LIMITED [Active] CIN = L24230GJ1993PLC019050

Company & Directors' Information:- SUN INDUSTRIES LIMITED. [Active] CIN = U51909DL1991PLC045798

Company & Directors' Information:- A S PHARMACEUTICAL (INDIA) PRIVATE LIMITED [Active] CIN = U24230TN2010PTC076676

Company & Directors' Information:- BENGAL INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL2001PTC110177

Company & Directors' Information:- SUN PVT LTD [Active] CIN = U24246RJ1984PTC003093

Company & Directors' Information:- G SUN INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC071425

Company & Directors' Information:- S. B. PHARMACEUTICAL PRIVATE LIMITED [Active] CIN = U24231UP1994PTC017328

Company & Directors' Information:- P R A B PHARMACEUTICAL PRIVATE LIMITED [Active] CIN = U33111UP2013PTC054705

Company & Directors' Information:- INDUSTRIES CORPN OF BENGAL LTD [Strike Off] CIN = U17111WB1940PLC010029

Company & Directors' Information:- C M C PHARMACEUTICAL PVT LTD [Strike Off] CIN = U24231WB1985PTC039722

Company & Directors' Information:- M S C PHARMACEUTICAL PRIVATE LIMITED [Strike Off] CIN = U24230MH2003PTC143605

Company & Directors' Information:- B P L PHARMACEUTICAL PRIVATE LIMITED [Active] CIN = U24239MH1978PTC020449

Company & Directors' Information:- R. N. PHARMACEUTICAL PRIVATE LIMITED [Active] CIN = U74999DL2017PTC314515

Company & Directors' Information:- D. R. Y. PHARMACEUTICAL PRIVATE LIMITED [Active] CIN = U52599DL2018PTC329353

Company & Directors' Information:- B K D PHARMACEUTICAL PRIVATE LIMITED [Strike Off] CIN = U52100WB2014PTC200227

Company & Directors' Information:- G B PHARMACEUTICAL PRIVATE LIMITED [Strike Off] CIN = U85121HR2006PTC036295

Company & Directors' Information:- SUN INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65991TN1943PTC000994

Company & Directors' Information:- SUN INDUSTRIES LIMITED [Dissolved] CIN = U99999MH1947PTC005559

    W.P. No. 400 of 2010

    Decided On, 03 July 2018

    At, High Court of Judicature at Calcutta

    By, THE HONORABLE JUSTICE: SAMBUDDHA CHAKRABARTI
    By, J.

    For Petitioner: N.K. Mehta and Victor Chatterjee, Advocates



Judgment Text


1. The petitioner has challenged an Award, dated December 10, 2009, passed by the learned Judge, 5th Industrial Tribunal, West Bengal, in case No. VIII-15 of 2005. By the said Award, the Tribunal directed the respondent No. 3 herein to be reinstated in service with 50% back wages from April 14, 2003, i.e., the date of his absence till the date of reinstatement.

2. The respondent No. 3 was a sales representative and his service was terminated by a letter, dated August 11, 2003. He was also informed that his name had been struck off the rolls of the company. After sending a letter of protest, he raised an industrial dispute over the termination of service before the Labour Commissioner and ultimately the dispute was referred for adjudication to the Tribunal.

3. The case of the workman, the respondent No. 3, was that while working as a sales representative of the writ petitioner herein his service was transferred to different places. To attend the annual sales conference in Kolkata to be held from April 10, 2003 he proceeded to Kolkata but could not return to his place of work as he had suddenly fallen ill. He sent intimations to the company from time to time, the company by a letter dated June 16, 2003, threatened the workman to strike off his name from the rolls of the company. When he went to join the office in New Delhi he was not allowed to do so. Before leaving he sent intimation to the company. By a letter dated June 25, 2003, the management asked the workman to report to the Manager, Human Resources in Delhi on July 10, 2003. But the Manager refused to see him on that date. He was asked to report to Mr. Jain who told him to submit his resignation. Finally, by a letter dated August 11, 2003, the company terminated the service of the workman with immediate effect on the assumption that he was not interested to work and he had abandoned the job on his own.

4. In the written statement before the Tribunal the stand of the company was that the workman had absented himself from duty on April 11, 2003 onwards and did not show any reason for his absence. He did not apply for grant of leave in specific form and in spite of repeated requests in writing he did neither report for duty nor did he appear before the Medical Board of the company nor did he produce any medical paper to justify his long absence.

5. The learned Judge of the Tribunal after considering the both oral and documentary evidence held that the period of absence was not the ground for drawing a conclusion that the workman had abandoned his service. From the oral evidence it cannot be said that he deliberately stayed away from office. On the contrary, there was evidence to show that his absence was due to medical reasons and due to circumstances which was not in his control. The Tribunal was of the view that the management was not justified in drawing an inference that the workman had abandoned his job and held that the order of termination was bad for non-compliance of Section 25F of the Industrial Disputes Act, 1947 (the Act, for short). Ultimately, the Tribunal passed the direction as mentioned above.

6. This finding has been challenged by the petitioner on the ground that in the absence of the leave rules the Tribunal was not justified to decide whether the documents filed by the workman were sufficient or satisfactory to substantiate his absence. According to the petitioner, the Tribunal should have decided the justifiability of termination which was the issue before the Tribunal and the Tribunal failed to advert itself to the same. Consequently, the test applied by the Tribunal was a wrong one which is resulted in the wrong adjudication of the dispute.

7. A further grievance of the petitioner is that the Tribunal has proceeded on the basis that the action of the employer was not a disciplinary one and, therefore, Section 25F of the Act would apply. Termination by way of disciplinary action cannot co-exist with retrenchment.

8. The petitioner company further assailed the Award on the ground that no relief was to be granted to the workman, particularly, after recording that the workman had no valid reason to remain absent for continuous period of more than 4 months. Mr. Majumder has assailed the conduct of the workman with reference to the letters written by him on June 28, 2003 and August 8, 2003 which have been criticized as tactical measures to avoid the Medical Board in New Delhi.

9. In support of its contention the petitioner relied on the case of The Workmen of M/s. Firestone Tyre and Rubber Company of India (P) Ltd. Vs. The Management and Others, reported in : AIR 1973 SC 1227 for a proposition that where an employer fails to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited question open to it where domestic enquiry is properly held but also to satisfy itself on the facts adduced before it by the employer whether dismissal or discharge was justified.

10. The Supreme Court in that case quoted from the judgment of Workmen of Motipur Sugar Factory (P) Ltd. Vs. Motipur Sugar Factory (: AIR 1965 SC 1803) to lay down the provision for allowing an employer to lead evidence before the Tribunal justifying his action:

"If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the Industrial Tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits, the employee has the advantage of having the merits of his case being considered by the Tribunal for itself and that clearly would be to the benefit of the employee."
11. In the same case the Supreme Court also relied on the judgment in the case of The State Bank of India Vs. R.K. Jain (: AIR 1972 SC 136) where the Supreme Court had held that when an order of punishment by way of dismissal or termination of service is effected by the Management, the issue that is referred to is whether the management was justified in discharging and terminating the service of the workman concerned and whether a workman is entitled to any relief. The Supreme Court took note of the fact there might be cases where an enquiry had been held preceding the order of termination or there might have been no enquiry at all. But the dispute that will be referred is not whether the domestic enquiry had been conducted properly by the management, but a larger question, i.e., whether the order of termination, dismissal or the order of imposing punishment on the workman concerned is justified. The respective rights of the workman and the management in such a situation to plead for themselves have been recognized by the Supreme Court with a rider that the enquiry which is conducted by the Tribunal is a composite enquiry regarding the order which is under challenge. If the management relies not only on the validity of the domestic enquiry but also adduces evidence before the Tribunal justifying its action, it is open to the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic enquiry.

12. Mr. Majumder next relied on the judgment in the case of State of Punjab Vs. Jagir Singh, reported in : 2004 (103) FLR 416 for a proposition that while directing grant of back wages a labour court is required to consider the totality of the circumstances and the conduct of the workman has also an important role to play.

13. The petitioner lastly relied on the judgment in Metropolitan Transport Corporation Vs. V. Venkatesan, reported in : 2009-IV-LLJ 304 (SC). In that case the Supreme Court relied on some of the earlier judgments and held that no precise formula can be laid down under what circumstances payment of entire back wages should be allowed. It depends upon the entire facts and circumstances of each case, but it is not automatic. The various factors which are to be taken into account and have been laid down in successive judgments were taken note of.

14. The workman while defending the Award specifically submitted that he had not abandoned his service and was very much interested in employment. It was the management of the company which had terminated his service without complying with the provision of Section 25 F of the Act.

15. The company in the letter of termination had spelt out that due to absence of the workman from April 14, 2003 it was assumed that he was not interested in employment and had abandoned his service. Since the stand of the company is that the respondent No. 3 had abandoned his service willfully and voluntarily it is a question of fact whether the company had terminated the service of respondent No. 3 or the respondent No. 3 has abandoned his service on own account. Since the Tribunal upon scrutiny of evidence has come to the conclusion that the management had terminated the service it cannot be assailed in the writ jurisdiction. Mr. Dasgupta, the learned Advocate for the workman, submitted that the error of fact howsoever grave it may appear to be, cannot be interfered with in writ jurisdiction.

16. The further case of the workman is that he did not remain silent during the period of his absence from work but from time to time he kept the company informed of the reasons of his absence and had shown interest to resume duty by series of letters, telegrams and by other acts including going to New Delhi. Mr. Dasgupta referred to certain documents, viz., Annexure P-6 to P-12 to the writ petition wherefrom it would appear that he kept on intimating the company about his inability to join his duty on the ground of his illness. The witness for the management i.e., OPW 1 admitted to have received medical leave application from the workman for three weeks from April 14, 2003.

17. With regard to the letter of the company i.e., P-13, Mr. Dasgupta submitted that the management had proceeded in a pre-conceived manner that the workman was no longer interested to serve the company and his name would be struck off unless he would report to the author of the letter in New Delhi. The fact that the workman went to New Delhi as per the advice of the company clearly shows that he was willing to continue his employment with the company which will be further buttressed by Annexure P-17 where the workman narrated how he was dealt with.

18. Mr. Dasgupta further argued that the management tried to shift its original stand that the workman had abandoned his service and, therefore, cessation of employment does not come within the definition of retrenchment under Section 2(oo) of the Act. Subsequently to cover up the violation of Section 25F of the Act, the petitioner has come up with the case that the respondent workman was unauthorisedly absent from April 14, 2003 and, therefore, he was terminated. These two stands are mutually destructive as the company submitted that the plea of termination for unauthorized absence was the misconduct and not termination simplicitor. Such plea is contrary to the case of the petitioner that the management had not terminated the service of the workman but he himself done it of his own accord being not interested in employment. Therefore, the justification for termination is not a relevant one as the company never admitted that it was actually terminating the respondent No. 3 herein. He was very emphatic in submitting that there was no scope to argue that the termination was for any misconduct to bring it out of the purview of Section 2(oo) and Section 25F of the Act.

19. Mr. Dasgupta further argued that the crux of the matter is whether the respondent No. 3 had any leave due to his credit. He referred to rule 18 of the Rules framed under West Bengal Shops and Establishment Act, 1972 which provides that leave due and prayed for shall not ordinarily be refused. The respondent No. 3 through various letters has repeatedly clarified that he was not in a position to join because of his illness. Even if the workman did not specifically pray for leave the spirit of the letters clearly demonstrates that he was asking for leave for his sickness. The company did not adduce any evidence before the Tribunal that no leave was due to the workman.

20. Since in the letter of termination as well as the pleadings the company has clearly taken a stand that the name of the workman was struck off the rolls as he had abandoned the service and since the workman had deposed that he had no intention so to do it is an inescapable conclusion that the management had, in fact, effected termination simplicitor, argued Mr. Dasgupta. Therefore, this termination comes under the purview of retrenchment and does not fall in the exclusion clause.

21. Mr. Dasgupta further submitted that the petitioner has also assailed order No. 52, dated March 4, 2008 passed by the Tribunal on the point of maintainability and decided as a preliminary issue. A learned Single Judge of this Court by an order, dated May 3, 2012 upheld the order of the Tribunal on the point of Appropriate Government raised by the petitioner and in the appeal taken from the said order the appellate court did not interfere with the order of the learned Single Judge.

22. The petitioner, however, did not make any submission on this point. Moreover, since the issue has already been decided by a learned Single Judge there is no scope for entering into the same.

23. The stand of the company as appears from its written objection before the Tribunal is that striking off the name of the respondent No. 3 herein from the rolls of the company is not an act of termination by the company, but abandonment of service on the part of the employee. It was also their stand that the question of holding a domestic enquiry in the facts and circumstances of the case did not arise as the employee admittedly remained absent unauthorisedly in spite of reminders from time to time and the conclusion of the company that he had abandoned the service on his own accord is fully sustainable and bona fide.

24. Obviously, it is for this purpose that the petitioner relied on the judgment in the case of The Workmen of M/s. Firestone Tyre and Rubber Company of India (P) Ltd. (Supra) for a proposition that in a case where the termination was not preceded by any domestic enquiry it is open to the employer to justify the action before the Tribunal by leading relevant evidence before it and the company did it. But it must be simultaneously borne in mind that merely leading evidence before the Tribunal by itself will not be sufficient. The employer in such a case will have to pray for leave before the Tribunal to lead evidence to justify his action. It is only then that the entire matter can be open before the Tribunal to satisfy itself on the facts placed before it by the employer to decide whether the termination was justified.

25. The Supreme Court in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, reported in : AIR 1979 SC 1652, has specifically held that an employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If any such opportunity has been asked for the Tribunal has no power to refuse. But it is not for a moment suggested that there is some duty or obligation as a matter of law cast upon the Tribunal to call upon the employer to adduce additional evidence even if no such opportunity is sought by the employer.

26. If the stand of the petitioner is that its decision did not amount to a case of termination but abandonment of service or there was no question of holding a domestic enquiry against the employee it is not clear why the employer relied on the judgment in The Workmen of M/s. Firestone Tyre and Rubber Company of India (P) Ltd. (Supra), which laid down that under the specific circumstances the employer should be given an opportunity to adduce evidence justifying his decision. In fact, this stand of the petitioner appears to be self-contradictory.

27. Of course, termination by way of disciplinary action is excluded from the definition of 'retrenchment' in the Act, but the nature of the stand of the petitioner company is not altered thereby. It continues to be a contradictory one. If the petitioner assails the finding of the Tribunal that the action of the employer was not disciplinary in nature and hence provision of Section 25F of the Act will not apply, it is not understood why the petitioner at all had taken the plea and submitted that termination by way of disciplinary action is excluded from the definition of 'retrenchment'. Such a question then does hardly arise as the decision of the petitioner to strike off the name of the employee from its rolls was not preceded by any disciplinary action.

28. The workman submitted, and not unjustly, that the management has sought to shift from its initial stand that the respondent workman himself had abandoned the service which means the petitioner has not terminated his service and the workman left the service of his own. This act on the part of the employer does not qualify to come within the definition of 'retrenchment' under Section 2(oo) of the Act. But at the hearing of the writ petition and also in the written notes of submission the stand of the petitioner was that the employee was unauthorisedly absent from April 14, 2003 and, therefore, he was terminated. Unauthorized absence was also mentioned by the petitioner company in its letters, dated June 25, 2003 and July 11, 2003. It may further be mentioned that the petitioner has also taken a ground in the writ petition that the respondent employee was on prolonged unauthorized absence and thus he exhibited "reprehensible conduct" in attempting to defraud the company.

29. These two stands appear to be mutually contradictory to each other. At least it definitely goes against the initial case of the petitioner that the management had not terminated the service of the employee; but he had abandoned it of his own. Mr. Dasgupta submitted that justification of termination on the ground of unauthorized absence has no relevance as the petitioner did not admit that it did terminate his service. There is no scope to make any argument that the termination was for any misconduct to bring it out of the purview of Section 2(oo) and Section 25F of the Act.

30. The learned Judge of the Tribunal had specifically observed that whether the documents filed by the concerned workman where sufficient or satisfactory to substantiate his absence could not be decided as the leave rule of the company had never been furnished. The company also did not file the standing order to show that unauthorized absence was a ground for termination. Therefore, the basis of such termination of the workman was never made known to the Tribunal.

31. The learned Judge specifically came to the finding from the documents produced before him and the oral evidence adduced that the concerned employee had no intention to relinquish his job and there was no evidence that he deserted his service or let himself go off his service of his own accord. The learned Judge was also of the view that there was sufficient evidence on record that under compulsion arising out of circumstances beyond his control the employee could not resume his duty. This conclusion was based on another factual finding that the company had miserably failed to prove that the concerned workman abandoned his service.

32. It appears from the impugned Award that the stand of the company before the Tribunal was that the workman was terminated for misconduct and, therefore, his case did not fall under the purview of Section 2(oo) of the Act. Consequently, compliance of Section 25F of the Industrial Disputes Act does not arise and the order of termination cannot be set aside for non-holding of domestic enquiry. It was also the stand of the company that the documents produced by it were sufficient to prove the misconduct on the part of the workman justifying the termination.

33. If such was the stand of the company before the Tribunal they cannot abruptly deviate from the same at a subsequent stage of the consideration of the case. It has nowhere been submitted or pleaded that the Tribunal had wrongly recorded the submissions of the writ petitioner company in the Award.

34. Thus, if the stand of the company before the Tribunal was that the service of the employee was terminated for misconduct and, therefore, the case shall not fall under Section 2(oo) of the Act the action of the company is plainly unsustainable. If the termination had been for any misconduct which also appears from the letters of the company as well as the grounds taken in the writ petition, as mentioned above, the employee could not be terminated without holding a disciplinary enquiry.

35. On the other hand, if the company takes a stand that the concerned employee was retrenched from service and, therefore, no disciplinary action was necessary it can hardly be said to be on a safer legal ground. The fact remains that it did not comply with Section 25F of the Act. Once the petitioner company wants to bring the termination within the fold of 'retrenchment' as defined under Section 2(oo) of the Act compliance with Section 25F of the Act is an essential pre-condition. The Supreme Court in the case of Delhi Cloth and Gen Mills Co. Ltd. Vs. Sambhunath Mukherjee, reported in 1977 Lab.I.C. 1695 held that striking off the name of a workman from the rolls of the company amounted to retrenchment. In that case, the name of the employee was struck off the rolls for having absented himself for more than eight consecutive days. In the case of Mohan Lal Vs. Management of Bharat Electronics Ltd., reported in : 1981 Lab.I.C. 806, the Supreme Court observed that a termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment, except those mentioned in the section itself. If the petitioner company has not complied with the provision of Section 25F of the Act the company was clearly on the wrong side of the law and the order must be held to be bad in law. Thus, in either case whether it is a case of retrenchment or termination for misconduct the impugned action of the company does not deserve a judicial sanction.

36. The learned Judge of the Tribunal has examined and discussed the materials on record, including oral and documentary evidence to come to a positive conclusion that the concerned employee had no intention to relinquish the job and there was no element of volition in it. The employee obviously for the circumstances beyond his control could not resume his duties.

37. Undoubtedly, this is a question of fact and once the Tribunal after examination of the evidence has come to a finding based on such evidence, the writ court is not the appropriate forum for reversal of the same. It is not the case of the petitioner that the finding is perverse in nature for not considering the materials on record or for taking into consideration anything which was not on record or the conclusion arrived at by the learned Judge of the Tribunal can be said to be so fragile that on the evidence on record no ordinarily prudent person would come to the said conclusion. This not being a perverse finding, on the other hand, a finding based on evidence the writ court must not upset the finding of fact arrived at by the Tribunal. In the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, reported in : AIR 1964 SC 477, the Supreme Court observed that in a writ petition the writ court does not act as a court of appeal. The findings of fact arrived at by the inferior court or tribunal are binding. An error of law apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact.

38. Mr. Dasgupta next relied on the judgment in the case of G.T. Lad Vs. Chemicals and Fibers of India Limited, reported in : 1979 (38) FLR 95, for a proposition that in the absence of any clue as to the meaning of the expression 'abandonment of service' we have to depend on the lexical meaning which has been explained as meaning 'to leave completely and finally', 'to forsake utterly', 'to relinquish or renounce' etc. According to Black's Law Dictionary abandonment when used in relation to an office means voluntary relinquishment. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the employee to abandon and relinquish the office. Temporary absence is not ordinarily sufficient to constitute an abandonment of office. In the present case the evidence adduced, either by the petitioner company or by the respondent No. 3 employee, does not gives any indication that the respondent workman ever intended to relinquish his office once and for all.

39. I fully agree with the finding of the learned Judge of the Tribunal that the employee was acting under a compulsion arising out of circumstances which were not within his control. He had specifically stated in examination-in-chief that he had not voluntarily abandoned his service or he never expressed any desire to voluntarily abandon his service. It is noteworthy that in the detailed cross-examination by the petitioner company there was no suggestion, far less any contradiction challenging the statement. On the other hand the letters written by the employee to the petitioner company clearly justify the conclusion reached by the learned Judge of the Tribunal. The medical status of the employee can be well ascertained from the certificate issued by the consultant physician on June 22, 2003 which clearly brings out that over and above his treatment the petitioner was also under the treatment of a consultant neuro-psychiatrist and he was advised complete bed rest with a regular follow-up by doctors.

40. The respondent employee clarified the whole position in his letter dated June 28, 2003 where he had in details narrated the health condition of himself and his wife which compelled him to come up to Kolkata on June 27, 2003. On July 24, 2003 the respondent employee addressed a letter to the petitioner company explaining in details the reasons for his not being able to attend the office with effect from April 14, 2003. He was earlier directed to explain his 'unauthorized absence' from April 14, 2003 which he did and also clarified the position that he was declared physically fit on June 22, 2003. He made a fervent appeal to allow to him to join his duty immediately.

41. From this it cannot be presumed or at least no man ordinary prudence will presume that the respondent employee had voluntarily abandoned his service or even harboured any intention for that. The reason for his not being able to appear before the medical board in New Delhi has also been explained by him in his correspondence to the company. Mr. Purusottam Nayar, the OPW-1 in his examination-in-chief never mentioned the basis of the company's presumption that the employee had abandoned his service. But at least he admitted in cross-examination that no specific charge sheet was issued to him on the ground of 'unauthorized absence'. Thus, notwithstanding its effort to project it as a case of abandonment of service, one thing stands out very clearly that the petitioner company also had treated the matter as a case of unauthorized absence.

42. The respondent employee alleges that the company has taken contradictory and mutually destructive pleas in shifting its position. The Supreme Court in the case of Steel Authority of India Limited Vs. Union of India and Others, reported in : (2007) 1 SCC (L & S) 630 has held that a party cannot take contradictory and inconsistent pleas. To raise a mutually destructive plea is impermissible in law and should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppels, waiver and acquiescence are equally applicable in an industrial adjudication.

43. The admitted fact is that the petitioner company did neither issue any charge-sheet not did it hold any domestic enquiry before issuing the impugned communication, dated August 11, 2003. Such an action is clearly against the requirement of law. It has been held in the case of Gouri Shankar Biswakarma Vs. Eagle Spring Industries Pvt. Ltd. and Another, reported in : 1987 (55) FLR 689, that even in the case of abandonment of service the employer has to hold an enquiry before terminating the service of an employee on that ground. It was for the employer to prove that the workman had abandoned his service. In the present case there has not been any effort on the part of the petitioner company to establish that the respondent employee had voluntarily abandoned his service.

44. In the case of D.K. Yadav Vs. JMA Industries Ltd., : 1993 SCC (L & S) 723, the respondent intimated the appellant that he had willfully absented from duty continuously for more than eight days without leave or prior information or permission from the management and, therefore, he was deemed to have left the service of the company of his own. The action of the respondent company was taken in terms of the certified standing order. The relevant labour court from whose order the appeal by special leave was filed before the Supreme Court held that it was not a case of termination or retrenchment under the Act.

45. After considering the rival contentions the Supreme Court in D.K. Yadav (Supra) held that application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. An order involving civil consequences must be made consistently with the rule of natural justice. In its comprehensive connotation everything that affects the citizens in their civil lives inflects a civil consequence. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. The Supreme Court found that no opportunity was given to the appellant and no enquiry was held. Consequently, it was held that the principles of natural justice must be read into the Standing Order; otherwise, it would be come arbitrary, unjust and unfair violating Article 14 of the Constitution of India.

46. The Supreme Court in D.K. Yadav (supra) further observed that the definition of retrenchment in Section 2(oo) of the Act is a comprehensive one intended to cover any action of the management to put an end to an employee for any reason whatsoever. This judgment squarely applies to the facts of the present case with the exception that in D.K. Yadav (supra) the employer could justify the action in terms of the Standing Order, but in the present case no Standing Order had been produced by the petitioner company before the Tribunal.

47. The same also was the view earlier taken by the Supreme Court in the case of L. Robert D'souza Vs. The Executive Engineer, Southern Railway and Another, reported in : 1982 (1) LLJ 330. The Supreme Court had held that the definition of retrenchment in Section 2(oo) of the Act is so clear and unambiguous that no external aid is necessary for its proper construction. If termination of service of a workman is brought about for any reason whatsoever it would be a case of retrenchment, unless the case falls within any of the excepted categories. Once the case does not fall in any of the excepted c

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ategories termination of service for any reason would nonetheless be a retrenchment. If the name of the workman is struck off the roll that would itself constitute an act of retrenchment. 48. It has already been noted that the petitioner company had all through alleged that the employee had been 'unauthorizedly absent', though in the letter of termination it mentioned its assumption of abandonment of service. If the petitioner has treated the employee as unauthorizedly absent from his duty it should have proceeded against the petitioner on the ground of misconduct for which an enquiry was to be made. In the case of Raghubir Singh Vs. General Manager, Haryana Roadways, Hissar, reported in : 2014 (6) Supreme 243, the appellant was terminated from service for unauthorized absence. The Supreme Court set aside the Award of the labour court as well as the judgments of the High Court being contrary to the provisions of the Act and the principles of natural justice. The Supreme Court observed that the appellant was dismissed without conducting an enquiry and not ensuring compliance with the principles of natural justice. 49. In the case of Sun Pharmaceutical Industries Ltd. Vs. Presiding Officer and Another, reported in : 2016 LLR 27, the service of the employee was terminated without conducting an enquiry or even issuing a charge-sheet. The employee having raised an industrial dispute the labour court awarded reinstatement with 50% back wages. The management challenged the Award. It was ultimately held by the Supreme Court that termination of service of a workman without complying with Section 25F of the Act was bad attracting reinstatement with back wages. 50. The Tribunal in the present case after holding that the order of termination was bad for non-compliance of Section 25F of the Act directed the petitioner to pay 50% of back wages since the period of absence till the period of reinstatement. The company was further directed to reinstate him within a month from the date of the Award. In line with the judgment referred to above it must be held that there is nothing wrong in the direction given by the Tribunal. In the event the action taken against an employee is found to be bad for any reason whatsoever the employee should be, as held in the case of Deepali Gundu Surwase Vs. kranti Junior Adhyapak and Others, reported in : 2013 (139) FLR 541, reinstated to the position he had held before removal or termination. He should be put in the same position in which he would have been but for the wrong action of the employer. 51. Thus, seen from any angle, the action of the employer cannot be justified. If the company had treated the respondent employee to have been unauthorizedly absent from his duty, it should have held a formal enquiry after issuing a charge-sheet for the alleged misconduct on his part. This was not done. Again, if the petitioner wanted to do away with the service of the employee without holding an enquiry it was required to comply with Section 25F of the Act. There was no other way of retrenching an employee. Either of these not having been done by the petitioner its action is entirely bad in law and consequently, I find nothing wrong in the Award impugned in the present writ petition. 52. The writ petition has no merit and the same is dismissed. 53. Interim order stands vacated. 54. There shall, however, be no order as to costs. 55. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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