2008 (9) TMI 881 - HC - Indian Laws

Termination of service - Held that - The evidence in the present case does not in any manner indicate that the workman had committed any misconduct. As aforesaid, the witnesses for the respondent had, in fact, admitted that there was no misconduct on the part of the workman and that, therefore, there was no need of either charge-sheeting him or holding an enquiry against the workman. In these circumstances, the Award Part-II of the Labour Court is unsustainable and must be set aside. The submission of the learned advocate for the respondent No.1 that it would not be possible for the respondent No.1 to reinstate the petitioner in view of the agreement between the Airports Authority of India and Mumbai International Airport Pvt. Ltd., is unacceptable. The petitioner will be treated in the same manner as other workmen who are today working with the Airports Authority of India. As regards the back wages, the evidence led by the workman indicates that he made several attempts to get alternative employment and that he had no independent source of maintenance. This is a fit case to remand the matter to the Labour Court to decide whether the back wages and consequential benefits are payable to the workman from 29.4.1988 i.e. the date of termination to the date of reinstatement in service.

Issues Involved:
1. Legality of termination under Regulation 31(2)(vi) of the International Airport Authority of India (General Conditions of Service) Regulations, 1980.
2. Justification of termination without notice.
3. Whether the petitioner abandoned his services.
4. The validity of evidence led before and after Award Part-I.
5. Right to reinstatement and back wages.

Issue-wise Detailed Analysis:

1. Legality of Termination under Regulation 31(2)(vi):
The petitioner's services were terminated under Regulation 31(2)(vi) of the International Airport Authority of India (General Conditions of Service) Regulations, 1980. The Division Bench in the case of *International Airport Authority of India v/s Viru Muthu Sukhlingam* held that the regulation had neither been approved by the Central Government nor published in the official gazette. Consequently, any action taken under this regulation had no legal effect. This view was reaffirmed in *Airports Authority of India v/s G.K.Pande*. Therefore, the termination under this regulation was deemed illegal.

2. Justification of Termination Without Notice:
The Tribunal initially held that the termination was illegal as no enquiry was conducted before the termination. The respondent was allowed to justify its action by leading evidence, but instead, they chose to rely on the existing evidence. The Division Bench in *Viru Muthu Sukhlingam* and *G.K.Pande* cases concluded that termination without notice under Regulation 31(2)(vi) was unjustifiable. The Labour Court's acceptance of the termination from 29.4.1988, instead of 12.1.1988, was also scrutinized and found inconsistent.

3. Whether the Petitioner Abandoned His Services:
The Labour Court initially held that the petitioner had not abandoned his services. However, in Award Part-II, it concluded that the workman had abandoned his services, which contradicted its earlier finding. The Court emphasized that abandonment of service and termination by the employer are antithetical and cannot coexist. The Labour Court's contradictory findings were deemed unsustainable.

4. Validity of Evidence Led Before and After Award Part-I:
The Labour Court permitted the respondent to lead additional evidence post-Award Part-I, but the respondent declined and relied on prior evidence. The Court held that the evidence led before Award Part-I could not justify the termination, especially since the respondent admitted no misconduct by the petitioner. The Labour Court's reliance on prior evidence to justify the termination was found erroneous.

5. Right to Reinstatement and Back Wages:
The petitioner was entitled to reinstatement with continuity of service. The issue of back wages was remanded to the Labour Court to decide based on evidence whether back wages and consequential benefits are payable from the date of termination (29.4.1988) to the date of reinstatement. The Labour Court was directed to resolve this issue within three months, allowing both parties to lead evidence.

Conclusion:
The petition was allowed, and Award Part-II in Reference (IDA) No. CGIT/2/35 of 1990 was quashed and set aside. The petitioner was entitled to reinstatement, and the issue of back wages was remanded to the Labour Court for further determination. The Labour Court was instructed to decide the matter within three months, with no order as to costs.

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