9911796707
TMI Blog1978 (5) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... Electric Supply and Transport Undertaking on account of his unsatisfactory record of service can be regarded as punitive so as to compel the employer to hold a disciplinary enquiry? 1003 whether such termination can be effected by giving in writing to the employee the aforesaid reason for termination and one calendar month's written notice or pay including allowances admissible in lieu thereof ? For a proper determination of the abovementioned questions, it is desirable, to state the, circumstances which have given rise to the appeal. The respondent who was working since February 4, 1959 as a clerk in grade A/G-V in the Consumers Department (North) of the B.E.S.T. (Bombay Electric Supply Transport) Undertaking (hereinafter refer- red to for the sake of brevity as 'the Undertaking') which is run by the appellant was informed by the Executive Assistant to the General Manager of the Undertaking vide communication dated January 20, 1968, that her services would stand terminated from the close of work on January 23, 1968, as her record of service was unsatisfactory. It was, however stated in the communication that she would be paid one, months wages in lieu of notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manager could not be regarded as a valid substitute for the conscious exercise of the power; that the order which expressly stated the unsatisfactory record of service as the reason for terminating the respondent's services and thus cast a stigma on her was patently punitive and that Standing Order 26 did not create an absolute right in the management to terminate the services of an employee for misconduct without holding an enquiry or giving him a fair opportunity of being heard. Accordingly, the Industrial Court held that the impugned order was bad in law on both the counts viz. (i) that it was passed by an authority which was absolutely lacking in competence and (ii) that despite its punitive character, it was passed without holding a domestic enquiry or giving an opportunity to show cause thereby violating the principles of natural justice. The appellant thereupon made an application to the High Court under Article 226 of the Constitution challenging the order of the President of the Industrial Court. The High Court dismissed the petition holding inter alia that the fact that Standing Order 26 required reasons to be mentioned in the order terminating the services of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Executive Assistant to the General Manager who did not. have de jure existence on the relevant date in view of the fact that the duration of the post held by him had not been validly extended by the Corporation. He has further contended that as the impugned order which clearly cast aspersion the respondent amounted to an order of dismissal, it could not have been passed without complying with the formalities prescribed by the Standing Orders. All these rival contentions require careful examination. The question as to whether the post of Executive Assistant to the General Manager validly existed on the relevant date or not does not require to be gone into as we are satisfied that the impugned order terminating the respondent's services was in fact and in reality passed by the General Manager himself who was the competent authority as defined by clause (e) of Standing Order 3 and was merely communicated by his Executive Assistant to the respondent. This is amply home out from, the material placed before the Labour Court. The I draft of the termination order (Exhibit 41) which has been duly proved by Dandekar who was working as Personnel Officer on the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Order 23 and the other is the power to terminate the service of an employee by one calendar month's written notice or pay in lieu thereof under Standing Order 26. The question is as to which power has been exercised by the management in the present case and this question has to be determined having regard to the substance of the matter and not its form. Now, one thing must be home in mind that these are two distinct and independent powers and as far as possible, neither should be construed so as to emasculate the other or to render it in- effective. One is the power to punish an employee for misconduct while the other is the power to terminate simpliciter the service of an employee without any other adverse consequence. Now, proviso (1) to clause (1) of Standing Order 26 requires that the reason for termination of the employment should be given in writing to the employee when exercising the power of termination of service of the employee under Standing Order 26. Therefore, when the service of an employee is terminated simpliciter under Standing Order 26, the reason for such termination has to be given to the employee and this provision has been made in the Standing Order wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re taken that the impugned order of termination of service of the respondent was punitive in character and could not have been passed save and except as a result of a disciplinary inquiry held under clause (2) of Standing Order 21 read with Standing Order 23, the impugned order cannot be struck down as invalid on the ground of non compliance with the requirement of these 'Standing Orders, since the respondent No. 2 availed of the opportunity ,,open to her before the Labour Court when the appellant adduced sufficient evidence justifying the action taken by the management. The appellant produced satisfactory evidence to show that the impugned order terminating the service of the respondent was justified and hence the impugned order must be sustained despite its having been passed without complying with the requirements of clause (2) of Standing Order 21 read with Standing Order 23. We are fortified in this view by a catena of decisions of this Court where it has been consistently held that no distinction can be made between cases where the domestic enquiry is invalid or defective and those where no enquiry has in fact been held as required by the relevant Standing Orders in eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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