Madras High Court

R.Ramesh Kumar vs The Management / District Manager on 24 April, 2025

                                                                                         W.P.No.2593 of 2020

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                         (Special Original Jurisdiction)

                                         RESERVED ON   : 20.03.2025
                                         PRONOUNCED ON : 24.04.2025

                                                      PRESENT:

                                  THE HON’BLE DR. JUSTICE A.D. MARIA CLETE

                                           W.P.No.2593 of 2020
                R.Ramesh Kumar
                S/o. P.Rajendran
                Residing at
                No.232/52, B.R.Nagar,
                Old Washermenpet
                Pencil Factory,
                Chennai – 600021.                                    …. Petitioner
                                           Vs.

                The Management / District Manager,
                Bata India Limited,
                No.G-171, Spencer Plaza,
                Anna Salai,
                Chennai – 600002.                                              …Respondent

                Prayer in W.P.
                To issue a writ of certiorarified mandamus or any other appropriate writ or order
                or direction in the nature of Writ, calling for the records in connection with the
                Order passed by the Learned II Additional Labour Court at Chennai in
                I.D.No.70 of 2012 dated 02-02-2019 and quash the same as illegal and improper
                and consequently direct the respondent herein to reinstate the petitioner into
                service with full back wages, continuity of service and all other attendant
                benefits within a specific period to be fixed by this Hon’ble Court.

                1/22


https://www.mhc.tn.gov.in/judis             ( Uploaded on: 24/04/2025 03:46:36 pm )
                                                                                        W.P.No.2593 of 2020




                Appearance of Parties:

                For Petitioner : Mr.S.Kingston Jerold, Advocate
                                 For M/s. S.Kingston Jerold, Rheefna Jerold and
                                 S.Sabarish, Advocates

                For Respondent: No appearance

                                                      JUDGMENT

Heard.

2.The present writ petition has been filed by the workman assailing the

award passed by the II Additional Labour Court, Chennai, in I.D. No. 70 of

2012 dated 02.02.2019, whereby the Labour Court rejected the industrial

dispute both on the ground of maintainability as well as on merits. When the

writ petition was taken up for hearing on 04.02.2020, notice was ordered to the

respondent, returnable by 17.03.2020. However, the notice returned unserved

with the postal endorsement "vacated."

3.Subsequently, when the matter was listed on 28.02.2025, a fresh notice

was directed to be issued to the correct address. Pursuant thereto, learned

counsel for the petitioner filed a fresh batta indicating the updated address of the

respondent. The notice was served on the respondent and the matter was listed

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

on 01.03.2025. However, there was no representation on behalf of the

respondent. The original records received from the Labour Court were also

circulated for perusal and reference.

4.The brief facts of the case, as projected by the petitioner, are as follows:

The petitioner was initially appointed as a Shop Assistant in the respondent

company by an order dated 04.09.2006. Subsequently, he was promoted to the

post of Cashier with effect from 21.04.2008. The petitioner’s grievance is that,

although deductions were made from his salary towards ESI and Provident Fund

contributions, the same were not credited to the concerned departments. Due to

the non-issuance of an ESI card, the petitioner was unable to avail medical

treatment for himself and his ailing mother. It was during this period that he was

transferred to Bangalore as a Salesman.

5.The petitioner submitted representations seeking cancellation of the

transfer order, contending that the service policy of the respondent company did

not contemplate inter-state transfers. Despite making multiple representations to

revoke the transfer, no favourable response was forthcoming. According to the

respondent, the petitioner had reported for duty at the Malleswaram Branch,

Bengaluru, on 12.01.2010 and 13.01.2010, but subsequently abandoned his

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

employment.

6.On the contrary, the petitioner maintained that he had never consented

to join the Bengaluru branch and, upon visiting the said branch, was informed

that no post of Salesman was available there. He further submitted that he sent a

telegram dated 27.01.2010, (which was received by the respondent on

29.01.2010), stating that he and his family were unable to report for duty at

Bengaluru due to health and financial difficulties. He also contended that the

transfer order was vitiated by malafides and was issued as a retaliatory measure

on account of his active involvement in the trade union functioning within the

establishment.

7.In the meantime, the respondent, by letter dated 02.03.2010, informed

the petitioner that disciplinary action would be initiated if he failed to report for

duty at the Bengaluru branch. This was followed by another communication

dated 29.03.2010, wherein the petitioner was cautioned that if he did not join

duty on or before 05.04.2010, appropriate action would be taken against him

without any further notice. Ultimately, the respondent proceeded to terminate

the services of the petitioner with effect from 16.11.2009, which, notably, was

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

the very date on which the impugned transfer to Bengaluru was effected.

8.The petitioner raised an industrial dispute under Section 2A(2) of the

Industrial Disputes Act, 1947, before the Conciliation Officer at Chennai,

challenging his non-employment. Upon issuing notice to the respondent and

conducting conciliation proceedings, the Conciliation Officer, having failed to

effect any settlement between the parties, submitted a failure report dated

10.10.2011. Based on the said failure report, the petitioner filed a claim

statement dated 06.03.2012 before the Labour Court. The dispute was taken on

file by the II Additional Labour Court, Chennai, as I.D. No. 70 of 2012, and

notice was ordered to the respondent. In response, the respondent filed a counter

statement dated 23.06.2013.

9.Before the Labour Court, the petitioner-workman examined himself as

WW1 and produced thirteen documents in support of his case, which were

marked as Exhibits W1 to W13. The respondent consented to the marking of

these documents, as recorded by the Labour Court in paragraph 6 of the

impugned award. On the side of the respondent, one Mr. S. Velmurugan, who

was serving as the Branch Manager of the Anna Salai Branch, was examined as

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

MW1. The letter of authority authorising him to represent and pursue the case

on behalf of the respondent was marked as Exhibit M1.

10.The Labour Court framed the following three issues for consideration:

(i) whether the alleged refusal of employment amounted to an oral termination;

(ii) whether the petitioner was entitled to reinstatement with continuity of

service, back wages, and other attendant benefits; and (iii) to what other reliefs,

if any, the petitioner was entitled.

11.At the threshold, the respondent-management raised two preliminary

objections. The first objection was that the Labour Court at Chennai, established

under the auspices of the Government of Tamil Nadu, lacked territorial

jurisdiction to entertain the dispute, as the petitioner had been transferred to

Bengaluru; hence, according to the respondent, only the Labour Courts in

Karnataka had jurisdiction to adjudicate the matter. The second objection was

that the petitioner, being employed as a Salesman, did not fall within the

definition of "workman" under Section 2(s) of the Industrial Disputes Act, 1947,

and therefore, the dispute itself was not maintainable.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

12.On behalf of the workman, it was contended that the respondent had

not framed or certified any standing orders applicable to employees in the State

of Tamil Nadu. The standing orders relied upon by the respondent were framed

in Kolkata and certified under the jurisdiction of the State of West Bengal, and

therefore, could not be extended to govern the service conditions of employees

in Tamil Nadu. In the absence of certified standing orders applicable to the

petitioner, it was submitted that the Model Standing Orders under the Industrial

Employment (Standing Orders) Act, 1946, alone would apply. Under the Model

Standing Orders, there is no provision enabling the management to effect inter-

state transfers, even if the employer has branches in other states. Furthermore, it

was contended that there was no contract of employment conferring such a right

of transfer upon the employer. On the contrary, Clause 21A of the Standing

Orders (Ex.P1), which reflects the policy of the company, reads as follows:—

“The policy of the Company, however, is not to transfer an employee from one state to another against his will or consent.”

13.In the impugned award, the Labour Court summarily rejected the

petitioner’s case on the question of jurisdiction in few sentences, which read as

follows:—

“petitioner was issued transfer order from Manager, Personnel Administration, Retail South, Bangalore. No records was produced by the management that petitioner

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

joined and signed in the attendance at Bangalore, Malleswaram Shop. But petitioner was communicating to the Manager, Personnel Administration, Retail South who’s office was at Bangalore. Petitioner also has to be in Bangalore, because he relieved from Chennai Shop. So Labour Court, Bangalore only have jurisdiction.”

14.It is an admitted fact that the petitioner had been employed in various

branches of the respondent company within the State of Tamil Nadu. For the

first time, by order dated 31.10.2009 (Ex.W5), he was transferred to the

Malleswaram Branch, Bengaluru, by the Manager, Personnel Administration,

Retail South. The said order was served on the petitioner while he was working

at the Bata showroom in Mambalam, Chennai. Until that point, his entire

service had been confined to branches within Chennai, Tamil Nadu.

Immediately upon receipt of the transfer order, the petitioner submitted a protest

letter (Ex.W6), requesting cancellation of the said order. All subsequent

correspondence, that were sent to him including letters and communications

marked as Ex.W7 to Ex.W13, took place only in Chennai and not at Bengaluru.

15.Although the respondent contended that the petitioner had reported for

duty at the Bengaluru branch and thereafter abandoned his employment, such an

assertion cannot be construed as acceptance of the transfer, particularly when

the petitioner had consistently opposed the transfer as being contrary to the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

company's own transfer policy and had not given his consent. Notably, the

respondent has not produced any material to show that salary was paid to the

petitioner for the two days he allegedly worked at the Bengaluru branch. In fact,

during cross-examination, MW1, Mr. S. Velmurugan, deposed as follows:—

“vd;Dila ft[z;lu; kw;Wk; gpukhz gj;jpuj;jpy; 12-01-10 kw;Wk; 13-1-10 Mfpa ,uz;L ehl;fSk; kDjhuu; bg';fS:u; ngl;lh filapy; ntiy ghu;j;jhu; vd;W brhy;ypa[s;nsd; mjid epU:gpf;f Mjhuk; jhf;fy; bra;Js;sPu;fsh vd;why; jhf;fy; bra;atpy;iy/ m';F kDjhuu; ntiy bra;jpUe;jhy; mtUf;F tH';fg;gl;l rk;gsk; Fwpj;j Mtz';fs; vjhtJ jhf;fy; bra;Js;sPu;fsh vd;why; bra;atpy;iy/ vd;Dila gpukhz gj;jpuj;jpYk;. ft[z;lupYk; kDjhuu; mwptpg;gpd;wp tpLg;g[ vLj;jhu; vd;gjw;fhf eltof;if vLj;njhk; vd;W brhy;ypa[s;sPu;fsh vd;why; eh';fs; mg;go fojk; mDg;gpndhk; Mdhy; mjw;F nky; ve;j eltof;ifa[k;

vLf;ftpyi; y/”

16.With respect to the petitioner's alleged joining of duty at the Bengaluru

branch, he was specifically cross-examined on this aspect. During his

examination-in-chief as WW1, the petitioner gave the following response:—

“ehd; bg';fSupy; cs;s fil nkyhsUf;F gzpapy; nru te;jpUg;gjhf fojk; bfhLj;njdh vd;why; brd;id mYtyfk; vdf;F bfhLj;j gzp khWjy; cj;juit bfhLj;njd;/ mij bgw;Wf; bfhz;ljw;F xg;g[jy; juKoahJ vd;W brhy;yptpl;lhu;fs;/ me;j filapy; bg';fSupy; ky;ny!;tuj;jpy; ,Uf;fpwJ KGtptuk; bjupahJ/ me;j fil nkyhsu; bgau; rk;gj; me;j fil xnu jsj;jpy;jhd; ,Uf;fpwJ kho fpilahJ mjd; mUnf cs;s bgupa Xl;ly; nghd;w !;jhgd';fs; vdf;F bjupatpy;iy/ ehd;

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

2010y; bgh';fYf;F rpy jpd';fSf;F Kd;g[ m';F brd;wpUe;njd;/ 3 ehl;fs; me;j fil thrypy;jhd gLj;jpUe;njd;/ m';F tpw;gidahsu; gjtp ,y;iy vd;W brhy;yptpl;lhu;fs;/ vdf;F ,';fpUe;J bg';fSUf;F bry;yt[k; jpUk;g tut[k; gzk; jutpy;iy/ ehd; 3 ehl;fs; gLj;jpUe;jnghJ nghyp!;rhu; tprhupf;ftpy;iy/”

17.With regard to the issue of jurisdiction and the determination of the

appropriate Government under Section 2A of the Industrial Disputes Act, 1947,

the matter stands settled by judicial pronouncements. It has been consistently

held that the relevant factor is not the place where the employer resides or

carries on business, but the place where the industrial dispute actually arose. In

this context, the Hon’ble Supreme Court, in Workmen of Sri Ranga Vilas

Motors (P) Ltd. v. Sri Rangavilas Motors (P) Ltd., reported in AIR 1967 SC

1040, has laid down the following principle:—

“…Mr. O. P. Malhotra strongly urges that the State Government of Mysore was not the appropriate Government to make the reference. He says that although the dispute started at Bangalore, the resolution sponsoring this dispute was passed in Krishnagiri, and, that- the proper test to be applied in the case of individual disputes is where the dispute has been sponsored. It seems to us that on the facts of this case it is clear that there was a separate establishment at 'Bangalore and Mahalingam was working there. There were a number of other workmen working in this place. The order of transfer, it is true, was made in Krishnagiri at the head office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

that the proper question to raise is : Where did the dispute arise ? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that place. As the High Court observed, there should clearly be 'some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose.”

18.Accordingly, the finding of the Labour Court in the impugned award,

holding that it lacked jurisdiction, is erroneous and cannot be sustained. It is

held that the Labour Court at Chennai does have jurisdiction to adjudicate the

dispute, as the industrial dispute arose within the territorial limits of the State of

Tamil Nadu. Consequently, the appropriate Government for the purpose of this

dispute is the Government of Tamil Nadu, and the Labour Courts constituted

thereunder are competent to entertain and decide the matter.

19.The other contention raised by the respondent—that the petitioner,

being a “Salesman,” does not fall within the definition of a “workman”—was

rejected by the Labour Court on the ground that the petitioner was not vested

with any supervisory functions and did not exercise control over any

subordinates. However, the Labour Court appears to have proceeded under a

mistaken impression that the respondent's objection was based solely on the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

petitioner allegedly holding a supervisory position, and not on the broader

ground that he was excluded from the definition of “workman” under Section

2(s) of the Industrial Disputes Act, 1947. In fact, the specific objection of the

management on this aspect is clearly set out in paragraph 12 of the counter

statement filed in I.D. No. 70 of 2012, which reads as follows:

“…the respondent states that the petitioner is not a workman as per sec 2(s) of Industrial Disputes Act. He is an employee as he was working as a cashier in Chennai shop and was further promoted and transferred as salesman at Malleswaram shop, Bangalore.”

20.The definition of the term "workman" as provided under Section 2(s)

of the Industrial Disputes Act, 1947, is extracted below:—

"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person” (exceptions omitted)

21.The mere designation of the petitioner as a "Salesman" is not sufficient

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

to exclude him from the purview of the Industrial Disputes Act, 1947. In this

regard, it is relevant to refer to Section 2(d) of the Sales Promotion Employees

(Conditions of Service) Act, 1976, which defines the term “sales promotion

employee” as follows:—

“2(d) “sales promotion employees” means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, but does not include any such person—

1.who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or

2. (ii) who is employed or engaged mainly in a managerial or administrative capacity.”

22.The respondent, Bata Shoe Company, operates numerous retail outlets

and directly employs salesmen in these establishments, whose duties are

essentially those of shop assistants. Their role does not involve promotion of

sales or business in the manner contemplated under the Sales Promotion

Employees (Conditions of Service) Act, 1976. In any event, Section 6(2) of the

said Act explicitly provides that disputes relating to non-employment of such

sales personnel shall be treated as industrial disputes. Section 6(2) of the Act

reads as follows:—

“6(2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.”

23.As per the Standing Orders applicable to the workmen (Ex.P1), the

term "shop employee" defined under Clause 2(m) expressly includes salesmen

(including sales girls). Furthermore, under Section 2(i) of the Industrial

Employment (Standing Orders) Act, 1946, the term “workman” is defined as

follows:—

“wages” and “workman” have the meanings respectively assigned to them in clauses (rr) and (s) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947)

24.Therefore, if an employee is covered under the provisions of the

Industrial Employment (Standing Orders) Act, 1946, he would also fall within

the definition of “workman” for the purposes of the Industrial Disputes Act,

1947. However, instead of addressing the objection raised by the management

on this legal basis, the Labour Court digressed from the core issue and

misdirected itself in rendering a finding on a different footing. In any event, the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

objection raised by the management with regard to the petitioner’s status as a

workman is devoid of merit and stands overruled.

25.The only other issue that arises for consideration is whether the

Labour Court was justified in denying relief to the petitioner. As per the

Standing Orders relied upon by the management (Ex.P1), misconduct is defined

under Standing Order 22, and specifically, Standing Order 22(5) enumerates

wilful insubordination or disobedience as an act of misconduct. However, any

disciplinary action in relation to such misconduct must be undertaken strictly in

accordance with the procedure prescribed under the said Standing Orders.

Further Standing Order 27 lays down the procedure for termination of service,

which reads as follows:—

“The services of the employee will be liable to be terminated for want of work or if he is found to be mentally or physically unfit for work or for any other good or sufficient reason or cause except discharge or dismissal on the ground of misconduct vide Clause 22, by giving one month’s notice or one month’s salary in lieu thereof.

Cases of employees detained or convicted on political grounds will be considered and decided on their own merits.”

26.Although the Standing Orders make a reference to the transfer of a

workman, they expressly stipulate, as a matter of policy, that no workman shall

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

be transferred from one State to another without his consent. It is also pertinent

to note that “transfer” is not an item specified in the Schedule to the Industrial

Employment (Standing Orders) Act, 1946. Consequently, any clause relating to

transfer, not being part of the prescribed Schedule, cannot be deemed to have

statutory force so as to override the provisions of the Industrial Disputes Act,

1947.

27.The Orissa High Court, in The Workmen of Orissa State

Commercial Transport Corporation v. Orissa State Transport

Corporation, reported in 1975 (1) LLJ 11 (Ori), held that a clause relating to

transfer cannot be validly incorporated into the Standing Orders, as “transfer” is

not an item included in the Schedule to the Industrial Employment (Standing

Orders) Act, 1946, in respect of which certified standing orders can be framed.

The Court observed as follows:—

“3. We shall now examine the petitioner's contention with reference to each of the impugned standing orders. Standing Orders 7 and 14 deal with recruitment and employment and transfer of employees respectively. The petitioner contends that the topics covered by these two standing orders are foreign to the Act. The Schedule to the statute provides the matters in respect whereof standing orders can be made under the Act.

4. This Court in Saroj Kumar v. Chairman, Orissa State Electricity Board , held that unless a matter is covered by the Schedule, a provision in respect thereof cannot be provided. The

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

view indicated by this Court has been specifically approved in U. P. Electricity Supply Co. v. T.N. Chatterjee . On that footing these two standing orders must be held to be beyond the scope of the statute. It is true that objection as against these two standing orders had not been raised earlier. But as it now turns out to be a matter relating to jurisdiction, we overrule the objection of the opposite party No. 1 and direct that Standing Orders 7 and 14 shall stand deleted from the Certified Standing Orders.”

28.In the absence of any specific provision under the applicable Standing

Orders permitting termination of service on the ground of abandonment, it was

incumbent upon the respondent-employer to conduct a domestic enquiry in

accordance with the procedure prescribed under the Standing Orders.

Significantly, in their communication dated 29.03.2010, the respondent

themselves characterised the petitioner’s conduct as grave misconduct

warranting dismissal from service. The said letter, which was marked as

Ex.W12, reads as follows:—

“This has reference to the letter dated 2.3.2010 issued by you by your Shop Manager in regard to your absent from shop duties without information and proper leave application approved by your superiors. You have neither reported to duty nor replied to the above letter within the stipulated time.

Your unauthorized and unplanned absent from shop duties affects not only the business of the shop but also day-to-day administration and smooth functioning of the shop.

Your above act of absent from shop duties without information is

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

a grave misconduct and merits stringent disciplinary action, nothing short of dismissal. However, in order to give you one more and as a last opportunity, you are hereby asked to report to duty on or before 5.4.2010, failing which it will be presumed that you have no interest to continue to work in the organization and the matter will be dealt accordingly without any further notice to you.”

29.However, the respondent failed to issue any charge sheet or conduct a

domestic enquiry prior to dispensing with the petitioner’s services, as mandated

by law. The Hon’ble Supreme Court, in the case of G.T. Lad & Others v.

Chemicals & Fibres of India Ltd., reported in 1979 (1) SCC 590, has

categorically held as follows:—

“In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and finally; for- sake utterly; to relinquish, renounce; to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means 'relinquishment of an interest or claim'. According to Blacks 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 officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an abandonment of office'.

From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah & Ors. it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.”

30.Where it is mandatory for an employer to conduct a domestic enquiry

before dispensing with the services of an employee, any action taken in

violation of such requirement is legally untenable. The Hon’ble Supreme Court,

in D.K. Yadav v. J.M.A. Industries Ltd., reported in 1993 (3) SCC 259, has

clearly laid down the legal position as follows:—

“….In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )

report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 (2) (iv). Otherwise it would become arbitrary. unjust and unfair violating Arts. 14. When so read the impugned action is violative of the principles of natural justice. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor given the appellant any opportunity to put forth his case. ”

31.In the absence of any domestic enquiry despite the allegation of

misconduct, it must be presumed that the termination of the petitioner was a

case of simple termination, as there exists no legal basis for invoking a fictional

concept of abandonment of service. In such circumstances, the termination

would fall within the definition of "retrenchment" under Section 2(oo) read with

Section 25F of the Industrial Disputes Act, 1947. The respondent failed to

comply with the mandatory preconditions stipulated under Section 25F(a) and

(b) of the Act, despite the petitioner having rendered nearly four years of

continuous service. As a result, the termination is rendered void ab initio, as

held by the Hon’ble Supreme Court in State Bank of India v. N. Sundara

Money, reported in 1976 (1) SCC 822.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/04/2025 03:46:36 pm )