Employee's Termination Without Departmental Inquiry Based On Incomplete & Non-Specific Show Cause Notice Violative Of S.25G Of ID Act: Gujarat HC

The Judge was hearing three petitions challenging an order of the Labour Court filed by a contractual employer, the Principal Employer and a workman.

The workman herein was working as a tanker driver. On account of his alleged continued absence, a show cause notice was issued. The response to the notice was deemed unacceptable by the contractual employer and his services were thereby terminated.

The employers jointly submitted that the petitioner had given a generic reply about ill-health of the children. They added that the reply in itself was insufficient and hence, no need was felt for proceeding with the departmental inquiry. Later, the petitioner had also taken a different stand that he himself was medically unfit.

Vide the 2017 order, the Labour Court ordered reinstatement of the workman without back wages. This was challenged before the High Court. 

The employer argued that by the conduct of the workman, it was apparent that he had accepted the order of dismissal and had received a demand draft towards his dues.

Reliance was placed on Central Bank of India Ltd. v/s Karunamoy Banerjee to contend that where the guilt by the employee has been admitted, there is no need for a departmental inquiry. 

The Bench observed that the workman was absent between July 2003 and June 2004 on several occasion and therefore, was negligent towards his duty. 

Justice Kogje also affirmed that the workman had responded to the notice and gave information about the prolonged ill-health of his mother and consequent social responsibilities. Subsequent to non-acceptance of the explanation, the dismissal order was issued.

However, the show cause notice did not indicate any specific charge of absenteeism since no period was specified. Justice Kogje opined:

"It was, in the opinion of the Court, an incomplete show cause notice, to which the respondent workman had no occasion to file his response as expected by the employer, meaning thereby when the show cause notice /charge was not specific enough for the workman to respond to specifically, inquiry by issuing specific charge sheet was necessary."

Keeping in view that the workman had worked since 1994 with the employer as a tanker driver until the order of termination, the High Court held that the Labour Court was justified in concluding a breach of Sec 25(G) of the ID Act.

Further, it was clear that inquiry had commenced for the issue but no chargesheet was filed for the workman to access and respond to. Regarding a secondary issue that the workman was the employee of the principal employer, Justice Kogje elucidated that the cause of action was based on the show cause notice issued by the contractual employer who had also issued the order of dismissal. Therefore, there was insufficient evidence to establish a relation of master-servant between the workman and the principal employer. 

The Court also affirmed that as per the principle of 'no work no pay', no back wages were due to the workman. Therefore, it did not interfere with the issue of back wages as adjudicated by the Labour Court.

Case No.: C/SCA/10438/2017

Case Title: ABHISHEK INDUSTRIAL SERVICE PVT. LTD v/s NATHABHAI BHAGWANJIBHAI RATHOD & 2 other(s)

Citation: 2022 LiveLaw (Guj) 275

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