The Madras High Court has held that the extraordinary and equitable jurisdiction under Article 226 of the Constitution of India cannot be exercised to grant relief to the Management when termination is effected by abruptly blocking an employee’s access to the workplace using a Smart Card Access System without conducting an enquiry or serving a termination order. Such actions directly violate the basic dignity of labour, the right to fair working conditions, and the protections guaranteed under Article 23(1) of the Universal Declaration of Human Rights, read with Section 2(d) of the Protection of Human Rights Act, 1993.
A Single Judge Bench of Justice D. Bharatha Chakravarthy observed that the written termination order dated June 06, 2018 was admittedly not served on the employee. The management failed to produce any proof that the order or earlier communications were sent via email. As per Rule 9(2) of the Tamil Nadu Shops and Establishments Rules, 1948, the employee’s cause of action to challenge the termination arises upon communication of the order, either personally or, if impractical, by prepaid registered post.
When the employee was given a hearing on May 31, 2018 before the HR manager, the management chose not to hand over the returned courier communications in person, noted the Bench, while finding that the overall facts and circumstances point to oral termination, as access to the workplace was simply blocked without announcing termination.
The Bench observed that the management shifted to the new charge of unauthorised absence as the reason for termination, abandoning its original charge of low performance. During cross-examination, the witness admitted that the termination order mentioned the employee was unauthorizedly absent from May 18, 2018, which contradicted the management’s own communications. The Bench held there was absolutely no clear and categorical case put forth by management to insist upon the procedure of passing a preliminary award and thereafter considering the evidence on merits.
The Bench rejected the management’s alternative plea to award compensation in lieu of reinstatement with back wages, and reasoned that the allegation was only of underperformance, and it was not a case of a lack of confidence.
Further, the Bench observed that after 18 years of service, the least expected from the management is to summon the employee before a responsible superior official, serve the termination order, and send him out. It held that merely because companies have a Smart Card Access System for entry into the office, the said security system cannot be used as a means of terminating services. Such abrupt turn-away at the gate directly violate the basic dignity of labour and breach the right to fair working conditions and protections against employment guaranteed under Article 23(1) of the Universal Declaration of Human Rights, which forms part of Human Rights as defined under Section 2(d) of the Protection of Human Rights Act, 1993.
Briefly, an employee who was appointed with Cognizant Technology Solutions India Pvt Ltd. with effect from Jan 04, 2000, was issued with a show cause notice on Apr 18, 2018, alleging low performance amounting to misconduct. The employee submitted a reply, stating the charge was baseless and vindictive, after which the Human Resources Talent Manager advised the employee to go on leave. Upon returning from leave in the last week of May 2018, the employee found his access ID to enter the office premises blocked, and a sum of Rs. 5 Lakhs was credited to his account. The employee issued a legal notice claiming illegal oral termination with effect from May 30, 2018 without any written communication or enquiry.
The Management contended that the employee stopped reporting to work from Apr 19, 2018 and that communications which were sent on various dates, directing him to report to work, returned undelivered. The Management claimed the employee was terminated for abandoning his job, effective from June 06, 2018, due to unauthorised absence. The Appellate Authority found that the termination order was not sent through registered post with due acknowledgement card as per the Tamil Nadu Shops and Establishment Act, 1947, no enquiry was conducted, and the non-employment was deemed illegal.
Appearances:
Advocates Gupta Ravi and C. Manohar Gupta, for the Petitioner
Advocate A.M. Ayyadurai, for the Respondent
