The Odisha

G a z e t t e

EXTRAORDINARY

PUBLISHED BY AUTHORITY

No. 1392 CUTTACK, WEDNESDAY, MAY 28, 2025/JAISTHA 7, 1947

LABOUR & E.S.I. DEPARTMENT

NOTIFICATION

The 21st May 2025

S.R.O. No. 301/2025—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14

of 1947), the award, dated the 28th March 2025 passed in the I.D. Case No. 03 of 2024 [under

Section 2-A (2)] passed by the Presiding Officer Labour Court, Bhubaneswar on the industrial

dispute between the Chief Operating Officer-cum-Director of Medical Service (DMS), Apollo Hospital

Enterprises Ltd. Bhubaneswar, Old Sainika School Road, Unit-15, Bhubaneswar-751005 and

Mr. Soheb Mohammad, Plot-32, Ashoka Nagar, Bhubaneswar, Khordha, Odisha- 751009 is hereby

published as in the schedule below :—

SCHEDULE

IN THE LABOUR COURT, BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 03 of 2024

Dated the 28th March 2025

Present :

Smt. Meenakshee Priyadarsinee,

Presiding Officer,

Labour Court,

Bhubaneswar.

Between :

Chief Operating Officer-cum-Director of

. .

First Party—Management

Medical Service (DMS),

Apollo Hospital Enterprises Ltd. Bhubaneswar,

Old Sainika School Road,

Unit-15, Bhubaneswar- 751005.

And

Mr. Soheb Mohammad,

. .

Second Party—Workman

Plot-32, Ashoka Nagar,

Bhubaneswar, Khordha,

Odisha- 751009.

Appearances :

S. S. Rout,

. . For the First Party—Management

Authorised Representative.

Shri N. K. Mohanty

. . For the Second Party

Authorised Representative.

AWARD

This is an application under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short

the Act’) wherein the second party while challenging the legality and justifiability of the action of the

management in terminating him from service with effect from the 25th August 2022, has claimed

for his reinstatement in service with full back wages.

2. The case of the disputant involved in the present proceeding, in short, is that :- On being

appointed, the second party joined under the management on the 15th February 2018 as a

Technician at its Phlebotomy Department, who was drawing the salary of Rs.14,000 per month

and worked as such there till, the 25th August 2022 when his service was terminated by the

management without any rhyme or reason. Aggrieved against his termination from service the

second party raised an industrial dispute before DLO, Khurda for his intervention on the primary

ground that his termination has been effected without giving any notice to him or compensation

arising out of his termination paid to him. The DLO, Khurda, thereafter issued notices to the

management for the purpose of filling of its views to the complaint petition of the second party so

also for attending the joint enquiry. But, the management neither filed its view nor attended the joint

enquiry. It is averred in the statement of claim that the DLO, Khurda at Bhubaneswar though

attempted for coniliation of the dispute, but the same could not be resolved within the stipulated

period, for which the second party has filed the present Application before this forum resorting to

the provision of Section 2-A (2) of the Act.

3. On service of notice from this Court, the management contested the claim of the second

party by filling its written statement. In its statement, the management while admitting about the

engagement of the second party as ‘Phlebotomist’ in its Phlebotomy Department having employment

No. 1096409 for the period from the 15th February 2018 to the 25th August 2022 stated with

vehemence at the same time that the second party was terminated from service after, the 25th

August 2022 as per the complaint received from one Ms. Kalyani Behera who is not an employee

of it. Add to it, the second party was thereafter asked to visit the office of the DGM, HR of the

management for the purpose of receiving show cause letter, dated the 24th August 2022, but he

denied to receive the same. According to the management, despite repeated calls and notices

when the second party neither appeared before the DGM HR nor submitted his reply, if any to the

show cause letter within the stipulated time of 24 hours and when specifically the allegation (i.e,

sending of obscene pictures by him to Ms. Kalyani during office hour and engaging himself in

diverting patients of the management to Genex Laboratory) brought against him were clearly proved

from the video and photographs as provided on examination, it, in order to keep its reputation, had

to terminate him from service. Further, while denying the other averments in the claim statement,

the management has prayed for the dismissal of the case.

4. In the rejoinder of the second party filed to the WS of the management, it has been

stated that no enquiry was conducted by the management before terminating him from service

when it brought some allegations against him. No FIR stated to have been lodged against him on

the above allegations by Ms. Kalyani Behera, who is totally an outsider and not an employee of the

management. Rather, his wife had lodged a FIR in the Saheed Nagar P.S. against Ms. Kalyani

Behera for her harassment to him wherein she (Ms. Kalyani Behera) during the time of investigation

admitted to have raised a complaint before the managemnt due to personal ego and deliberate

intention for harassment. Further, Ms. Kalyani Behera has given a statement before the police not

to repeat such type of mistake against the second party.

5. The rival contentions of the parties give rise to the following issues for adjudication.

ISSUES

(i)

Whether the action of the first party management in terminating the services of

the second party with effect from, dated the 25th August 2022 is legal and/or

justified ?

(ii)

If not, to what other relief (s) the second party is entitled to ?

6. During hearing of the case, the second party has examined himself as WW No. 1 with

regard to his affidavit evidence and exhibited as many as 12 numbers of documents under Exts. 1

to 12 on his behalf.

The management, on the other hand while examined its DGM, HR as MW No. 1 on its

behalf has also placed reliance on two numbers of documents which are marked as Ext. A & B.

FINDINGS

7. Issue Nos. (i & ii)—For the sake of convenience both issues Nos. (i) and (ii) are taken up

together for common discussion.

Before going to the issue to be decided, it would be convenient to place the admitted facts

of the parties set out in their respective pleadings, in brief at the first instance. The parties are not

duel to the fact that the second party joined as Phlebotomist under the management on the 15th

February 2018 and got terminated from service on the 25th August 2022. It is not the case of the

management that the second party is not a workman and it’s establishment is not an industry as

per the provisions of I.D. Act. However, it is the specific case of the management that the termination

of the second party was pressed into service on the basis of the allegation of sending of obscene

pictures by him to one Ms. Kalyani during office hour and engaging himself in diverting patients of

the management to Genex Laboratory. The admitted facts remain that said Kalyani Behera is not

an employee of the management and that the second party was terminated from service just after

one day of receipt of Ext. A from Kalyani Behera by the management. On this aspect, the MW

No. 1 during his cross-examination lucidly admitted that a complaint against the second party was

received on the 24th August 2022 and the second party was terminated on the 25th August 2022.

As it appears, the second party has challenged his terminated from service on the principal reason

that neither any enquiry has been conducted against him nor any opportunity has been given to

him to prove his innocence while putting his service to an end. It is also the grievance of the

second party that the management without following the provisions of the Act has terminated him

from service. According to the second party, there is no substance in the allegations made against

him by Ms. Kalyani Behera, rather basing on her personal enmity she brought such false allegations

against him and that the matter in the meantime i.e., subsequent to his termination, has already

been settled between him and Ms. Kalyani Behera. To strengthen such assertions the second

party focused on Ext. 12, (the photocopy of a joint compromise petition submitted before the IIC,

Saheed Nagar P.S. by the second party, his wife and Ms. Kalyani Behera) and the same has been

duly received by the Saheed Nagar PS as evident from the endorsement made therein. The above

assertions (i.e., fact of personal enmity, settlement etc.) of the second party find due corroborations

from the contents of Ext. 12. But, it is surprised that the management has raised no objection to

Ext. 12 at the time of its admission into evidence.

Per contra, it is the assertion of the management that the allegations brought against the

second party vide Ext. A being serious in nature it has no other alternative than to terminate him

from service. In this connection, the management invites the notice of the Court to Ext. A that is the

photocopy of complaint petition submitted by Ms. Kalyani Behera before the management against

the second party and the same has been marked with objection. The allegation, in short, in Ext. A

was that the second party not only misbehaved Kalyani Behera but also abused her in filthy language.

It is no use spinning a yarn that said Kalyani Behera is not figured as a wintess on behalf of the

management in this case to prove the allegations made out by her against the second party in

Ext. A. So, in that view of matter so also in view of Ext. 12 no importance can be laid on Ext. A. The

same is accordingly of on help to the management in this case. It is also the case of the management

that basing upon Ext. A the second party was called upon for explanation vide show cause notice

dated the 24th August 2022 marked vide Ext. B, but he denied to receive the same. But, it has

come out from the evidence of MW No. 1 that there is nothing on the show cause notice regarding

the fact of acknowledgement from the side of the second party that he refused to visit the HR

Office and to submit any show cause. For the sake of argument if it is admitted for a while that the

second party refused to receive Ext. B on being asked, then also it is not understood as to why the

management did not opt other modes of communication i.e., E-mail, Regd. Post and other electronic

devices in today’s time for sending the same. So, it can safely be stated that Ext. B is a created

one for the purpose of this case. Further, it is the claim of the management that the video and

photographs as provided clearly proved the guilt of the second party . But, nowhere in Ext. A, it has

been mentioned that any video and photographs have been supplied by the complainant to the

management. Curiously enough the management did not choose to examine the victim/ complainant

and produce any videography as well to substantiate the allegations as alleged.

Be that as it may, the imputations levelled aginst the second party, as stated by the

management and Ext. A, being grave in natural, it ought to have held a disciplinary proceeding

against the second party by following principle of natural justice. In the context, it is worthy to place

reliance on the recent judgment of the Hon’ble Bombay High Court in the case of Shri Vishwanath

Bhivaji Kudale V. The Chairman, Maharashtra State Electricity Board and Others wherein it has

been held as follows :

“An employer cannot be granted unbridled power of punishing an employee without holding

any enquiry especially in respect of the major penalties of dismissal or removal from service.

A full fledged enquiry into the misconduct is warranted in a case where the misconduct is

not admitted by an employee and the burden is on the employer to prove the allegations”.

Futher the Hon’ble High Court of Punjab & Haryana in the case of Modella Woollens Ltd.

Vrs. PO, Labour Court reported in LLR-1993-876 have been held that “No termination is permisible

on the ground of misconduct unless proper inquiry is held according to principles of natural justice”.

Now the fact of present case would be examined in the light of principle of law laid down by

Hon’ble Bombay High Court in the above case. As observed above, the second party with

vehemence challenged the allegations brought against him as the same have not been proved by

the management in any manner and he has never admitted the same at any point of time. Admittedly,

the management has not come up with any document from which an inference can be drawn that

the second party was terminated from his serivce followed by domestic enquiry. Rather, the MW

No. 1 (who is none other than the DGM, HR Deptt. of the management) during his cross-examination

categorically stated that no enquiry was conducted against the second party before his termination.

Besides that, a perusal of the provisions of Section 25-F of the Act would reveal that these

provisions are mandatory in nature and Clause (b) Section 25-F postulates that no workman shall

be retrenched until he has been paid compensation at the time of retrenchment. This section

contains mandate that the employer shall not retrench a workman unless retrenchment

compensation has been paid prior or the time of the retrenchment. In the present case the condition

postulated in Section 25-F (b) has not been complied with. Reliance is placed on the reported

decision of the Hon’ble High Court of Punjab Haryana High Court in the case of Mani Ram Vs. the

Presiding Officer, Labour Court.

So, in view of the above, the action of the management in inflicting punishment of termination

against the second party cannot be said to be either legal or justified.

In view of the finding arrived at, the next question which falls for determination is as to what

relief the second party is entitled. In the context, it may be stated here that once it is held that the

action of the management is illegal and unjustified, the normal relief is reinstatement with back

wages. But, it cannot be oversighted that the MW No.1 during his cross-examination at Para. 20

on being asked stated that presently, another person is working in place of the second party as

phlebotomist and such piece of evidence remains unchallenged. That apart, the Hon’ble Apex

Court in the case of Jagbir Singh Vrs. Haryana State Agriculture Marketing Board and another, in

Civil Appeal No. 4334 of 2009 ( Arising out of SLP No. 987/2009), reported in 2009 (4) LLJ 336 (SC)

have been pleased to held that “if the termination of an employee is found to be illegal, the relief of

reinstatement with full back wages would ordinarily follow. But compensation instead of reinstatement

has been held to meet the ends of justice in appropriate cases”. So, in view of the above, the relief

of reinstatement and back wages, in my considered view, would not be appropriate to be awarded

in favour of the second party and instead some compensation would be the just and proper relief

in the present proceeding. So considering the age, length of litigation and the status of employment

of the second party, it is felt, an Award of lump sum amount towards compensation in lieu of his

reinstatement and back wages may be appropriate and best serve the purpose. Accordingly, the

management is directed to pay the second party a lump sum compensation of Rs. 4,00,000

(Rupees four lakhs only) in lieu of his reinstatement and back wages within a month of publication

of the Award or else the amount of compensation would carry a simple interest of 6% per annum

till its realisation.

Dictated and corrected by me.

MEENAKSHEE PRIYADARSINEE

28-03-2025

Presiding Officer

Labour Court, Bhubaneswar.

[No. 4945—LESI-IR-ID-0029/2025-LESI]

By order of the Governor

MADHUMITA NAYAK

Special Secretary to Government

Printed and Published by the Director, Directorate of Printing, Stationery and Publication, Odisha, Cuttack-10

Ex. Gaz. 602–173+9