Participation In Strike Alone Cannot Justify Termination Without Enquiry: Patna High Court

The Patna High Court held that participation in a strike, by itself, cannot automatically justify termination of service, particularly in the absence of any finding of illegality of the strike or misconduct attributable to the employee. The Court further held that treating absence during a strike as misconduct or abandonment of service requires adherence to due process, including issuance of a show-cause notice and conduct of a proper domestic enquiry.A Single Judge Bench of the Patna High Court comprising Justice Alok Kumar Sinha was hearing a writ petition wherein the petitioners sought quashing of an office order issued on the directions of the Principal, Magadh Mahila College, Patna University. By the impugned order, the services of the petitioners were terminated purportedly in compliance with alleged telephonic instructions of the Vice-Chancellor, on the ground that they had participated in an employees' union strike during the period from 10 August 2015 to 9 September 2015.Background: First addressing the issue of maintainability, the High Court held that the writ petition was maintainable despite the availability of a remedy under the Industrial Disputes Act, 1947. The Court observed that the rule of exhausting alternative remedies is one of discretion and does not bar the exercise of writ jurisdiction under Article 226, particularly where the impugned action is arbitrary or suffers from jurisdictional error or violation of natural justice. It further held that, in the facts of the case, the remedy under the Industrial Disputes Act was not an equally efficacious remedy, and relegating the petitioners to an alternative forum would amount to a denial of effective and immediate relief.On merits, the Court held that the impugned termination order was stigmatic in nature. It noted that the strike culminated in a settlement dated 8 September 2015, approved by the Vice-Chancellor on 9 September 2015, which expressly provided that no adverse action would be taken against employees for participation in the strike. The Court held that once the settlement was approved, the respondents were estopped from initiating any adverse action based on the condoned conduct, and that termination on this ground was contrary to the binding settlement and suffered from manifest arbitrariness. It noted:“28. Even otherwise, participation in a strike, by itself, cannot automatically justify termination of service, particularly in the absence of any finding of illegality of the strike or misconduct attributable to the petitioners. If the respondents intended to treat the alleged absence as misconduct or abandonment of service, the same could not have been presumed unilaterally. A proper domestic enquiry should have been held giving opportunity to the petitioners to defend themselves.”The Court further held that removal of an employee (whether a daily wager, casual, or permanent employee) for participation in a strike amounts to an allegation of misconduct. Such action necessarily requires issuance of a show-cause notice, framing of charges, and a proper domestic enquiry. The Court noted that no such procedure had been followed in the present case, which was an admitted position. The Court observed:“30…The impugned termination, having been effected without issuance of any charge sheet, without affording an opportunity of hearing, and without any enquiry, is thus procedurally infirm. Furthermore, the action of the respondents in terminating the petitioners immediately after the settlement, while relying on the strike period as the sole basis, renders the decision punitive in substance, though clothed as a disengagement of a daily wager. Such an approach is impermissible in law”The Court held that even arguendo, if the impugned office order dated 19 September 2015 were to be treated as a termination simpliciter and not stigmatic, its legality would still have to be tested against the provisions of the Industrial Disputes Act, 1947. The Court held that such termination amounts to “retrenchment” under Section 2(oo) of the Act and, having been effected without compliance with Section 25-F, was illegal, void ab initio, and unsustainable in law. The Court further noted that the selective discontinuation of the petitioners, despite their long-standing service, violated the principle of “last come, first go” and failed the test of reasonableness and non-arbitrariness under Article 14 of the Constitution. By treating the petitioners unequally vis-à-vis other similarly placed employees, the respondents were also found to have infringed Article 16.Accordingly, the Court set aside the impugned order, and the petitioners were directed to be treated as continuing in service from the date of termination for all purposes, including seniority and continuity of service.Title: Madhwi Jha and Ors v. Patna University and OrsCase Number: Civil Writ Jurisdiction Case No. 18289 of 2015Appearance: Mr. Sidharth Prasad, Mr. Om Prakash Kumar, Mr. Sunit...

Participation In Strike Alone Cannot Justify Termination Without Enquiry: Patna High Court

Rushil Batra

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