The second respondent was the employee of the petitioner as Senior Stenographer. By order dated 10th May 1978 her services were terminated. The said order reads as follows :-


"From


Bombay Ammonia (Madras) Private Ltd.


35, Mount Road,


Madras-600 002.


To


Mrs. P. Bosser.


13/8-B Jermiah Road,


Vepery,


Madras-600 007.


Ref :- PB/MR.


This confirms the discussion the under-signed had with you yesterday where as it was clearly pointed out to you that your conduct and attitude in the office and also your contacts outside the office have been prejudicial to the Company's interest in that the Management have been led to the irresistible conclusion that you have been passing on confidential and trade information of the Company to persons outside the Company not entitled or authorised to know whereby such persons had taken advantage of such information and acted prejudicially to the company affecting its business and contracts.


This also confirms the option given to you yesterday of finding yourself an alternative employment outside within a period of 3 months or to submit your resignation from the services of the Company when in addition to your gratuity, some ex-gratia payment was indicated or face discharge on the grounds of loss of confidence with consequential legal dues. It was explicitly stated that exercise by you of the options shall have to be made and indicated before to-day. We see by your silence despite your attending office today that your would rather face a discharge.


For the reasons explained in detail to you at the personal discussions held yesterday by the undersigned and set out in brief above, the Management losing confidence in you as a Senior Stenographer in the Company hereby discharge with payment of one month's salary in lieu of notice as well as legal dues as required by law.Please note your discharge takes effect from close of work today. You may arrange to collect your dues from the Cashier.


Sd/-


(M. MINTLER RAJ)


Managing Director.


Received the original letter and statement of settlement.


Received


P. Bosser/10.5.78" *


Aggrieved by the above order, the second respondent resorted to the appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947, hereinafter referred to as 'the Act', before the first respondent for redressal and relief. In the appeal petition this is what she stated inter alia other averments :


"A perusal of the order would show that her services have been dispensed with on a charge of misconduct without any enquiry. Therefore the order discharging her from service is illegal and contrary to Section. 41 of the Tamil Nadu Shops and Establishments Act." *


The petitioner submitted an answer statement and paragraph 3 thereof runs in the following terms :


"The Management terminated the services of the petitioner by letter dated 10th May 1978 since her conduct and attitude in the office and also her contacts outside the office were prejudicial to the Company's discipline and interest in that the Management were led to irresistible conclusion that she has been passing on confidential and trade information of the Company to persons outside the Company not entitled or authorised to know. By her such act persons had taken advantage of information passed on which acted pre-judicially to the Company affecting its business and contracts" *


The second-respondent filed a memo, covering a ruling on the question of the petitioner leading any evidence before the first respondent and the said memorandum runs as follows :-


"The appellant submits ex facie the order of termination imputes misconduct against the appellant for the employee, and therefore termination of her services without holding any enquiry is illegal. Since her services have been dispensed with on a charge of misconduct not supported by an enquiry, the termination has got to be set aside on this ground itself and the Management cannot make good the defect by letting in evidence before this Hon'ble authority. The Appellant would request for a ruling on this point." *


There was reply by the petitioner to this memorandum and the petitioner would contend that the first respondent should scan the evidence the petitioner has and which had been relied on for arriving at the state of loss of confidence and the Management has a right and a duty to place before the first respondent all material and evidence in its possession to substantiate its decision to terminate the services of the second respondent on grounds of loss of confidence. The first respondent by the impugned order gave the ruling holding that the petitioner cannot be permitted to lead evidence to satisfy the first respondent as to whether the termination is justified or not since no enquiry was held by the petitioner on the charge levelled against the second respondent and the petitioner cannot ask the first respondent to take evidence and satisfy himself on this question.


2. Mr. Dwarakanathan, learned counsel for the petitioner, would submit that the order of termination is only for reasonable cause and it was not one passed on a charge of misconduct and hence, to demonstrate that the order of termination was for reasonable cause, the petitioner ought to have been permitted to lead evidence. If in fact the order of termination could not be characterised as one for a reasonable cause and on the other hand it can be characterised as one passed on a charge of misconduct and if no enquiry was held, then the petitioner cannot be permitted to lead evidence to substantiate that charge before the first respondent for the first time is a proposition not disputed by the learned counsel for the petitioner. Admittedly, there was no enquiry held, there was no evidence placed. Ex facie the order of termination extracted above levels a charge or imputation against the second respondent that her conduct and attitude had been prejudicial to the petitioner affection its business and contracts. This would certainly amount to levelling a charge or imputation of misconduct against the second respondent. There are pronouncements of this Court on the subject as to when a particular imputation would amount to an imputation of misconduct or a charge of misconduct. I can refer to the pronouncements of Ramaprasada Rao, J., as he then was, in Associated Corporation of Industries v. Additional Commissioner for Workmen's Compensation. (1972-I-LLJ-108) and of Ramanujam, J., in United Wire Ropes Limited v. Additional Commissioner, (1976-I-LLJ-226) I had occasion to consider the question in W.P. Nos. 2211 and 2212 of 1979 order dated 22nd April 1983, and after recapitulating the principles countenanced by the various pronouncements including those of the highest court in the land, I came to the conclusion that the order which was put in issue in those cases would fall within the second limb of Section 41(1) of the Act. There, the imputation was the employee was carrying on activities which had been detrimental to the interest of the employer. The latest pronouncement of the Supreme Court, my attention to which was drawn by Mr. N. G. R. Prasad, learned counsel appearing for the second respondent, practically provides an answer to the present question as to whether the imputation of loss of confidence would amount to punishment inflicted by way of disciplinary action. In Chandulal v. The Management of M/s. Pan American World Airways (1985-II-LLJ-181) this is what has been observed at p. 182. :

"It is difficult to agree with the finding of the Labour Court the when service is terminated on the basis of loss of confidence the order does not amount to one with stigma and does not warrant a proceeding contemplated by law proceeding termination. Want of confidence in an employee does point out to an adverse facet in his character as the true meaning of the allegation is that the employee has failed to come up to the expected standard of conduct which has given rise to a situation involving loss of confidence. In any view of the matter this amounts to a dereliction on the part of the workman and, therefore, the stand taken by the management that termination for loss of confidence does not amount to a stigma has to be repelled. In our opinion, it is not necessary to support our conclusion by reference to precedents or textual opinion as a common - sense assessment of the matter is sufficient to dispose of this aspect. 'Retrenchment' is defined in S. 2(oo) of the Industrial Disputes Act and excludes termination of service by the employer as a punishment inflicted by way of disciplinary action. If the termination in the instant case is held to be grounded upon conduct attaching stigma to the appellant, disciplinary proceedings were necessary as a condition precedent to infliction of termination as a measure of punishment. Admittedly this has not been done. Therefore, the order of termination is vitiated in law and cannot be sustained" *


3. The expressions use in the order of termination are unambiguous and they do throw adverse imputation against the second respondent that she has been acting prejudicially to the petitioner's business interest and contracts and only on this ground, the services of the second respondent were terminated. The order was ex facie an order of termination of services founded on misconduct. It is a clear case of action by way of punishment since a charge or imputation of carrying on activities detrimental to the business interest of the petitioner had been made the condition for the exercise of the power of dispensation of the services of the second respondent. In the said context, it would be a futile and vexatious process and will serve no purpose to examine the matter further in the light of any evidence contradicting the explicit terms of the order of termination even assuming that the petitioner would covet and desire an opportunity of adducing such evidence in this behalf. Rightly, the first respondent gave the ruling by the impugned order, declining this move of the petitioner and no exception could be had to the said ruling.


4. Mr. Dwarakanathan, learned counsel for the petitioner, would complain that the order impugned in the present writ petition is not very explicit. This is a futile submission because the parties coveted a decision on the specific question on the memorandum filed by the seco

nd respondent that since her services were dispensed with on a charge of misconduct and since there was no enquiry wherein evidence was placed, there is no question of the petitioner letting in any evidence before the first respondent. It is this question that was answered in the reply statement by the petitioner and it was this question that got adjudicated by the impugned order. The reasons expressed in the impugned order clearly indicate that the first respondent has held that the services of the second respondent were terminated only on a charge of misconduct and since there was no enquiry held by the petitioner in this behalf, there is no question of substantiating the charge by placing any evidence therefor before the first respondent. For the above reasons, the writ petition is dismissed. No costs. 5. Now the writ petition has been dismissed. The matter shall be taken up by the first respondent for proceeding further and since there is considerable lapse of time, the first respondent will do well to dispose of the matter with expedition and in any event before the lapse of six months from the date of receipt of the copy of this order, along with records received.