Case: Howrah Municipality Vs. Mansa Das Dey (Through Widow)

Ramaswami, J. 1. This appeal is brought by special leave on behalf of the Howrah Municipality from the award of the second industrial tribunal, West Bengal, published in the Calcutta Gazette on 21 December, 1961. 2. By an order in writing No. 6099-I.R/4L-10(B)/59, dated 21 November, 1959, the Government of West Bengal referred to the second industrial tribunal, West Bengal, for adjudication of an industrial dispute between the Howrah Municipality and its workmen as represented by Howrah Municipal Employees Association and five other unions regarding certain issues. During the pendency of the proceedings the respondent, Mansa Das Dey, made a complaint in writing under S.33A of the Industrial Disputes Act alleging that the Howrah Municipality (hereinafter to be called the municipality) had dismissed him by an order dated 16 September, 1960 with effect from 3 May, 1960 without the permission of the tribunal. The case of the respondent was that he was employed as a clerk in the collection department of the municipality. He made an application on 28 April, 1960 for grant of leave for one month from 3 May, 1960. On 9 May, 1960 he was informed by the head of the collection department that his application for leave was rejected by the vice-chairman of the municipality. On 10 May, 1960 the respondent wrote a letter to the Collector reiterating his grievances. The latter called for a medical certificate and at the same time asked the respondent to show cause why disciplinary action should not be taken against him. A chargesheet was served on the respondent to the following effect : "1. That you wrote a letter to the Collector on 10 May, 1960 wherein you used language insulting and derogatory to the vice-chairman, who is the present head of the administration. 2. That you also made false and insulting allegations and insinuation against the vice-chairman in your letter to the Collector dated 1 May, 1960." On 15 May, 1960 the respondent addressed a letter to the Collector stating that the submission of medical certificate was not necessary for the sanction of privilege leave. On 17 May, 1960 a second chargesheet was served on the respondent containing the following charges : "(1) That he handed over on 28 January, 1960 to Sri Sushil Ghose, establishment clerk, a petition for his leave. Although the petition was dated 28 January, 1960 he instructed Sri Ghose to submit the same on 3 May, 1960 on and from which date he started absenting himself without caring for sanction of leave and without giving opportunity to the administration to make necessary arrangement. (2) That since 3 May, 1960 he has been absenting himself in such unauthorized manner uptill now. (3) That he was informed of his obligation to submit medical certificate in support of his plea of illness but he did not : moreover he declined to do so in his letter dated 15 May, 1960. (4) That he is defying the administration by non-compliance and continuing his unauthorized absence uptill now (i.e., up to 17 May, 1960)." The secretary of the municipality held a domestic enquiry into the charges contained in the two chargesheet and held that the charges were proved against the respondent. After receipt of the report of the enquiry officer, the vice-chairman of the municipality dismissed the respondent by his order dated 16 September, 1960 with retrospective effect from 3 May, 1960. 3. The tribunal held that the proceedings of the domestic enquiry were vitiated because of victimization of the respondent and the Vice-chairman of the municipality was actuated with malice and vindictiveness against the respondent. The tribunal held on the merits that dismissal of the respondent was not justified and ordered that he should be reinstated to his former post.When the hearing of this appeal commenced, a preliminary objection was raised on behalf of the substituted respondent that the appeal had abated as Mansa Das Dey is dead and that the appeal cannot proceed against the substituted respondent. We do not, however, think it necessary to decide this point because we have reached the conclusion that the appeal must be dismissed on the other grounds stated in this judgment. 4. The first question arising in this appeal is whether the respondent-Mansa Das Dey-was a "workman" within the meaning of the Industrial Disputes Act and whether the tribunal had jurisdiction to entertain his complaint under S.33A of the Industrial Disputes Act. The learned Solicitor-General on behalf of the appellant did not, however, argue this point in view of the decision of this Court in Corporation of City of Nagpur v. Its employees [1960 - I L.L.J. 523]. 5. It was then contended by the learned Solicitor-General on behalf of the appellant that there was a proper domestic enquiry by the secretary of the municipality and the charges against the respondent were held to be established. It was contended that the tribunal had no jurisdiction to enter into the merits of the case again and to embark upon a reappraisal of the evidence. It was pointed out that the respondent was deliberately absenting himself from duty from 3 May, 1960 till 17 June, 1960 without the permission of the authorities and the two letters he wrote to the Collector dated 10 May, 1960 and 15 May, 1960 showed lack of discipline. We do not agree with the argument of Solicitor-General that the tribunal had no jurisdiction to enter into the evidence in the special circumstances of this case. It was alleged by the respondent that there was ill-feeling between him and the vice-chairman of the municipality. The respondent was secretary of the Howrah Municipal Employees Association and was also a member of the Anti-Corruption Board formed by the Howrah Municipality. The respondent had objected to the malpractice of the vice-chairman in employing some menials of the municipality to work at his house. The respondent also objected to the favoritism shown by the vice-chairman in the appointment of an assistant accountant. The tribunal has accepted the evidence given by the respondent on this aspect of the case. The tribunal also remarked that there was no justification for the vice-chairman to reject the application of privilege leave made by the respondent. The order of the vice-chairman dated 4 May, 1960 was that there was "no convincing ground" for the leave application and "moreover adequate and suitable arrangements cannot be made immediately." On the evidence produced by the parties the tribunal has found that there was actual arrangement made for a substitute to work in place of the respondent from 3 May, 1960 to 15 December, 1960 and there was no administrative difficulty in that regard. 6. The tribunal has also stated that the order of the Vice-Chairman dated 4 May, 1960 appears to have been written in two different inks and the second portion of the order appears to be clumsy interpolation. It was also not denied by the municipality that the privilege leave asked for by the respondent was actually due to him. The tribunal has found that there was no justification for the refusal of the leave due to the respondent and the action of the vice-chairman was, therefore, vindictive. It is well-established that in the case of victimization or unfair labour practice it is open to the industrial tribunal to go into the merits of the case and to investigate whether the order of punishment is justified. And if the tribunal finds victimization or unfair labour practice proved, this Court does not ordinarily examine the correctness or propriety of such finding. We accordingly reject the argument put forward by the appellant on this part of the case.But even assuming that there was no victimization on the part of the municipality and the tribunal was erroneous in reopening the findings of domestic enquiry, we are of opinion that it is not a proper case in which this Court ought to interfere under Art. 136 of the Constitution. It is necessary to remember that wide as our powers are under Art. 136 of the Constitution, the exercise of those powers is discretionary and we are satisfied that the order under appeal has done substantial justice to the parties and there is no case made out for interference by this Court. That is the view expressed in Raipur Manufacturing Company, Ltd. v. M. N. Nagrashna and others [1959 - II L.L.J. 837] and reiterated in B. C. Trivedi v. M. N. Nagrashna [1962 - II L.L.J. 236]. 7.

Decision reasoning: 0[ds]The tribunal held that the proceedings of the domestic enquiry were vitiated because of victimization of the respondent and then of the municipality was actuated with malice and vindictiveness against the respondent. The tribunal held on the merits that dismissal of the respondent was not justified and ordered that he should be reinstated to his former post.When the hearing of this appeal commenced, a preliminary objection was raised on behalf of the substituted respondent that the appeal had abated asa DasDey is dead and that the appeal cannot proceed against the substituted respondent. We do not, however, think it necessary to decide this point because we have reached the conclusion that the appeal must be dismissed on the other grounds stated in this judgmentIt isd that in the case of victimization or unfair labour practice it is open to the industrial tribunal to go into the merits of the case and to investigate whether the order of punishment is justified. And if the tribunal finds victimization or unfair labour practice proved, this Court does not ordinarily examine the correctness or propriety of such finding. We accordingly reject the argument put forward by the appellant on this part of the case.But even assuming that there was no victimization on the part of the municipality and the tribunal was erroneous in reopening the findings of domestic enquiry, we are of opinion that it is not a proper case in which this Court ought to interfere under Art. 136 of the Constitution.It isnecessary to remember that wide as our powers are under Art. 136 of the Constitution, the exercise of those powers is discretionary and we are satisfied that the order under appeal has done substantial justice to the parties and there is no case made out for interference by this Court. That is the view expressed in Raipur Manufacturing Company, Ltd. v. M. N. Nagrashna and others [1959II L.L.J. 837] and reiterated in B. C. Trivedi v. M. N. Nagrashna [1962II L.L.J. 236].