Case: Mahendra Singh Dhantwal Vs. Hindustan Motors Ltd. &amp; Ors

sweep of section 33. That was a case where the workmans services were terminated "because he deliberately adopted go-slow and was negligent in the discharge of his duty". The Supreme Court in that case observed thus:"His services were therefore terminated for dereliction of duty and go-slow in his work. This clearly amounted to punishment for misconduct and therefore to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders".The Supreme Court further observed:"In these circumstances the case was clearly covered by cl.(b) of s. 33(3) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meeting out the punishment of discharge to him for misconduct".The decision is, therefore, not an authority for the extreme proposition advanced by Mr. Naunit Lal.20. Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v. Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras v. Murthi (N.R.) and others in support of the above submission. Although the decision of the Supreme Court in Murugan Mills case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment. We are unable to hold that the Supreme Court in Murugan Mills case (supra) went to the extent of re-writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline. To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of the Act.21. In Air India Corporation, Bombay v. V. A. Rebellow &Anr.(1) this Court had to deal with the validity of an award made under section 33A although the Labour Court in that case had held that the workman was guilty of misconduct and that his services were terminated for that reason. This Court did not agree with the aforesaid conclusion and dismissed the workmans petition under section 33A of the Act. In doing so this Court observed as follows:-"It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore free to take action against his workmen if it is not based on any misconduct on their part".22. We are, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doing so.23. It is true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances an d come to a decision whether the order was passed on account of certain misconduct. This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever. We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would not arise.24. There remains, however another aspect to which the Tribunal did not properly address. The workman in this case had a contract of employment only for 8 years at the most. The reinstatement in his case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964. The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by the Tribunal.25. We cannot be oblivious to the plight of this workman in his unequal fight with a big company. He was serving the company since 1949 for about eleven years when he was first dismissed in 1960. He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award. Eleven years in actual service and sixteen years in litigation is a doleful tale by itself.26. We, therefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20, 000/- only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly or der. We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10, 000/- on compassionate grounds.27.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v. Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras v. Murthi (N.R.) and others in support of the above submission. Although the decision of the Supreme Court in Murugan Mills case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment. We are unable to hold that the Supreme Court in Murugan Mills case (supra) went to the extent of re-writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline. To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of theare, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doingis true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances an d come to a decision whether the order was passed on account of certain misconduct. This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever. We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would notremains, however another aspect to which the Tribunal did not properly address. The workman in this case had a contract of employment only for 8 years at the most. The reinstatement in his case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964. The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by thecannot be oblivious to the plight of this workman in his unequal fight with a big company. He was serving the company since 1949 for about eleven years when he was first dismissed in 1960. He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award. Eleven years in actual service and sixteen years in litigation is a doleful tale bytherefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20, 000/- only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly or der. We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10, 000/- on compassionate grounds.