Case: Management Of Borpukhurie Tea Estate Vs. Presiding Officer, Industrial Tribunal Assam And Anr

Industrial Tribunal refused to treat the Managements original application under section 33 (2) of the Act as one under section 33 (3) (b) of the Act and rejected the same as not maintainable holding t hat the Management had violated the provisions of the Act in dismissing the respondent who was admittedly a protected work-man without obtaining the permission from the Tribunal. Aggrieved by this order, the Management filed an application before the High Court under Article 226 of the Constitution seeking issuance of a writ of certiorari or mandamus or any other appropriate writ quashing the aforesaid order dated July 10, 1967 of the Industrial Tribunal but the same was dismissed with the observation that the punishment of dismissal having already been inflicted without complying with the provisions of section 33(3)(b) of the Act, an Ex Post Facto permission could not be granted. It is against this order that the Management has come up in appeal to this Court.Appearing in support of the appeal, Mr. Nariman has urged that though it may be open to an Industrial Tribunal to withhold the permission contemplated by section 33 (3) (b) of the Act if it finds that an employer has not been able to make out a prima facie case justifying dismissal of a workman or if it finds that there is material to establish that the employer was guilty of unfair labour practice or victimisation, there was no justification in the instant case for the Industrial Tribunal to hold that the appellant had violated the provisions of section 3 3 (3) (b) of the Act or to refuse to accede to the prayer of the appellant to treat its original application dated November 10, 1966 as one under section 33 (3) (b) of the Act ignoring the Teal substance thereof. 4. We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. The following observations made by this Court in Western India Match Company Ltd. v. Their Workmen([1963] 2 L.L.J.459, 464.) are opposite in this connection:-"Again, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention." 5. It is equally important for the Court to remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably. Keeping in view therefore the totality of lie facts and circumstances of the case and the purport of the observations of this Court in Patna Electric Supply Co Ltd. Patna v. Bali Bai &Anr.((1958) S.C.R. 871.) to the , effect that the Labour Courts and Tribunals are competent to allow the parties when they are not actuated by any oblique motive to modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the industrial Tribunal should treat the appellants original application which was in fact and in substance for permission as one under section 33(3)(b) of the Act and dispose of the same in conformity with law after going into the following points:-"1. Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 5 3 were forged ? 2. What became of the report which appears to have been made by the appellant to the police in- respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery ? 3. Whether a prima facie case for dismissal of the respondent is made out by the appellant ? 4. Whether the appellants decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimisation ? 5. Whether the respondent was entitled to any payment in the interregrium between the conclusion of the enquiry and the final order of the Tribunal ?" 6.

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

Explanation:
1[ds]We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. The following observations made by this Court inWestern India Match Company Ltd. v. Their Workmen([1963] 2 L.L.J.459, 464.)are opposite in this, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention."We find considerable force in the submissions made by Mr. Nariman. The facts and circumstances of the case especially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated November 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of rations etc. connected with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of paragraph 10 of the appellants application dated November 10 , 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making Auction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under section 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their casesKeeping in view therefore the totality of lie facts and circumstances of the case and the purport of the observations of this Court in Patna Electric Supply Co Ltd. Patna v. Bali Bai &Anr.((1958) S.C.R. 871.) to the , effect that the Labour Courts and Tribunals are competent to allow the parties when they are not actuated by any oblique motive to modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the industrial Tribunal should treat the appellants original application which was in fact and in substance for permission as one under section 33(3)(b) of the Act and dispose of the same in conformity with law after going into the following points:-1. Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 5 3 were forged ?2. What became of the report which appears to have been made by the appellant to the police in- respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery ?3. Whether a prima facie case for dismissal of the respondent is made out by the appellant ?4. Whether the appellants decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimisation ?5. Whether the respondent was entitled to any payment in the interregrium between the conclusion of the enquiry and the final order of the Tribunal ?