Case: Air India Corporation, Bombay Vs. V. A. Rebellow &amp; Anr

a colourable exercise of the power under Regulation 48, the real object of the appellant being essentially to punish the complainant for misconduct.16. No doubt, the position of the industrial workman is different from that of a Government servant because an industrial employer cannot "hire and fire" his workman on the basis of an unfettered right under the contract of employment, that right now being subject to industrial adjudication : and there is also on the other hand no provision of the Constitution like Arts. 310 and 311 requiring consideration in the case of industrial workmen. We are here only concerned with the question whether the impugned action of termination of the complainants services is for misconduct as contemplated by Ss. 33(1)(b) or S. 33(2)(b). While considering this question it is open to the complainant to urge that reliance on Regulation 48 is not bona fide, it being a colourable exercise of the right conferred by that regulation. He has in fact raised this argument and it is this aspect which concerns us in this case. Let us now scrutinise the present record for examining the position from this aspect.17. Now, the true position, as it appear to be clear from the record of this case, is that the complainants services were terminated under Regulation 48 by paying his salary for 30 days in lieu of notice. The order does not suggest any misconduct on the part of the complainant and indeed it is not possible to hold this order to be based on any conceivable misconduct. The form of this order is no doubt not decisive and attending circumstances are open for consideration, though motive for the order, if not mala fide, is not open to question. The further written statement which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost of confidence in the complainant and this loss of confidence was due to a grave suspicion regarding the complainants private conduct and behaviour with air-hostesses employed by the appellant.18. Regulation 48 which has been set out earlier as its plain language show does not lay down or contemplate any defined essential pre-requisite for invoking its operation. Action under this regulation can be validly taken by the employer at his sweet will without assigning any reason. He is not bound to disclose why he does not want to continue in service the employee concerned. It may be conceded that an employer must always have some reason for terminating the services of his employee. Such reasons apart from misconduct may, inter alia, be want of full satisfaction with his overall suitability in the job assigned to the employee concerned. The fact that the employer is not fully satisfied with the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part. The only thing that remains to be seen is if in this case the impugned order is mala fide. The record merely discloses that the appellant had suspicion about the complainants suitability for the job in which he was employed and this led to loss of confidence in him with the result that his services were terminated under Regulation 48. In our view, loss of confidence in such circumstances cannot be considered to be mala fide. We are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal with air-hostesses in the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudication. Such opinion may legitimately induce the employer to terminate the employees services; but such termination can on no rational grounds be considered to be for misconduct and must, therefore, be held to be permissible and immune from challenge.19. The decision in the case of Management of U. M. Dutt & Co. v. Workmen of U. M. Dutt & Co., (1962) Supp. 2 S.C.R. 822, relied upon by the complainants learned counsel is of no assistance to him. There one S employed by the management as a cross-cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact. He was thereafter informed about a departmental enquiry to be held against him and was suspended pending enquiry. Purporting to act under Rule 18(a) of the Standing Orders, the appellant-terminated the services of S without holding any departmental enquiry. On reference of the dispute to the Industrial Tribunal this action was held not to be bona fide but a colourable exercise of the power conferred under Rule 18(a) of the Standing Orders and since no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. Quite clearly the facts there are not parallel to the facts before us. The facts there are materially different.20. We have proceeded on the assumption that the reason stated in the further written statement filed without prejudice pursuant to the direction of the Labour Court could be taken into account. We, however, must not be understood to express any opinion on its propriety either way.21. In our opinion the Central Government Labour Court, Bombay, was for the reasons foregoing, not right in holding that the complainant was guilty of misconduct and that his services were terminated for that reason.

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

Explanation:
1[ds]11. We should like first to deal with the applicability of Ss.33 and 33A of the Act on the assumption that the complainant was a workman and also as such interested in a pending industrialthe case before us we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by cl. (b) of the twoThere are no allegations of alteration of the complainants terms of service. It is not necessary for us to decide whether the present case is governed by(2) because the relevant clause in both theis couched in similar language and we do not find any difference in the essential scope and purpose of these twoas far as the controversy before us is concerned. 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.It is in the background of the purpose and scope of S. 33(1) and (2) that we have to consider whether the action taken against the complainant is hit by either of these twoWe have seen the forms and the language of the impugned order. On its face the language does not show that the complainants services were terminated because of any misconduct. Prima facie, therefore, the impugned order is not an order discharging or punishing the complainant for any misconduct.Now, the true position, as it appear to be clear from the record of this case, is that the complainants services were terminated under Regulation 48 by paying his salary for 30 days in lieu of notice. The order does not suggest any misconduct on the part of the complainant and indeed it is not possible to hold this order to be based on any conceivable misconduct. The form of this order is no doubt not decisive and attending circumstances are open for consideration, though motive for the order, if not mala fide, is not open to question. The further written statement which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost of confidence in the complainant and this loss of confidence was due to a grave suspicion regarding the complainants private conduct and behaviour withemployed by the appellant.18. Regulation 48 which has been set out earlier as its plain language show does not lay down or contemplate any defined essentialfor invoking its operation. Action under this regulation can be validly taken by the employer at his sweet will without assigning any reason. He is not bound to disclose why he does not want to continue in service the employee concerned. It may be conceded that an employer must always have some reason for terminating the services of his employee. Such reasons apart from misconduct may, inter alia, be want of full satisfaction with his overall suitability in the job assigned to the employee concerned. The fact that the employer is not fully satisfied with the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part. The only thing that remains to be seen is if in this case the impugned order is mala fide. The record merely discloses that the appellant had suspicion about the complainants suitability for the job in which he was employed and this led to loss of confidence in him with the result that his services were terminated under Regulation 48. In our view, loss of confidence in such circumstances cannot be considered to be mala fide. We are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal within the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudication. Such opinion may legitimately induce the employer to terminate the employees services; but such termination can on no rational grounds be considered to be for misconduct and must, therefore, be held to be permissible and immune from challenge.19. The decision in the case of Management of U. M. Dutt & Co. v. Workmen of U. M. Dutt & Co., (1962) Supp. 2 S.C.R. 822, relied upon by the complainants learned counsel is of no assistance toWe have proceeded on the assumption that the reason stated in the further written statement filed without prejudice pursuant to the direction of the Labour Court could be taken into account. We, however, must not be understood to express any opinion on its propriety either way.21. In our opinion the Central Government Labour Court, Bombay, was for the reasons foregoing, not right in holding that the complainant was guilty of misconduct and that his services were terminated for that reason.