Case: The Management Of U.B. Dutt &amp; Co Vs. Workmen Of U.B. Dutt &amp; Co

it was clearly a colourable exercise of the power under that rule inasmuch as that rule was used to get rid of an employee instead of following the course of holding an inquiry for misconduct, notice for which had been given to the employee and for which a departmental inquiry was intended to be held. The reason given by the appellant in the order terminating the services of Sankaran of July 8. 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot be accepted at its face value, so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with. In any case even if the inquiry was not held by the appellant and action was taken under R. 18(a) it is now well settled, in view of the decisions cited above, that the employer could defend the action under R. 18(a) by leading evidence before the tribunal to show that there was in fact a misconduct and therefore the action taken under R. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied itself by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses who were produced it cannot be said to have gone wrong.4. Learned counsel for the appellant however urges that the employer was empowered to take action under R. 18(a) of the Standing Orders and having taken action under that rule there was nothing for it to justify before the tribunal. We have already said that this position cannot be accepted in industrial adjudication relating to termination of service of an employee and has not been accepted by industrial tribunals over a long course of years now and the view taken by industrial tribunals has been upheld by this Court in the two cases referred to above. Learned counsel for the appellant, however, relied on the decision of this Court in Parshotam Lal Dhingra v. Union of India 1958 SCR 828 : (AIR 1958 SC 36 ). That was however a case of a pub1ic servant and the considerations that apply to such a case are in our opinion entirely different. Stress was laid by the learned counsel on the observations at p. 862 (of SCR d): (at R. 49 of AIR), where it was observe as follows :-"It is true that the misconduct negligence, inefficiency or other disqualification may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is as Chagla C. J. has said in Srinivas Ganesh v. Union of India (S) AIR 1956 Bom 455 wholly irrelevant."It is urged that the principle should be applied to industrial adjudication. It is enough to say that the position of government servants stands on an entirely different footing as compared to industrial employees. Articles 310 and 311 of the Constitution apply to government servants and it is in the light of these Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No such constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot now press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by R. 18(a) of the Standing Orders in this case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on R. 18(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under R. 18(a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tribunal held that the exercise of power was colourable and it cannot be said that that view is incorrect. The appellant failed to satisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence; but it seems to have rested upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.5. Learned counsel for the appellant also drew our attention to another decision of this Court in Patna Electric Supply Co. Ltd., Patna v. Bali Rai 1958 SCR 871 : (AIR 1958 SC 204 ). That case in our opinion has no application to the facts of this case because that case dealt with an application under S. 33 of the Industrial Disputes Act while the present proceedings are under S. 10 of the Act and the considerations which apply under S. 33 are different in many respects from those which apply to an adjudication under S. 10.

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

Explanation:
0[ds]3. We are of opinion that this claim of the appellant cannot be accepted, and it is too late in the day for an employer to raise such a claim for it amounts to a claim "to hire and fire" an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication for over a long period of time now. As far back as 1952, the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning anyreason given by the appellant in the order terminating the services of Sankaran of July 8. 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot be accepted at its face value, so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with. In any case even if the inquiry was not held by the appellant and action was taken under R. 18(a) it is now well settled, in view of the decisions cited above, that the employer could defend the action under R. 18(a) by leading evidence before the tribunal to show that there was in fact a misconduct and therefore the action taken under R. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied itself by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses who were produced it cannot be said to have goneis urged that the principle should be applied to industrial adjudication. It is enough to say that the position of government servants stands on an entirely different footing as compared to industrial employees. Articles 310 and 311 of the Constitution apply to government servants and it is in the light of these Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No such constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot now press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by R. 18(a) of the Standing Orders in this case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on R. 18(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under R. 18(a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tribunal held that the exercise of power was colourable and it cannot be said that that view is incorrect. The appellant failed to satisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence; but it seems to have rested upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.5. Learned counsel for the appellant also drew our attention to another decision of this Court in Patna Electric Supply Co. Ltd., Patna v. Bali Rai 1958 SCR 871 : (AIR 1958 SC 204 ). That case in our opinion has no application to the facts of this case because that case dealt with an application under S. 33 of the Industrial Disputes Act while the present proceedings are under S. 10 of the Act and the considerations which apply under S. 33 are different in many respects from those which apply to an adjudication under S. 10.