Case: Management Of Murgugan Mills Ltd Vs. Industrial Tribunal Madras And Anotmr

therefore, held that the industrial tribunal had jurisdiction to entertain the application under S. 33-A in the circumstances. Finally he held that as the tribunal had held on the merits that the charge against the respondent of dereliction of duty was not made out, the writ petition must fail. The appellant then went in appeal to the Division Bench, which upheld the order of the learned Single Judge. Then there was an application for leave to appeal to this Court, which was rejected. The appellant then applied for and obtained special leave from this Court and that is how the matter has come up before us. 5. The right of the employer to terminate the services of his workman under a standing order, like cl.17(a) in the present case, which 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, came up for consideration before the Labour Appellate Tribunal in Buckingham and Carnatic Co. Ltd. v. Workers of the Company, 1952 Lab AC 490. The matter then came up before this Court also in the Chartered Bank v. Chartered Bank Employees Union, (1960) 3 SCR 441 : (AIR 1960 SC 919 ) and The Management of U. B. Dutt and Co. v. Workmen of U. B..Dutt and Co., 1962 Supp (2) SCR 822: (AIR 1963 SC 411 ), wherein the view taken by the Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirement of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. The form of the order in such a case is not conclusive and the tribunal can go behind the order to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice. If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice it would have the jurisdiction to intervene and set aside such termination.6. The form, therefore, used in the present case for terminating respondents services under cl.17 (a) is not conclusive and the tribunal was justified in enquiring into the reasons which led to such termination; even the Standing Orders provide that an employee can ask for reasons in such a case. Those reasons were given before the tribunal by the appellant, viz., the respondents services were terminated because he deliberately adopted go-slow and was negligent in the discharge of his duty. His services were, therefore terminated for dereliction of duty and so-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. In those circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondents services could be sustained. In the present case, evidence was led before the tribunal in support of the appellants case that the respondent was guilty of dereliction of duty and go-slow it his work. The tribunal has found that this has not been proved. In these circumstances the case was clearly covered by cl. (b) of S. 33 (2) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meting out the punishment of discharge to him for misconduct. As this was done without complying with the proviso, the termination of the service was rightly set aside.7. It is, however, urged on behalf of the appellant that the tribunal found that the case under S. 33 (2) (b) had not been made out. It also found that the case which had been made out was one under S. 33 (2) (a). It then went onto hold that the proviso applied to S. 33 (2) (a). The appellant contends that the view of ale tribunal that the proviso applied to Section 33 (2) (a) is incorrect and, therefore, the tribunal was not right in entertaining the application under S.33-A and ordering reinstatement of the respondent. It is clear from a bare perusal of S.33 (2) that the proviso thereto only applies to cl. (b) and not to cl.(a) and the tribunal, therefore, was in error when it held that it also applied to cl. (a). But that in our opinion makes no difference in the present case as pointed out by the High Court. The contention of the respondent was that there had been a contravention of S. 33 (2) (b). It was that contention which gave jurisdiction to the tribunal and which the appellant had to meet and it did meet it by producing evidence. That evidence was considered by the tribunal and it found that the appellants contention that the respondent was guilty of dereliction of duty and go-slow had not been made out. In these circumstances even though the tribunal was in error in holding that the proviso to S. 33 (2) applied to cl. (a)thereof also there is no reason for us to interfere with the order passed by the tribunal. As the High Court has rightly pointed out, the case is clearly covered by S. 33 (2) (b) to which the proviso undoubtedly applies. As the proviso was not complied with, the application under S. 33-A could be entertained by the tribunal and the tribunal did entertain it and went into the merits of the charge and came to the conclusion that the charge had not been proved.

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

Explanation:
1[ds]7. It is, however, urged on behalf of the appellant that the tribunal found that the case under S. 33 (2) (b) had not been made out. It also found that the case which had been made out was one under S. 33 (2) (a). It then went onto hold that the proviso applied to S. 33 (2) (a). The appellant contends that the view of ale tribunal that the proviso applied to Section 33 (2) (a) is incorrect and, therefore, the tribunal was not right in entertaining the application under S.33-A and ordering reinstatement of the respondent.It is clear from a bare perusal of S.33 (2) that the proviso thereto only applies to cl. (b) and not to cl.(a) and the tribunal, therefore, was in error when it held that it also applied to cl. (a). But that in our opinion makes no difference in the present case as pointed out by the High Court. The contention of the respondent was that there had been a contravention of S. 33 (2) (b). It was that contention which gave jurisdiction to the tribunal and which the appellant had to meet and it did meet it by producing evidence. That evidence was considered by the tribunal and it found that the appellants contention that the respondent was guilty of dereliction of duty and go-slow had not been made out. In these circumstances even though the tribunal was in error in holding that the proviso to S. 33 (2) applied to cl. (a)thereof also there is no reason for us to interfere with the order passed by the tribunal. As the High Court has rightly pointed out, the case is clearly covered by S. 33 (2) (b) to which the proviso undoubtedly applies. As the proviso was not complied with, the application under S. 33-A could be entertained by the tribunal and the tribunal did entertain it and went into the merits of the charge and came to the conclusion that the charge had not been proved. In these circumstances the order passed by the tribunal, and upheld by the High Court, is substantially correct, in spite of the error of law committed by the tribunal.The form, therefore, used in the present case for terminating respondents services under cl.17 (a) is not conclusive and the tribunal was justified in enquiring into the reasons which led to such termination; even the Standing Orders provide that an employee can ask for reasons in such a case. Those reasons were given before the tribunal by the appellant, viz., the respondents services were terminated because he deliberately adoptedand was negligent in the discharge of his duty. His services were, therefore terminated for dereliction of duty andin 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. In those circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondents services could be sustained. In the present case, evidence was led before the tribunal in support of the appellants case that the respondent was guilty of dereliction of duty andit his work. The tribunal has found that this has not been proved. In these circumstances the case was clearly covered by cl. (b) of S. 33 (2) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meting out the punishment of discharge to him for misconduct. As this was done without complying with the proviso, the termination of the service was rightly set aside.