Case: India United Mills Limited, Bombay Vs. S Rashtriya Mill Mazdoor Sangh, Bombay

In the case of dismissal an employee would be deprived of quite a number of benefits. It is also incorrect to say that action under standing order 19 is confined only to ceases of discharge proceeding from reason other than an employees alleged misconduct, for the language of standing order 19 makes it clear that the reason inducing the termination of service may be so serious that a communication thereof might directly or indirectly lay the company and the manager or the person signing it open to criminal or civil proceedings at the instance of the operative. The fact remains that when a question of discharge arises under standing order 19 no chargesheet or enquiry is indicated by the standing order, whereas under standing order 22 no order of dismissal can be made unless the operative concerned is informed in writing of the alleged misconduct, and is given an opportunity to explain the circumstances alleged against him and a proper enquiry has been held. We agree that a discharge under standing order 19 could be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice, but no such considerations arise in this case. "A discharge under standing order 19 can, therefore, be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice. The Supreme Court decision relied on by Sri Narayanaswami did not purport to lay down that in a case of discharge simpliciter the tribunal cannot interfere even if the discharge was actuated by motives of victimization or unfair labour practice. That question did not arise in that case and there was no allegation of discharge being mala fide. In the present case, there was no allegation of mala fides or victimization or unfair labour practice, much less any proof of any such thing and there is no doubt that the action of the manager in terminating the services of the employee was bona fide. The employee had, after marking his presence, left without permission at about 3-45 p. m. The learned labour judge has gone into the question whether the employee left at 3-45 p. m. as alleged by the management or at 5 p. m. as alleged by him. The time at which the employee left is not material. It is not disputed that the employee was engaged in the second shift and he left during the shift without taking anybody permission. The employees explanation before the manager was as follows :"i came down at 5 p. m. near the gate to see my brother for enquiring whether he has called the doctor in the house or not. When I met my brother, I was told that my father is serious and the doctor has visited the house. I went away from the gate to my house. While going I did not ask permission from any of the masters. When father felt better I phoned up to the mills to tell Mr. Abraham for my leaving the department and taking his permission. "Now the record produced in the case shows that on no less than five previous occasions this employee was shown in the records to be "not found in the department. " On those occasions it appears that the management did not take action against him but treated him as on leave for that portion of the day. The employee stated before the labour court that he was absent on two previous occasions as his father was ill. It is, therefore, evident that this was not the first occasion on which the employee left his place of work on the ground that his father was ill. The company has stated in the written statement that assuming without admitting that the employees father was ill, the employee could have approached his superior officer and obtained leave of absence. Admittedly, the employee did not take anybodys permission or inform anybody before he left the mill. The learned labour judge has observed : "in the present case there was no evidence to disbelieve the employees explanation. " but the company was not expected to lead evidence of the negative, viz. , that his father was not ill, and it cannot be conceded that if an employee gets information that a relation of his is ill, he has right to walk out of the mill without taking anybodys leave or permission. As on the previous occasions also the employee had been found absent from his place of work, the manager cannot be blamed if he did not believe the explanation after taking into consideration the employees previous record. The manager decided to terminate his services under standing order 19 after giving him thirteen days wages in lieu of notice. Such an order cannot be interfered with unless there is mala fides or victimization or unfair labour practice and there is none in this case. Sri Deshpande has urged that standing order 10 covers the case and under that standing order the wages could be cut for the period of absence. Now standing order 10 days down that wages may be deducted for the period of absence in accordance with the provisions of the Payment of Wages Act. This standing order prescribes the periods for which such wages could be deducted in accordance with the provisions of the Payment of Wages Act. It is not a standing order dealing with punishment and it cannot be said that if an employee is in the habit of leaving the mill without permission after making his presence, the only thing that can be done is to deduct his wages for the period of absence. If the employer in the interest of efficient work in the factory terminates the services of such an employee by giving him fourteen days notice or thirteen days wages in lieu of notice, the action cannot be interfered by the labour court or the industrial court.

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

Explanation:
1[ds]But it is seen from the standing orders that whenever distinction is made between permanent and temporary operatives it has been expressly made, e. g. , the expression, permanent employee finds place in standing orders 9, 19 (a) 20The expression badli or temporary operative occurs in standing order 19 (b ). In standing order 22 we do not find any such adjective as permanent or temporary before the word "operative. " It would, therefore, appear that the procedure prescribed by standing order 22 for suspension or dismissal of an operative would not be inapplicable to badli operatives, and if a badli operative commits misconduct as defined in standing order 21, the employer can dismiss him under standingit may be noted that standing order 22 prescribes two types of punishment, viz. , suspension for a period not exceeding four days and dismissal. Discharge by giving thirteen days wages in lieu of notice is not a punishment prescribed by this standing order, but as stated above, standing order 19 (a) provides that the employment of any permanent operative may be terminated by fourteen days notice or by payment of thirteen days wages in lieu of4 ) THERE is, therefore, a clear distinction between a discharge under standing order 19 (a) and (b)and punishment under standingdischarge under standing order 19 can, therefore, be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice. The Supreme Court decision relied on by Sri Narayanaswami did not purport to lay down that in a case of discharge simpliciter the tribunal cannot interfere even if the discharge was actuated by motives of victimization or unfair labour practice. That question did not arise in that case and there was no allegation of discharge being mala fide. In the present case, there was no allegation of mala fides or victimization or unfair labour practice, much less any proof of any such thing and there is no doubt that the action of the manager in terminating the services of the employee was bona fide. The employee had, after marking his presence, left without permission at about 3-45 p. m. The learned labour judge has gone into the question whether the employee left at 3-45 p. m. as alleged by the management or at 5 p. m. as alleged by him. The time at which the employee left is not material. It is not disputed that the employee was engaged in the second shift and he left during the shift without taking anybody permission. The employees explanation before the manager was as follows :"i came down at 5 p. m. near the gate to see my brother for enquiring whether he has called the doctor in the house or not. When I met my brother, I was told that my father is serious and the doctor has visited the house. I went away from the gate to my house. While going I did not ask permission from any of the masters. When father felt better I phoned up to the mills to tell Mr. Abraham for my leaving the department and taking his permission. "Now the record produced in the case shows that on no less than five previous occasions this employee was shown in the records to be "not found in the department. " On those occasions it appears that the management did not take action against him but treated him as on leave for that portion of the day. The employee stated before the labour court that he was absent on two previous occasions as his father was ill. It is, therefore, evident that this was not the first occasion on which the employee left his place of work on the ground that his father was ill. The company has stated in the written statement that assuming without admitting that the employees father was ill, the employee could have approached his superior officer and obtained leave of absence. Admittedly, the employee did not take anybodys permission or inform anybody before he left the mill. The learned labour judge has observed : "in the present case there was no evidence to disbelieve the employees explanation. " but the company was not expected to lead evidence of the negative, viz. , that his father was not ill, and it cannot be conceded that if an employee gets information that a relation of his is ill, he has right to walk out of the mill without taking anybodys leave or permission. As on the previous occasions also the employee had been found absent from his place of work, the manager cannot be blamed if he did not believe the explanation after taking into consideration the employees previous record. The manager decided to terminate his services under standing order 19 after giving him thirteen days wages in lieu of notice. Such an order cannot be interfered with unless there is mala fides or victimization or unfair labour practice and there is none in thisstanding order 10 days down that wages may be deducted for the period of absence in accordance with the provisions of the Payment of Wages Act. This standing order prescribes the periods for which such wages could be deducted in accordance with the provisions of the Payment of Wages Act. It is not a standing order dealing with punishment and it cannot be said that if an employee is in the habit of leaving the mill without permission after making his presence, the only thing that can be done is to deduct his wages for the period of absence. If the employer in the interest of efficient work in the factory terminates the services of such an employee by giving him fourteen days notice or thirteen days wages in lieu of notice, the action cannot be interfered by the labour court or the industrial court.