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

The complaint was originally filed by the complainant before the National Industrial tribunal, Delhi, (Mr. Justice G. D. Khosla, retired Chief Justice of the Punjab High court) in the Industrial Dispute Reference No. 1 of 1964 but was later transferred to the Central Government Labour Court and numbered as Application No. LCB 39 of 1965.2. The impugned award merely dealt with the preliminary points raised by the appellant that the complainant was not a workman concerned in the aforesaid industrial dispute and that there was no breach of S. 33 of the with the result that the complaint under S.33A of the Act was incompetent. The Labour Court held the complainant to be a workman concerned in the aforesaid industrial dispute pending before the National Industrial Tribunal on the date of his dismissal and that the dismissal was not a discharge simpliciter but in breach of the provisions of S. 33. On this finding his complaint was held to be maintainable. The two questions canvassed in the present appeal are : (1) whether the complainant was a workman and was as such concerned in the aforesaid dispute (Industrial Dispute Reference No. 1 of 1964) and (2) whether the termination of his service was a dismissal as alleged by him or was mere termination of service not amounting to dismissal. Broad facts necessary for understanding the controversy may now be stated :3. The order which was challenged as amounting to the complainants dismissal readsJune 19, 1965.(Thru : The Commercial Manager, Cargo)Dear Sir,It has been decided to terminate your services, which we hereby do with immediate effect. You will be paid one months salary in lieu of notice.2. Please arrange to return, as early as possible, all items of Corporations property in your possession to enable us to settle your accounts.3. Your accounts will be settled after checking your commitments.Yours faithfully,AIR INDIA Sd/S. K. Kooka CommercialJuly 16, 1965, the complainant acknowledged the above letter terminating his services with immediate effect and requested for reinstatement because according to him there was nothing to warrant such summary termination of his services. This is what he wroteIn this connection I have to state that I have served the Corporation for a period of over nine years and to the date of terminating my services, there is nothing on record which warrants that my services should be terminated summarily. Hence, it is requested that I be reinstated and thereafter if the management is of the opinion that I have done something against the interest and the fair name of the Corporation, I be charged accordingly, given an opportunity to explain my conduct and after everything else if I am found guilty, action taken against me as the management deems fit.With the experience I have with the managements policy towards its employees, I am confident that I will never be deprived of the opportunity I have asked for and more so in the light of the faithful service I have rendered .....The following reply was sent to the complainant on September 8, 1965I have to inform you that your services were terminated on payment of 30 days salary in lieu of notice, in accordance with Rule 48 of theion 48 of theEmployees Service Regulations which was described as Rule 48 in the letter of September 8, 1965, reads as underVIIICessation of service48. Termination : The service of an employee may be terminated without assigning any reason, as under :(a) of a permanent employee by giving him 30 days notice in writing or pay in lieu of notice;(b) of an employee on probation by giving him 7 days notice in writing or pay in lieu of notice;(c) of a temporary employee by giving him 24 hours notice in writing or pay in lieu of notice.Explanation : For the purposes of this Regulation, the word pay shall include all emoluments which would be admissible if he were on privilege leave.In the complaint under S. 33A of the act it was alleged by the complainant that the order dated June 19, 1965, smacked of vindictiveness or unfair labour practice and that his alleged termination was a cloak for punishing him. No facts were, however, stated in support of this averment. According to the averments in this complaint, regulation 48 postulates the existence of some reason for the termination of service and since the Corporation had not disclosed any reason for the termination of the complainants service it was requested that the Corporation be directed to disclose the reason, if any, for the termination of his service. The real grievance of the complainant, it appears, was founded on the construction of Regulation 48 as is clear from the following averments in para 7 of the complaintcomplainant submits that on a reasonable construction of the said Rule, the opposite party is bound to disclose the reason if any for the said termination in the present proceedings. The complainant submits that any other construction would be unreasonable and make the said rule itself unreasonable, illegal, void as also in contravention of Arts. 14, 16, 19 and 311 of the Constitution of India and is therefore void and inoperative.In regard to the question of the complainant being a workman concerned in a pending industrial dispute it was averred that the complainant had been employed by the opposite party as an Assistant Station Superintendent (Crew Scheduling) in the grade of Rs.and was confirmed in that post with effect from 1st December, 1963. In para 8 of the complaint it was pleadedproceeding in reference No. NIT No. 1 of 1964 were and are pending before this Honble Tribunal and the complainant is a workman concerned in the said dispute. The complainant says that under the circumstances aforesaid the opposite party ought to have made an application for approval before this Honble Tribunal under S.33(2) of the Industrial Disputes Act, 1947, but the opposite party has made no such application nor has the opposite party intimated that it proposed to make such an application for approval while terminating the services of the complainant. The complainant says that the opposite party has not obtained the approval of this Honble Tribunal in writing of the action taken by it against thethese averments reinstatement was claimed by the complainant with full back wages and allowances from the date of the alleged termination of his services.7. It appears that pursuant to directions from the Labour Court the appellant filed a further written statement dated June 30, 1966, and it was submittedprejudice to the contention of the opposite party that this case should be decided on the preliminary points above as raised by the opposite party, as the complainant has repeatedly made a grievance that a written statement on merits has not even been filed and as this Honourable Tribunal also indicated at the preliminary hearing that a written statement on merits should in any event be kept ready and that no further time would be given to the opposite party for preparing and filing the same, the opposite party herewith begs to submit this further writtenthese preliminary submissions it was stated as follows in paragraph 7reference to paragraphs 6 and 7 of the complaint,Regulation 48 ofa Employees Service Regulations provide, inter alia, that the Services of a permanent employee may be terminated, without assigning any reason, by giving him thirty days notice in writing or pay in lieu of notice. The construction sought to be put upon the said Regulation by the complainant is not correct. The opposite party denies that Regulation 48 is unreasonable, illegal or void or in contravention of Arts. 14, 16, 19 and 311 of the Constitution of India. The said Regulations have been framed with the previous approval of the Central Government under S. 45(2)(b) of the Air Corporation Act, 1953. The opposite party submits that it was and is not bound to give or disclose any reason for terminating the services of the complainant. Any contrary view would, it is submitted, render the said Regulation No. 48 completely nugatory. However, without prejudice to this, the opposite party says that the complainants service was terminated because of the total loss of confidence on account of grave suspicions regarding his private conduct and behaviour with air hostesses of the Corporation. The reports and statements form the Air Hostesses concerned cannot be disclosed as they involve the reputation and future of young and unmarried girls. Having regard to this, the opposite party could not continue the complainant in its service and it was constrained to terminate his service in accordance with Regulationcomplainants averment that he was a workman concerned in the proceedings in the industrial dispute was denied by the appellant in the first written statement dated March 15, 1966, in para 1 which readsThe complainant was at no relevant time a workman within the meaning of that term as defined in S.2(s) of the said Act. At the time of the termination of his service, the complainant was an Assistant Station Superintendent and was employed in an administrative supervisory capacity, drawing a total salary amounting to Rs. 690 per month. Moreover, it may also be pointed out that in its Staff Notice No. 130 dated 31st March, 1956, the opposite party has given a classification of its personnel, wherein the category of Assistant Station Superintendents has been classified as an Officer category (vide Entry No. 1/28). A copy of the said Staff Notice is hereto annexed and marked Ex. No. 1. Further, the said category of Assistant Superintendents has not been included among the categories of workmen in the dispute in Ref. No. NIT/1 of 1964 pending before the National Industrial Tribunal composed of Shri G. D. Khosla. Besides, the class of officers designated as Assistant Station Superintendents has always been, and is, represented by theOfficers Association which is not an association representing any workmen and which is not a party to the dispute in thereference. Further, the said class of officers has not at any time presented itself before the National Industrial Tribunal nor has it been represented at the hearing of the said dispute by any of the unions representing parties Nos. 2 to 7 to the said dispute.(b) Even assuming, without admitting, that the complainant is held to be a workman (which is denied)(1) and (2) of S. 33, and consequently S. 33A, have, and can have, no application having regard to the circumstances of the present case. Theof the complaint is not a matter connected with the dispute in the reference before the National Industrial Tribunal nor is the complainant concerned in the said dispute. Further,2(b) of S. 33 have application only in the case of dismissal or discharge for misconduct in the circumstances set out therein, and not a case of termination of service simpliciter. In the present case, the opposite party has bona fide terminated the service of the complainant under the provisions ofRegulation 48 ofEmployees Service Regulations which are applicable to the complainant. There, has, therefore, been no breach of the provisions of2(b) of S. 33 and unless there is such a breach there can be no invocation of S. 33A. On the contrary, the opposite party repeats that the said8. The complainant and the appellant both filed lists of the complainants duties in proof of their respective contentions. Ex.being the appellants list and Ex.the complainants.9. The Labour Court held in the impugned award that the complainant as Assistant Station Superintendent was Junior Officer and as such, as determined in the Khosla Tribunal Award, was a workman concerned in the industrial dispute before that Tribunal and that his discharge was not discharge simpliciter but in breach of S.33 of the Act. On this view the complaint was directed to be considered on the merits.

Reasoning:
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.