Case: Gujarat Mineral Development Corporation Vs. Shri P. H. Brahmbhatt

The respondent was appointed by the appellant on June 13, 1967 as a temporary Senior Assistant on conditions set out in the letter dated June 13, 1967. The respondents services continued to be temporary as no order of appointing him on probation was passed, and on the ate when his services were terminated by an order dated January 6, 1971, he was in temporary service2. According to the respondents statement of claim inr 1970 he was not keeping good health,s he used to attend to his duties. However, in October 1970 his health deteriorated further and he went on sick leave for five days from October 14 to October 18, 1970. Thereafter though he joined and worked he was under treatment. Then all of a sudden his health took a turn for the worse and after the medical examination by his physician he was advised rest and medical treatment for one month. In view of this advice he made an application on November 7, 1970 for one month leave on the ground of illness accompanied by a medical certificate of K. J. Vaidya who was a registered medical practitioner, but the appellant did not give any reply immediately. Later the appellant wrote a letter to the respondent asking him to "join duties at once" because there was nothing wrong with his health and his leave was not sanctioned3. We shall advert to the correspondence in greater detail later, but for the present it is sufficient to set out what has been narrated by the Special Labour Court, according to which the concerned workman (the respondent) after receiving the reply on November 14, 1970 wrote to the Corporation that the said superior officer was not qualified to opine about his health and it was necessary for him to take rest as medically advised. He also stated that he wanted to consult a physician in Bombay and if he decided to go there he would intmate his Bombay address to the Corporation. He alleged that this letter was not immediately replied. Thereafter, the concerned workman proceeded to Bombay and started receiving treatment from one Dr. K. C. Mehta, M. D. (Bom), F.C.P.S. He then received a letter from the Corporation requiring him to report immediately to the Corporation for being sent for a medical examination by the Civil Surgeon, Ahmedabad. The concerned workman contended that if he was required to be examined by the Civil Surgeon, Ahmedabad, he should have been informed about it before he left for Bombay and according to him, this was not a bona fide direction. The concerned workman then sent a medical certificate obtained from his doctor with his letter dated, asking for further leave. The concerned workman then received a letter dated December 24, 1970 requiring him to report to the Corporation within two days and informing him that if he failed to do that, he would be dismissed from service. He then returned to Ahmedabad and wrote a letter dated January 4, 1971 to the Corporation that he was prepared to submit for the examination by the Civil Surgeon. Ahmedabad, and he should be sent an authority for the purpose. According to the concerned workman, instead of granting this request, the Corporation sent a letter dated January 6, 1971 together with a discharge order, informing him that he was discharged with effect from November 9, 1970. The concerned workman contended that the action taken against him was illegal and improper; that the Corporation had no authority to require him to submit for examination by the Civil Surgeon; that it could not have rejected a certificate from a registered medical practitioner; and, therefore, he was entitled to be reinstated with full back wages4. As against those averments, the case of the Corporation was that the concerned workman was only a temporary employee and under the contract of his employment he was to be taken up as a probationer, and after completion of the probationary period he was to be confirmed. However, during his service, as he was found to be arrogant, careless, negligent and having scant respect for his superiors, no order making him a probationer was passed and he was continued only as a temporary employee in an expectation that he would improve and give satisfaction to his superiors. According to the Corporation, assuming that he had become a probationer, he was not confirmed; and so in any event he was not a permanent workman. The Corporation then alleged that during the tenure of his service, apart from other defects in him, it was also found that in about October 1970, he was evading to undertake about ten days tour to Bombay. So, he was given a memo requiring him to submit his explanation, which he did, but in a very disrespectful language. Thereafter, he had gone on leave on grounds of illness. It was then alleged that on November 7, 1970, though he was present in office, looking quite healthy and fit, and had worked for the whole day, yet he gave an application for leave for 30 days. He gave this application to the inward clerk and not to his superior officer as it was the usual practice, which he could have followed very easily. He had attached a certificate to that leave application; but the certificate was from a Vaidya who was only a R. M. P. The certificate did not disclose any serious disease, and hence on considering these facts, the leave application was refused and he was asked to report for duty. A letter to that effect was sent to him under certificate of posting, but that letter was returned to the Corporation with an unusual postal endorsement viz.s not known." A copy of this letter was then sent to him by registered post at the very address and the same was received by him on November 14, 1970. The concerned workman then wrote a letter refusing to report for duty and stating that he would go to Bombay for consultation with an eminent physician. Thereupon, the Corporation wrote another letter dated 27/30 November, 1970 calling upon him to present himself at the head office so that he can be sent to the Civil Surgeon for a medicalp because it wanted to verify as to whether his illness was genuine or not. According to the Corporation, this letter was sent to him with a special messenger at his residential address on November 30, 1970 at 11.30 A.M. but a member of his family reported that he had left for Bombay. In the meanwhile, the Corporation received a letter on December 2, 1970 purporting to have been sent from Bombay. However, this letter did not bear any postal mark from any Bombay post office. The Corporation then wrote a letter to him at his Bombay address on the same day asking him to comply with the instructions contained in the letter dated. 27/30 November, 1970. According to the Corporation, this letter seems to have been received by him on December 4, 1970, and thereafter he sent a letter, dated December 9, 1970 together with an application for leave along with a medical certificate. But in this letter, the respondent did not give any specific reply to the directions to attend to the head office for his medical. The medical certificate also did not show that he was seriously ill. Hence, the corporation, by its letter dated December 24, 1970, sent to his Bombay address, calling upon him to present himself at the head office for a medical. According to the Corporation, a letter dated January 4, 1971 was received from him asking for a letter of authority to be presented before the Civil Surgeon, but the Corporation had reasons to suspect that the concerned workman was in fact evading being medically examined. Further, looking to his previous record, it as found that it would not be proper to confirm such an employee, or to continue him in service. So, it was decided to discharge him. An order terminating his services with one months pay in lieu of notice with effect from November 9, 1970 was passed and was sent to him with a letter dated January 6, 1971. The Corporation alleged that in the past also he was found to be remaining absent and irregular in work and leaving his work without any leave or authority, as such, the action taken against him was quite legal and proper and he was not entitled to any relief. The Corporation had raised contentions that the concerned workman was not a "workman" within the meaning of the term under the Industrial Disputes Act, and the said Act did not apply to the Corporation because it was a Government concern. The contention that on this account, this reference was invalid was not pressed before the Special Labour Court and accordingly no question of lack of jurisdiction was urged before us5. On the aforesaid averments, the Special Labour Court posed the question whether the termination of the services of the respondent was a discharge simpliciter as alleged by the Corporation or was it a discharge for misconduct which was of a punitive nature? On a perusal of the correspondence the Labour Court came to the conclusion that as the concerned workman did not report for medical, but wrote a letter asking for an authority to be presented before the Civil Surgeon, his services were terminated which clearly amounted to an action taken fore with the requirements contained in the letters as well as for remaining absent without leave. In the circumstances it held that the discharge was in pursuance of the threatened disciplinary action and did not amount to a discharge simpliciter, in that the real nature of the action taken against him was for the misconduct and was punitive. On this conclusion it further held that the principles of natural justice were not complied with by calling upon the workman to show cause against the proposed action nor was the workman given an opportunity to explain the allegations which formed the basis of the impugned action. That apart, in its view the impugned action came within the provisions of Section 11A of the Industrial Disputes Acthereinafter called the Actaccording to which it would be the duty of the Court to satisfy itself whether the order of dismissal or discharge was justified or not and in discharging that duty the Court would be entitled to rely on the materials on record without taking any fresh evidence in relation thereto. Though the Special Labour Court came to the conclusion that the previous behaviour of the workman showed that he was haughty and insolent and he had used improper language to his superiors he was properly dealt with by being made to apologise for his wrongs and therefore he cannot be tried and punished twice for the same wrong inasmuch as the action for the termination of his services was based on the ground that the reasons urged for leave were found to be not genuine and he had not submitted himself to a medicalp as required by the Corporation. It was further found that merely because his leave application was presented in a particular manner, and because it was accompanied by a certificate from a registered medical practitioner a Vaidya, no inference would arise that the grounds urged were absolutely false. In the view of the Special Labour Court the management of the Corporation in this case had approached the matter with a closed, and not an open mind, nor did it consider that the circumstances on which it relied were explainable on the assumption that the concerned workman was innocent.

Reasoning:
It is true, normally an employer may terminate the services under the terms of the contract or the standing orders as duly certified, but where an industrial dispute is raised the form of the order is not conclusive, and the Tribunal to which the dispute is referred can examine the question whether the discharge was punitive, mala fide, vindictive or arbitrary. If it comes to any of these conclusions, it could direct reinstatement of the employee. But even in such cases the Tribunal should not direct reinstatement if it comes to the conclusion that the employer has lost his confidence in the employee, where the reposing of such confidence is a necessary concomitant of his services. In other words, the order of discharge simpliciter is not conclusive and when an industrial dispute is raised, the Tribunal adjudicating such dispute can examine the substance of the matter and determine whether the termination is in fact discharge simpliciter or dismissal, though the order is one of simple termination of service. If it is satisfied that the order is punitive or mala fide or is made to victimize the workman or amounts to unfair labour practice, it is competent to set it aside. The test is whether the act of the employer is bona fide or not. If it is not and is a colourable exercise of the power under the contract of service or standing orders, the Tribunal can discard it and in a proper case direct reinstatement.See also Tata Engineering and Locomotive Co. v. S. C. Prasad, (1969) 2 Lab LJ 799 = (AIR 1969 NSC 61It is true that the decisions of this Court warrant the submission that before redress is claimed under Art. 136 the party claiming it should show that the impugned order or award is defective by reason of excess of jurisdiction or of a substantial error in applying the law or of settled principle or suffers from gross and palpable error occasioning manifest and substantial injusticeHowever an appellate court or a court having jurisdiction to entertain petitions challenging the verdict will not hesitate to interfere with findings of fact where there has been an illegality or an irregularity of procedure, or a violation of the principles of natural justice, resulting in the absence of fair trial or where there has been a gross miscarriage of justice, or where the tribunal has spoken in two voices and has given inconsistent and conflicting findings, or where the findings are vitiated by error of law or where the conclusions reached by the courts below are so patently opposed to thed principles as to amount to miscarriage of justice or where the finding is not supported by any legal evidence and is wholly inconsistent with the material produced on the record, or where the High Court or the tribunal below, committed a serious error in not examining evidence on a central issue with the care which it deserved. These principles have been affirmed in the various decisions of this Court and are so well established that it is unnecessary to refer to those decisions12. Applying these principles what we have to see in this case is, is any interference in the award called for. No doubt the Special Labour Court gave a clear finding that the behaviour of the workman showed that he was haughty and insolent and that he had used improper language to his superiors. Having given that finding it thought that he was properly dealt with by being made to apologise for his wrongs and therefore he cannot be tried and punished twice for the same wrongThis contention, in our view, is equally untenable because under Rule 15 of the Rules which have been passed subsequent to the appointment of the respondent, an employee is required to subscribe to a declaration before joining duties in the form prescribed in Appendix I. That Form declares that he has read and understood the Gujarat Mineral Development Corporation Limited (Staff) Service Rules and that he subscribes and agrees to be bound by the said Rules. Such a declaration has not been signed by the respondent and, therefore, those Rules are not applicable to him. It is also evident that rule 2 (b) states that "these Rules are applicable to every wholetime employee of the Corporation, provided that employee under specific agreement or arrangement shall not be governed by these rules or shall be governed by them only subject to such special terms, conditions or stipulations as may be provided for by such agreement or arrangement."It is admitted that the post held by the respondent falls in one of the categories mentioned in the above rule. In these circumstances the employment of the respondent was temporary and was not subject to the Rules. The argument that he contributed to the Provident Fund and therefore must be considered to be a permanent employee of the Corporation is equally untenable, because the Provident Fund Act did not apply to this Corporation till 1972 which is after the termination of the services of the respondent. If the Provident Fund Rules of the Corporation permitted a temporary employee also to contribute to it, the contribution by the respondent does not indicate that he was a permanent employeeThat section provides that where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. We are, however, not concerned with the several questions which may arise thereunder, because the section itself will not apply to an industrial dispute referred prior to December 15, 1971, when Section11Awas brought into operation. It was held by this Court in Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. Management (1973) 1 Lab LJ 278 = (AIR 1973 SC 1227  ) that this section has no retrospective operation on the pending references19 .In our view the termination of the services of the respondent is not mala fide or punitive but the appointment of the respondent being temporary, the termination was a discharge simpliciter and the action taken by the Corporation was bona fide. In the circumstances we set aside the award of the Special Labour Court and maintain the order made by the appellant terminating the services of the respondent only as from 6th January 1971.In respect of the period 7th November 1970 to 6th January 1971 he will be entitled to payment of his salary, if any due to him, after leave to which he may be entitled is sanctioned.