Case: M/S. Sylvester &amp; Company Vs. Their Workman Through Transport &amp; Dock Workers' Union &amp; Another

On a reference to adjudication under Section 10 of the Industrial Disputes Act, 1947 made by the Central Government on 15th October 1987, the Industrial Tribunal held: (i) By an award,, dated 1st September 1989, that the Central Government wasthe appropriate Government within the meaning of Section 2(a) and the Tribunal had jurisdiction; (ii) By an award,, dated 1st February 1991, that the termination of the services of the workman without holding a disciplinary enquiry was invalid and the workman was entitled to reinstatement with full back wages and continuity ofservice from 1st July 19862. The Appellant carries on business of a Clearing and Forwarding agent. The workman was engaged as a Docks Clerk on 1st October 1978. On 27th June 1986, the management terminated the services of the workman on the ground of a loss ofconfidence. The subject of the letter was as follows:Loss of confidence due to persistent and deliberate lapses in duties inefficiency, habitual and frequent absenteeism, misappropriation of Companys money, misrepresentation of facts & false claim of overtime etcThe letter of termination records that since his appointment, the workman had committed major lapses/omissions and dereliction in duties which were then indicated as follows:1) Withholding 9 Way Bills pertaining to Voltas Limited for over a week, instead of handing these over to the office on the very day, thereby making the companyliable for demurrage – Companys warning dated 27.12.782) Frequent absentism without prior intimation/permission and availing excess leave when not due. Memoranda dated 13.6.79, 30th October 1981, 24th April 1982 & 8th May 19824) Delay in payment of wharfage and effecting delivery5) Dereliction in duties & disobeying office instructions – Memoranda dated 7th April 1980, 3rd May 1980 & 7th May 19806) Inefficiency – Memo dated 2nd Sept. 19807) Defrauding Company by claiming excess delivery charges – Memo dated 26th November 19808) Gross dereliction in duties & flouting instructions and replying show cause notice for over 2 months – Memo dated 29th April 19819) Not submitting the accounts of incidental expenses incurred in time as required – Memo dated 22nd April 198210) Misbehaviour with Foreman of Stevedores and giving misleading information to office – Memo dt. 11.8.8211) Incurring unnecessary expenditure without permission sanctionMemo dated 20th December 198212) Telling lies and violating office instructions – Memo dated 5th February 198313) Reporting for duty habitually late in spite of warnings – Memo dated 5th February 1983The letter records that in spite of repeated advice and warnings, the workman had continued to indulge in several lapses, omissions and commissions which where spelt out thus:i) Failing to register the containers at Manganese Ore Depot, in spite of specific instructions given to you and thereby incurring demurrage – Memo dated 19thii) Despatching wrongly the sample fibres to various transporters without keeping office copies of the challans. Memo dated 17th July 1985iii) Fraudulent claim of overtimeMemo dated 13th August 1985iv) Negligence in tracing container No.TRIUr explanation dated 3.4.86 for failing to trace the container is grossly unsatisfactory. Because of your deliberate negligence in tracing the container, the company is liable to steamer agents charges of Rs.4500/together with container detention charges. This should have been recovered from you but lenient view was taken and you were warned vide memo dated 10/4/86v) Post dated leave application for 8 days leave. You have applied vide your application dated 24.5.86 for 8 days leave for the period 23.5.86 to 30.5.86. Although your said leave application is dated 24.5.86, it was received in this office on the morning of 23.5.86 by hand delivery. You resumed duty on 31.5.86 and haveproduced medical cum fitness certificate dt. 31.5.86. On carefully scrutinizing thes certificate dated 31.5.86, issued by Dr. S.M. Nivdunge of Chembur, it is clear that your suddenly remaining absent from 23.5.86 without any prior intimation and then submission of post dated leave application (dated 24.5.86) on 23.5.86 itself, and then production of medical cum fitness certificate, the contents of which are prima facie doubtful, gives an impression that you have made up the entire story in support of your unjustified and sudden absence. Because of your frequent, sudden and habitual absence and Company has been put to serious inconvenience and consequent loss in business. Your explanation in this regard is also found most unsatisfactoryvi) A sum of Rs.500/was given to you on 20.5.86 for grounding of containers but it is very surprising to find that you have neither submitted your account as to howyou have spent this money nor have you returned the balance to office till dateThe management stated that it had lost confidence and wasaccordingly dispensing with the services of the workman, in theBecause of your aforesaid persistent lapses, unauthorized, habitual absence, dereliction in duties, misappropriation of companys money, habitual anddeliberate late attendance etc., the company has lost confidence in you and has reluctantly been compelled to dispense your services with discharge simpliciter wef 1st July 19863. The Transport and Dock Workers Union raised an industrial dispute before the Assistant Labour Commissioner (Central) and upon a failure of conciliation, the Central Government made a reference to adjudication on 15th October 1987. Inparagraph 7 of the Written Statement, the employer pleaded that the Tribunal had no jurisdiction to entertain the dispute as the appropriate Government was not the Central Government. The Tribunal tried the issue of jurisdiction as a preliminary issue and by its award dated 1st September 1989 came to the conclusion that the appropriate Government was the Central Government. Consequently, the Tribunal held that the reference was validly made. Evidence was adduced before the Tribunal. By an award dated 1st February 1991, the Tribunal held that the discharge of the service of the workman amounted to retrenchment within the meaning of Section 2(oo) and was invalid for want of compliance with the provisions of Section 25F. Consequently, the Tribunal was of the view that even if the management was correct in its submission that the termination was not by way of punishment, but a discharge simpliciter, the act of termination was invalid for want of compliance of the provisions of Section 25F. The Tribunal also noted that the contention of the workman was that his termination from service was by way of punishment and was not an act of discharge simpliciter. The Tribunal ruled that in case it was held that the dismissal was by way of punishment, the act of termination was invalid because no disciplinary enquiry was held and the charge of misconduct was not proved. On either view of the matter, the Tribunal came to the conclusion that the act of termination was illegal and the workman was entitled to reinstatement with continuity of service and full back wages4. The management having challenged the awards of the Industrial Tribunal, the Learned Single Judge of this Court in a judgment dated 3rd March 1997, came to the conclusion that the awards of the Tribunal, both on the question of jurisdiction and on merits, could not be faulted. On the question of jurisdiction, thecontention of the management was that no relationship of employment existed between the workman and the major port – the Bombay Port Trust – and that consequently the appropriate Government could not be the Central Government. The Learned Single Judge held that it was not in dispute that the workman wasengaged as a Docks Clerk and that the management was carrying on business of clearing and forwarding and of import and export. The workman had stepped into the witness box and the Tribunal had noted that the evidence of the workman was not seriously challenged. The management had not discharged the burden to lead appropriate evidence regarding the business and the nature of the work that was required to be carried on as a Dock worker. The evidence showed that the workman was required to go to the Docks and his work and duties had connection with the work of clearing and forwarding. The finding of the Tribunal was held to be based on evidence. On merits, the Learned Single Judge, while confirming theI award, noted that the letter of termination dealt, in the first part, with 13 items alleging major lapses on the part of the workman during 1978 to 1983, while the second part dealt with alleged lapses and omissions including misbehaviour and cheating during the period 1984 to 1986. The Learned Single Judge held that there was no evidence on record to show as to why a domestic enquiry was not held when serious charges of misconduct were levelled against the workman and the workman was justified in his grievance that the order of termination had been passed without following due process of law. The judgment of the Learned Single Judge contained a detailed appreciation of evidence. Before the Learned Single Judge, the management had, relying on judgments of the Supreme Court, submitted that an opportunity ought to have been granted by the Tribunal to substantiate the alleged misconduct by leading evidence. The Learned Single Judge held that the Tribunal had furnished an opportunity to the management to lead evidence to prove a justification for terminating the services of the workman by a simple discharge. Moreover, the Learned Single Judge was of the view that the management had sought permission of the Labour Court only to prove that it acted bona fide and that it had not applied before the Labour Court to lead evidence to prove the charges. On the aforesaid reasoning, the plea of the management was not accepted and the awards of the Industrial Tribunal were confirmed.

Reasoning:
The definition in Section 2(j) excluded an office of a mine which was separately defined by Section 2(k). Hence, the Supreme Court was of the view that the head office wherever it may be situated cannot be said to do mining operations within the meaning of the definition. Hence, a dispute between the employees engaged at the Head Office at Calcutta and the employer was not an industrial dispute concerning a mineWe 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 withs in 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 adjudicator21. In the present case, following the law laid down by the Supreme Court, we are of the view that the letter of termination exfacie demonstrates that the termination of service was founded on allegations of misconduct against the workman. Indeed, theWritten Statement by the employer before the Industrial Tribunal showed that the submission of the employer was that the workman was being terminated from service on grounds of misconductWe are, with respect, of the view that the Learned Single Judge was in error in not accepting this plea of the employer and in declining to remand the proceedings back to the Tribunal. In the concluding part of the judgment, the Learned Single Judge held that the management had sought the permission of the Labour Court only to prove that it had acted bona fide and that it had not applied to the Labour Court to prove the charges. This, with great respect, would not be a correct reading of the request made by the employer in the Written Statement which shows that the employer was ready and willing to lead evidence to establish the charge of misconduct against the workman. There is, therefore, merit in the submission that has been urged on behalf of the management. The Learned Single Judge ought not to have reappreciated such evidence as there was on the record of the case, but ought to have remanded the proceedings back to the Industrial Tribunal. For one thing, there is no appreciation of the evidence in the Part II award of the Industrial Tribunal. Appreciation of evidence lies within the jurisdiction of the Tribunal. Moreover, the Industrial Tribunal failed to furnish an opportunity to the employer to specifically lead evidence to substantiate the charge of misconduct25. In these circumstances, we are of the view that the appeal would have to be allowed in part. We confirm the finding of the Learned Single Judge that the reference before the Tribunal was validly made by the Central Government since the Central Government is the appropriate Government within the meaning of section 2(a)(i) of the Industrial Disputes Act, 1947. We also hold that the termination of service in the present case was not an act of discharge simpliciter but was a punitive termination for misconduct. No disciplinary enquiry was held. The employer having made a request to that effect in the Written Statement, he would be entitled to an opportunity to lead evidence before the Industrial Tribunal to substantiate the charge of misconduct. To the aforesaid extent, we quash and set aside the Judgment and Order of the Learned Single Judge and theI award of the Industrial Tribunal in so far as it awards reinstatement with back wages and continuity of service. We remand the proceedings back to the Industrial Tribunal which shall permit the employer to lead evidence to substantiate the alleged misconduct. The workman would, it is needless to add, be at liberty to adduce evidence in rebuttal. Having regard to the fact that the dispute in the present case has arisen as far back as in 1986, we direct that the proceedings on remand shall be concluded by the Industrial Tribunal expeditiously and preferably within a period of six months from the date on which a certified copy of this order is produced on the record of the Tribunal by either of the parties. There shall be an order accordingly26. Before concluding, we must record that during the course of the hearing of these proceedings, Counsel appearing on behalf of the Employer and the workman made several efforts to resolve the dispute by persuading the parties to enter into asettlement. Counsel appearing on behalf of the workman has stated before the Court that the workman has not been willing to accept the offer of settlement that was made by the employer.