Case: Mahendra Singh Dhantwal Vs. Hindustan Motors Ltd. &amp; Ors

This is an appeal at the instance of the workman on certificate of the Calcutta High Court from the decision of the Division Bench reversing the earlier judgment and order of the learned single Judge in an application under article 226 of the Constitution directed against the award of the First Industrial Tribunal, West Bengal, made under section 33A of the Industrial Disputesappellant (hereinafter to be described as the workman) was employed by M/s Hindustan Motors Ltd. (hereinafter to be described as the company) since August 3, 1949. On August 3, 195 6, the workman entered into an agreement of service with the company wherein the first clause reads asEmployer agrees to and does hereby engage the services of the employee for a period of 5 years beginning with 1-6-56 and thereafter until this agreement shall be determined by either party hereto giving to the other 3 months notice in writing of such intended termination.Provided that in case Employer find s the employees work satisfactory, Employer shall have the option to extend the period of service by a further term of 3workman went on two months leave to Banaras for a change some time in 1960. He requested for extension of leave for one month on medical grounds. He actually sent an application on August 8, 1960, along with a medical certificate praying for extension of his leave. The company asked the workman to get himself examined by the com panys medical officer within ten days. As the workman was lying ill at Banaras, he could not comply with the directions of the company. On September 5, 1960, he sent another telegram followed by a formal application enclosing a medical certi ficate for extension of his leave. On September 15, 1960, the company sent a letter to him terminating his services on the ground of habitual absence which is a misconduct under the companys standing orders.At the time of this termi nation there was an industrial dispute pending between the company and its workmen. Since the company did not ask for approval of its order from the Industrial Tribunal the workman made a complaint to the Tribunal under section 33A of the Indus trial Disputes Act (briefly the Act). The company contested the application. The Tribunal made its award on September 27, 1962, ordering reinstatement of the workman with 50% of his back wages for the period of his forced unemployment as compensation. The Tribunal directed that the award should be given effect to not later than one month of the publication of the award which was on October 26,a little over two months of the publication of the award, to be precise, on February 4, 1963, the company intimated to the workman to rejoin his service. The workman reported for duty the following day on February 5, 1963. On February 16, 1963, the company invoked clause (1) of the agreement which we have set out earlier and terminated the services of the workman by paying three months salary in lieu of notice.This is the second round of litigation with which we are concerned in this appeal. Since an industrial dispute was pending even on this date of termination of his service and the company did not apply to the Tribunal for approval of the order, the workman made a complaint to the Tribunal, as on the previous occasion, under section 33A of the Act. The Tribunal accepted the complaint and held asmy opinion, the company has really dismissed the petitioner for a piece of conduct which must have appeared as misconduct in the eye of the company".The Tribunal observed that the company in substance dismissed the workman for misconduct since the workman became "odious to the company" on account of his earlier success before the Tribunal in his application under section 33A of the Act. The Tribunal, therefore, ordered his reinstatement with full back wages for the period of his forced unemployment as compensation. This time the company did not accept the award although on the earlier occasion the company did not choose to litigate and reinstated him as ordered by the Tribunal.The company moved the Calcutta High Court under article 226 of the Constitution to quash the award. The learned single Judge refused to interfere with the award holding that "the reason might have been the old reason of dismissal....". The learned Judge further observed that "the circumstances relied on by the Tribunal are not wholly irrelevant and the inference drawn by the Tribunal cannot be characterised ascompany appealed to the Division Bench of the High Court and the appeal was accepted. The Division Bench held asmay be that having regard to the sequence of events that took place in this case the termination of service of the respondent No. 1 by the letter of 1 6th February 1963 may be regarded as a colourable exercise of the power under the contract of employment or may even be regarded as one of unfair labour practice or mala fide, but the discharge cannot be said to be for any misconduct. There is no evidence for discharge on any specific misconduct. The definite case of the respondent No.1 has been that it was by way of retaliatory measure that his services were terminated. This may be true and may show that the action on the part of the appellant company was mala fide. But until it is established that there has been a contravention of section 33 of the Act which would create jurisdiction in the Industrial Tribunal to entertain an application under section 33A, or in other words, unless it is established that there has been dischrge for misconduct, the Tribunal had no jurisdiction to set aside the order of termination in an application under sectionthe application of the workman the High Court granted a certificate to him under article133(1)(c) of theThat is how this matter has come before us for a decision.We should at the outset observe that this is not an appeal against the award of the Industrial Tribunal but is only directed against the judgment of the High Court under article 226 of the Constitution. In an application under article 226 of the Constitution the High Court was concerned only with the question of jurisdiction of the Tribunal in entertaining the application under section 33A of the Act. The question of jurisdiction again was intimately connected with the question whether the termination of service was for misconduct of the workmen. The learned single Judge accepted the finding of the Tribunal when it held that the discharge was nothing but dismissal for misconduct and in that view of the matter did not find any justification for interfering with the award. According to the learned Judge, therefore, no question of lack of jurisdiction of the Tribunal arose to merit interference with the award under article 226 of theDivision Bench, however, looked at the matter from a different viewpoint. It assumed that the action of the management was even mala fide and so it could be wrongful and in an appropriate reference under section 10 of the Act the workman might be able to get proper relief. The High Court, however, came to the conclusion that since clause (1) of the agreement was invoked by the employer it was not a case of discharge for misconduct and that being the position the Tribunal had no jurisdiction to entertain the complaint under section 33A even though the action of the company might be as a result of unfair labour practice.

Reasoning:
Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v. Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras v. Murthi (N.R.) and others in support of the above submission. Although the decision of the Supreme Court in Murugan Mills case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment. We are unable to hold that the Supreme Court in Murugan Mills case (supra) went to the extent of re-writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline. To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of theare, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doingis true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances an d come to a decision whether the order was passed on account of certain misconduct. This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever. We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would notremains, however another aspect to which the Tribunal did not properly address. The workman in this case had a contract of employment only for 8 years at the most. The reinstatement in his case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964. The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by thecannot be oblivious to the plight of this workman in his unequal fight with a big company. He was serving the company since 1949 for about eleven years when he was first dismissed in 1960. He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award. Eleven years in actual service and sixteen years in litigation is a doleful tale bytherefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20, 000/- only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly or der. We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10, 000/- on compassionate grounds.