Stot.ofU. P.

Rogllubar DaJol J,

IHJ

822 SUPREME COURT REPORTS [l9o2] SUPP.

b.e said to have been absolutely without jurisdict10n. We do not agree.

He certainly had jurisdiction to dispose of the applimtion presented to him, but when s. :l69, of the Code <ldinitcly pi ohiLited the Court's reviewiug or alteriug it8 judgment, he had no jurisdiction to con8ider the point raised and to set aside the order di8rnissi11g the appeal and order its re-hearing.

We therefore see no force in this appeal and accordingly dismi8s it.

A ppe.al d ismis;; t d.

THE MANAGE:IJE~T OF U.B. DUTT & CO.

WORKMEN OF U.B. DCTT & CO. (P. B. GA., JE!'IDRAGADKAR, A. IC SARKAii and K. N. WANCllOU, JJ.)

Induatrial Dilpul<-1'ermination of .•m.ice of employee in lerln6 of contract-Dropping of propnsed deparlrrumtal •nquiry -If colcurable exercise of power-If ca11 be questioned before i11d1Utrial-tribu1.al-Principle tuminating Government Service -If IJf>Plits to indUdtrial emplcyeu.

S, employed by the appellant as a cross cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact.

He was thereafter informed about a department enquiry to be held against him and was suspended pcding enquiry. Purporting to act under r. 18(a) of the Standing Orders, the appellant terminated the services of S, without holding any departmental enquiry. The industrial tribunal to which the dispute was referred held, that action taken, after dropping the proposed departmental pro ceedings was not bonafid< and was a colourable cx.rcisc of the power conferred under r. 18(a) of the Standing Order and aince no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. The appellant contended that as the termination was strictly in accordance \Vith the terms of contract under r. 18(a) of the Standing Ordcn, it was entitled to dispense

2 S.C.R.

SUPREME COURT BEPORTS

with the service of an employee at any 1in1e Uy tirst giviug 14 days notice or, paying 12 days \vagc.s.

Hel1l, that the en1ployer's decision tu discharge the ernployce under r. l8(a) of the St<ttiding Oi-<lcrs after dropping the enquiry in tended to be helrl for 1nisconduct, \vas clcal'ly a colourable exercise of the po\ver, and an en1ployer could not press his right. purely on contract and ay that under the contract he has unfettered rjght "to hire and fire" his employees, right v.as subject to industrial adjudication and even a power like that granted by r-. I S(a) rif the Standiug Orders in this case, \\as subject t1l the scrutiriy of industrial courts.

Even in a case of this kind the req11iten1cnt of bona fides was esse11tial and if the tern1ination of service \Vas a colourable exercise of power, or was a 1csult of vic:tin1isation or unfair labour practice, the tribunal h,-, d jurisdiction to inter\enc and set aside such tern1ination.

Buckingham and Carnatic Co. Ltd. v. Workers of the Company, (1952] L.A.C. 490, referred to.

1'he Chartered Bank Bomlray v. 1'he Uharleml Bank JJ:mployees.Uniun. (1960] :l S.t:.R. 441 az'd A.; sam. Uil Company v. its Workmen, [1%llj :J S.C.H. 457, followed.

lleld, further, that the priHci1>le relating to termination ofGovernnient service stands on au entirely difl"ercut footing as cun1pared to industrial en1ployec.'i an<l the sa1ne principle could not be applied to industrial adju<lication.

Parshotam Lal Dhinyra v. Union uf India, [1958] S.C.R. 828, distinguished.

CIVIL APPELLATE JumsmcTION : Civil Appeal No. 50 of l9til.

Appeal by special leave from the Award dated March 10, 1959, of the Industrial Tribunal.

Kozhikode, in I.D. No. 89 of 1958.

A. V. Viswanatha Sastri and 'I'. V. R. Tatachari, for the appellant.

Jcinardan Sharma, for the respondente. '1962. January 29. The Judgment of the Court was delivered by

WANCHOO. J.-This is an appeal by special leave iu an industrial matter. The brief faets nflcessary for present purposes are these. The appellant in a saw-mill carrying on business in Kozihkode in

Thi Menagd.dnt.of

U. B. Dull "'Co.

Workm1nof U. B. Dutt & Co.

Wanchoo J,

116$ n..w-.. w." U.B Dolt di Co •

•• W..tr.m'o/ U. B. Dall di Co.

Wanc.W J.

824 SUPR&'dE COURT RgPORTS [1962] SUPP.

the State of Kerala.

One Sankaran was in the employ of the appellant ae a crosscutter. It is said that on June 21, l\l58, Sankaran came drunk to thEI mill and abused the Engineer, the Secretary and others and threatene<l them with physical violence. He was caught hold of by other workmen and taken outaido.

It i8 said that he came again a short tiroe later at 4-30 p.m. and abused the same perBons again. Tbereu pon tbe appellant served a charge.sheet on Sankaran on June 24, l\1511 acting out the above facts and asked him to show

cause why his services should not bu terminated on account of his grave indiscipline and misconduct.

Sankaran gave an explanation the same day denying the allegations of fact made against him, though be admitted that he had come to tho mill at the relevant time for taking bis wages for that week.

On June 25, 1958 Sankaran wllll informed that in view of his denial, a departmental inquiry would be held and ho was also placed under suspension pending inquiry. The same day Sankaran protested against his suspension and requested that in any case the departmental inquiry should be expedited. As no inquiry was held till July 2, l!J58, Sankaran again wrote to the appellant to hold the inquiry &1 early as p088ible. On July 8, l!l58, the appellant terminated the servioes of Sankaran under r. 18 (a) of the Standing Orders without holding any departmental inquiry and the order was communicated to Sankaran the same day.

In that order the appellant informed Sankaran that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudioed if he was retained in the service of the appellant, and therefore it considered that no inquiry should be held. A dispute was then

raised by the union which was referred to the industrial tribunal for adjudication by the Government of Kerala in October 1958. The tribunal held that

something seemed to have happened on the after- 111£2 noon of June 21, 1958 but there was no evidence to The Management of prove what had actually happened. It further held u. B. LJvtt"' c •. that the appellant had intended to take disciplinary w.,;:n,. if action against the workman but subsequently departu. B. Du11"' c,, mental proceedings were dropped and action was wa"h" J. taken under r. 18(a) of the Standing Orders. The tribunal was of the view that this was a colourable exercise of the power given under r. 18(a) to the appellant and therefore its action could not be upheld as a bona fide exercise of the power conferred. The tribunal also pointed out that no attempt was made before it to defend the action taken under r. 18 (a) by proving the alleged misconduct. Two witnesses were produced before the tribunal in connection with the alleged misconduct, but the tribunal did not r0ly on them on the ground that the important witnesses, namely, the Engineer, the Secretary awl other members of the staff whose evidence would have been of more value had not been prnduced and no explanation had been given why they were not produced. The tribunal therefore hold that on the facts it could not come to the conclusion that Sankaran had come drunk to the mill and a bused or attempted to assault either the Engineer or the Secretary or other officers. In the result the order of discharge was set aside and Sankaran was ordered to be reinstated. The appellant thereupon applied for special leave which was granted; and that is how the matter has come up before us.

The main contention of the appellant is that it is entitled.under r. 18 (a) of the Standing Orders to dispense with the service of any employee after complying with its terms. Rule 18 (a) is in these terms:-

''When the management desires to determine the services of any permanent workmen

• 962

Tiu \Jon,1gr!mt1.,' of

U. B. f>utl c{: C,.

Workmt11 of U. B. J..1..1u d: C?.

Wonchoo J,

8:::6 Sl.'PREME COURT REPORTS [1962] SUPP .

receiving I:! a.i. or more as daily wagos, otherwi;; c, than undn rule 21. ho shall be given l4 days notice• c, r be paid 12 days wages." ft may Le mention<'d that r. :! I dPals with cases of miscond11ct and providPs for dismissu.! or suspension for misconduct and in sud1 a C'Mle the workman eo s11spc11d1d is nut entitled to any wages during the

period of MUspensiou.

The claim thus put forward on behalf of the aµpellant iR tbat it is entitl"; d

undt.>r r. IS(a) of tho tanding Orders which is a turm of contmct between the appellant and its employees to dispense with the service of any employee at any time by just giving 14 days notice or paying 12 days wages.

we are of opinion that thi8 claim of the appellant cannot b1o1 accepted, and it iH too late in the day for an employer to raise such a ch\im for it amounts to a claim "to hire am! firo" an Prnployee a.s tho employer plcascg and thus <'flmpl!'tdy mgative~ scrnritv of SN\'ic which has been seemed to ir.dustrial enipl0yccs t Ii rough industrial adjudication for over a long pc>riutl of tinw now.

As far back as 195~, the Labc.ur Appellutt• Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by paymcnt of wages for a certain period without assigning any reRHon: (.1ee Buckingham and Carnaiic Co. Ltd. EU;. v. W orkeis of the Company. de.) ('). It was of opinion that even in a

case of this kind the nquiremont of bona /ides is essential and if the termination of service is a colourable exercise of the powcr or as a result of victimisation or unfair labour practice the iadustrial tribunal would hav" the jurisdiction to intervtne

Rncl set a.ide such termination.

Furthc•r it held that where the termination of senico is capricious, arbitrary or unmecssarily harsh on the part of the

C'lllployer juclgccl by n01mal standards uf a reasonable man that may be cogent evidence of victimisation or unfair labour practice.

These observations I. ( 195l) L.A.C. 490.

of the Labour Appellate Tribunal were approved by this Court in 'l'he Chartered Banlc, Bombay v. The Chartered Bank Employees' Union('). and Assam Oil Company v.

It~ Workmen('). Therefore if as in this case the employer wanted to take action for misconduct and then suddenly dropped the departmental proceedings which were intended to be held and decided to discharge the employee under r. 18 (a) of the Standing Orders, it was clearly a colourable exercise of the power under that rule in as much as that rule was used to get rid of an employee instead of following the course of holding an inquiry for misconduct, notice for which had been given to t.he employee and for which a departmental inquiry was intended to be held. The reason given by the appellant in tho order terminating the services of Sankaran of July 8, 1958, namely, thah-the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank a11d file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot he accepted at its face v11lue; so that the necessity for an inquiry intended to he held for misconduct actually charged might he done away with.

In any case oven if the inquiry was not held by the appellant and action was taken under r. 18 (a) it is now well-settled, in view of the decisions cited above, that the employer could defend the action under r. 18(a) by leading evidence before the tribunal to show that there was in faet misconduct and therefore the action taken under r. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied it.self by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses

(1) [1960] 3 $.C.R. 441.

(2) [1960] 3 $.C.R. 457.

The M a11ugement of

U. B. Dutt &> Co. v, Workwtn of U. B Dutt & Co.

Wtmchoo J.

1 lw Manag11111nl of lJ. B. Dutt &:- Co.

Worhnfn of U. B,

Dull 4' Co.

WachooJ,

who were produced it cannot be said to have gone wrong.

Larned counsel for the appellant however urges that the employer was empowered to take action under r. 18 (a) of the Standing Orders and having taken action under that rule, there was nothing for it to justify before the tribunal. We have already said that this position cannot be accepted in industrial adjudication relating to termination of service of an employee and has not been accepted by industrial tribunals over a long course of years now and the view taken by industrial tribunals has been upheld by this Court in the two cases referred to above. Learned counsel for the appellant, however, relies on the decision of this Court in Par8holam Lal Dhingru v. Union of India.(') That was however a ease of a. public servant and the considerations thai a1, ply to such a case are in our opinion entirely different. Stress was laid by the learned counsel on the obsNvations at p. 862 where it was ob:; erved as follows :-

"It is true that the misconduct, negligence inefficiency or other disqualification may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is, as Ohagla C. J. has said in Srinivas Ganesh v. Union of India l') (supra), wholly irrelevant.

It is urged that the same principle should be applied to industrial adjudication. It is enough to say that the position of government servants sds on entirely different footing as compared to mdust~1al employees.

Articles 310 and 311 of the Constitution apply to government servants and it is in the

(I) [1958) S.C.R. 828.

(2) A.J.R. (19~) Bom. 455.

light of those Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No euch constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot nowpress his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by r. 18 (a) of the Standing Orders in thie case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on r. rs

(a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under r. 18 (a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tl'ibunal held that the exercise of power was colourable and it cannot be said that that view is incorrect, The appellant failed to rntisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence ; but it seems to have reated upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.

Learned counsel for the appellant also drew our attention to another decision of this Court in

The Managem<nt of

U. B. Dutt &: Co.

•• Workmen of U. IJ. Dutt &: Co.

Wonchoo J.

n.M..,.,.,.."'of U. B. D#JI <lo Co.

Wor4m.n oJ U. ll. D"11 &> Co.

W-.OJ.

The Pat1U1 El.utrk Supply Co.

Ltd. Patna v.

Bali Rai ('). That Ctl8e in our opinion has no applicu.tion to the facts of this case because that oaee dealt with an application under 8. 33 of the Industrial Diputes Act while the present proceedings are under s. IO of thfl Act and the considerations which apply under s. 33 are different in many respects from those which apply to an adjudication under

8. IO.

The appeal therefore fails and is hereby dismissed with costs.

Appeal dismissed.

"CDAI BHAN

THE STATE OF UTTAR PRADESH

(J. L. KAPL'R and RAGHUBAR DAYAL, JJ.) c,-; m i11al J.a1"-Evi<l ence-Confeasion-lnf<>rmation reuit'ed fron, accu-<f.d-Accuaed producing alo/en artic/u--If amou"'8 to confe88ion-Admi•sibility of production-Indian Evid<n~ Act, 18i2 (1of1872), ""· 2.;, 26, 27-lndian Penal Code (Act 15 of JS'IO), ... 71,380,457.

On October 13, 1956, at about 8 p.m. the com)llainant lorked !tis shop and went out for a while, but when he retur-. ned he found the shop broken open and his box containing money and clothes stolen.

On information given that the appellant had been seen carrying the box from the direction of the complainant's shop the appellant was arrested by the sub-inspector of police and on being interrogated he produced a box from out of a pond situate close to his field and handed o\-.r the same to the sub-inspector.

He also produced a key from out ofa bunch of keys, which fitted the lock of the shop belonging to the complainant, and the sub-inspector took into posscasion both the key and the lock.

The appellant was tried for offences under ss. 380 and 457 of the Indian Penal Code and convicted by the Magistrate under both the sections.

The appellant contended that the conviction wa• unsustainable

(I) [1958] S. C. R 871.