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MANAGEMENT OF BORPUKHURIE TEA ESTATE

PRESIDING OFFICER, INDUSTRIAL TRIBUNAL

ASSAM AND ANR.

March 1, 1978

[V. R. KRISHNA !YER AND JASWANT SINGH, JJ.)

Industrial Dfaputes Act, (Act XIV), 1947, S. 33(3)(b)-Amendment of an application clinnging the section applicable should be allowed by the Tr1bunal.~·.

Under Sec1ion 33(2) (b) of Industrial Disputes A.ct, 1947 during the, pendency. of any conciliation proceedings before Conciliation Officer . or a Board r ot c any proceeding before an arbitrator or a Labour Court or Tnbunl or National Tribunal in 1espect of an industrial dispute, the employer may_ in accor?ance

with the Standing Orders ~.p-plicable to the workmen concerned, :n such dispute for any misconduct c0>.1nected with the dispute, discharge or punish, whether ~Y

dismisal or ot11erwise that workman, provided that the workman has been pud his wages for enc month and an application has been made by the employer:, to the authority before \\'hich the proceeding is pending for approval of the action taken by the employer. Under S. 33(3)(b), which overrides Section 33(2) no employer, du6ng the pendency of any such proceeding in respect of an industral D dispute, take any action against any protected workman concerne<l in such dispute by discharging or punishing \Vhether by dismissal or otherwise, such pr?- tected workman, save with the express permission in writing of the authonty before which the proceeding is pending.

Agreeing \Vith the findings of the Enquiry Officer contained in the report submitted by him in respect of the allegation of gra:vei mi£conduct under Cl. lO(a)

(2) of the Standing Orders of the appellant's establish1nent, as applicable i-o E Respondent Ne. 2, a protected workman, the Managetnent decided to dismiss him. _>\s respondent No. 2 was a workman and an Industrial Dispute being reference No. 35 of 1964, was pending before the lndustrial Tribunal, Assam at GauhatL the managen1ent could not straightway dismiss the respondent.

Accordingly, by its letter dated 1Sovember 10, 1966, the Management informed respondent No. 2 that he had been found guilty of the charge contained in the charge-sheet ser\ed on him on September 19, 1966 and that he would be dismissed fron1 service of the Company but that the punislunent \vould not be put into effect pending orders of the competenn nuthority 1under :>. 33 of the Act.

F and in the. 111e::intin1e, he \vould remain under suspension. On the same date, an application was 1nade by the Management-appellant before Respondent No. l, under s. 33(2) of the Act'.

Respondent No. 2 while admitting hy his letter dated November_ 17, 1976, that he was not yet dismissed as per leter dated 10th 1'.1overnber, 1966 but only had to be under suspension without pi)y till the decision of the authority cci.1cerned, requested the appellant to allow hin1 to avail

the privileges of drawing ration (at per staff ration rate) and to have free supply of tea and fire-wood, as per rules.

Thereafter, on December 24 1966 the re~- pondent filed belore the Industri2.1 Tribunal a comolaint under' s. 33A of the

G· Act alleging contr<:Yention of the provisions of s. 33 of the 1\ct by the Appellant, praig for a .dec!sion in the matter.

On June 27, 1967, \vhen the appl Jants ong1nal application under s. 33(2)(b) of the Act \Vas still pending, the

appclar:t r.lade an application to the Industrial Tribunal pr;"tying that the said

apphcat1o•n be treated as one under s. 33 (3) (b) of tbe Act. By his order dated July 10, 1967, Respondent No. 1 refused to treat the Ma•.1agement"s orioinnl application under s. 33 (2) of the Act a6 one under s. 33 (3) (b) of the A.ct

0and rejected the san1c as not maintainable holding that the Management had violated the provisions of the Act in dismissing the respoodent who was admittedly a H proteeted workn1an 'without obtaining' the permission. from the Tribunal. The writ application filed by the apoellant in the Assam High Court assailinf! the said orders 'vas dismissed with the observation that the punishment of disnlissal

A having already been inflicted without Complying with the provisiOns of s. 33 (3) (b J of the Act, an Ex Po_st Facto permission could not be granted.

AUowing the appeal by specia-1 leave the Court

HELD : 1. The_ Courts charged with the duty of administering justice have to remember that it is tlot the form but the substance of the matter that bas to be looked intc and the parties cannot be penalised for inadvertant errors committed by them in: the conduct of their cases. It is _equally important for the Courts to remember that it is necessary sometimes in appropriate cases for pro-: motion of justice to construe the pleadings not too technically or in a pedaetic manner_ but ft..irly and reasonably. (444 F-Gl ' .

JVestern India Match Co. v. Wrkmen, [1963] 2LU 459 at p. 464 applied. : ' ' -- \

2. The Labour Courts and Tribunals are compete-nt to allow the parties when they are not actuated bv any oblique motive to modify their pleadings to subserve >the interest of justice. [445 A] _ _

Patna Electric Supply Co. Ltd. Patna v. Bali Bai &_Anr. [1958] S.C.R. 871, followed. --

3. In the r-resent case :-(a) The appellant's original application being~_ in fact and in substance for permission under s. 33(3) of the Act~ The Tribunal should dispose of the same in conformity with Ia.w after going into the following points :-_: ·

1. VVhether it js conclusive]y ; roved that the signatures of the :\fanager

of the Borpukhurie Tea Estate on the aforesaid cheque No. 53 were forged?

2. \VhJ.t became of the reJ?Orl which appears to have been mad.; by the appellant to the police 1n respect of the said cheque and \Vh2.t is the ia!pact of the result of that report on the truth or othen~:ise O[ the alleged forgery 1

3. \Vbether i; i. prima facie case for tlismis;; al •er the respondent is mad~

out by .the appellant? -_ ......

4. \Vhether the appellant's decision to dismiss the re5pondent '"'as bcna

fide or was it an outcome of any unfair labo11r pr:ictice or victitr.isation? -

5. \Vhether the respondent was entitled to any payment in the interregnum

bct\veen the conclusion of_ the enquiry and the final order_ of the Tribunal ? [445 A-El

_ [The Court r.ave further directions to •dispose of the matter \Vith utmo5t cfespatch not excet:Uing six months of the receipt of the order after going into the points surgested]

CML APPELLATE JURISDICTION: Civil Appeal No. 1764 of 1971-

-- -- (Appeal by Special Leave from the Judgment and Order de. the 18th September, 1970 of the Assam & Nagaland High Court at Gauhati in Civil Rule No. 236 of 1967)

F. S. Nariman, P. H. Parekh & S, N. Choudhari

H For the Appellant

K. P. Gupta & B. B. Tawakley For Respondent No. 2 ·

' '

Ex-Parte : For Respondent No. 1 A The Judgment of the Court was delivered by

JASWANT SINGH, J.-Tbis appeal by special leave _is directed against the judgment and order dated September 18, 1970 of the High Court of Assam and Nagaland passed in Civil Rule No. 236 of 1967 filed by the present appellant.

The facts giving rise to this appeal are : Shri Naresh Kumar Ganguli, respondern No. 2 (hereinafter referred to as 'the respondent') was employed in the Borpukhurie Tea Estate belongmg to B1shmrnth

Tea Company Ltd. (which is engaged in the cultivation and mnu facture of tea and employs a large number of workmen of vanous categories to carry on its business) as a 2nd Clerk and was recognised as a 'Protected Workman' within the meaning of section 33(3) of the Industrial Disputes Act, 194 7 (hereinafter referred to as 'the Act').

On September 11, 1966, the Company's cheque No. 53 which allegedly bore the forged signatures of the Manager of the Borpukirnrie Tea Estate was encashed from a local banker.

On enquiry, Mansid Munda, the factory chowkidar stated that the cheque was cashed under instructions of the respondent and proceeds thereof amounting to Rs. 680/- were handed over to the latter at the garden office.

As the act of the respondent prima facie constituted a grave misconduct under clause lO(a) (2) of the Standing Orders of the Establishment, a charge sheet was served on him on September 19, 1966 accusing him of obtaining money through Mansid Munda from the local banker by forging the Manager's signatures on the aforesaid cheque and calling npon him to snbmit his explanation in regard thereto which he did on September 22, 1966.

As the explanation tendered by the respondent (which was one of denial) was found to be unsatisfactory, an enquiry into the charge was held by Mr.

R. R. L. Pennoll, Superintendent of the Company.

The respondent who was present throughout the enquiry was afforded opportunity to cross-examine the witnesses produced on behalf of the Company and

to produce evidence in bis defence.

At the conclusion of the enquiry, the Enquiry Officer submitted his report stating therein that F the material adduced in the course of the enquiry proved that the respondent was guilty of grave misconduct as envisaged by the aforesaid clause of the Standing Order.

The Management, therefore decided to dismiss the respondent.

As the respondent was a protected worki_nan and an industrial dispute, ing reference No. 35 of 1964, was pend"

mg before the lndl!stnal Tnb?na!, Assam at Gauhati, the Managemet could not straightaway d1sm1Ss the respondent.

Accordingly; by its letter dated November 10, 1966, the Management in.fanned the

npondent that be had been found guilty of the charge contained in the charge sheet served on him on September 19, 1966 and that he :vmud be dismissed from .service of the Company but that the pumshment. would not b~ put mto effect pending orders of the compe.. tent authonty under section 33 of the Act, and in the meantime he would remain under suspension.

The communication elated Noeni ber 10, 1966 written on behalf of the appellant to the respondent ran as under :- --

"Shri N. K. Ganguli, 2nd Clerk, Borpukhurie T.E.

P.O: Charali.

[1978] 3 S.C.R.

Dear Sir,

You are hereby informed that you have been found guilty after due hearing of your case as prescribed by Standing Orders of the charge served on you in my letter of the 19th September, 1966.

You are accordingly informed that you will he dismissed from the service of the company.

This punishment will not be put into effect pend; ng orders of the competent authority under section 33 of the Industrial Disputes "A ct, 1947 and in the meantime you will remain under suspension. As my enquiry into the charge against you has concluded. you wilt not receive any subsistence allowance during this period of suspension.

Yours faithfully, Sd/- W" P. swer, Assistant-in-Charge."

On the same date, an application was made by the Management before the Presiding Officer, Industrial Tribunal, Gauhati under s-ection 33(2) of the Act.

On November 17, 1966, the respondent addresed the following communication to the M'l)1ager of the Borpukhnrie Tea Estate :-

''The Manager, Borpukhurie Tea Estate, Charail P.O.

Sir,

It appears to me from your letter dated 10-11-66 that l am not yet dismissed, only I have to be on suspension without pay till you receive any decision from the authority.

So, as l am not yet dismissed, you will allow me to avail the privilege in connection with any service with the Company as below and other if there are.

(I) Ration "Rice & Atta" (As per staff ration rate)

(2) Tea ~'Free of cost" (Stilt I am due to get a month ration)

(3) Fire-wood "Free of cost (Already to get for the further months of the year).

I will be happy of your early action in this matter.

Soliciting an early confirmation.

Yours faithfully,

Sd/- N. K. Ganguli 2nd Clerk."

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On December 24, 1966, the respondent flle<l before the Industrial Tribunal a complaint under section 33A of the Act alleging contravention of the provisions of section 33 of the Act by the appellant and praying for a decision in the matter.

On June 27, 1967, when its original application under section 33(2) (b) of the Act was still pending, the appellant made an application to the Industrial Tribunal praying that the said application be treated as one under section 33 ( 3 )(b) of the Act.

This application is reproduced below for facility of reference :-

"J. That in submitting the application U/s. 33(2) (b) of the Industrial Disputes Act there was a technical error made unintentionally by the applicant.

2. That a reading of the application will clearly indicate that the Management in fact intended to, comply with the provisions of section 33 (3) of the Act and not of section 33(2) of the said Act, although the application is described as such.

3. That even the Management's letter dated I Oth November, 1966 addressed to Sri N. K. Ganguli will also indicate that action was being taken U/s 33(3) of the l.D.

Act.

It is, therefore, prayed that the Hon'ble Tribunal may be pleased to treat the application as one U Is 3 3 ( 3) of the Industrial Disputes Act and for this etc."

By his order dated July 10, 1967, the Presiding Officer of the E Industrial Tribunal refused to treat the Management's original application under section 33(2) of the Act as one under secdon 33(3) (bl of the Act and rejected the same as not maintainable holding that the Management had violated the provisions of the Act in dismissing the respondent who was admittedly a protected workman 'without obtaining the permission from the Tribunal'.

Aggrieved by this order, the Management filed an application before the High Court F under Article 226 of the Constitution seeking issuance of a writ of certiorari or mandamus or any other appropriate writ quashing the aforesaid order dated July 10, 1967 of the Industrial Tribunal but the same was dismissed with the observation that the punishment of dismissal having already been inflicted without complying with the provisions of section 33(3) (b) of the Act, an Ex Post Facto pennission could not be granted. It is against this order lhat the Manage- G ment has come up in appeal to this Court .

Appearing in support of the appeal, Mr. Narirnan has urged that though it may be open to an Industrial Tribunal to withhold the permission contemplated by section 33 (3 )(b) of ihe Act if it finds tliat an employer has not been able to make out a prima facie case justifying dismissal of a workman or if it finds that there is material to

establish that the employer was guilty of unfair labour practice or victimisation, there was no justification in the instant case for the

Industrial Tribunal to hold that the appellant had violated the provisions of section 33(3)(b) of the Act or to refuse to accede to the prayer of the appellant to treat its original application dated November 10, 1966 as one under section 33(3) (b) of the Act ignoring the real substance thereof.

We find considerable force in the submissions made by Mr.

Nariman.

The !'acits and circumstances of : the case especially the underlined portions of the correspondence reproduced above i.e. the appellant's very first letter dated November 10, 1966 to the respondent which expressly stated that as th~ latter had been found guilty after due enquiry, he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the C meantime he would remain under suspension, and the respondent's own application dated November 17, 1966 to the Management for permission to avail of the privileg!'._s of rations et~. c?nnected with his service on the plea that he had not 'yet' been dLSmtssed, as also the

averments in the ultimate part of paragraph 10 of the appellant's application dated November 10, 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause lO(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making deduction to the contrary.

It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellant's prayer to treat its original application as one under section 33(3) (b) of the Act and in so doing missed tile real pith and substance of the application.

The courts charged wrth the duty of administering justice have to remember that it is not tbe form but tbe substance of the matter that has to be looked to and 1 the parties cannot be penalised for inadvertant errors committed by them in the conduct of their cases.

The following observations made by this Court in Western India Match Company Ltd. v. Their Workmen(') are opposite in this connection:-

Again, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention."

It is equally important for the Courts to remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably. ·

Keeping in view therefore the totality of the facts and circumstances of the case and the purport of the observations of this Court

(!) [1963] 2 L.L.J. 459, 464.

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llORPUKHURlE TEA ESTATE v. ASSAM l.T. (Jaswant Singh, J.) 44 5

in Patna Electric Supply Co Ltd. Patn,1 v. Bali Bai & Anr.( 1) to the effect that the Labour Courts and Tribunals are. competent to allow the parties when they are not actuated by any oblique motive tq modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the industrial Tribunal should treat the appellant's original application which was in fact and in substance for permission as one under section 33(3){b) of the Act and dispose of the same in conformity with law after going into the following points:-

1. Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 53 were forged? '

2. What became of the report which appears to have been c made by the appellant to the police in respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery?

3. Whether a prima facie case for dismissal of the respondent is made out by the appellant ?

4. Whether the appellant's decision to dismiss the respon- D dent was bona fide or was it an outcome of aqy unfair labour practice or victimisation ?

5. Whether the respondent was entitled to any payment in the interregnum between the conclusion of the enqury and the final order of the Tribunal ?

Accordingly, we allow tlie appeal, quash the aforesaid orders of the Industrial Tribunal and the High Court and remit the case to the former with the direction to treat the appellant's aforesaid application dated November 10, 1966 as one under section 33(3) (b) of the

ct and to dispos~ of the same with utmost despatch not exceeding six months of receipt of the order, afte! going into the poirits set out above.

The parties shall be allowed to adduce such evidence as they may 1L1<e ii; respect of the aforesaid points.

The costs of this appeal shall ?e paid by the appellant to the 2nd Respondent Workman which is quantified at Rs. 1500/-. The order in C.M.P. 5411/71 shall stand.

S.R.

Appeal allowed.

(2) (1958)S.C.R. 871.

1 l-277SCI/78