Full Judgment Text
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PETITIONER:
GUJARAT MINERAL DEVELOPMENT CORPORATION
Vs.
RESPONDENT:
SHRI P. H. BRAHMBHATT
DATE OF JUDGMENT30/10/1973
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
GOSWAMI, P.K.
CITATION:
1974 AIR 136 1974 SCR (2) 128
1974 SCC (3) 601
CITATOR INFO :
RF 1986 SC 842 (5,15)
ACT:
Industrial Disputes Act-Respondent a temporary employee
terminated from service Whether termination a discharge
simpliciter and the action taken by the employer, bonafide.
HEADNOTE:
The respondent was appointed by the appellant in 1967 as a
temporary senior Assistant on conditions set out in the
letter of appointment. His services were terminated in 1971
when he was still in temporary service-. Due to ill health,
the respondent applied for one month’s medical leave
accompanied by a doctor’s certificate; but the leave was
refused and he was asked to join duty at once. because
according to the appellant, there was nothing wrong with his
health. Ultimately, when on January 6, 1971, the employee
did not appear for medical checkup on the appointed day, the
worker was discharged from service retrospectively from
November 9, 1970, with one months’ pay in lieu of notice.
The Labour Court came to the conclusion, that the discharge
was not a discharge simpliciter but an action taken for
misconduct and was punitive. The principles of natural
justice were not complied with and the impugned action came
under s. 11-A of the Industrial Disputes Act, and so, the
appellant was directed to reinstate the respondent with half
the wages from the date of discharge till the date of his
reinstatement.
Before this Court, it was contended by the respondent that
the order of discharge was defective because it purported to
terminate the service of the respondent retrospectively from
the day from which his services were not available to the
Corporation as he was absent without leave from November 9,
1970. The appellants" counsel contended that where
under a contract of service there is power to terminate the
services, that.power having been exercised bonafide, the
termination cannot be held invalid. The question for
decision before this Court was whether the Special Labour
Court arrived at a perverse finding, or a finding not
warranted by the evidence on record; or, were there any
errors apparent ’on the face of the record which vitiated
that finding. Allowing the appeal.
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HELD (i) The order of termination cannot be held to be
defective merely because the order was to take effect
retrospectively from November 9, 1970. The intention of the
Corporation was to terminate the services of the respondent
from the date from which his services were not available to
the Corporation. Even if the super-added part, namely, that
the order should operate retrospectively as from an anterior
date, is invalid. there is no reason why the first part of
the order discharging the services of the respondent as from
the date of the order, does not take effect. Therefore, the
order discharging the-services of the respondent cannot be
held to be invalid. [134C]
Jeevaratnam v. State of Madras, [1967] 1 L.L.J. 391,
referred to.
(ii) 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 is punitive, malafide or arbitrary.
If it comes. to any of these conclusion, it can direct the
reinstatement of the employee; but should not do so if the
employer has lost his confidence in the employee. If the
Tribunal is satisfied that the order is punitive. or
malafide. or is made to victimise the workmen or amounts to
unfair labour practice, it is competent to set it aside.
The test is whether the act of the employer is bonafide or
not. If it is not, and is a colorable exercise of the power
under the contract of service, or standing orders, the
Tribunal can discard it in a proper case. and direct
reinstatement. [134E]
Tata Engineering and Locomotive Co. Ltd. v. Prasad, [1969] 2
L.L.J. 779, referred to.
129
(iii) This Court ordinarily does not entertain pleas on
questions of fact, or interfere with the findings of fact so
as to convert itself into a third court of fact. But the
Court will not hesitate to interfere with the findings of
fact, where there has been 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 given inconsistent and conflicting findings, or
where the findings are vitiated by error of law, or where
the conclusion which reached by the courts below are so
patently opposed to the well-established principles as to
amount to miscarriage of justice or where the finding is not
supported by any legal evidence and is inconsistent with the
material produced on record, or where the High Court or the
Tribunal below committed a serious error in not examining
evidence of a central issue with the case Which it deserved.
etc. [135E]
(iv) In the present case, from the evidence it seems that
the respondent had made it a habit of remaining absent from
duty without obtaining prior permission; that he had very
little respect for his superiors; that he was haughty and
insolent and did not care for the rules of the Corporation
and was a habitual absentee without getting his leave
sanctioned previously. The Special Labour Court had no
basis for coming to the conclusion that the respondent bad
apologised for his wrongs and that the matter was properly
dealt with. The respondent never apologised, but he was
prevaricating. The respondent was always adopting highly
unreasonable attitude which was detrimental to the
interests of the Corporation. In the above circumstances,
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it would be misnomer to say that the action of the
Corporation was not bonafide, but was malafide. Therefore,
the findings of the Special Labour Court is perverse and
could not be arrived at on any reasonable view of the
evidence. [140G; 141C]
(v) The respondent cannot be considered as a permanent
employee of the Corporation. because under rule 15 of the
rules, an employee is required to subscribe to a declaration
before joining duty in the form prescribed in Appendix-1.
That form declares that he has understood the Gujarat
Minerals Corporation Ltd. (Staff) Service Rules, and 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 the respondent.
[141D]
(vi) Under Rule 7, the General Manager may temporarily
employ suitable candidates to vacant posts in Class III and
IV only and the Chairman of the Sub-Committee may authorise
appointment of suitable candidates to a vacant post in Class
1 and 11. It is admitted that the post held by the
respondent falls in one of the categories mentioned in the
above rule. Under these circumstances, the employment of
the respondent was temporary and was not subject to the
rules. [141F]
(vii) Further, even if the said employee contributed to
the Provident Fund, the Provident Fund Act did not apply to
the Respondent, because till 1972, the Provident Fund Act
did not apply to this Corporation. If the Provident Fund
Rule,; 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
employee. [141G]
(viii) As regards the question as to whether s. II (A) of
the Act is applicable to the present case, it can be said
that s. 11-A will not apply to an Industrial Dispute
referred prior to December 15, 1971, when the said section
was brought into operation. ’Therefore, the said section is
riot applicable in the present case. Further. this section
has no retrospective effect on the pending reference. [141H]
Workmen of M/s. Firestone Tyre and Rubber Co. of India
Private Ltd. v. The Management and Ors., [1973] 1 L.L.J.
278, referred to.
Under the circumstances. the termination of the services of
the respondent is not malafide or punitive and the
appointment of the respondent being temporary, the
termination was a discharge simpliciter and the-action taken
by the Corporation was bonafide. [142D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 803 of 1973.
-L447Sup.Cl/74
130
Appeal by special leave from the award dated January 24,
1973 of the Special Labour Court, Ahmedabad in Reference
(IC-IDA) No. 4 of 1972 published in the Gujarat Government
Gazette Part 1-L dated March 1,1973.
M. C. Chagla, G. P. Vyas and R. P. Kapur, for the appellant.
Respondent appeared in person.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-This appeal by special leave challenges
the award of the Special Labour Court, Ahmedabad, by which
the respondent an employee, of the appellant Corporation was
directed to be reinstated and paid as compensation half the
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wages including dearness. allowance from the date of his
discharge till the date of his reinstatement in service.
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 respondent’s
services continued to be temporary as no order of appointing
him on probation was passed, and on the date when his
services were terminated by an order dated January 6, 1971,
he was in temporary service.
According to the respondent’s statement of claim in
September October 1970 he was not keeping good health,
nonetheless 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 sanctioned.
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
intimate 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
131
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 December 9, 1970,
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
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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
wages.
As against these averments, the case, of the Corporation was
that the concerned workmen 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 time to submit his explanation, which
he did, but in a very disrespectful languages. Thereafter,
he had gone on leave Oil grounds of illness. It was then
alleged that on November 7, 1970, though he was present in
office, looking quite healthy and ’it, and bad 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 the 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. "Left-particulars 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
132
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 medical check-up 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 be 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 ?7/30 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 certi-
ficate. But in this letter, the respondent did not give any
specific reply to the directions to attend to the head
office for his medical check-up. The medical certificate
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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 check-up. 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 was 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 month’s 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 consitentions 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 us.
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 conlusion that as the concerned
workman did not report for medical check-up, but wrote a
letter asking for an authority to be presented before the
Civil Surgeon, his services were terminated which clearly
amounted to an
133
action taken for non-compliance 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 former’ the
basis of the impugned action. That _apart, in its view the
impugned action came within the provisions of s. 11A of the
Industrial Disputes Act-hereinafter called ’the Act’-
according to which it would be the duty of the Court to
satisfy, itself whether the order or 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 be 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
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genuine and he had not submitted him self to a medical
check-up 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.
Adverting to the letter written by the respondent on
November 21, 1970 in reply to the Corporations letter of,
November 4, 1970, informing him that his leave was refused
and that he should immediately report for duty, the Special
Labour Court observed that this letter seems to have been
written in a rather harsh language, but explains away the
conduct as probably being due to leave being refused by the
superior officers of the Corporation. In the view it took,
it held that the discharge of the respondent cannot be
justified.
It is obvious from the order terminating the services of the
respondent that it is an order of discharge. But that order
though dated January 6, 1971, purports to terminate the
services of the respondent as from November 9, 1970 on the
ground that his services were no longer required. In the
covering letter of the same date, a month’s salary was sent
in lieu of one month’s notice as provided in the Service
Rules of the Corporation. The respondent contends that this
order is defective because it purports to terminate his
services retrospectively from November 9, 1970. Though the
order is one purporting to
134
terminate his services from a date, anterior to the, date of
the order of termination, that order ex facie is severable.
In fact it is an order discharging the services of the
respondent as from the date of the order with the super-
added direction that the order should operate retrospec-
tively as from an anterior date. Even if the super-added
part is invalid, there is no reason why the first part of,
the order does not take effect. It was so held by this
Court-in Jeevaratnam v. State of Madras(1). The intention
of the Corporation was no doubt to terminate the services of
the respondent from the date from which his services were
not available to the Corporation as he was absent without
leave. For that reason the Corporation stated in the
covering letter that the rest of his dues wilt be sent to
him hereafter, which probably were intended to cover the
period for Which the leave was not granted or this may be in
respect of the provident fund etc, In any case, as we have
said earlier, the order of termination cannot be held
defective merely because the order was to take effect from
November 9, 1970. We will, therefore, treat the order as
’an order of termination as from the date of the order With
one month’s salary in lieu of one months notice which would
more than meet the, requirements, because there is a dispute
as to whether even under the Service Rules the respondent
was entitled to seven days pay only. lieu of notice. In our
view, the order cannot be held to be invalid;
The appellant’s counsel contends that where under a contract
of service there is power to terminate the services, that
power having been exercised bona fide, the termination
cannot be held to be invalid, and consequently it is open to
an employer, where there is such a power, to terminate the
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services of an employee or to discharge him with-out giving
any reasons. 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
employees. 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 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 colorable 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 Company Ltd. v.
Prasad(2)
(1) [1967] 1 L.L.J. 391.
(2) [1969] 2 L.L.J. 799.
135
The principles being clear, the only question is whether the
Special Labour Court arrived at a perverse finding or a
finding not warranted by the evidence on record or are there
any errors apparent on the face of the record which vitiate
that finding?
The respondent who personally argued his case contended that
in Bengal Chemical & Pharmaceutical Works Ltd. V. The
Employees(1), it was held by this Court that though Art. 136
is couched in widest terms, it is necessary for this Court
to exercise its discretionary jurisdiction only in cases
where awards are made in violation of the principles of
natural justice, causing substantial and grave injustice or
raises an important principle of industrial law requiring
elucidation and final decision by this Court or discloses
such other exceptional and special circumstances which merit
the consideration of this Court. It is true that the
decisions of this Court warrant the submission that before
redress is claimed 1 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 apply the law or of settled principle or suffers from
gross and palpable error occasioning manifest and
substantial injustice : per Hidayatullah, J., in Kamani
Metals & Alloys Ltd. V. Their Workmen(2).
It may, however, be stated that this, Court does not
generally entertain pleas on questions of fact or interfere
with findings of fact so as to convert itself into a third
’court of fact. The reason is. obvious, because different
persons may come to different conclusions On an appreciation
of evidence depending upon the way in which the credibility
of the evidence given by the witnesses is judged. In so
judging the evidence, various contributory factors may play
a vital part, such as the knowledge and experience of men
and affairs. However an appellate court or a court having
jurisdiction to entertain petitions challenging the verdict
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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 the well-established
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 Dr the tribunal below, com-
mitted 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 decisions.
Applying these principles what we have to see in this case
is, any interference in the award called for. No doubt the
Special Labour Court gave a clear finding that the behavior
of the workman showed
(1) [1959] 1 L.L.J. 413.
(2) [1967] 2 L.L.J. 56, 60 (S.C.).
136
that he was haughty and insolvent 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 wrong. While we
consider that the finding arrived at is amply justied by the
record, the subsequent glossing over of the serious charge again
st the respondent is unwarranted on the evidence on
record. Several letters were addressed to the respondent by
the Corporation and he was given several memos in
respect of his work, attitude and conduct while in service.
He seems to.have made it a habit of remaining absent from
duty without obtaining prior permission as is evident from
the various letters.- By its letter = October 23, 1967, the
Corporation informed the respondent that he remained
absent from 3rd to 6th and 11 th of that month without prior
approval of any of his superiors and he was told that
availing of such leave by the Senior Assistant cannot be
tolerated by them management. He was asked to explain
within two days from the date of the receipt of that letter,
why disciplinary action should not be taken against him
for remaining absent from the office. By his letter dated
October 26, 1967, there a explained that he was.suffering
from acute dysentery from 3rd to 6th October and therefore
he was compelled to remain on leave during that period.
This letter shows. that he was aware that remaining absent
without prior sanction of leave was improper but it was
explained that he could not got prior approval for leave.
Again by its letter dated January 19, 1968, the Corporation
informed the respondent that he remained absent from his
duties on January 15, 1968 without prior approval of any of
his superiors and he was asked to explain why disciplinary
action should not be taken against him for availing of leave
in this manner which previously also he had availed of two
days’ leave, in similar manner. On October 9, 1969 a memo
was issued to the respondent that in contravention of the
instruction issued under Office Circular dated July 5, 1969,
he had remained absent on October 4, 1969 without prior
approval of leave in writing from any of his superiors, and
he was asked to explain immediately why his absence should
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not be treated as leave without pay. Again on May 13, 1970,
another memo was issued to the respondent saying that he was
in the habit of proceeding on casual leave without getting
the same sanctioned before hand. In that memo it was stated
that whenever he was asked by his departmental head to give,
reason for his remaining on casual leave he was to
evade giving specific reasons for absenting himself from
duties. The memo further stated that :" you are in the
habit of deliberately ignoring day to day instructions
issued to you by your departmental head e.g., you have been
often told to be punctual in attending office not to leave
your seat during office hours without any reasonable cause ,
or office work, not to while away your time by going on 5th
Floor and chitchating with the members of the staff etc.
Even then it is found that you have persisted in ignoring
all these instructions. That you are showing scant respect
for.your superiors". He gave an explanation which was
argumentative and vague. On June 26, 1970 he was again
served with another Memo stating that it was found that on
25th morning at about 11.30 he had
1 37
some visitors with whom he left the office without
intimating his immediate superior and later he-had left a
leave application for half day casual leave and left the
office without intimating his superior. lie was asked to
note that this was highly indisciplined and to show cause
why action may not be taken against him. In his reply dated
June 29, 1970 he said that it was not 11.30 a.m. but 1.30
p.m. that he had left the office and said that he had
conveyed the message through some one but evidently he did
not convey the message. He was given a warning on June 30
1970 that he had violated the instructions by not submitting
the explanation in time before 5.30 p.m. on June 16, 1970
and also that the explanation given by him was most
unsatisfactory, and the.facts stated therein were incorrect.
On December 24, 1969 he was given a warning for returning
late from recess on that date at 2.50 p.m. instead of at
2.30 p.m. and he was informed that the authorities viewed it
as gross irregularity and indiscipline on his part in ’not
observing office timings and was strictly warned that in
future if he was found irregular in observing office
timings, he will be liable for strict disciplinary action.
After this, on another occasion the respondent by letter
dated October 20, 1970 was asked to undertake tour to
Bombay for a week to ten days before Diwali, but he
refused to comply. Thereafter a memo dated October 23/26,
1970 was issued to the respondent that he was told by the
Assistant Sales Organiser on October 20, 1970 to proceed on
tour to Bombay for sale of Silica Sand and that he was
specifically instructed to undertake the tour before Diwali,
but he bad arrogantly refused to accept the original letter
and returned the same with the remark that he cannot
undertake the tour on ground of his bad health. Even prior
instructions to proceed on tour were not complied with.
Instead of carrying out these instructions he proceeded on
leave immediately on the ground of ill health and did not
carry out the instructions. When he was once again
instructed in writing as stated above, he had shown gross
disobedience, insubordination and disrespect to his
superiors and gross negligence in his work. It was further
stated in that memo that besides the above incident, it had
been found on several occasions in the past that he was in
the habit of deliberately violating the instructions issued
to him by his superiors from time to time in respect of his
duties and showing scant respect to his superiors and that
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the Management bad taken a serious view of this and he was
asked to submit his written explanation on or before October
27, 1970 why his services should not be terminated forth-
with. To this memo the respondent replied on October 28,
1970, in which he described the allegations contained in the
memo dated October 23/26, 1970 as "absolutely false,
frivolous and concocted". He also said "a tour before a
week ahead of Diwali should not be fruitful" and that it
would be wastage of money "which any layman can appreciate".
He also stated therein that he personally felt that the
Corporation was resorting to a sort of stunt to send him on
tour before Diwali maliciously to put him in hot water since
management did not arrange so far for his visiting cards
with designation to represent the Corporation while
promoting the sale of Silica Sand. The Corporation
legitimately took exception to this letter and by memo dated
November
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3, 1970, informed the respondent that his explanation was
couched in impolite, insulting, unparliamentary and
disrespectful language, and he had cast unwarranted and
baseless aspersions against his superiors and the management
in respect of which the management took a very serious view-
to this sort of behavior amounting to insubordination on the
part of a Senior Assistant. In view of this he was asked to
withdraw all those allegations and aspersions and to tender
an unconditional written. apology before 5.30 p.m. on
November 4, 1970, expressing sorrow for the same, failing
which the management will have to take serious disciplinary
action against him. The respondent thereafter began to
hedge and did not offer an unconditional written apology.
By his letter dated November 4, 1970, he said "While
referring yours above, I do not infer what is inferred by
Management, but however if so is inferred by the Management,
I feel sorry". He was then informed by a memo dated
November 6, 1970 that there was nothing to be inferred when
everything was abundantly clear, and that instead of
straightaway withdrawing all the allegations and aspersions
against the management contained in his explanation dated
October 28, 1970,. he had raised the question of inference
by the management. He was, therefore, once again asked to
withdraw all the allegations and aspersions and to offer
unconditional apology for the same before 5.30 p.m. on
November 6, 1970. Again by letter dated November 7, 1970
the respondent did not offer an unconditional apology but
write as follows
Management still feels my reply dated 28th of
October 1970 offending though not, which is a
matter of great regret".
It will thus be observed that by neither of these two
letters did he either withdraw the allegations made against’
the Corporation or its officers, nor offer an unconditional
apology. His only regret was that the management felt his
reply offending though it was not.
Even so, on the same day i.e.. November 7, 1970, the
respondent sent a letter enclosing therewith a leave
application for 30 days earned leave from November 9, 1970
to December 8, 1970 (8th November 1970 being Sunday)
accompanied by a medical certificate in original. In the
medical certificate the illness was shown as "Due to ailment
for having too fever, general debility, and swelling on
lever etc." and the person certifying was a Vaidya.
Thereafter at no time did the respondent care to have his
leave mentioned before availing of leave, nor did he return
to work till his services were terminated.
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The Corporation asked the respondent to appear before it for
being sent to the Civil Surgeon, Ahmedabad, but the
respondent began to dodge. The Corporation sent a letter
dated November 9, 1970 under certificate of posting
informing the respondent that his leave application was
violative of certain provisions of the Service Rules and
that he was well aware that as provided in the Service Rules o
f
the Corporation, application for earned leave is ordinarily
required to be submitted 15 days before the date from which leave
is required and that it was obligatory on the part of
every employee
139
to furnish his address during leave which he had failed to
state in, his leave application and he had absented himself
from duty without getting his leave sanctioned even though
he was present in the office on November 7, 1970 and there
was nothing wrong with his health. It was also stated
therein that, instead of personally handing over his leave
application to the Head of his Department, he had adopted an
uncommon and out of the way practice of getting his
application inwarded through the Registry Branch with the
result that his application did not reach the Assistant
Sales Organiser before 4.50 on November 7, 1970, and
thereafter without caring to inquire whether, his leave had
been sanctioned or not he had absented from duty from
November 9, 1970 onwards, which action amounted to indis-
ciplinary behavior and misconduct and the management took a
serious view of the same. He was instructed to report
immediately for duty as his leave had not been sanctioned,
on failure of which the management will be constrained to
take disciplinary action against him. It was also added
that it Was difficult to believe that there was anything
wrong with his health Which required ’rest for 30 days
inasmuch as he had attended the office in good health from
together 18, 1970 onwards upto November 7, 1970 after
enjoying leave from October 14 to October 17, 1970. A copy
of this letter Was also sent to the respondent by registered
post acknowledgement due on, November 12, 1970. By big
letter dated November 21, 1970, sent under registered post
acknowledgement due the respondent admitted that according
to Service Rules of the Corporation application for earned
leave is ordinarily required to be submitted within 15 days
before the date of commencement of leave. But as the word
’ordinarily’ implies there can be occasions for urgent leave
when the 15 days limit cannot be observed, and that as he
urgently needed leave on medical advice, it was not possible
for him to apply in advance. Regarding furnishing his
address during leave, he thought that such address was to be
furnished if there was to be any change in the normal
address during the leave period and that was why he did not
furnish the address in the leave application. He also
stated that the officer who’ had signed the letter dated
November 9, 1970, had no medical qualification and that even
if he had, he had never medically examined him. He,
therefore, wondered how the officer was competent to,
certify that there was nothing wrong with his health.
He further stated that he was still under the medical
treatment and needed rest as advised by the physician, and
that it was not proper that the management should force him
to resume duty under the threat of disciplinary actions. He
stated that he proposed to consult a good physician about his
health which was causing him a lot of worry and he may have
to go to Bombay in next few days and that he shall
communicate his Bombay address to the Corporation if he went
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to Bombay. The Corporation Thereafter wrote a letter dated
November 27/30, 1970 asking the respondent to present
himself in the Head Office immediately on Monday, November
30. 1970, so that he could be sent to the Civil Surgeon for
medical. check-up, with a view to verify whether the causes
of his alleged illness were genuine or not. This letter
could not be delivered to him and so a copy of it was sent
to him at his Bombay address which he had in
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the meanwhile furnished. On December 2, 1970 the
Corporation asked the respondent that to comply with the
instructions contained ..in the letter dated November 27,
30, 1970 enclosed therewith and to present himself at the
Head Office for being sent to the Civil Surgeon for medical
check-up. On December 9, 1970 the respondent again sent
another application for leave for 39 days from December 9,
1970 .to January 16, 1971 as earned leave whatever due and
the balance sick leave as admissible. He said that he was
under the treatment of a renowned and highly qualified
physician Dr. K. C. Mehta, M.D., P.C.P.S., who had certified
that the respondent was suffering from chronic gastritis
with hyperacidity and general debility" and was advised rest
for five weeks. The Corporation by its letter dated Decem-
ber 24, 1970, told the respondent that the question of
granting further leave for 39 days from December 9, 1970 to
January 16, 1971 did not arise, as he had not proceeded on
duly sanctioned leave and had unjustifiably absented himself
from duty from November 9, 1970. The Corporation once again
asked the respondent by this letter to present himself
immediately in the Head Office within two days from the
receipt of the letter for his medical check-up by the ’Civil
Surgeon, Ahmedabad, so that the management could take a
decision in respect of his request for leave. By his letter
dated January 4, 1971 the respondent wrote that he was
willing to appear before the Civil Surgeon, Ahmedabad, for
medical examination and asked the Corporation to send him a
letter of authority for appearance before the Civil Surgeon
so that the can show it to him and get himself examined.
This was the last straw, which ultimately induced the
Corporation to terminate the respondent’s services. It,
however did so without assigning any reasons.
We have given the contents of all these letters in a
chronological .,order which to any reasonable mind would
show that the respondent was houghty and insolent and did
not care for the Rules of the Corporation and was a habitual
absentee without getting his leave sanctioned previously.
The Special Labour Court had no basis for coming to the
conclusion that the respondent had apologised for his wrongs
and that. the matter was properly dealt with. The
respondent never apologised, but as we have pointed out
earlier, he was prevaricating. The respondent’s attitude
was that if it was inferred that he was insolent, then he
was sorry but that he was not insolent. This is not an
unconditional apology and the Corporation did not accept it
and before any action could be taken against him be stayed
away from work without obtaining prior leave and never
returned. The respondent was always adopting highly
unreasonable attitudes which were detrimental to the
interest of the Corporation. In the above circumstances, it
would be a misnomer to say that the action of the
Corporation wag not bona fide but was mala fide. This
finding has not an iota of justification. for, the final
actions of the Corporation leading to the, termination of
the, services of the respondent as is evident from the
correspondence, were due to the fact that the respondent,
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though asked to present himself at the Head Office so that
he could be sent to the Civil Surgeon for medical check-up,
defied and was not prepared to abide by those directions.
On the other hand, he wanted to impose
141
his own terms and required the Corporation to send him a
letter of’ authority so that he could show it to the Civil
Surgeon and get him self examined. The Corporation was
perfectly justified in taking the stand that the respondent
was malingering inasmuch as he was prepared to travel back
from Bombay to Ahmedabad but he was not prepared to attend
the Head Office so that he could be sent for medical check-
up. if the Corporation had been merciful in terminating his.
services by discharging him simpliciter, that is not a fault
to be laid at their doors nor can it be. a ground for
imposing on them the services of the respondent who was
indisciplined and arrogant, a conduct subversive of
the smooth functioning of any commercial or- industrial
undertaking. We think the finding of the Special.Labour
Court is perverse and- could not be arrived at on any
reasonable view of the evidence.
It has also been urged that the respondent should be
considered as a permanent employee of the Corporation
inasmuch as according,, to the Service Rules a probationer
is automatically declared as permanent if he is not so
confirmed within two years. This 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 1. 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 whole time employee of the Corporation,, provided that
employees 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. Under
r. 17 the General Manager may temporarily employ suitable
candidates to vacant posts in Class III and IV only and
the Chairman or the Sub-Committe may authorise appointment
of suitable candidates to vacant posts in Class I & II. 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 Pro-
vident Fund Rules of the, Corporation permitted a temporary
employeealso to contribute to it, the contribution by the
respondent does not indicate that he was a permanent
employee.
The next question is whether s. 11A of the Act is
applicable’ to this case. That section provides that where
an industrial dispute relating to the discharge or dismissal
of a workman has been referred to aLabour Court Tribunal or
National Tribunal for adjudication and, in-
142
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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 s. 11A was brought into operation. It was
held by this Court in The Workmen of M/s. Firestone Tyre &
Rubber Co. of India (Pvt.) Ltd. v. The Management and
others(1), that this section has no retrospective operation
on the pending references
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.
The appeal is allowed, but in the circumstances without
costs.
S.C. Appeal allowed.
(1) [1973] 1 L.L.J. 278.
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