Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
MAHENDRA SINGH DHANTWAL
Vs.
RESPONDENT:
HINDUSTAN MOTORS LTD. & ORS.
DATE OF JUDGMENT07/05/1976
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION:
1976 AIR 2062 1976 SCR 635
1976 SCC (4) 606
CITATOR INFO :
R 1984 SC 505 (23)
RF 1984 SC1673 (1)
ACT:
Industrial Disputes Act. 1947-Ss. 33(2)(b) and 33A-
Scope of.
Misconduct not mentioned in standing Orders-Standing
Orders, if exhaustive of all kinds of misconduct.
Constitution of India, Art. 226-Scope of jurisdiction
in industrial disputes.
HEADNOTE:
The respondent terminated the appellant’s services on
the ground of habitual absence which is a misconduct under
the company’s standing orders. Although there was a dispute
pending before the Tribunal, the respondent did not make an
application under s. 33(2)(b) of the Industrial Disputes Act
for its approval. On an application by the appellant under
s. 33A of the Act, the Tribunal ordered his reinstatement. A
few months after the appellant rejoined duty the respondent
terminated his services purporting to act under the
agreement of service with him. On a complaint by the
appellant under s. 33A, the Tribunal ordered his
reinstatement. A single Judge of the High Court dismissed
the writ petition of the respondent holding that the
discharge was nothing but dismissal for misconduct. On
appeal, the Division Bench held that since the employer
invoked the terms of the agreement, it was not a case of
discharge for misconduct and as such the Tribunal had no
jurisdiction to entertain the complaint under s. 33A.
Allowing the appeal.
^
HELD: The Tribunal has not committed any error of law
or of jurisdiction in entertaining the application under s.
33A and the Single Judge was right in not interfering with
the award under Article 226 of the Constitution and the
Division Bench was wrong in doing so. [641H; 641E]
(a) The Tribunal has found as a fact that the
termination was on account of misconduct of the employee. It
is, therefore, difficult to hold that there was any manifest
error of law committed by the Tribunal in reaching that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
conclusion only because the misconduct, as found, was not
within the four corners of the various misconducts mentioned
in the standing orders. [641H]
(b) Standing orders only describe certain cases of
misconduct and they cannot be exhaustive of all the species
of misconduct. Even though a given conduct may not come
within the specific terms of misconduct described in the
standing orders, it may still be a misconduct in the special
facts of a case, which it may not be possible to condone and
for which the employer may take appropriate action. [641F]
(c) Termination simpliciter under the conditions of
service or under the standing orders is outside the scope of
s. 33 of the Act. This does not mean that the employer has
the last word about the termination of service of an
employee. It is also not a correct proposition of law that
in case of a complaint under s. 33A, the Tribunal would be
debarred from going into the question whether
notwithstanding the form of the order. in substance, it is
an action of dismissal for misconduct and not termination
simpliciter. [642-A-B]
Management of Murgan Mills Ltd. v. Industrial Tribunal,
Madras and Another [1965] 2 SCR 148, held inapplicable.
Air India Corporation, Bombay v. V. A. Rebellow & Anr.
[1972] 3 S.C.R. 606, referred to.
636
Shyamala Studios v. Kannu Devar (S.S.) and Others,
[1966] 2 LLJ 428 and Sri Rama Machinery Corporation (P)
Limited, Madras v. Murthi (N.R.) and Others, [1966] 2 LLJ
899, partly approved.
(d) Section 33(2)(b) makes it obligatory upon the
employer to make an application to the Tribunal under the
proviso when he discharges or dismisses the workman for
misconduct. From the provisions of s. 33, it is manifest
that punitive action of the employer in whatever form it may
be passed, is permissible against an ordinary workman as
distinguished from a protected workman even during the
pendency of proceedings before the Tribunal provided that
the employer pays one month’s wages and also applies to the
concerned Tribunal for approval of his action. Since the
action is punitive, namely, dismissal or discharge for
misconduct, the Tribunal has to oversee the action to
guarantee that no unfair labour practice or victimisation
has been practised. If the procedure of fair hearing has
been observed, the Tribunal has to find in an application
under s. 33 that a prima facie case is made out for
dismissal. If, on the other hand, there is violation of the
principles of natural justice in the enquiry, the Tribunal
can go into the whole question relating to the misconduct
and come to its own conclusion whether the same is
established. [641E; 640H]
(e) In the instant case even though the employer
invoked the agreement for terminating the service of the
employee it was open to the Tribunal to pierce the veil of
the order and have a closes look at the circumstance and
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 Art. 226 of the Constitution
unless the conclusion is perverse. [643F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2574 of
1972.
Appeal from the Judgment and Order dated the 2nd June,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
1965 of the Calcutta High Court in Appeal from Original
Order No. 287 of 1964.
Naunit Lal and (Miss) Lalita Kohli for the Appellant.
B. Sen, M. Mookherjee, Sardar Bahadur Saharya and
Vishnu Bahadur Saharya for Respondent No. 1.
The Judgment of the Court was delivered by
GOSWAMI, J. 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 Disputes
Act.
The appellant (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, 1956, the workman entered into an
agreement of service with the company wherein the first
clause reads as follows:-
"The Employer 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.
637
Provided that in case Employer finds the
employee’s work satisfactory, Employer shall have the
option to extend the period of service by a further
term of 3 years".
The workman 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 company’s
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
certificate 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 company’s standing orders.
At the time of this termination 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 Industrial 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, 1962.
After 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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
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 as follows:-
"In my 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
638
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 as unreasonable".
The company appealed to the Division Bench of the High
Court and the appeal was accepted. The Division Bench held
as follows:-
"It may 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 16th
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
section 33A".
On the application of the workman the High Court
granted a certificate to him under article 133(1)(c) of the
Constitution. That 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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
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 the
Constitution.
639
The Division 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.
Mr. Naunit Lal on behalf of the workman has assailed
the conclusion of the Division Bench while Mr. Sen submits
that the decision is legally unquestionable.
The question that arises for consideration in this
appeal relates to the applicability of the proviso to
section 33(2) (b) of the Act as amended in 1956. Section
33(2)(b) at the material time reads as follows:-
"33(2): During the pendency of any such
proceeding in respect of an industrial
dispute, the employer may, in accordance
with the standing orders applicable to a
workman concerned in such dispute.
(b) for any misconduct not connected with
the dispute, discharge or punish,
whether by dismissal or otherwise, that
workman:
Provided that no such workman shall be discharged
or dismissed, unless he has been paid wages for one
month and an application has been made by the employer
to the authority before which the proceeding is pending
for approval of the action taken by the employer".
We may also read section 33A of the Act as that is the
section under which the complaint was originally made by the
workman to the Industrial Tribunal.
33A: "Where an employer contravenes the provisions
of section 33 during the pendency of proceedings before
a Labour Court, Tribunal or National Tribunal, any
employee aggrieved by such contravention, may make a
complaint in writing, in the prescribed manner to such
Labour Court, Tribunal or National Tribunal and on
receipt of such complaint that Labour Court, Tribunal
or National Tribunal shall adjudicate upon the
complaint as if it were a dispute referred to or
pending before it, in accordance with the provisions of
this Act and shall submit its award to the appropriate
Government and the provisions of this Act shall apply
accordingly".
640
It is clear that the foundation of jurisdiction of the
Tribunal to entertain a complaint under section 33A is the
contravention of section 33 of the Act.
Section 33 may be contravened in a variety of ways. We
are concerned in this appeal only with one type of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
contravention, namely, that the employer did not make any
application to the Tribunal for approval of the order of
termination of service of the workman. There is no dispute
between the parties in this appeal that there was an
industrial dispute pending before the Tribunal in which the
workman was concerned and that the particular termination
had nothing to do with that dispute. The only point on which
the parties differ is as to the nature of the order of
termination of service. The employer claims it to be a
termination simpliciter in exercise of its right under a
written contract of service entered between the parties in
August 1956. The workman on the other hand contends that
termination of his service was meted out as a punishment for
avenging the defeat of the employer in an earlier litigation
under section 33A at the instance of the workmen. In other
words the workman contends that the order although
purported, ex facie, to be a termination under the terms of
the agreement, is in truth and reality an order of dismissal
for misconduct.
Originally when the Act was passed in 1947 (Act 14 of
1947) section 33 imposed a ban on the employer against
discharge, dismissal or punishment of a workman during the
pendency of proceedings before the Tribunal and other
specified authorities "except for misconduct not connected
with the dispute." The section underwent a vital change for
the employer when the Industrial Disputes (Appellate
Tribunal) Act 1950 (Act 48 of 1950) was passed and section
33 was substituted and a total ban imposed against
discharge, dismissal or any punishment of a workman during
the pendency of proceedings before the Tribunal and other
specified authorities. The reservation of the right to the
employer to take action even in case of misconduct, which
was there in the original Act, was withdrawn. As time
passed, in view of representations from employers, the
Parliament became alive to the question of discipline in the
industry and reintroduced in an altered form the said right
of the employer to take action during the pendency of
proceedings before the Tribunal when the Act was amended by
the Industrial Disputes (Amendment and Miscellaneous
Provisions) Act 1956 (Act 36 of 1956). We have already set
out the material provision of section 33(2) (b) at the out
set which has since restored to the employer the right to
take punitive action under specified conditions.
To complete the picture we may note in passing that the
section was further amended by the Industrial Disputes
(Amendment) Act (Act 36 of 1964) with effect from December
19, 1964, whereby some words were inserted in sub-section
(2) of section 33 with which we are not concerned in this
appeal.
From the provisions of section 33 it is manifest that
punitive action by the employer in whatever form it may be
passed is permissible against an ordinary workman, as
distinguished from a protected workman even during the
pendency of proceedings before the Tribunal
641
provided that the employer pays one month’s wages and also
applies to the concerned Tribunal for approval of his
action. Since the action is punitive, namely, dismissal or
discharge for misconduct, the Tribunal has to oversee the
action to guarantee that no unfair labour practice or
victimisation has been practised thereby. If the procedure
of fair hearing has been observed the Tribunal has to find
in an application under section 33 that a prima facie case
is made out for dismissal. If, on the other hand, there is
violation of the principles of natural justice in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
enquiry, the Tribunal can go into the whole question
relating to the misconduct and come to its own conclusion
whether the same is established.
The submission of the employer is that since the
termination of the workman is in exercise of the right under
the written agreement it was not a case of discharge or
dismissal for misconduct and there was, therefore, no
obligation on the employer to make an application under
section 33 of the Act and hence section 33 has not been
contravened and the application under section 33A is not
maintainable.
The question that arises for decision in this appeal is
whether if a particular order of termination of service is
not on account of misconduct and is merely a termination
simpliciter the employer is still required to make an
application under section 33 of the Act.
We have no doubt in our mind that section 33(2)(b)
makes it obligatory upon the employer to make an application
to the Tribunal under the proviso only when he discharges or
dismisses a workman for misconduct.
It is submitted by Mr. Sen that misconduct contemplated
in section 33(2)(b) must be a misconduct enumerated in the
standing orders of the company. We are unable to accept this
submission.
Standing orders of a company only describe certain
cases of misconduct and the same cannot be exhaustive of all
the species of misconduct which a workman may commit. Even
though a given conduct may not come within the specific
terms of misconduct described in the standing orders, it may
still be a misconduct, in the special facts of a case, which
it may not be possible to condone and for which the employer
may take appropriate action. Ordinarily, the standing orders
may limit the concept but not invariably so.
When, therefore, the Tribunal has found as a fact after
taking note of the history and the entire circumstances of
the case that the termination was on account of misconduct
of the employee it is difficult to hold that there is any
manifest error of law committed by the Tribunal in reaching
that conclusion only because the misconduct, as found, is
not within the four corners of the description of the
various misconducts mentioned in the company’s standing
orders. It is not possible, therefore, to accept the
submission that the Tribunal committed an error of law or of
jurisdiction in entertaining the application under section
33A.
642
Termination simpliciter or automatic termination of
service under the conditions of service or under the
standing orders is outside the scope of section 33 of the
Act. This does not mean that the employer has the last word
about the termination of service of an employee and can get
away with it by describing it to be a simple termination in
his letter of discharge addressed to the employee. It is
also not a correct proposition of law that in case of a
complaint under section 33A the Tribunal would be debarred
from going into the question whether, notwithstanding the
form of the order in sub-stance, it is an action of
dismissal for misconduct and not termination simpliciter.
The possibility that in an appeal against the award of
the Tribunal this Court may have taken a different view
about the termination does not affect the present issue.
Mr. Naunit Lal relies upon a decision of this Court in
the Management of Murugan Mills Ltd. v. Industrial Tribunal
Madras and Another in support of his contention that even
termination simpliciter is within the sweep of section 33.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
That was a case where the workman’s services were terminated
"because he deliberately adopted go-slow and was negligent
in the discharge of his duty". The Supreme Court in that
case observed thus:
"His services were therefore terminated for
dereliction of duty and go-slow in his work. This
clearly amounted to punishment for misconduct and
therefore to pass an order under cl. 17(a) of the
Standing Orders in such circumstances was clearly a
colourable exercise of the power to terminate the
services of a workman under the provision of the
Standing Orders".
The Supreme Court further observed:
"In these circumstances the case was clearly
covered by cl.(b) of s. 33(3) of the Act as the
services of the respondent were dispensed with during
the pendency of a dispute by meeting out the punishment
of discharge to him for misconduct".
The decision is, therefore, not an authority for the extreme
proposition advanced by Mr. Naunit Lal.
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
643
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 the Act.
In Air India Corporation, Bombay v. V. A. Rebellow &
Anr.(1) this Court had to deal with the validity of an award
made under section 33A although the Labour Court in that
case had held that the workman was guilty of misconduct and
that his services were terminated for that reason. This
Court did not agree with the aforesaid conclusion and
dismissed the workman’s petition under section 33A of the
Act. In doing so this Court observed as follows:-
"It is noteworthy that the ban is imposed only in
regard to action taken for misconduct whether connected
or unconnected with the dispute. The employer is,
therefore free to take action against his workmen if it
is not based on any misconduct on their part".
We are, 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 doing so.
It is 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 and come to a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
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 not arise.
There remains, 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
644
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 the
Tribunal.
We cannot 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 by
itself.
We, therefore, 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
order. 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.
In the result the judgment of the Division Bench of the
High Court is set aside. The award of the Tribunal is varied
as stated above. The appeal is allowed accordingly with no
order as to costs.
CMC. No. 6664 of 1976 on behalf of the company for
urging additional grounds is dismissed as not pressed.
P.B.R. Appeal Allowed.
645