Workers Employed in Hirakud Dam Vs.
State of Orissa & ANR [1971] INSC 42 (2 February 1971)
VAIDYIALINGAM, C.A.
VAIDYIALINGAM, C.A.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION: 1971 AIR 2242 1971 SCR (3) 646 1971
SCC (1) 583
ACT:
Central Public Works Department Code,
Paragraph 11--Word 'dismissed'in paragraph, meaning of-Whether means dismissal
for serious misconduct only or includes termination simpliciter.
HEADNOTE:
The construction of the Hirakud Dam was
entrusted by the State of Orissa to the Central Water Irrigation and Navigation
Commission as their agent. The Commission for this purpose employed a large
number of persons in the worked-charged establishment of scales of,
remuneration at the rate paid by the Central Public Works Department. Their service
conditions were to be governed by the Central Public Works Department Code of
1929. After completion of the first stage of the Hirakud project the State
Government took it over from the aforesaid Commission. The employees of the
work charged establishment were given an option to work for the State on the
scales of remuneration and the conditions of service in the Code. However,
since there was wide disparity between these employees and the work charged
employees of the State's own Public Works Department, the services of the
former were terminated Such of them who accepted reemployment were employed by
the State on the terms and conditions of service of the State Public Works
Department. They were given compensation for termination of service and one month's
salary in lieu of notice.
Subsequently they raised a dispute contesting
the termination of their services by the State. The Industrial Tribunal held
that under paragraph 11 of the Central Public Works Department Code which
applied to them at the relevant time the employees were entitled to remain in
service till the completion of the Project. The High Court in petitions under
Art. 226 and 227 of the Constitution by the State held the termination
justified under paragraph It of the Code because it provided inter alia that
the members of the work charmed establishment were entitled if dismissed
otherwise than for serious misconduct before the completion of the work in
which they were engaged, to a month's notice or a month's pay in lieu of
notice. Paragraph 11 also provided that the workers could resign after a
month's notice or forfeiture of pay in lieu of one month's notice. In appeal by
the employees against the High Court's judgment it was contended before this
Court that 'dismissal' within the meaning of paragraph 11 was to be understood
only as dismissal for serious misconduct and not dismissal simpliciter.
Support for this contention was sought from
the fact that the word 'dismissal' as used in 'the Government of India Act,
1935, and in Art. 311 of the Constitution as well as the Service. Rules had
been interpreted by the Courts to mean only dismissal by way of punishment.
HELD : The word 'dismissal' used in the
Government of India Act, 1935 as also in Art. 311 of the Constitution and the
Service Rules has no doubt been interpreted to mean termination of a person's
services by way of punishment.
But there is clear indication in paragraph 11
of the Code that the word 'dismissal' has not been used to denote the
termination of the services of an employee only as and by way of punishment.
[654 F] 6 4 7 Having made provisions for the automatic termination of the
services of an employee when the work comes to an end it is but natural that
provisions should be made to terminate the services of an employee even when
the work has not been completed If the employee wants to give up the job then
under paragraph 1 1 he has to give a month's notice, tailing which he forfeits
a month's pay in lieu or such notice..
Having provided for the voluntary resignation
by an employee even when the work has not been completed., it will be odd to
hold that a similar right has not been given to the employer to terminate the
services of a workman, even though the work has not finished. It will again be
incongruous to hold that when a person is dismissed, though not for a serious
misconduct, the workman will be entitled to a month's notice or a month's pay
in lieu of notice, if otherwise there can be dismissal for a minor misconduct
as and by way of punishment. No decision has laid down that even in case of
dismissal a workman will be entitled to a months’ notice or a month's pay. The
fact that paragraph 11 provides for giving a month's notice or a month's pay
when a workman is dismissed otherwise than for serious misconduct indicates
that the work 'dismissed' has not been used in the sense of termination of
service by way of punishment alone but it covers also other cases of
termination of the services of an employee even before the completion of the
work. [654 H-655 G] The word 'dismissed' according to its dictionary meaning is
'to send away, to discard, to remove from 'Office or employment.......... The
dictionary meaning makes it clear that in substance the word means 'termination
of service'.
The High Court was therefore right in holding
that the expression 'dismissed' in paragraph 11 of the Code, has been used to
take in the, termination of the services of the employees mentioned therein
both as a measure of punishment for serious. misconduct as well as termination
simpliciter of the services of an employee in which contingency one month's
notice or a month's pay in lieu of notice is obligatory.[656 B; 658 D] Dr. Bool
Chand v. Chancellor, Kurukshetra University, [1968] 1 S.C.R. 434, applied.
Purshotam Lal Dhingra v. Union of India,
[1958] S.C.R. 828, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1492 of 1966.
Appeal by special leave from the judgment and
order date April 5, 1968 of the Orissa High Court in O.J.C. No. 58 of 1965.
M. K. Ramamurthi, A. K. Gupta, R. A. Gupta
and Uma Datta, for the appellants.
M. C. Bhandare, Santosh Chatterjee and R. N.
Sachthey, for respondent No. 1.
The Judgment of the Court was delivered by
Vaidialingam J.-In this appeal by special leave the short question that arises
for consideration is whether the State has got 648 power to terminate the
services of any member of the workcharged establishment under paragraph 11 of
the Central Public Works Department Code (hereinafter to be referred as the
Code) on giving one month's notice or a month's pay in lieu of notice.
The circumstances leading up to this appeal
may be stated A decision was taken to construct three dams right across the
Mahanadi river, one at Hirakud, the second at Tikerpara and the third at Naraj
as a multipurpose measure for preventing flood ravage in the Delta area,
generating electricity and providing irrigation. The construction of Hirakud
Dam was entrusted by the State of Orissa to the Central Waterways, Irrigation
and Navigation Commission as their agent. For the purpose of the construction
of Hirakud Dam, the C.W.I.N.
Commission employed a large number of persons
in the work charged establishment on scales of remuneration at the rate paid by
the Central Public Works Department and the service conditions of the persons so
employed were governed by the provisions contained in the Code.
After completion of the first stage of the
Hirakud Dam project, the State of Orissa decided to take over the said project
from their agent the C.W.I.N. Commission with effect from April 1, 1960. The
State further decided to proceed with the construction of second stage of the
project through its own Public Works Department. An option was given by the
State to the employees in the work charged establishment to decide whether they
Would continue to work under the State on the same pay and allowances and
subject to other conditions of service provided in the Code for the said
work-charged establishment. The employees agreed to work under the State of
Orissa and accordingly the employees.
were allowed to continue under the State
Government.
The State, however, later on found that the
pay, allowances and conditions of service between the work-charged personnel of
the Hirakud Dam project who had been allowed to be continued and the
work-charged personnel in the establishment of the State Public Works
Department showed a marked difference giving rise to various complications. The
Hirakud Control Board recommended to the State Government to terminate the
services of the work-charged personnel of the Hirakund Dam by giving one
month's notice with effect from March 31, 1963. Accordingly the State
Government terminated the services of the said personnel with effect from March
31, 1963 by giving one month's notice; but the State also made it clear that
such of those who elected to be reemployed on the scales of pay and conditions
of service of the State Public Works Department would be so reemployed.
On the issue of the notice by the State, 1200
out of 2300 personnel who had continued from before in the work-charged
establishment left their services 649 and the remaining 1 1 00 agreed to be
reemployed on scales of pay and conditions of service of the State Public Work
Department. The employees were paid an amount equal to what they would have
received by way of retrenchment compensation or by way of wages in lieu of
notice.
Subsequently the personnel of the
work-charged establishment raised a dispute contesting the termination of their
services by the State. As conciliation failed, the Government by its order
dated February 13, 1964 referred the dispute to the Industrial Tribunal Orissa
for adjudication.
The points referred for adjudication were :
1.Whether the Retrenchment of Workmen by the
authorities of Hirakud Dam Project effected in pursuance of the decision taken
by the Control Board, Hirakud Dam Project on the 19th December, 1962, is valid
and legal? If not, to what the workmen are entitled? 2.Whether the workers who
are proposed to be retrenched in pursuance of the decision of the Control
Board, Hirakud and are still continuing in Employment are entitled to their
original conditions of service ? 3.Whether the workmen, who have completed
three years of services or more should be confirmed in their respective posts ?
The main stand taken by the employees before the Industrial Tribunal was that
their service conditions being governed by the Code they are entitled to remain
in service till the termination of the work connected with the Projects. The
work connected with the Project not having come to an end, the State has no
power to terminate their 'services. On the other hand, the State of Orissa took
up the position that it has power under paragraph 1 1 of the Code they are
entitled to remain in service till the termination of notice or one month's pay
in lieu of notice even before the completion of the work.
The Industrial Tribunal recorded broadly the
following findings : (1) the action, of the State cannot be considered to be by
way of retrenchment under the Industrial Disputes Act as this is not a case of
discharge of surplus labour, (2) the mere fact that the employees have accepted
the notice, pay or compensation does not stop them from challenging the
legality of their termination, (3) paragraph 11 of the Code does not authorise
the State to terminate the services of an employee before the work is
completed. The said paragraph gives only a limited power to terminate the
services of an employee by way of a punitive action taken as a measure of
punishment. In this connection the Tribunal has 650 placed considerable
reliance on the expression 'dismissed' used in paragraph 11 of the Code, (4) as
the work had not been completed and as the action had not been taken by way of
punishment, the order of termination is without jurisdiction, (5) the
termination of employment is arbitrary and anti-contractual, (6) the order of
termination is invalid and inoperative. The contention raised by the State that
the Project was not an industry was also overruled.
The Tribunal ultimately held that the action
taken by the Management of the Hirakud Dam Project in pursuance of the Notice
dated February 9, 1963 was invalid and illegal and that the work-charged
employees then working in different divisions of the Project and who had been
recruited prior to April 1, 1960 are entitled to have their original conditions
of service including scales ,of pay and dearness allowance.
The Tribunal further held that the employees
are entitled to continuity of service and that their services cannot be
terminated before the completion of work except as a measure of punishment.
The State challenged this award before the
High Court of Orissa in Writ Petition (O.J.C. No. 58 of'1965) under Articles
226 and 227 of the Constitution. Though the State contended that the Hirakud
Dam Project was not an industry and that the Tribunal has acted beyond the
scope of reference when it gave certain directions regarding pay and allowances
etc., ultimately these contentions were given up.
The only contention pressed before the High
:Court was that the Industrial Tribunal had committed an error of law in
construing paragraph 11 of the Code when it held that the ,State had no power
during the progress of the work to terminate simpliciter the services of any of
the workcharged employees.
The High Court agreed with the contention of
the State and held that under paragraph 11 of the Code, the State Government
'had power to terminate the services of an employee even during the progress of
the work on giving one month's notice or one month's pay in lieu of notice.
Mr. M. K. Ramamurthy, learned counsel for,
the appellants, contended that the construction placed by the High Court on
paragraph 1 1 of the Code is incorrect. Ms contentions ran as follows : The
employees in the work-charged establishment were entitled to continue in
service till the work for which they have been employed was completed. For,
serious misconduct the employer has got the power to dismiss such an employee
without giving a month's notice or a month's pay in lieu of notice. But if an
employee was being dismissed for reasons other than for serious misconduct, the
employee is entitled to a month's notice or a month's pay in lieu of notice.
There is no power in the employer to terminate simpliciter the 651 services of
an employee so long as the work has not been comPleted. The expression
"dismissal" has always. been understood and interpreted by the courts
as action taken against an employee by way of punishment and that expression
cannot be interpreted to include _also the termination of the service of an employee
otherwise than by way of punishment.
Mr. Bhandari, learned counsel for the State,
on the other hand, urged that paragraph 1 1 is really intended to govern the
relationship between the employer and the employees of the work-charged
establishment and the expression "dismissal" has not been used in the
sense that action should necessary have been only as and by way 'of punishment.
According' to the learned counsel the expression "dismissal" has been
used in a loose sense meaning termination of the services of an employee either
by way of punishment for misconduct or for any other reason, We are not
inclined to accept the contention of Mr. Ramamurthy that the expression
"dismissal" in paragraph 11 has been used to denote only action taken
against a workman as and by way of punishment. No doubt, the expression has not
been very happily used in the said paragraph., Paragraph 1 1 of the Code is as
follows :
"11. Members of the temporary and work charged
establishments, who are engaged locally, are on the footing of monthly
servants. If they are engaged for a specific work, their engagement lasts only
for the period during which the work lasts. If dismissed, otherwise than for
serious misconduct, before the completion of the work for which they were
engaged, they are entitled to a month's notice or a month's pay in lieu of
notice; but otherwise, with or without notice, their engagement terminates when
the work ends. If they desire to resign their appointments they must give a
month's notice of their intention to do so, failing which they will be required
to forfeit a month's pay in lieu of such notice. The terms of engagement should
be clearly explained to men employed in the circumstances mentioned
above." The following aspects emerge from paragraph 1 1 of the Code (i)
the members of the temporary and work charged establishments, are treated to be
on the footing of monthly servants;
(ii)if they are engaged for specific work,
their services last only for the period during which the 918 Sup CI/71 652 work
lasts. To put it differently there will be automatic termination of the
services of an employee when the specific work for which he was engaged is
completed;
(iii)before the completion of a work, a
workman can be dismissed for serious misconduct. In such a case no question of
giving a month's notice or a month's pay in lieu of notice arises;
(iv) before the completion of the work, the
workman can also be dismissed otherwise than for serious misconduct, in which
case the workman will be entitled to a month's notice or a month's pay in lieu
of notice;
(v) in other cases the workman's services
terminate when the work ends;
(vi) if the workman desires to resign his
appointment, he must give one month's notice of his intention to do so, failing
which he will be required to forfeit a month's pay in lieu of such notice.
That the above are terms of engagement of a
work man, is clear from the concluding part of paragraph 11 to the effect that
"the terms of engagement should be clearly explained to men employed in
the circumstances mentioned above." The question that arises for
consideration is about the connotation of the expression "dismissed"
used in paragraph 11.
The contention of Mr. Ramamurthy that the
expression "dismissed" has reference only to termination of the services
of an employee as and by way of punishment is largely based upon the provisions
contained in the Government of India Act and in Art. 311 of the Constitution.
Based upon those provisions Mr. Ramamurthy
claims that the expression "dismissal" is a technical word used in
cases in which a person's services are terminated by way of punishment. Quite
naturally he relied upon the Service Rules where the word
"dismissal"', has been used to denote a major punishment inflicted
upon an employee for misconduct. Mr.Ramamurthy, no doubt, is well-founded in
his contention that the word "dismissal" used in the Government of
India Act as also in the Constitution and the Service Rules has been
interpreted to mean termination of a person's service by way of punishment.
By section 45 of the Government of India Act,
1919 read with Part 1 of the second schedule to that Act, several sections
including. s. 96B were introduced in the Government of India Act, 1915. Among
other things s. 96B provided that no person in the civil service of the Crown
in India may be dismissed by any authority subordinate to that by which he was
appointed.
Section 96-B for the first time gave
statutory recognition and force, to the English Common Law rule that the
servants of the Crown held their Offices during the pleasure of the Crown. It
also at the same time imposed one important qualification upon the exercise of
the Crown's pleasure, namely, that a servant might not be dismissed by an
authority subordinate to that by which he had been appointed.
Section 96-B(1) was reproduced as
sub-sections (1) and (2) of section 240 of the Government of India Act, 1935
and a new section was added to section 240 as sub-section (3).
Sub-section (2) of section 240 provided that
no person referred to in subsection (1) shall be dismissed from the service of
His Majesty by any authority subordinate to that by which he was appointed.
Sub-section (3) provided that no such person shall be dismissed or reduced in
rank until he has been given a reasonable opportunity of showing cause against
the action proposed to be taken in regard to him.
Then came our Constitution on January 26,
1950. Articles 311 (1) and(2) provided as follows "31 1 (1 No person who
is a member of a civil service of the Union or an all-India service or a civil
service of a State or holds a civil post under the Union or a State shall be
dismissed or removed by an authority subordinate to that by which he was
appointed.
(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank except after an inquiry in which he has
been informed of the charge against him and given a reasonable opportunity of
being heard in respect of those charges and where it is proposed, after such
inquiry, to impose on him any such penalty, until he has been given a
reasonable opportunity of making representation on the penalty proposed, but
only on the basis of. the evidence adduced during such inquiry :" It will
be noted that Art. 311 gives a twofold protection to persons who come within
the article, namely, (i) against dismissal or removal by an authority
subordinate to that by which they were appointed and (ii) as against dismissal
or removal or reduction in rank without giving them a reasonable opportunity of
showing cause against the action proposed to be taken in regard to them.
654 Discussing the above provisions in
Parshotam Lal Dhingra v.Union of India(1), this Court observed as follows
"It follows from the above discussion that both at the date of the
commencement of the 1935 Act and of our Constitution the words
"dismissed", "removed" and reduced in rank", as used
in the service rules, were all understood as signifying or denoting the three
major' punishments which could be inflicted on Government ,servants. The protection
given by the rules to the Government servants against dismissal, removal or
reduction in rank, which could not be enforced by action, was incorporated in
sub-ss. (1) and (2) of S. 240 to give them a statutory protection by indicating
a procedure which had to be followed before the punishments of dismissal,
removal or reduction in rank could be imposed on them and which could be
enforced in law.
These protections have now been incorporated
in Art. 311 of our Constitution.......... Thus Under Art. 311 (1) the
punishments of dismissal, or removal cannot be inflicted by an authority
subordinate to that by which the servant was appointed and under Art. 311(2)
the punishments of dismissal, removal and reduction in rank cannot be meted out
to the Government servants without giving him a reasonable opportunity to
defend himself." If the interpretation placed upon the word
"dismissal" in the Government of India Act and the Constitution as
well as the service rules is adopted for construing the said word in paragraph
11 of the Code, the contention of Mr. Ramamurthy will have to be, accepted. But
there is a clear indication in paragraph 1 1 of the Code that the word
"dismissed" has not been used to denote the termination of the
services of an employee only as and by way of punishment. Paragraph 1 1, in our
opinion, contains the terms of engagement of the workmen. In view of the very
nature of the employment In the work which may either finish quickly or may
take a considerably long time for completion, Paragraph 11 has been
incorporated to govern the relationship between the Central Public Works
Department and a workman. In this case there is no controversy that even after
the State took over the construction of the Project, relationship between the
State and the employees is governed by Paragraph 1 1. Having made provisions
for the automatic termination of the services of an employee, when the work
comes to an end, it is but natural that provisions should be made to terminate
the services of an employee even when the work (1) [1958] S.C.R. 820.
6 5 5 has not been completed. In this
connection it should be noted that if the employee wants to give up the job, he
has to give a month's notice, failing which he forfeits a month's pay in lieu
of such notice. Having provided for the voluntary resignation by an employee
even when the work has not been completed, it will be odd to hold, that a
similar right has not been given to an employer to terminate the services of a
workman, even though the work has not finished. It is quite understandable that
provisions should be made for dismissing an employee even before the completion
of the work, for serious misconduct. In such a case, it is admitted by the
learned counsel for the appellants, that the question of giving a month's
notice or a month's pay in lieu of notice does not arise. In that contingency,
it is easy to hold that the termination of the services of an employee is
dismissal as and by way of punishment. Paragraph 1 1 further provides that if
an employee is dismissed before the completion of the work otherwise than for
serious misconduct, he will be entitled to a month's notice or a month's pay in
lieu of notice.
According to Mr. Ramamurthy, there is nothing
incongruous in holding that when a workman is dismissed for a minor misconduct
he will be entitled to a month's notice or a month's pay in lieu of notice. In
our opinion it will be incongruous to hold that when a person is dismissed,
though not for a serious misconduct but even for a minor misconduct, the
workman will be entitled to a month's notice or a month's pay in lieu of
notice, if otherwise there can be a dismissal for a minor misconduct as and by
way of punishment. So far as we could see no decision has laid down that even
in cases of dismissal a workman will be entitled to a month's notice or a
month's pay. If it is a dismissal by way of punishment, no question of a
month's notice or a month's pay in lieu of notice ever arises. The fact that
Paragraph 1 1 provides for giving a month's notice or a month's pay when a
workman is dismissed otherwise than for serious misconduct indicates that the
word "dismissed" has not been used in the sense of termination of
service by way of punishment alone but it covers also other cases of
termination' of the services of an employee even before the completion of the
work. Interpreted in this manner, the position will be that the services of an
employee can be terminated as punishment for serious misconduct and the
services of an employee can be terminated also for other reasons. If the
services are terminated for other reasons.
Paragraph 11 provides for giving a month's
notice or a month's pay in lieu of notice.
From the above reasoning it is clear that the
word "dismissed" has been used loosely to denote both termination of
service for misconduct by way of punishment and also termination of service
simpliciter.
65 6 It must also be noted that the Code has
been framed in 1929 long before the Government of India Act, 1935, came into
force. In Burrows "Words and Phrases" the word "dismissal"
has been stated to be a word of very ambiguous meaning and that it is merely a
convenient expression for the termination of an employment whatever its nature
may be.
The word "dismissed" according to
its dictionary meaning is "to send away, to discard, to remove from office
or employment.......... The dictionary meaning makes it clear that in substance
the word means "termination of service." In Dr. Bool Chand v. The
Chancellor, Kurukshetra University(1), the import of the expression
"dismissed" came up for consideration before this Court. The
appellant in that case, who was Professor and Head of the Department of
Political Science in the Punjab University, was appointed on June 18, 1965, as
the Vice-Chancellor of ' the Kurukshetra University. On March 31, 1966, the
Chancellor of the University suspended the appellant from the office of ViceChancellor
and by another order the appellant was required to show cause why his services
as Vice-Chancellor be not terminated. The appellant after submitting his
representation, filed a writ petition in the Punjab High Court for quashing the
order dated March 31, 1966. On May 8, 1966, the Chancellor of The University,
in exercise of the power under sub-cl. (vi) of cl. 4 of Sch. 1 to the
Kurukshetra University Act, 1956, read with S. 14 of the Punjab General Clauses
Act, 1898, passed an order terminating the services of the appellant as
Vice-Chancellor with immediate effect. The writ petition was suitably amended
challenging this order terminating the appellant's service as Vice-Chancellor.
The relevant sub-clause of Cl. 4 of Schedule I of the Kurukshetra University
Act provided that the Vice-Chancellor will hold the office ordinarily for a
period of three years.
One of the contentions raised before this
Court was, that the Chancellor of the University had no power to terminate the
services of a Vice-Chancellor before the expiry of the period for which he was
appointed and that s. 14 of the Punjab General Clauses Act, 1898, while
providing for dismissal did not empower the appointing authority to terminate
the services of an officer. While holding that there was no express provision
in the Kurukshetra University Act or the statutes thereunder dealing with the
termination of the tenure of office of the Vice-Chancellor, this Court held
"But on that account we are unable to accept the plea of the appellant
that the tenure of office of a Vice-Chancellor under the Act cannot be
determined before (1)[1968] 1 S.C. R. 434.
6 5 7 the expiry of the period for which he
is appointed. A power to appoint ordinarily implies a power to determine the
employment." Regarding the further contention that S. 14 of the Punjab
General Clauses Act only empowers the appointing authority to dismiss an
officer by way of punishment, but not to determine an employment this Court
after referring to S. 14 observe as follows "But s. 14 of the General
Clauses Act is a general provision : it does not merely deal with the
Appointment of public servants. It deals with all appointments, and there is no
reason to hold, having regard to the context in which the expression occurs,
that the authority invested with the power of appointment has the power to
determine employment as a penalty, but not otherwise.
The expression 'dismiss' does not in its
etymological sense necessarily involve any such meaning as is urged by counsel
for the appellant. The implication that dismissal of a servant involves
determination of employment as a penalty has been a matter of recent
development since the Government of India Act, 1935 was enacted. By that Act
certain restrictions were imposed upon the power of the authorities to dismiss
or remove members of the civil service, from employment. There is no warrant
however for assuming that in the General Clauses Act, 1898, the expression
"dismiss" which was generally used in connection with the termination
of appointments was intended to be used only in the sense of determination of
employment as a measure of punishment." From the above extract it is clear
that the word "dismissal" has to be understood in the context in
which it occurs and that it denotes the determination of an employment as a
penalty is a matter of recent development since the Government of India Act,
1935 was enacted. In the case before us, we have already pointed out that the
Code has been framed as early as 1929 and there is no warrant ,for assuming
that the expression "dismissed" has been used in the sense that the
word was understood since the Government of India Act, 1935. Further the word
'dismissed' occurring in the context in which the said expression occurs in
paragraph 1 1, as pointed out by us earlier, clearly denotes the termination of
the services of an employee for serious misconduct and for other reasons. That
expression is not used in the sense only to denote determination of employment
as and by way of punishment.
Mr. Ramamurthy raised the contention that
even if there is power of termination simpliciter in the employer under
Paragraph 11 , the High Court should not have interfered with the award of 658
the Industrial Tribunal as the Tribunal has recorded a finding that the State
has not acted bona fide. In support of this contention-, the learned counsel
relied on the reasoning contained in paragraph 18 of the award. We have gone
through the reasoning contained in the said paragraph and we do not find any
finding recorded by the Tribunal that the State has not acted bona fide, when
it passed an order terminating the services of the employees. On the other
hand, what the Tribunal has held in the said paragraph is that the termination
of the services of the employees is invalid and illegal as it is not warranted
by Paragraph 11 of the Code and hence the order of termination is invalid in
law and inoperative. There is absolutely no basis for the contention that these
findings are to the effect that the action of the State is not bona fide. Thus
the findings recorded by the Tribunal are findings on the basis of the
interpretation placed by it on Paragraph 11 that the State has no power to
terminate simpliciter the services of a work-charged establishment. Therefore,
this contention of Mr, Ramamurthy has to be rejected.
To conclude we are in agreement with the High
Court in holding that the expression "dismissed" in Paragraph II of
the Code, has been used to take in the termination of the services of the
employees mentioned therein both as a measure of punishment for serious
misconduct as well as termination simpliciter of the services of an employee in
which contingency one month's notice or a month's pay in lieu of notice is
obligatory.
In the result the appeal is dismissed but in
the circumstances without any order as to costs.
G.C. Appeal dismissed.
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