Management of Borpukhurie Tea Estate Vs.
Presiding Officer, Industrial Tribunal Assam & ANR [1978] INSC 57 (1 March
1978)
SINGH, JASWANT SINGH, JASWANT KRISHNAIYER,
V.R.
CITATION: 1978 AIR 992 1978 SCR (3) 439 1978
SCC (2) 667
ACT:
Industrial Disputes Act, (Act XIV), 1947, S.
33(3)(b)- Amendment of an application changing the section applicable should be
allowed by the Tribunals.
HEADNOTE:
Under Section 3 3 (2) (b )'of Industrial Disputes
Act, 1947 during the pendency of any conciliation proceedings before a
Conciliation Officer or a Board or of any proceeding before an arbitrator or a
Labour Court or Tribunal or National Tribunal in respect of an industrial
dispute, the employer may in accordance with the Standing Orders applicable to
the workmen concerned, in such dispute for any misconduct connected with the
dispute, discharge or punish, whether by dismissal or otherwise that workman,
provided that the workman has been paid his 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. Under
s. 33(b)which overrides Section 33(2) no employer, during the pendency of any such
proceeding in respect of an industrial dispute, take any action against any
protected workman concerned in such dispute by discharging or punishing whether
by dismissal or otherwise, such protected workman, save with the express
permission in writing of the authority before which the proceeding is pending.
Agreeing with the findings of the Enquiry
Officer contained in the report submitted by him in respect of the allegation
of grave misconduct under Cl. 10(a) (2) of the Standing Orders of the appellant's
establishment, as applicable to Respondent No. 2, a protected workman, the
Management decided to dismiss, him. As respondent No. 2 was a workman and an
Industrial Dispute being reference No. 35 of 1964, was pending before the
Industrial Tribunal, Assam at Gauhati, the management could not straightway
dismiss the respondent. Accordingly, by its letter dated November 10, 1966, the
Management informed respondent No. 2 that he had been found guilty of the
charge contained in the charge- sheet served on him on September 19, 1966 and
that he would be dismissed from service of the Company but that the punishment
would-not be put into effect pending orders of the competent authority Under s.
33 of the Act. and in the, meantime, he would remain under suspension. On the
same date, an application was made by the Management-appellant before
Respondent No. 1, under s. 33(2) of the Act.
Respondent No. 2 while admitting by his
letter dated November 17, 1976, that he was not yet dismissed as per letter
dated 10th November, 1966 but only had to be under suspension without pay till
the decision of the authority concerned, requested the appellant to allow him
to avail the privileges of drawing ration (at per staff ration rate) and to
have free supply of tea and firewood, as per rules.
Thereafter, on December 24, 1966, the
respondent filed before the Industrial Tribunal a complaint under s, 33A of the
Act alleging contravention of the provision$ of s. 33 of the appellant praying
for a decision in the matter. On June 27, 1967 when the appellant's original
application under s. 33(2)(b) of the Act was till pending, the appellant made
an application to the Industrial Tribunal praying that the said application be
treated as one under s. 33(3)(b) of the Act.
By his order dated July 10, 1967, Respondent
No.1 refused to treat the Management's original application under s. 33(2) of
the Act as one under s. 33(3)(b) of the Act and rejected the same as not
maintainable holding that the Management had violated the provisions of the Act
in dismissing the respondent who was admittedly a protected workman 'without
obtaining the permission from the Tribunal. The writ application filed by the
appellant in the Assam High Court assailing the said orders was dismissed with
the observation that the punishment of dismissal 440 having already been
infficted without complying with the provisions of s. 33(3) (b) of the Act, an
Ex Post Facto permission could not be granted.
Allowing the appeal by special leave the
Court
HELD : 1. The Courts charged with the duty of
administering justice have to remember that it is not the form but the
substance of the matter that has to be looked into and the parties cannot be
penalised for inadvertent errors committed by them in the conduct of their
cases. It is equally important for the Courts to remember that it is necessary
sometimes in appropriate cases for promotion of justice to construe the
pleadings not too technically or in a pedantic manner but fairly and
reasonably. [444 F-G] Western India Match Co. v. Workmen, [1963] 2LLJ 459 at p.
464 applied.
2. The Labour Courts and Tribunals are
compete-.it to allow the parties when they are not actuated by any oblique
motive to modify their pleadings to subserve the interest of justice. [445 A]
Patna Electric Supply Co. 'Ltd. Patna v. Bali Bai & Anr.
[1958] S.C.R. 871, followed.
3. In the present case :-(a) The appellants
original application being, in fact andin substance for permission under s.
33(3) of the Act, The Tribunal should dispose of the I same in conformity with
law after going into the following points
1. Whether it is conclusively proved that the
signatures of the Manager of the Borpukburie Tea Estate on the aforesaid cheque
No. 53 were forged ?
2. What became of the report which appears to
have been made by the appellant to the police in respect of the said cheque and
what is the impact of the result of that report on the truth or otherwise of
the alleged forgery ?
3. Whether a prima facie case for dismissal
of the respondent is made out by the appellant?
4. whether the appellant's decision to
dismiss the respondent was bona fide or was it an outcome of any unfair labour
practice or victimisation ?
5. Whether the respondent was entitled to any
payment in the interegnum between the conclusion of the enquiry and the final
order of the Tribunal ? [445 A-E] [The Court gave further directions to dispose
of the matter with utmost despatch not exceeding six months of the receipt of
the order after going into the points suggested]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1764 of 1971.
(Appeal by Special Leave from the Judgment
and Order dt. the 18th September, 1970 of the Assam & Nagaland High Court
at Gauhati in Civil Rule No. 236 of 1967) F. S. Narinian, P. H. Parekh & S.
N. Choudhari For the Appellant K. P. Gupta & B. B. Tawakley For Respondent
No. 2 441 Ex-Parte : For Respondent No. 1 The Judgment of the Court was
delivered by JASWANT SINGH, J.-This appeal by special leave s directed against
the judgment and order dated September 18, 1970 of the High Court of Assam and
Nagaland passed 'in Civil Rule No. 236 of 1967 filed by the present appellant.
The, facts giving rise to this appeal are :
Shri Naresh Kumar Ganguli, respondent No. 2 (hereinafter referred to as 'the
respondent') was employed in the Borpukhurie Tea Estate belonging to Bishnauth
Tea Company Ltd. (which is engaged in the cultivation and manufacture of tea
and employs a large number of workmen of various categories to carry on its
business) as a 2nd Clerk and was recognised as a 'Protected Workman' within the
meaning of section 33(3) of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'the Act'). On September 11, 1966, the Company's cheque No.
53 which allegedly bore the forged signatures
of the Manager of the Borpukhurie Tea Estate was encashed from a local banker.
On enquiry, Mansid Munda, the factory chowkidar stated that the cheque was
cashed under instructions of the respondent and proceeds thereof amounting to
Rs. 680/- were handed over to the latter at the garden. office. As the act of
the respondent prima facie constituted a grave misconduct under clause 10(a)
(2) of the Standing Orders of the Es- tablishment, a charge sheet was served on
him on September 19, 1966 accusing him of obtaining money through Mansid Munda
from the local banker by forging the Manager's signatures on the aforesaid
cheque and calling upon him to submit his explanation in regard thereto which
he did on September 22, 1966. As the explanation tendered by the respondent
(which was one of denial) was found to be unsatisfactory, an enquiry into the
charge was held by Mr.
R. R. L. Pennoll, Superintendent of the
Company. The respondent who was present throughout the enquiry was afforded
opportunity to cross-examine the witnesses produced on behalf of the Company
and to produce evidence in his defence. At the conclusion of the enquiry, the
Enquiry Officer submitted his report stating therein that the material adduced
in the course of the enquiry proved that the respondent was guilty of grave
misconduct as envisaged by the aforesaid clause of the Standing Order. The
Management, therefore, decided to dismiss the respondent.
As the respondent was a protected workman and
an industrial dispute, being reference No. 35 of 1964, was pending before the
Industrial Tribunal, Assam at Gauhati, the Management could not straightaway
dismiss the respondent. Accordingly, by its letter dated November 10, 1966, the
Management informed the respondent that he had been found guilty of the charge
contained in the charge sheet served on him on September 19, 1966 and that he
would be dismissed from service of the Company but that the punishment would
not be put into effect pending orders of the competent authority under section
33 of the Act, and in the meantime, he would remain under suspension. The
communication dated November 10, 1966 written on behalf of the appellant to the
respondent ran as under:- 442 "Shri N. K. Canguli, 2nd Clerk, Borpukhurie
T.E.
P.O. Charali.
Dear Sir, You are, hereby informed that you
have been found guilty after due hearing of your case as prescribed by Standing
Orders of the charge served on you in my letter of the 19th September, 1966.
You are accordingly informed that you will he
dismissed from the service of the company.
This punishment will not be put into effect
pending orders of the competent authority under section 33 of the Industrial
Disputes Act, 1947 and in the meantime you will remain tinder suspension. As my
enquiry into the charge against you has concluded, you will not receive any
subsistence allowance during this period of suspension.
Yours faithfully, Sd/1- W. P. Swer,
Assistant-in-Charge." On the same date, an application was made by the
Management before the Presiding Officer, Industrial Tribunal, Gauhati under
section 33(2) of the Act. On November 17, 1966, the respondent addresed the
following communication to the Manager of the Borpukhurie Tea Estate :-
"The Manager, Borpukhurie Tea Estate, Charail P.O.
Sir, It appears to me from your letter dated
10-11- 66 that I am not yet dismissed, only I have to be on suspension without
pay till you receive any decision from the authority..
So, as I am not yet dismissed, you will allow
me to avail the privilege in connection with any service with the Company as
below and other if there are.
(1) Ration "Rice & Atta" (As
per staff ration rate) (2) Tea "Free of cost' (Still I am due to get a
month ration) (3) Fire-wood "Free of cost (Already to get for the further
months of the year), I will be happy of your early action in this matter.
Soliciting an early confirmation.
Yours faithfully,
Sd/-
N. K. Ganguli
2'nd Clerk.
" 443 On December 24, 1966, the
respondent filed before the Indus- trial Tribunal a complaint under section 33A
of the Act alleging contravention of the provisions of section 33 of the Act by
the appellant and praying for a decision in the matter. On June 27, 1967, when
its original application under section 33(2)(b) of the Act was still pending,
the appellant made an application to the Industrial Tribunal praying that the
said application be treated as one under section 33(3)(b) of the Act. This
application is reproduced below for facility of reference :- "1.- That in
submitting the application U/s.
33(2)(b) of the Industrial Disputes Act there
was a technical error made unintentionally by the applicant.
2. That a reading of the application will
clearly indicate that the Management in fact intended to, comply with the
provisions of section 33(3) of the Act and not of section 33(2) of the said
Act, although the application is described as such.
3. That even the Management's letter dated
10th November, 1966 addressed to Sri N. K. Ganguli will also indicate that
action was being taken U/s 33(3) of the I.D. Act.
It is, therefore, prayed that the, Hon'ble
Tribunal may be pleased to treat the application as one U/s 33(3) of the Industrial
Disputes Act and for this etc." By his order dated July 10, 1967, the
Presiding Officer of the Industrial Tribunal refused to treat the Management's
original application under section 33 (2) of the Act as one under section 33
(3) (b) of the Act and rejected the same as not maintainable holding that the
Management had violated the provisions of the Act in dismissing the respondent
who was admittedly a protected work-man 'without obtaining the permission from
the Tribunal'. Aggrieved by this order, the Management filed an application
before the High Court under Article 226 of the Constitution seeking issuance of
a writ of certiorari or mandamus or any other appropriate writ quashing the
aforesaid order dated July 10, 1967 of the Industrial Tribunal but the same was
dismissed with the observation that the punishment of dismissal having already
been inflicted without complying with the provisions of section 33(3)(b) of the
Act, an Ex Post Facto permission could not be granted. It is against this order
that the Management has come up in appeal to this Court.
Appearing in support of the appeal, Mr.
Nariman has urged that though it may be open to an Industrial Tribunal to
withhold the permission contemplated by section 33 (3) (b) of the Act if it
finds that an employer has not been able to make out a prima facie case
justifying dismissal of a workman or if it finds that there is material to
establish that the employer was guilty of unfair labour practice or
victimisation, there was no justification in the instant case for the 444
Industrial Tribunal to hold that the appellant had violated the provisions of
section 3 3 (3) (b) of the Act or to refuse to accede to the prayer of the
appellant to treat its original application dated November 10, 1966 as one
under section 33 (3) (b) of the Act ignoring the Teal substance thereof.
We find considerable force in the submissions
made by Mr. Nariman. The facts and circumstances of the case especially the
underlined portions of the correspondence reproduced above i.e. the appellant's
very first letter dated November 10, 1966 to the respondent which expressly
stated that as the latter had been found guilty after due enquiry, he would be
dismissed from service of the Company but the punishment would not be put into
effect pending orders of the competent authority under section 33 of the Act
and in the meantime he would remain under suspension, and the respondent's own
application dated November 17, 1966 to the Management for permission to avail
of the privileges of rations etc.
connected with his service on the plea that
he had not 'yet' been dismissed, as also the averments in the ultimate part of
paragraph 10 of the appellant's application dated November 10, 1966 to the
Industrial Tribunal to the effect that the respondent workman had been informed
that the appellant had decided that he should be dismissed for misconduct under
clause 10(a) (2) of the Standing Orders but until permission of the Tribunal is
received, he would be under suspension clearly show that the appellant had not
dismissed the respondent but had only decided to dismiss him, and the
Industrial Tribunal and the High Court were manifestly wrong in making Auction
to the contrary. It is unfortunate that both the Industrial Tribunal and the
High Court tried to clutch at some stray words here and there to justify
rejection of the appellant's prayer to treat its original application as one
under section 33 (3) (b) of the Act and in so doing missed the real pith and
substance of the application. The courts charged with the duty of administering
justice have to remember that it is not the form but the substance of the
matter that has to be looked to and the parties cannot be penalised for inadvertent
errors committed by them in the conduct of their cases. The following
observations made by this Court in Western India Match' Company Ltd. v. Their
Workmen(1) are opposite in this connection :- Again, as in most questions which
come before the Courts, it is the substance which matters and not the form; and
every fact and circumstance relevant to the ascertainment of the substance
deserve careful attention." It is equally important for the Court to
remember that it 'is necessary sometimes in appropriate cases for promotion of
justice to construe the pleadings not too technically or in a pedantic manner
but fairly and reasonably.
Keeping in view therefore the totality of
'lie facts and circumstances of the case and the purport of the observations of
this Court (1) [1963] 2 L.L.J.459,464.
445 in Patna Electric Supply Co Ltd. Patna v.
Bali Bai & Anr.(1) to. the ,effect that the Labour Courts and Tribunals are
competent to allow the parties when they are not actuated by any oblique motive
to modify their pleadings to sub serve the interests of justice, we are of the
view that the present is an eminently fit case in which the industrial Tribunal
should treat the appellant's original application which was in fact and in
substance for permission as one under section 33(3)(b) of the Act and dispose
of the same in conformity with law after going into the following points :-
1. Whether it is conclusively proved that the
signatures of the Manager of the Borpukhurie Tea Estate on the aforesiad cheque
No. 5 3 were forged ?
2. What became of the report which appears to
have been made by the appellant to the police in- respect of the said cheque
and what is the impact of the result of that report on the truth or otherwise
of the alleged forgery ?
3. Whether a prima facie case for dismissal
of the respondent is made out by the appellant ?
4. Whether the appellant's decision to
dismiss the respondent was bona fide or was it an outcome of any unfair labour
practice or victimisation ?
5. Whether the respondent was entitled to any
payment in the interregrium between the conclusion of the enquiry and the final
order of the Tribunal ? Accordingly, we allow the appeal, quash the aforesaid
orders of the Industrial Tribunal and the High Court and remit the case to the
former with the direction to treat the appellant's aforesaid application dated
November 10, 1966 as one under section 33 (3) (b) of the Act and to dispose of
the same with utmost despatch not exceeding six months of receipt of the order,
after going into the point get out above. The parties shall be allowed to-
adduce such evidence as they may like in respect of the aforesaid points. The
costs of this appeal shall be paid by the appellant to the 2nd Respondent
Workman which. is ,quantified at Rs. 1500/-. The order in C.M.P. 5411/71 shall
stand.
S.R.
Appeal allowed.
(2) (1958) S.C.R. 871.
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