G. KRISHNA SINGH v. MANAGEMENT, HAL — 1973 DIGILAW 262 (KAR)

( 1 ) THIS petition under Arts. 226 and 227 of the Constitution of India is by a workman and directed against the award made by the Additional industrial Tribunal, Bangalore, in complaint No,. 2 of 1968 arising in aid. No. 11 of 1966. ( 2 ) IT arises in this way. The petitioner was entertained as an apprentice by the respondent-management by virtue of an agreement entered into on 3-4-1961, copy of which has been produced and marked as Ex. P12. According to the said agreement, he had to undergo a preparatory training for about 6 months on a certain stipend and thereafter was required to serve the management for a period of 5 years subject to certain terms and conditions which are unnecessary to be set out. He completed the training and was absorbed as a Mechanic 'c' Grade. Thereafter he was promoted as mechanic 'b. From the year 1963-64 upto 1966, he suffered from ill-health and used to absent himself sometimes with permission and sometimes without it. On 1-3-1966, he was served with a memo specifically on a charge that he was at sent for 77 days without permission during the period from 1-1-1965 to 31-12-1965. He was thereupon called upon to submit his explanation in writing to the Asst. Personnel Manager and to show cause why he should not be dismissed from service. The petitioner submitted an explanation. His explanation was that he was undergoing medical treatment for stomach disorders and typhoid and he got the treatment from a private medical practitioner and at the ESI Hospital. He prayed to be excused and further assured that he would avoid recurrence of such misconduct relative to the unauthorised absence. On 6-6-1966, he was called upon to, face an enquiry before the Termination Enquiry Committee on 29-6-1966. It is alleged that on 28-6-1966, he sent a telegram to the Personnel Department of the Management pleading his inability to be present at the enquiry on 29-6-1966. It is alleged on behalf of the Management that the telegram had not been received by the Management. The result therefore was that the petitioner was not present on the date of the enquiry. The Enquiry committee proceeded with the enquiry ex-parte and terminated the service of the petitioner. It is alleged on behalf of the Management that the telegram had not been received by the Management. The result therefore was that the petitioner was not present on the date of the enquiry. The Enquiry committee proceeded with the enquiry ex-parte and terminated the service of the petitioner. ( 3 ) THE petitioner, thereupon, instituted a complaint before the Industrial tribunal, Bangalore, under S. 33a of the Industrial Disputes Act, alleging that his services had been wrongfully terminated in that the standing orders had no,t been complied with and that the enquiry held by the management was opposed to the principles of natural justice. The Management resisted the complaint on various grounds. It is contended that the enquiry was held with due regard to the principles of natural justice and that even otherwise, the termination of his employment was in accordance with the terms of the contract entered into between the parties as also in due compliance with the standing orders governing the master. The Tribunal after enquiring into the matter, came to the conclusion that the complaint was not maintainable in law and therefore dismissed it. During the trial, as many as 9 issues were framed in the case and the Tribunal purported to record its findings with regard to all of them. But it is seen from the discussion in the order impugned that it had mainly concerned itself with 3 questions and recorded its findings thereon. It held that the termination of the service of the petitioner was in accordance with the contract earlier referred to and therefore it would not be open to the petitioner to rely on the standing orders. It further held that even if the standing orders were applicable to the case of the petitioner, his service must be deemed to, have been duly terminated in accordance with such standing orders in that he has absented himself for more than 10 days without permission, as stated by him. Lastly, it held that the contention urged that in view of the letter dt. l7-5-1966 issued by the Personnel Officer (Air Craft) the petitioner must be deemed to have been punished in regard to the misconduct alleged against him in the context of the termination of his services, was untenable in that the action taken in the said letter did not amount to a punishment for the offence with which he was charged. l7-5-1966 issued by the Personnel Officer (Air Craft) the petitioner must be deemed to have been punished in regard to the misconduct alleged against him in the context of the termination of his services, was untenable in that the action taken in the said letter did not amount to a punishment for the offence with which he was charged. Notwithstanding the fact that the discussion had been confined more or less, only to the above matters, the Tribunal recorded its findings on all the nine issues in the case, many of which were dependent on facts. Aggrieved by the said award, the petitioner has approached this Court. ( 4 ) ON behalf of the parties, several contentions were urged. Since I am of the view that this petition has to succeed on a short ground to be dealt with later, I do not consider it necessary to set out all the contentions in any detail. Before proceeding further with the matter, it is necessary to clear the ground by referring to certain legal positions arising in the case, with reference to some of the authorities cited in the course of the argument. ( 5 ) IN Parry and Co. v. P. C. Pal AIR. 1970 SC. 1334. , the Supreme Court had occasion to review certain cases relative to the scope and ambit of the jurisdiction exercisable by a Court in Writ Petitions challenging the awards of the industrial Tribunals. The relative enunciation occurs in para 11 of the said report and reads thus : the grounds on which interference by the High Court is available in such writ petitions have by now been well established. In basappa v. Nagappa ( 1955 SCR 250 - AIR 1954 SC 440 ) it was observed that a writ of certiorari is generally granted when a Court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal though competent to enter upon an enquiry, acts in flagrant disregard the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. It is available in those cases where a tribunal though competent to enter upon an enquiry, acts in flagrant disregard the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a, mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. In Dharangadhara chemical Works Ltd. v. State of Saurashtra ( 1957 SCR 152 - AIR 1957 SC 264 ) this Court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Art. 226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in State of Andhra Pradesh v. S. Sree Rama Rao ( AIR 1963 SC 1723 ) this court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under article 226 would be justified. (Emphasis (italics) supplied ). ( 6 ) AS to the powers of an Industrial Tribunal to interfere in cases of dismissal of workmen by a company, the Supreme Court in the Indian Iron and Steel Co. , Ltd, v. Their Workmen 1958 SCR. 667. has set out the position thus : the powers of an Industrial Tribuunal to interfere in cases of dismissal of workman by the company are not unlimited and the tribunal does not act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (1) when there is want of good faith, (2) when there is victimization or unfair labour practice, (3) when the management has been guilty of a basic error or violation of a principle of natural justice, or (4) when on the materials the finding is completely baseless or perverse. It will interfere (1) when there is want of good faith, (2) when there is victimization or unfair labour practice, (3) when the management has been guilty of a basic error or violation of a principle of natural justice, or (4) when on the materials the finding is completely baseless or perverse. ( 7 ) SECTION 33a of the Industrial Disputes Act enjoins that in case of any conrtavention by an employer of the provisions of S. 33 during the pendency of the proceedings relating to an Industrial Dispute before the labour Court, Tribunal or National Tribunal it is open to the employee to lodge a complaint before such Court, Tribunal or National Tribunal which when allowed has to, be enquired into as if it were a dispute referred to or pending before such Tribunal in accordance with the provisions of that Act. Even in a case where an approval to the dismissal of a, workman has not been sought as per S. 33 (2) (b) of the Industrial Disputes Act it is open to the employe to lodge a complaint under S. 33a of that Act. But on that account, it is not open to him to contend that merely because s. 33 (2) (b) of the Industrial Disputes Act has not been complied with, the action of dismissal would be void and inoperative. The furthe'r legal position is that even if such contravention of S. 33 (2) (b) exists, the Tribunal has to consider whether the employer's action was justified on any complaint preferred by an employee under S. 33a of the Industrial Disputes act. All these propositions are clearly supportable by a reference to the decision of the Supreme Court in Hindustan General Electric Corporation v. Bishwanath prasad 1971 (II) LLJ. 340 . ( 8 ) LASTLY a reference to the decision of the Supreme Court, relied on behalf of the respondent, in Central Bank of India Ltd. v. Karunmoy Banarjee 1967 (II) LLJ. 739 is relevant in the context of an argument that once the employee admits the fault, it would not be open to him to insist upon the management to lead evidence about the allegations relevant to the charge. 739 is relevant in the context of an argument that once the employee admits the fault, it would not be open to him to insist upon the management to lead evidence about the allegations relevant to the charge. The enunciation reads thus : if the allegations are denied by the workman it is needless to state the burden of proving the truth of these allegations will be on the management the workers called by the management must be allowed to be cross examined by the workman" and the latter must also be given an opportunity to examine himself and adduce any other evidence he might choose, in support of his plea. But if the workman admits his fault, to insist upon the management to let in evidence about the allegations will only be an empty formality. In such a case it will be open for the management to examine the workman himself in the first instance so as to enable him to offer any explanation for his conduct or to place before the management any circumstances which will mitigate the gravity of the offence. But even then the examination of the workman should not savour of an inquisition. ( 9 ) AT this stage, it is relevant to observe that it is implicit in the above enunciation that the workman concerned should not be denied an, opportunity to explain his conduct and also place before the management any circumstances which will tend to mitigate the gravity of the offence. Bearing the above principles in mind, I shall now proceed to examine the impugned award in the light of the contentions urged. On a plain reading of the impugned award, it would be clear that it suffers from an error of law on the face of it. The Tribunal, while holding that the termination of the services of the petitioners was in accordance with the contract entered into by him with the management, has rejected the contention of the petitioner that he is governed by the standing orders and not by the terms of the contract. In short, it has come to the conclusion that the standing orders would not be applicable to the case of the. petitioner and that he is governed only by the contract of employment. In short, it has come to the conclusion that the standing orders would not be applicable to the case of the. petitioner and that he is governed only by the contract of employment. In doing so, it has placed reliance on a decision of the High Court of Allahabad in J. K. Cotton Manufacturers, Ltd. v. J. N. Tewari. That decision no doubt lays down that an employer would be entitled to enter into and act on the basis of the contract with a workman notwithstanding the standing orders. It seems that on behalf of the parties, the decision of FB of the Allahabad High Court was not brought to the notice of the Tribunal. By that decision, the Full Bench had clearly over-ruled the decision in J. K. Cotton Manufacturers' case AIR. 1959 All. 639. . The decision in question is Srivastava v. Banaras Electric Light and Power Co. Lid. (1968)2 LLJ. 483 . ( 10 ) THE relevant part of the enunciation reads thus : it is true that the standing orders do not prohibit special agreements between employers and employees. Such sepecial agreements may be necessary for providing special. terms and amenities to workmen haying special value to their employers. But it appears that the basic and general conditions contained in the standing orders could not be by-passed by adopting the device of special agreements. If the general conditions on matters expressly provided by the standing orders could be avoided in this manner, the whole object of the standing orders would be frustrated and the elaborate machinery provided for their certification and enforcement would become meaningless. Therefore, even without going into the juristic niceties of what constitutes 'law' which is binding upon those governed by it, it appears tha,t the standing orders which have passed through the carefuly devised mechanism of the Act were meant by the Act to be complied with by the employers and the employees alike. ( 11 ) THE intention of the legislature in providing for statutory standing orders and laying down the only mode in which they could be modified and attaching penal consequences to violations of standing orders was necessarily to prohibit terms of contract which clash with any of the standing orders. Any terms of a contract which contravene a standing order would be struck by S. 28 of the Contract Act also. Any terms of a contract which contravene a standing order would be struck by S. 28 of the Contract Act also. This provision invalidates an agreement the object of which is, inter alia, of such a nature that if permitted, it would defeat the provisions of any law. " in view of the said decision, the Tribunal was clearly in error in holding that the termination of the employment of the petitioner in accordance with the contract was justified. In this context, the Tribunal has no doubt dealt with the question that even otherwise the termination of his services waa justified in accordance with the standing orders. It seems to me that in view of the error of law apparent on the face of the record, this conclusion is not of much materiality. But it is pointed out on behalf of the petitioner that the procedure enjoined by the standing orders has not at all been complied with. There is some justification for this criticism. It is seen from the award that the Tribunal has merely referred to the standing order which enables the termination of services of workmen in case of unauthorised absence for more than 10 days, only. It has not examined whether such a termination has been brought about by observing the procedural requirements enjoined by the Rules under the standing orders. In regard to the latter, there is absolutely no discussion whatever. ( 12 ) THERE is another error apparent on the face of the proceedings. It is well-recognised that a Tribunal or any other authority performing quasijudicial functions should examine all the material evidence bearing on any issue of fact, before recording the finding thereon. If such a Tribunal were to ignore any material evidence bearing on such a question, it must be held that it has not exercised its jurisdiction properly, if not altogether failed to exercise the same. In the instant case it was the duty of the tribunal to have examined the reasons for the absence of the petitioner during the enquiry held by Enquiry Committee constituted by the Management. Indeed, this is a matter which has to be considered in any enquiry under S. 33a of the Industrial Disputes Act. In the instant case it was the duty of the tribunal to have examined the reasons for the absence of the petitioner during the enquiry held by Enquiry Committee constituted by the Management. Indeed, this is a matter which has to be considered in any enquiry under S. 33a of the Industrial Disputes Act. There is also an issue in regard to this which reads : whether the justification of the unauthorised absence and non participation in the enquiry before the Committee pleaded by the complainant is acceptable ? ( 13 ) ON the above question, there is little or no discussion at all in the impugned award much less is there any reference to the material circumstances bearing on the point. It is sufficient for me to refer to four circumstances brought out in the evidence. They are: (1) The receipt for haying sent such a telegram on the day previous to the date of the enquiry has been produced in the proceedings before the Tribunal; (2) A memo had been filed before the Tribunal on behalf of the petitioner on 25-3-1969, whereby the Management had been specifically called upon to produce the telegram sent to the Personnel Officer of the Management, in regard to which there was no reply of any sort on the part of the Management with the result it was open to the workman to request the Tribunal to raise a normal presumption that such a telegram had been received by the opposite party; (3) On behalf of the petitioner, he had examined himself and sworn to the fact of having sent such a telegram and this evidence has not been adverted to at all; and (4) The evidence of Sri Desikachari, a member of the Enquiry Committee is to the effect that it is the Personnel Section of the Management that is directly concerned with the enquiries into the misconduct committed by the workmen thereby raising a presumption that the telegram sent by the petitioner to the Personnel Section was in order. All the above circumstances have a clear bearing on the question whether the workman had a reasonable excuse to be absent at the enquiry held on 29-6-1966, as a result of which he was dismissed from service. All the above circumstances have a clear bearing on the question whether the workman had a reasonable excuse to be absent at the enquiry held on 29-6-1966, as a result of which he was dismissed from service. ( 14 ) THE reason is that the Tribunal is compptent to come to a conclusion on the question whether or not there was sufficient justification for the workman to be absent at such enquiry. If the tribunal comes to the conclusion that the workman had reasonable justification for his absence, then the enquiry held would be clearly violative of the principles of natural justice. Any result arrived at on the basis of such an enquiry would, therefore be clearly vitiated. By this I do not mean to say that the employers should not have terminated the services of the petitioner in accordance with the standing orders without holding any such enquiry provided it was warranted by such standing orders. In regard to all these matters, the award is singularly silent. It was in this context that reliance was placed on behalf of the respondent on the decision of the Supreme Court in the Central bank of India case (4 ). It was contended on the basis of the said decision that once the workman admits the charge, which is the position in the case on hand, it would not be necessary for the management to have led any evidence at all in support of the justification of their action of dismissal. ( 15 ) IN so far as I have been able to understand, the contention is that any defect in the enquiry would not be of much consequence and, therefore, it could not be held up against the Management for the purpose of interfering with the order of dismissal. I have reproduced the relative enunciation earlier and I have also offered my comment in so far as it was relevant. It is seen therefrom that it has not precluded any attempt on the part of the workman to offer any reasonable explanation by way of justification for his absence. As such the circumstances enumerated above have a clear bearing on such a question. It was, therefore, the duty of the tribunal to have examined these circumstances and come to a proper conclusion in this regard. As such the circumstances enumerated above have a clear bearing on such a question. It was, therefore, the duty of the tribunal to have examined these circumstances and come to a proper conclusion in this regard. For all these reasons, I am clearly of the view that the award impugned herein cannot be sustained. ( 16 ) IN the result, this petition succeeds and is allowed. The award made by the Additional Indusrtial Tribunal, Bangalore, in Complaint No. 2 of 1968 in AID. 11 of 1966 is hereby quashed. The master, however, will stand remitted tp that Tribunal for a fresh consideration of the dispute in accordance with law and in the light of the observations made herein. The petitioner would be entilted to his costs. Advocate's fee Rs,250. 00. --- *** --- .