9911796707
TMI Blog1969 (12) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... up at the instance of the Government of India and the Company's Board of Directors, was to have a confidential inquiry made to verify the antecedents of its employees. 'Such verification not being practicable at the time of the appointment of each employee, it used to be done after a workman was appointed. The object of such verification was to ascertain whether it was desirable or not in the interests of the company to continue the service of the employee in respect of whom such verification was made. The inquiry was made through the police. On receipt of a verification report from the police, the Senior Security Officer of the company would make his recommendation and the company would terminate the service of an employee where it was considered desirable in the company's interests not to continue such an employee in service after giving 3 months' notice or salary for that period in lieu thereof. Throughout the period of his service commencing from September' 1958 no action was ever taken against respondent 1 although he had at one time joined a strike in the company'; works and although he was an active member and the secretary of the workmen's union. A criminal case in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of a workman against whom there was an adverse report and whom the company did not consider it desirable to retain in its service. The High Court rejected these contentions and held that the Tribunal was right in holding that the termination of service of respondent I was not in bona fide exercise of the power of the employer to terminate an employee's service, that it was punitive in character and was, therefore, not legal or justified. The High Court also held that ordinarily the relief against an illegal termination of service was reinstatement though in some cases it may be considered inexpedient to do so, in which event a suitable compensation would be the proper relief. Lastly, it held that the present case was not one of those exceptions to the general rule of reinstatement and the Tribunal having exercised its discretion it could not interfere with the Tribunal's order. The company thereupon applied for special leave from this Court. Though it was granted, it was limited only to the question whether the relief to respondent I should have been reinstatement or compensation. It is, therefore, not possible for us to go into the question whether the Tribunal and the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service would be in violation of the constitutional right of association of an individual and would be clearly unjustified, -and therefore, it would not be a case for departure from the ordinary consequence flowing from an illegal order of termination of service. There can be no doubt that the right of an employer to discharge or dismiss -an employee is no longer absolute as itis subjected to severe restrictions. In cases of both termination of service and dismissal, industrial adjudication is competent to grant relief, in the former case on the ground that the exercise of power was mala fide or colourable and in the latter case if it amounts to victimisation or unfair labour practice or is in violation of the principles of natural justice or is, otherwise not legal or justified.' In such cases, a tribunal can award by way of relief to the concerned employee either reinstatement or compensation. In the earlier stages the question whether one or the other of the two reliefs should be granted was held to be a matter of discretion for the tribunal. (see Western India Automobile Association v. Industrial Tribunal([19491 F.C.R. 321, 348), United Commercial Bank Ltd. v. U.P. Bank Emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Estate v. Workmen (C.A. 516 of 1966 dec on October 26, 1967 ) and Ruby General Insurance. Co. Ltd. v. P. P. Chopra (C.A. 1735 of 1969,dec on September 12, 1969). These are, however, illustrative cases where an exception was made to the general rule. No hard and fast rule as to which circumstances would in a given case constitute, an exception to the general rule can possibly be laid down as: the Tribunal in each case, keeping the objectives of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice. In the present case the facts are fairly clear. As aforesaid, the concerned workman was trained for a period of 3 years at the cost of the company. On completion of his training the company engaged him as a skilled worker. He worked as such from September 1958 to December 1960. At the time of the termination of his service, he was working as a fitter in the blast furnace, a vital part of the company's works, where both efficiency and trust would matter. Even though he was said to have joined an illegal strike and a crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-party No. I that the report is based entirely on the trade union activities of the opposite-party in which case the -discharge would itself be improper." This observation was not warranted in view of the Tribunal's clear finding that this was not a case of victimisation or unfair labour practice on account of the union activities of the workman. The High Court further was of the view that "even if the Management terminated the services of Sri A. K. Ray, simply on the ground that it received an adverse report against him, the order of such termination of services in the circumstances cannot be treated as legal or justified." It also observed that "it was not admitted by the opposite party that there was any -adverse police report against him." But the management had examined P. B. Kanungo, the Senior Personnel Officer, who had categorically testified that the management had received such an adverse report -and on the basis of that report the company's Security Officer had recommended the termination of service of the workman, There was no cross-examination on this part of his evidence. The High Court, therefore, was not entitled to proceed on the basis as if the fact of such adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell-settled principles made. If the High Court were to do so, it would be 'a refusal on its part to exercise jurisdiction. In the present case, there could be no dispute that the company, in accordance with its practice, called for a verification report about the concerned workman. The report was made by the police after investigation and on that being adverse, the company's security officer recommended to the company that it was not in the interests of the company to retain the workman's services. There can be no doubt that the company terminated the service of the workman only because it felt that it was not desirable for reasons of security, to continue the workman in its service. This is clear from the fact that it was otherwise not interested in terminating the workman's service and had in fact insisted that the workman should bind himself to serve it at least for five years. The termination of service was not on account of victimisation or unfair labour practice as was clearly found by the Tribunal. It is, therefore -abundantly clear that the company passed the impugned order of termination of service ' on account of the said adverse report, the recommendation of its own sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration, the disregard of which would render its order amenable to interference, would be the well-settled principles laid down in decisions binding on the tribunal to whom the discretion is entrusted. The refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise, its jurisdiction. Its order, therefore, becomes liable to interference. There is, therefore, no difficulty in holding that the order of reinstatement passed by the Tribunal was liable to be quashed and that the High Court erred in refusing to interfere with it merely on the ground that it could not do so as it was a case where the Tribunal had exercised its discretion. The question next is', having held that the order of reinstatement was not a proper order, in that, it was not in consonance with the decided cases, do we simply quash the order of the Tribunal and that of the High Court and leave the concerned workman to pursue his further remedy ? The other alternative would be to remand the case to the, Tribunal to pass a suitable order. In either case, in view of this judgment, no other order except that of compensation can be obtained by him. If the case is remanded and th ..... 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