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TMI Blog1969 (12) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of 3 years. On completion of his training, he was appointed in September 1958 as a skilled workman, i.e., as a fitter. The letter of appointment under which he was engaged contained a clause which required him to execute a bond to serve the company for five years at least. The object of that clause evidently was to ensure that he served the company at least for five years in consideration of the company having borne the expenses of his training. The evidence produced before the Industrial Tribunal shows that the practice of the company, set 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected reinstatement with full 'back wages. The company filed a writ petition in the High Court for quashing the said order. Before the High Court the company urged (a) that the termination of the service of respondent 1 was in bona fide exercise of the employer's right to do so, (b) that it did so only because of the said adverse report and (c) that even if it was held that the said order was not legal or justified, the proper relief to be granted to the respondent in the circumstances of the case was compensation and not reinstatement, which meant imposition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y's action involved an important principle, in that, an employer cannot be allowed to terminate the services of his employees on police reports which are not disclosed to the workmen or before the Tribunal, and therefore, are not open to the workmen to challenge. Such a course, he argued, would enable an employer to put an end to the service of a workman not because he is in fact a danger to the establishment but is merely a member of a party or an association whose views and policies such an employer does not like. In such a case, he submitted, the termination 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 latt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyer and the employee, where the post held by the aggrieved employee had been one of trust and confidence-or where though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of prejudicial to the interests of the industry. These cases are to be found in Assam Oil Co. Ltd. v. Workmen [1966] 2 S.C.R. 434 Workmen of Charottar Gramodhar Sahakari Mandali Ltd. v. Charottar Gramodhar Sahakari Mandali Ltd.(C.A. 382 of 1966, dec on August 14, 1967), Doomur Dulung Tea 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orkmen. Even in criminal cases -an investigating officer is not compelled to disclose the name of his informant. But the Tribunal appears to have been impressed by the company's refusal to disclose the report although it was clearly a confidential report. The Tribunal thought that such a report might have been made by a person who was not a responsible police officer or that it might be based on mere rumour or hearsay evidence and might not be of a very convincing nature. The High Court went one step further and observed that it might be "as contended by opposite-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 justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is one of those exceptions to the general rule. If the Tribunal were to exercise its discretion in disregard of such circumstances or the principles laid down by this Court it would be a case either of no exercise of discretion or of one riot legally exercised. In either case the High Court in exercise of its writ jurisdiction can interfere and cannot be content by simply saying that since the Tribunal has exercised its discretion it will not examine the circumstances of the case to ascertain whether or not such exercise was properly and in accordance with the well-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 desirab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. On a consideration of all the circumstances, the present case, in our view, was one such case. The Tribunal exercised its discretion mechanically without weighing the circumstances of the case. That was no exercise of discretion -at all. There is ample authority to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant considerations or without regard to relevant considerations, certiorari may properly issue to quash its order. [See S.A. de Smith, Judicial Review of Administrative Action, (2nd ed.) 324-325]. One such relevant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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