Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Writ Jurisdiction Case No. 533 of 1967

Judges

R.L Narasimham, C.J
B.N Jha, J.

See more information ...

Smart Summary

Judgment Summary — Application under Arts. 226 & 227 (B.N. Jha, J.; Narasimham, C.J. concurred)

Factual and Procedural Background

This is an application under Articles 226 and 227 of the Constitution seeking to quash an award dated 15 July 1967 of the Central Industrial Tribunal, Dhanbad. The tribunal set aside the termination of the employee Bhajan Dusadh by the petitioner-employers and directed his reinstatement with consequential reliefs.

Relevant facts as found by the tribunal and presented to this Court:

Bhajan Dusadh (the workman) was a trammer at No. 4 pit of the petitioners' colliery.
He took leave from 30 November to 17 December 1964 and applied for a three-week extension on medical grounds; the petitioners refused and directed him to join by 28 December 1964.
The workman did not report on 28 December; he returned on 27 January 1965 with a medical certificate dated 26 January 1965 from Dr. A. Mukherjee stating he was treated for arthritis (knee joints) and fit to resume duty on 27 January 1965.
On 29 January 1965 the petitioners issued a show-cause notice; thereafter they struck his name off the permanent roll and placed him on the badli list under the standing orders. The workman contended he had been ill, produced an earlier outpatient slip (Ex. W.1) and blamed victimization for union activity.
The tribunal accepted the workman's account (including his testimony and documentary exhibits) and found victimization. It ordered reinstatement with full back-wages and other benefits as if service had been continuous.
The petitioners filed the present writ application to quash the tribunal's award. No rebuttal witnesses were called by the petitioners before the tribunal; some exhibits by the petitioners and the workman were admitted with consent.

Legal Issues Presented

Whether the tribunal's finding that the workman was ill and therefore could not join duties was supported by legal evidence such that the award could stand.
Whether the medical certificate produced by the workman was admissible and could be relied upon in the absence of examination of the doctor.
Whether the tribunal had jurisdiction to interfere with the employer's disciplinary action (placement on badli list/termination) — specifically when the employer relies on standing orders that automatically displace a workman for absenteeism.
Whether the tribunal was entitled to set aside the employer's action and order reinstatement on the ground of victimization (mala fide) and disproportionate punishment.

Arguments of the Parties

Petitioners' Arguments (Employers)

The dispute was merely an individual dispute (not an industrial dispute), and reference to the tribunal was without jurisdiction; this point was not pursued before the tribunal and was not pressed in this Court.
The workman's account of illness was inconsistent at different stages (chest and stomach pain, then arthritis of knee joints, reference to "lackwa" in show-cause), showing the illness story to be untrue.
The medical certificate from Dr. A. Mukherjee could not be relied upon because he was not examined and because he was an eye specialist (ophthalmologist), making his certificate less credible for the ailments claimed.
Under the standing orders (Order 11), the workman automatically lost his lien by failing to report within eight days and his placement on the badli list was therefore lawful; the tribunal lacked jurisdiction to interfere with the employer's disciplinary measure.
Reliance on authority (National Engineering Industries v. Hanuman and Caltex (India) v. Eugene Fernandes) to argue that tribunal findings should be set aside where medical evidence was improperly admitted or where the tribunal cannot reassess punishment unless mala fide is alleged.

Workman's Arguments

The workman asserted he was genuinely ill (outpatient treatment at Central Hospital, Jagjiwan Nagar, Dhanbad, from 7–24 November 1964; Ex. W.1) and therefore could not resume duty by 28 December 1964.
He returned on 27 January 1965 with a medical certificate dated 26 January 1965 from Dr. A. Mukherjee (Ex. W.2) and had not been given an opportunity by the employer to substantiate his excuse before being placed on badli list.
He alleged victimization: he was an active member of the Khan Mazdoor Congress branch and was singled out, whereas a list of 36 other workmen who overstayed after leave were not similarly punished.
The workman presented his evidence (examined as W.W.2) and supporting documents; the petitioners did not produce rebutting witnesses before the tribunal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
National Engineering Industries, Ltd., Jaipur v. Hanuman	Where a medical certificate was not properly admitted in evidence and there was no corroborative evidence, the tribunal's finding of illness was perverse and could be set aside by the appellate court.	The Court distinguished that case because here the medical certificate (Ex. W.2) was admitted in evidence with the consent of the employers and its genuineness was not challenged; therefore the National Engineering decision did not compel setting aside the tribunal's finding.
Caltex (India), Ltd. v. Eugene Fernandes	Industrial tribunals generally have no jurisdiction to consider whether the punishment imposed by an employer is harsh or excessive; the measure of punishment is ordinarily within the employer's discretion.	The Court accepted the principle but clarified that if punishment is actuated by mala fide motive or victimization, the tribunal may inquire and interfere. Thus Caltex did not bar tribunal interference where victimization is established.
Indian Iron and Steel Company, Ltd. v. Their Workmen	Sets out circumstances in which a tribunal may interfere with management's termination of service: (i) want of good faith, (ii) victimization or unfair labour practice, (iii) basic error or violation of natural justice, (iv) when the finding is completely baseless or perverse.	The Court applied these principles to hold that, because the tribunal found victimization on the evidence before it, interference by the tribunal with the employer's action was justified.
Hind Construction and Engineering Company, Ltd. v. Their Workmen	Where punishment is so disproportionate that no reasonable employer would have imposed it, the tribunal may treat the punishment itself as evidence of victimization or unfair labour practice.	The Court relied on this reasoning to conclude that the management's termination of the workman, contrasted with lenient treatment of 36 other overstaying employees, could be treated as disproportionate and indicative of victimization; therefore the tribunal's interference was justified.

Court's Reasoning and Analysis

The Court’s analysis proceeded by (a) evaluating the evidential foundation of the tribunal's factual findings, (b) considering the relevance and admissibility of the medical certificate, and (c) applying established principles governing when a labour tribunal may interfere with management discipline.

Evaluation of evidence of illness:
The petitioners argued the tribunal's finding that the workman was ill was perverse and unsupported, relying on the absence of examination of the issuing doctor and on inconsistencies in the workman's statements. The Court observed that the medical certificate (Ex. W.2) was admitted in evidence with the consent of the employers and its genuineness was not challenged before the tribunal. The tribunal had direct testimony of the workman (W.W.2) and the secretary of the union (W.W.1), together with documentary exhibits (Exs. W.1 and W.2). Given that record, the Court concluded the tribunal's finding of illness was based on legal evidence and was not a finding amenable to interference on the ground that it was perverse.
Admissibility of the medical certificate:
Petitioners contended the certificate was inadmissible because the issuing doctor (an ophthalmologist) was not examined. The Court noted that admission was by consent of the parties and that the employers never challenged the certificate's genuineness before the tribunal. Therefore, the Court held that the tribunal was entitled to place reliance on the certificate as part of the evidentiary material supporting the workman's case.
Jurisdiction to review disciplinary action and victimization:
The petitioners relied on standing orders and precedent to argue automatic loss of lien and that the tribunal should not reassess the employer's disciplinary choice. The Court recognized the general rule (per Caltex and related authorities) that an industrial tribunal does not act as a court of appeal to reassess a sanction so long as the management acts in good faith. However, citing Indian Iron and Steel and Hind Construction, the Court reiterated that a tribunal may interfere when there is want of good faith, victimization, violation of natural justice, or when a sanction is wholly disproportionate.

The tribunal had found victimization: it received evidence of union membership, examined witnesses, summoned membership records and noted absence of rebuttal evidence from the employer; in those circumstances the tribunal concluded the allegation of victimization was true. The Court found this factual conclusion to be based on evidence and, because victimization was established, the tribunal was justified in setting aside the termination and ordering reinstatement.
Distinguishing adverse precedent:
The Court distinguished the National Engineering decision relied upon by petitioners because, there, medical evidence had not been properly admitted and there was no corroboration — whereas here the certificate was admitted with consent and was not challenged.
Remedy and proportionality:
The Court accepted the tribunal’s view that the employer treated the present workman more severely than 36 other workmen who had similarly overstayed after leave, supporting the conclusion that the termination was disproportionate and could be regarded as victimization.

Holding and Implications

APPLICATION DISMISSED

Direct effect on the parties:

The tribunal's award setting aside the termination and directing reinstatement with full back-wages and other benefits stands upheld by this Court.
The writ application under Articles 226 and 227 was dismissed; the petitioner was ordered to pay a hearing fee of Rs. 100.

Broader implications:

The Court applied established Supreme Court principles to confirm that an industrial tribunal may interfere with an employer's disciplinary action where victimization, mala fide motive, or disproportionate punishment is shown. The opinion does not purport to announce a new legal principle or a novel departure from existing precedent; rather it applies existing authorities to the facts of this case.

Bench: B.N. Jha, J. delivered the opinion; Narasimham, C.J. concurred. Application dismissed (order dated 15 July 1967 was the tribunal award; the present Court's order dismissing the writ application is recorded in the text).

Show full summary ...

Pure Kustore Colliery v. Bhajan Dusadh And Others

B.N Jha, J.:— This is an application under Arts. 226 and 227 of the Constitution of India for quashing the award, dated July 15, 1967, of the Central Industrial Tribunal, Dhanbad, setting aside the termination of the employee Bhajan Dusadh by the petitioner-employers and directing his reinstatement with other consequential reliefs (annexure I).

2. Workman Bhajan Dusadh (opposite party 1, hereinafter referred to as the workman) was a trammer of No. 4 pit of the colliery of the petitioners.

3. He went home after taking leave from November 30 to December 17, 1964. He applied for extension of his leave by three weeks on the ground that he was suffering from pain in the chest and stomach, but the petitioners refused to grant leave and by their letter dated December 21, 1964, they informed him that extension of leave prayed for had not been granted and directed him to join his duties before December 28, 1964. The workman did not come on that date, but presented himself on duty on January 27, 1965 along with a medical certificate of fitness granted to him by Dr. A. Mukherjee, z. o., Academy of Medicine (Vienna) (Specialist in Ophthalmology), Durga Pharmacy, Lakhisarai, dated January 26, 1965, stating therein that Bhajan Dusadh, village Duddi, Lakhisarai, was suffering from arthritis—knee joints. He was under his treatment from December 24, 1964, and that he was fit to join his duty from January 27, 1965. On January 29, 1965, the petitioners served a letter on the workman to show cause as to why he should not lose his lien of his appointment and his name be not placed in the badli list. The workman showed cause but the petitioners were apparently not satisfied with his explanation and as such, struck off his name from permanent roll and kept him on the badli list. The case of the workman was that he was not keeping good health and was an outdoor patient of Central Hospital of Jagjiwan Nagar, Dhanbad, from November 7 to 24 1964. He produced the outdoor patient slip (Ex. W. 1). As he was still not well he applied for leave for three months for going home in order to recoup his health but the petitioners only granted him fifteen days' earned leave. When the workman received the letter from the petitioners asking him to join his duties on December 28, 1964, he was still ill and was not in a fit condition to take the journey. After he recovered from his illness he returned to duty on January 27, 1965, with a medical certificate (Ex. W. 2) dated January 26, 1965 from Dr. A. Mukherjee of Lakhisarai. No inquiry was held by the petitioners nor was the workman given an opportunity to substantiate his case as to why he could not resume his duties before January 27, 1965. The workman further contended that as he was an active member of the Khan Mazdoor Congress branch he was victimized by the petitioners. A list of 36 workmen was filed before the tribunal to show that though they overstayed for more than eight days from 1963 to June 1967 (sic), their services were not terminated because they did not belong to Khan Mazdoor Congress branch. It may be mentioned here that no rebutting evidence by the petitioner-employers was adduced in the case.

4. The contention of the petitioners was that the dispute was not an industrial dispute but it was merely an individual dispute and as such the reference to the tribunal was without jurisdiction. The matter was referred to the conciliation officer by the secretary of Khan Mazdoor Congress branch and the conciliation failed. The dispute was thereafter referred by the Central Government as an industrial dispute. This point, however, was not pressed before the tri-bunal. Here also Sri Ranen Roy, learned counsel for the petitioners, as usual fairly conceded that it was not possible for him to raise that point in this Court as the matter was not pressed before the tribunal. The petitioners further contended that the workman's story of illness was untrue as he made out different stories at different stages. Initially his case was that he was suffering from pain in chest and stomach and in the medical certificate it was mentioned that he was suffering from arthritis—knee joints—and in the show-cause petition he stated that he was suffering from lackwa and was under the treatment of Dr. A. Mukherjee. It was further contended that as Dr. A. Mukherjee was an eye specialist the medical certificate granted by him could not be relied upon. Lastly, it was urged before the tribunal that as the workman did not turn up within eight days of the expiry of the leave and offer satisfactory explanation the workman automatically lost lien of his appointment and as such his name was struck off from the permanent roll and was kept on the badli list as is provided under order 11 of the standing orders for the workmen of the colliery. There was no case of victimization as under the terms of the standing order the workman was rightly placed in the badli list and the tribunal had no jurisdiction to interfere in the matter.

5. In support of his case the workman examined himself as W.W 2 and Rajballav Prasad, secretary of Khan Mazdoor Congress branch (W.W 1). A number of documents were also filed on his behalf which were marked Exs. W. 1 and W. 2 with the consent of the petitioner-employers. No witness was examined on behalf of the petitioners but Exs. E. 1 to E. 5 were marked with the consent of the workman. The tribunal accepted the case of the workman that he was in fact ill and as such he could not join his duties as required by the employers. As the workman belonged to Khan Mazdoor Congress branch he was victimized. In the result, the tribunal ordered the reinstatement of the workman with full back-wages and other benefits as though his services had been continuous and never terminated.

6. Sri Ranen Roy, learned counsel for the petitioners, submitted that the finding of the tribunal was perverse and as such the order that there was legal evidence on record to show that the workman was actually ill and was not in a position to return to his duties and was under the treatment of a doctor could not be sustained. According to him, the medical certificate of Dr. A. Mukherjee of Lakhisarai was inadmissible in evidence as the doctor was not examined in this-case. In that connection he further submitted that the doctor was an eye specialist and as such the certificate granted by him could not be relied upon and the tribunal should not have relied upon it. He further contended that the only evidence of illness was that of the workman himself. There was nothing to corroborate his testimony. The evidence given by the witnesses has been made annexures to the writ petition. It is not the case of petitioners that there is no evidence before the tribunal to come to the finding that the workman was ill during the relevant period. The medical certificate was admitted in evidence with the consent of the employers. In such circumstances,. it could not be said that the medical certificate was not legally admitted in evidence and no reliance could have been placed by the tribunal. The tribunal has given good reasons for accepting the evidence of the workman (W.W 2) keeping in view the medical certificate granted by Dr. A. Mukherjee which was never challenged by the employers as not genuine. It is true that the tribunal should have in its judgment discussed the evidence given by the workman himself and the evidence of the secretary (W.W 1) but there is no doubt in my mind that it considered the evidence of the witnesses and rightly came to the finding that the workman could not return to his duties for reasons beyond his control. Sri Roy relied on a decision of the Supreme Court in National Engineering Industries, Ltd., Jaipur v. Hanuman (1) wherein the Supreme Court reversed the decision of the tribunal which was the subject-matter of appeal. In that case it was held that as the medical certificate was not properly admitted in evidence and there was no corroborative evidence to support the evidence of the workman himself, the finding of the tribunal was taken to be perverse. In such circumstances, the Supreme Court, as a Court of appeal, set aside the finding of the tribunal regarding the illness of the workman. This Court is not a Court of appeal and we can interfere with the finding of the tribunal only on the ground that the finding was based on no evidence in the case. The tribunal accepted the case of the workman which was supported by his own evidence and by the medical certificate, which was admitted in evidence with the consent of the employers and the genuineness of which was never challenged before the tribunal. In such circumstances, there is no illegality committed by the tribunal. Thus, there is no force in the contention.

7. On the basis of the Supreme Court decision Sri Roy further contended that in terms of the standing order of the colliery the name of the workman was struck off from the roll of permanent workmen and was placed on the badli list and as such the workman was not entitled to any relief in this case. In that case it was held that the workman's services terminated automatically under the standing order and as such application of Section 33(a) was not maintainable for contravention of the provisions of Section 33 of the Act. No question of mala fide was alleged in that case. There was no case of victimization. In the present case the workman alleged that he as was an active member of Khan Mazdoor Congress branch the employers took drastic action in this case, whereas in the case of 36 workmen who were not members of Khan Mazdoor Congress branch though absented for more than eight days after the expiry of their leave their names were not transferred to the badli list. Their services were not terminated and their names were not placed in the badli list. The Supreme Court decision is, therefore, of no assistance to learned counsel for the petitioners.

8. Sri Ranen Roy, further submitted that it is for the management to decide as to what punishment it should impose on the workman for the offence committed by him. The management put the workman in the badli list according to its standing orders as he did not present himself within eight days of the expiry of leave and offer explanation for it. Hence he contended that the tribunal had no jurisdiction to interfere in the matter. In that connection he drew our attention to a decision of the Supreme Court in the case of Caltex (India), Ltd. v. Eugene Fernandes (2) wherein it has been held that the industrial tribunal has no jurisdiction to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive and that the measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself which is the punishment commensurate with the offence which has been proved against the workman. It is true that it is for the management to decide as to the measure of punishment it should inflict on the guilty workman provided it is done bona fide. If the punishment given to the workman is actuated by mala fide motive or victimization, the industrial tribunal has a right to go into that question and decide how far the action of the management should be justified in the circumstances of the case. The Supreme Court in the case of Indian Iron and Steel Company, Ltd. v. Their Workmen (3) has laid down the circumstances in which the industrial tribunal can exercise its powers of interference in the matter of termination of service of workmen by the management and to give relief to him. It has held as follows:

“Undoubtedly, the management of a concern has power to direct its own internal administration and discipline, but the power is not unlimited and when a dispute arises industrial tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct the tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere

(i) when there is a want of good faith,

(ii) when there is victimization or unfair labour practice.

(iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and

(iv) when on the materials the finding is completely baseless or perverse.”

9. The tribunal has found, as a matter of fact, as follows:

“the workmen have alleged that the termination of the service of the workman was the result of victimization for his being an active member of the union and examined W.W 1 and W.W 2 and summoned the membership register. There is no rebuttal evidence. Under the circumstances the allegation appears to be true.”

10. I have held above that this finding of the tribunals is based on legal evidence. In such circumstances, after having come to the above finding the tribunal could interfere in the matter of termination of service of the workman on the ground of victimization. Thus, no question of jurisdiction arises in the present case. The Supreme Court in a recent decision in the case of Hind Construction and Engineering Company, Ltd. v. Their Workmen (4) has held that although it is a settled rule that the award of punishment for misconduct is a matter for the management to decide and if there is any justification for the punishment imposed, the tribunal should not interfere; but where the punishment is so disproportionate that no reasonable employer would ever have imposed it in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. In the present case the management terminated the services of the workman because he overstayed after the expiry of his leave, whereas in the case of other 36 workmen who were not the members of the Khan Mazdoor Congress branch though they overstayed for more than eight days after the expiry of leave but their services were not terminated and they were not put in the badli list. The tribunal found that in the case of this workman the major punishment of termination of service was imposed simply because he was an active member of the union. Therefore, in such circumstances, the punishment was so severe and out of proportion that it itself could be treated as an act of victimization. Hence, the tribunal was justified in interfering with the order of termination of service of the workman passed by the management. Thus, there is no force in the contention of Sri Roy which must be overruled. For the reasons stated above, there is othing in order of the tribunal which calls for interference by this Court. The application is accordingly, dismissed. Hearing fee Rs. 100.

Narasimham, C.J:— I agree.

11. Application dismissed.

Pure Kustore Colliery v. Bhajan Dusadh And Others

Judgment Summary — Application under Arts. 226 & 227 (B.N. Jha, J.; Narasimham, C.J. concurred)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (Employers)

Workman's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Pure Kustore Colliery v. Bhajan Dusadh And Others

Comments