Orissa Cement Limited, Rajgangpur v. Their Workmen And Another

Gajendragadkar, J.— In this appeal by special leave the appellant M/s Orissa Cement Ltd., challenges the correctness and the validity of the award passed by the Industrial Tribunal directing it to reinstate its workman Shiv Sagar Singh, the respondent, to his former post of electrical wireman and pay him all his back wages from 11-2-1956, the date of his discharge. This award was pronounced in a reference made to the Industrial Tribunal in regard to the discharge of the respondent.

2. It appears that the respondent was appointed by the appellant as a temporary wireman on 5-7-1951, on a salary of Rs 2 per day. Early in 1951 the Electricity Inspector of the State of Orissa who had visited the appellant's factory informed the appellant that only such wiremen could be permitted to work who passed the requisite examination and possessed a permit in that behalf. Subsequently intimation was received by the appellant from the Secretary, Licensing Board, that all electricians and wiremen working in the factory should be directed to appear in the ensuing year's examination. The appellant then sent a list of its wiremen who did not possess the requisite permit and requested that they be exempted from appearing for the prescribed examination. This request was refused and the appellant was told to ask all its wiremen to appear for the examination. Accordingly all the wiremen appeared for the examination but the respondent failed. Thereupon the appellant applied to the Industrial Tribunal to discharge him and others from service, and the Tribunal permitted the appellant to discharge the respondent and others who had failed if they failed to pass the examination at a second chance.

3. Meanwhile the Secretary, Licensing Board, had agreed to give the appellant's wiremen who had failed at the first attempt another chance to appear for the examination at the request of the appellant; accordingly such of the appellant's wiremen including the respondent who had failed at the first attempt appeared for the examination again. Even at the second chance the respondent did not succeed, and so the appellant terminated his services on 11-2-1956. At the time of his discharge all his dues were paid to him.

4. The respondent then made a complaint under Section 23 of the Industrial Disputes (Appellate Tribunal) Act 48 of 1950 that he had been wrongly discharged on 11-2-1956, during the pendency before a bench of the Appellate Tribunal of an appeal in which he was concerned. His contention was that Section 22 of the Appellate Act of 1950 had been contravened by the appellant. The Appellate Tribunal held that the appellant had not contravened Section 22 of the said Act and so the complaint made by the respondent was not maintainable. No doubt it found that there was nothing in the Orissa Government Electricity Rules which prohibited the employment of the respondent in the appellant's service merely because he had failed to pass the wiremen's permit examination; even so it was satisfied that the appellant had acted bona fide and was justified in terminating the respondent's service.

5. After this decision was pronounced the said termination of the respondent's services was raised as an industrial dispute and the same was referred to the Industrial Tribunal for adjudication. There is no doubt that, since the decision of the Appellate Tribunal on a complaint made under Section 23 of the Appellate Act of 1950 was based on a preliminary finding that Section 22 had not been contravened, an industrial dispute in regard to the same subject-matter could be raised. That is how the said dispute came before the Industrial Tribunal for adjudication as an industrial dispute.

6. Before the Tribunal the appellant urged that the finding of the Appellate Tribunal in the earlier proceedings instituted by the respondent under Section 23 of the Appellate Act of 1950 amounted to res judicata and so it was not open to the Tribunal to consider the validity or the propriety of the impugned order of discharge in the present proceedings. The tribunal has held that on the earlier occasion the Appellate Tribunal has found that there was no contravention of Section 22 and that was really decisive of the proceedings. The alternative finding made in the said proceedings on the merits is no more than obiter and cannot be pleaded in support of the bar of res judicata. We are not prepared to hold that this view is erroneous. Therefore, in our opinion, the Tribunal was justified in dealing with the merits of the present dispute.

7. On the merits the Tribunal has found that there is no law or statutory rule which compelled the appellant to discharge the respondent on the ground that he has not obtained a permit, and according to it the appellant should have told the department that in the absence of a statutory rule it was not bound to comply with the requisition issued by the department that all wiremen should obtain a permit before the appellant employed them as such. The tribunal conceded that there is no mala fides about the action of the appellant; but it held that the appellant acted under a mistaken notion about the effect of the electricity rules, and so in its opinion the discharge of the respondent was not justified. It has also observed that the appellant might have given the respondent an alternative appointment as a telephone operator which did not require any permit. It is on these findings that the impugned order of reinstatement has been passed.

8. It is perfectly true that there is no law or statutory rule which compelled the appellant to terminate the services of the respondent on the ground that he had not obtained a permit; but, on the other hand, it seems to us that the department is fully justified in insisting upon all wiremen being duly qualified before they are appointed as such. Whether or not the statutory rule justifies such a request is really not material. The request is made in public interest because it is obviously desirable that wiremen should be duly qualified and one of the well-recognised methods of testing such qualifications is to require the candidate concerned to appear for an examination held in that behalf. Therefore, even in the absence of a statutory rule, if the department desired that the appellant should appoint qualified wiremen and the appellant complied with the request we see nothing wrong or improper about it.

9. It is not alleged or proved that the appellant has singled out the respondent and has kept other wiremen though they may not have obtained a permit by passing the examination. Such a plea appears to have been made in the earlier proceedings by the respondent but it was rejected; it had not been proved in the present proceedings either. Therefore, it is clear that the appellant had acted bona fide and in the interest of efficient work in that it has discharged all the wiremen who failed to obtain the necessary permit. We are unable to see how such conduct can be treated as anything but bona fide.

10. It is not denied that the department was insisting that the appellant should require its wiremen to obtain the necessary permit; but it is urged that when the respondent was appointed on 5-7-1951, he should have been expressly told that he would not be confirmed unless he obtained the necessary permit after passing the examination; and in that connection reference is made to the fact that the appellant must have already received a letter from the department in that behalf and yet it did not make it a condition of the respondent's appointment. It is true that the letter in question which was addressed to the appellant by the department bears the date 3-7-1951, but it is not shown that the appellant had received it before July 5 when it appointed the respondent as a temporary wireman, and so failure to provide for such a condition in the temporary appointment cannot be used against the appellant. Besides, the respondent was admittedly a temporary employee, and if it appeared that the department began to insist that every wireman must pass the examination and refused to grant exemption to anyone, the appellant cannot be blamed for asking the respondent to qualify himself in that behalf. In fact it was at the appellant's instance that the department allowed the respondent to take another chance and permitted him to appear at the second examination. Therefore there is no substance in the argument that the appellant did not act bona fide in discharging the respondent.

11. In dealing with the question of bona fides the Tribunal appears to have lost sight of the fact that it is for the party alleging mala fides to lead reliable evidence in support of the said plea. In the present case we see no trace of any such evidence; and so it is difficult to sustain the ultimate finding of the Tribunal that the order of discharge should be set aside and the appellant should be ordered to reinstate the respondent.

12. The tribunal has no doubt observed that the respondent should have been taken as a telephone operator. We do not see how this can have a material bearing on the question with which the Tribunal was concerned. The respondent was appointed as a wireman, and if the appellant was justified in discharging him as such there was no obligation on the appellant to give the respondent another employment on its staff. Besides, it is somewhat significant that on an earlier occasion when wiremen were appointed as telephone attendants by rotation the union itself had objected to such a course on the ground that a wireman would thereby lose his skill as a wireman. In any event, the failure to provide an alternative employment to the respondent cannot lead to the inference that the termination of his services as a wireman is unfair.

13. In the result the award passed in favour of the respondent cannot be sustained and must be set aside. The appeal is accordingly allowed. The learned Solicitor General who appeared for the appellant has assured us that though the appeal is allowed the appellant would pay to the respondent ex gratia an amount of Rs 500. We have no doubt that the appellant will carry out this promise. There will be no order as to costs.