Management of Borpukhurie Tea Estate v. Presiding Officer, Industrial Tribunal Assam and Anr.

JASWANT SINGH, J.-Tbis appeal by special leave _is directed against the judgment and order dated September 18, 1970 of the High Court of Assam and Nagaland passed in Civil Rule No. 236 of 1967 filed by the present appellant.

The facts giving rise to this appeal are : Shri Naresh Kumar Gan-guli, respondern No. 2 (hereinafter referred to as 'the respondent') was employed in the Borpukhurie Tea Estate belongmg to B1shmrnth Tea Company Ltd. (which is engaged in the cultivation and m~nu­ facture of tea and employs a large number of workmen of vanous categories to carry on its business) as a 2nd Clerk and was recognised as a 'Protected Workman' within the meaning of section 33(3) of the Industrial Disputes Act, 194 7 (hereinafter referred to as 'the Act'). On September 11, 1966, the Company's cheque No. 53 which allegedly bore the forged signatures of the Manager of the Borpukirnrie Tea Estate was encashed from a local banker. On en-quiry, Mansid Munda, the factory chowkidar stated that the cheque was cashed under instructions of the respondent and proceeds thereof amounting to Rs. 680/- were handed over to the latter at the garden office. As the act of the respondent prima facie constituted a grave misconduct under clause lO(a) (2) of the Standing Orders of the Es-tablishment, a charge sheet was served on him on September 19, 1966 accusing him of obtaining money through Mansid Munda from the local banker by forging the Manager's signatures on the aforesaid cheque and calling npon him to snbmit his explanation in regard thereto which he did on September 22, 1966. As the explanation tendered by the respondent (which was one of denial) was found to be unsatisfactory, an enquiry into the charge was held by Mr. R. R. L. Pennoll, Superintendent of the Company. The respondent who was present throughout the enquiry was afforded opportunity to cross-examine the witnesses produced on behalf of the Company and to produce evidence in bis defence. At the conclusion of the en-quiry, the Enquiry Officer submitted his report stating therein that the material adduced in the course of the enquiry proved that the res-pondent was guilty of grave misconduct as envisaged by the aforesaid clause of the· Standing Order. The Management, therefore decided to dismiss the respondent. As the respondent was a protected work-i_nan and an industrial dispute, ~ing reference No. 35 of 1964, was pend" mg before the lndl!stnal Tnb?na!, Assam at Gauhati, the Manage-me~t could not straightaway d1sm1Ss the respondent. Accordingly; by its letter dated November 10, 1966, the Management in.fanned the n~pondent that be had been found guilty of the charge contained in the charge sheet served on him on September 19, 1966 and that he :vmud be dismissed from .service of the Company but that the pumshment. would not b~ put mto effect pending orders of the compe.. tent authonty under section 33 of the Act, and in the meantime he would remain under suspension. The communication elated No~eni­ ber 10, 1966 written on behalf of the appellant to the respondent ran as under :- --

"Shri N. K. Ganguli, 2nd Clerk,

Borpukhurie T.E.

P.O: Charali.

Dear Sir,

You are hereby informed that you have been found guilty after due hearing of your case as prescribed by Standing Orders of the charge served on you in my letter of the 19th September, 1966.

You are accordingly informed that you will he dismissed from the service of the company.

This punishment will not be put into effect pend;ng orders of the ·C competent authority under section 33 of the Industrial Disputes "A ct,

1947 and in the meantime you will remain under suspension. As my enquiry into the charge against you has concluded. you wilt not receive any subsistence allowance during this period of suspension. Yours faithfully, Sd/- W« P. swer, Assistant-in-Charge." On the same date, an application was made by the Management before the Presiding Officer, Industrial Tribunal, Gauhati under s-ec-tion 33(2) of the Act. On November 17, 1966, the respondent ad-dresed the following communication to the M'l)1ager of the Borpu-khnrie Tea Estate :-

''The Manager, Borpukhurie Tea Estate, Charail P.O.

Sir,

It appears to me from your letter dated 10-11-66 that l am not yet dismissed, only I have to be on suspension with-out pay till you receive any decision from the authority.

So, as l am not yet dismissed, you will allow me to avail the privilege in connection with any service with the I Company as below and other if there are.

(I) Ration "Rice & Atta" (As per staff ration rate) (2) Tea ~'Free of cost" (Stilt I am due to get a month

ration) (3) Fire-wood "Free of cost (Already to get for the

further months of the year).

I will be happy of your early action in this matter. Soliciting an early confirmation.

Yours faithfully, Sd/- N. K. Ganguli 2nd Clerk."

On December 24, 1966, the respondent flle<l before the Indus-trial Tribunal a complaint under section 33A of the Act alleging contravention of the provisions of section 33 of the Act by the appel-lant and praying for a decision in the matter. On June 27, 1967, when its original application under section 33(2) (b) of the Act was still pending, the appellant made an application to the Industrial Tri-bunal praying that the said application be treated as one under sec- 't I tion 33 ( 3 )(b) of the Act. This application is reproduced below

for facility of reference :-

"J. That in submitting the application U/s. 33(2) (b) of the Industrial Disputes Act there was a technical error made unintentionally by the applicant.

¶2That a reading of the application will clearly indi-cate that the Management in fact intended to, comply with the provisions of section 33 (3) of the Act and not of section 33(2) of the said Act, although the application is described as such.

¶3That even the Management's letter dated I Oth November, 1966 addressed to Sri N. K. Ganguli will also indicate that action was being taken U/s 33(3) of the l.D. Act.

It is, therefore, prayed that the Hon'ble Tribunal may be pleased to treat the application as one U Is 3 3 ( 3) of the Industrial Disputes Act and for this etc."

---~ By his order dated July 10, 1967, the Presiding Officer of the

Industrial Tribunal refused to treat the Management's original appli-cation under section 33(2) of the Act as one under secdon 33(3) (bl of the Act and rejected the same as not maintainable holding that the Management had violated the provisions of the Act in dismissing the respondent who was admittedly a protected workman 'without obtaining the permission from the Tribunal'. Aggrieved by this order, the Management filed an application before the High Court under Article 226 of the Con·stitution seeking issuance of a writ of certiorari or mandamus or any other appropriate writ quashing the aforesaid order dated July 10, 1967 of the Industrial Tribunal but I the same was dismissed with the observation that the punishment of

dismissal having already been inflicted without complying with the provisions of section 33(3) (b) of the Act, an Ex Post Facto pennis-sion could not be granted. It is against this order lhat the Manage-ment has come up in appeal to this Court .

Appearing in support of the appeal, Mr. Narirnan has urged that though it may be open to an Industrial · Tribunal to withhold the per-mission contemplated by section 33 (3 )(b) of ihe Act if it finds tliat an employer has not been able to make out a prima facie case justi-fying dismissal of a workman or if it finds that there is material to establish that the employer was guilty of unfair labour practice or victimisation, there was no justification in the instant case for the

Industrial Tribunal to hold that the appellant had violated the pro-visions of section 33(3)(b) of the Act or to refuse to accede to the prayer of the appellant to treat its original application dated Novem-ber 10, 1966 as one under section 33(3) (b) of the Act ignoring the real substance thereof.

We find considerable force in the submissions made by Mr. Nariman. The !'acits and circumstances of : the case especially the underlined portions of the correspondence reproduced above i.e. the appellant's very first letter dated November 10, 1966 to the respon-dent which expressly stated that as th~ latter had been found guilty after due enquiry, he would be dismissed from service of the Com-pany but the punishment would not be put into effect pending orders of the competent authority under section 33 of the Act and in the meantime he would remain under suspension, and the respondent's own application dated November 17, 1966 to the Management for permission to avail of the privileg!'._s of rations et~. c?nnected with his service on the plea that he had not 'yet' been dLSmtssed, as also the averments in the ultimate part of paragraph 10 of the appellant's application dated November 10, 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under clause lO(a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him, and the Industrial Tribunal and the High Court were manifestly wrong in making deduction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellant's prayer to treat its original application as one under section 33(3) (b) of the Act and in so doing missed tile real pith and substance of the application. The courts charged wrth the duty of administering justice have to remember that it is not tbe form but tbe substance of the matter that has to be looked to and the parties cannot be penalised for inadvertant errors committed by them in the conduct of their cases. The following observations made by this Court in Western India Match Company Ltd. v. Their r Workmen(') are opposite in this connection:-

Again, as in most questions which come before the Courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertain-ment of the substance deserve careful attention."

It is equally important for the Courts to remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably. ·

Keeping in view therefore the totality of the facts and circum-stances of the case and the purport of the observations of this Court llORPUKHURlE TEA ESTATE v. ASSAM l.T. (Jaswant Singh, J.) 44 5 in Patna Electric Supply Co Ltd. Patn,1 v. Bali Bai & Anr.( 1) to the effect that the Labour Courts and Tribunals are. competent to allow the parties ·when they are not actuated by any oblique motive tq modify their pleadings to subserve the interests of justice, we are of the view that the present is an eminently fit case in which the indus-trial Tribunal should treat the appellant's original application which was in fact and in substance for permission as one under section 33(3){b) of the Act and dispose of the same in conformity with law after going into the following points:-

¶1Whether it is conclusively proved that the signatures of the

Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 53 were forged? '

¶2What became of the report which appears to have been

made by the appellant to the police in respect of the said cheque and what is the impact of the result of that report on the truth or otherwise of the alleged forgery?

I

¶3Whether a prima facie case for dismissal of the respon-

dent is made out by the appellant ?

¶4Whether the appellant's decision to dismiss the respon-

dent was bona fide or was it an outcome of aqy unfair labour practice or victimisation ?

¶5Whether the respondent was entitled to any payment in

the interregnum between the conclusion of the enqury and the final order of the Tribunal ?

Accordingly, we allow tlie appeal, quash the aforesaid orders of the Industrial Tribunal and the High Court and remit the case to the former with the direction to treat the appellant's aforesaid applica-tion dated November 10, 1966 as one under section 33(3) (b) of the ~ct and to dispos~ of the same with utmost despatch not exceeding six months of receipt of the order, afte! going into the poirits set out above. The parties shall be allowed to adduce such evidence as they may 1L1<e ?e ii; respect of the aforesaid points. The costs of this appeal shall paid by the appellant to the 2nd Respondent Workman which is quantified at Rs. 1500/-. The order in C.M.P. 5411/71 shall stand.

(2) (1958)S.C.R. 871.

1 l-277SCI/78

CML APPELLATE JURISDICTION: Civil Appeal No. 1764 of 1971- -- -- (Appeal by Special Leave from the Judgment and Order de. the 18th September, 1970 of the Assam & Nagaland High Court at Gauhati in Civil Rule No. 236 of 1967)

F. S. Nariman, P. H. Parekh & S, N. Choudhari For the Appellant K. P. Gupta & B. B. Tawakley For Respondent No. 2 · BORPUKHURIE TEA ESTATE v. ASSAM l.T. (Jaswant Singh, J.) 4 ·l I

Ex-Parte : For Respondent No. 1