JUDGMENT
U.N. Sinha, C.J. and K.B.N. Singh, J.
1. The petitioner has applied under Articles 226 and 227 of the Constitution of India, praying that an award given by the Central Government Industrial Tribunal No. III at Dhanbad, dated the 4th July, 1969, be quashed. By this award, the Presiding Officer of the Tribunal has held that the action of the management in terminating the lien of Shri Babu Lal, miner and placing him in the “Badli” list with effect from 8th June, 1966, was not justified and, therefore, Shri Babu Lal shall be paid leave wages and allowances admissible to him between the period from 25th April, 1966 to 14th June, 1966, and he is entitled to be reinstated with full back wages from 15th June, 1966, up to the date of his reinstatement, along with continuity of service.
2. The relevant facts are as follows : The Central Government, being of the opinion that an industrial dispute had existed between the petitioner and their workmen referred the following dispute to the Central Government Industrial Tribunal, Dhanbad:
Whether the management of the Jamadoba Colliery of Messrs. Tata Iron and Steel Company Limited, Post Office Jealgora, District Dhanbad, was justified in terminating the lien of Shri Babu Lal miner, and placing his name in the ‘Badli’ list with effect from 8th June, 1966.
If not, to what relief is the workman entitled?
The case was ultimately transferred to the Tribunal which gave the award in Reference No. 46 of 1968. The case of the employer was that Shri Babu Lal was granted 21 days’leave, with effect from 25th April, 1966 to 15th May, 1966, on the ground of illness of his son. A medical certificate, dated the 9th May, 1966, had been received by the management on the 17th May, 1966, wherein it was stated that absence from duty for one month was necessary for Babu Lal for the restoration of his health. The certificate had not been accompanied by any application for extension of the leave already granted and so the manager of the colliery had informed Shri Babu Lal by letter, dated the 25/26th May, 1966, that no extension of the leave had been granted and the workman was being marked absent from 16th May, 1966, and that necessary action would be taken against him according to the company’s standing orders. As Shri Babu Lal had not returned within eight days of the expiry of the leave originally granted to him and offered any satisfactory explanation for his inability to return, he lost his lien on his appointment, according to the management, and he was kept in the “Badli” list and he was so informed by the management by letter, dated the 8th June, 1966. Shri Babu Lal however, turned up at the colliery and filed an application on the 15th or 16th June, 1966, (a matter which is not very clear), requesting that he may be allowed to join his duty and stating that he had sunstroke and had been admitted in the hospital. As stated earlier, the final order terminating the lien had already been passed by then, and the management did not act on any further material. The Koyala Mazdoor Panchayat, Jharia, filed a written statement on behalf of the concerned workman, alleging that after Shri Babu Lal had been granted leave for 21 days, he had proceeded to his village home and had fallen ill there and he had sent an application for extension of his leave on 9th May, 1966, by registered post, with a medical certificate, which had been received by the management on 17th May, 1966. It may be mentioned here that there is no dispute that no fresh application had been filed for the extension of the leave already granted and that only a medical certificate had been received by the management. The intimation sent by the management, dated the 25/26th May, 1966, had been received by the workman concerned on 1st June, 1966. According to the Panchayat, Shri Babu Lal had got a certificate from the Mukhiya of the Gram Panchayat and had sent it by registered post on 7th June, 1965, and on his recovery he had obtained another medical certificate from the same doctor on 12th June, 1966, and a certificate from the Mukhiya on the 13th June, 1966, and had presented himself at the colliery on 15th June. It may be mentioned again, at this stage, that, by the time the first certificate obtained from the Mukhiya had been produced before the management, the order of termination had already been made on the 8th June. According to the Panchayat, a grave injustice had been done to Shri Babu Lal when he was ill and, therefore, unable to join his duty.
3. On behalf of the management, Standing Order No. 9 was relied upon, which has been quoted in extenso in paragraph 10 of the award. On the terms of this standing order, reliance was placed on the principle of law, laid down by their Lordships of the Supreme Court, in the case of National Engineering Industries Limited, Jaipur v. Hanuman reported in 1967-II L.L.J. 883. It was contended that, when the concerned workman had not returned within eight days of the expiry of the leave and had not given an explanation to the satisfaction of the manager of his inability to return before the expiry of leave, his service came to an automatic termination, as has been held by the Supreme Court of India. The Presiding Officer of the Tribunal has held that, although internal administration, including the enforcement of discipline of the personnel, is the concern of the management, modern concept of social justice recognises that an employee should be protected against vindictive or capricious action on the part of the management. According to the Presiding Officer, arbitrary conduct or unnecessary harshness on the part of the employer, judged by the normal standard of a reasonable man, inay be cogent evidence of victimisation or unfair labour practice. In that view of the matter, the Presiding Officer has stated that he was at liberty to examine the explanation offered by the concerned workman for his absence and other circumstances to find out whether the management had acted honestly or not. Thereafter, on a consideration of the medical certificate, granted on 9th May, 1966, and the certificate granted by the Mukhiya of the Gram Panchayat, dated the 6th June, 1966, he has come to the conclusion that the management had acted in an arbitrary manner and, therefore, the concerned workman was entitled to the reliefs mentioned earlier.
4. Learned Counsel for the petitioner has argued that, if Standing Order No. 9 applied in this case, the award must be quashed, in view of the law laid down by the Supreme Court of India in the case mentioned above. Learned Counsel has also urged, that the principle laid down by This Court in the case of Pure Kustore Colliery v. Khan Mazdoor Congress reported in 1969-I L.L.J. 133, following the decision of the Supreme Court, also points to the same conclusion, making the award a wrong one. In the absence of any contest by any of the respondents, the learned Counsel for the petitioner has himself drawn our attention to another judgment of This Court, in the case of Employers in relation to the Malkera-Choitudih Colliery v. Their Workmen and Ors. Civil Writ Jurisdiction Case No. 655 of 1969, decided on 5th August, 1971 : 1972-I L.L.J. 364. In this case, the applicability of a similar standing order, with respect to a miner, was considered by a Bench of This Court and it was held that, on the terms of the Standing Order No. 9, it did not apply to the case of a miner. With respect to the case of Pure Kustore Colliery v. Khan Mazdoor Congress (supra), it was stated that on the point decided in that case, Pure Kustore Colliery’s case was not an authority which could govern the case under consideration. Learned Counsel for the petitioner has distinguished the decision in Employers in relation to the Malkera-Choitudih Colliery v. Their Workmen and Ors. (Civil Writ Jurisdiction Case No. 655 of 1969, decided on 5th August, 1971; 1972-I L.LJ. 364, on the terms of reference there and has stressed his point on the term of reference made in this case, quoted aboVe. Having considered the decision of their Lordships of the Supreme Court in the case of National Engineering Industries Ltd., Jaipur v. Hanuman reported in 1967-II L.L.J. 883, and the decision in the case of Pure Kustore Colliery v. Khan Mazdoor Congress (supra), we are of opinion that, in the facts and circumstances of the instant case, it is not possible to hold, at this stage, that Standing Order No. 9 was not applicable to Shri Babu Lal miner. It may be mentioned that in Pure Kustore
Colliery’s case (supra), the reference was in the following terms:
(1) Whether the action of the management of Pure Kustore Colliery of Pure Kustore Colliery Company Ltd., P.O. Kusunda (Dhanbad), in terminating with effect from 13th May, 1965, the lien on the appointment of Sri Dudhu Bhar, miner of pit No. 4, and placing his name in the badli list, is not an act of victimization ?
(2) If so, to what relief is the workman entitled ?
At no stage of that case it had been argued that Standing Order No. 9 was not applicable to the concerned workman there, a miner. The terms of Standing Order No. 9 in Pure Kustore Colliery’s case had also made an exception in the case of a miner or loader. In the present case also, the reference had proceeded on the footing that the management had terminated Shri Babu Lal’s lien and had placed him in the “Badli” list, presumably in view of Standing Order No. 9 of this case, and the question in dispute was whether the order was justified or not. All parties had proceeded before the Tribunal on the basis that Standing Order No. 9 was applicable and the only question that was agitated was whether the management had acted rightly under that standing order, or whether the concerned workman could say that the action of the management was mala fide, arbitrary or capricious, as the Presiding Officer has mentioned. In Employers in relation to the Malkera-Choitudih Colliery v. Their Workmen and Ors. Civil Writ Jurisdiction Case No. 655 of 1969 1972-I L.LJ. 364, the reference was in the following term:
Whether the management of the Malkera-Choitudih Colliery of Messrs. Tata Iron and Steel Company Limited was justitied in refusing to grant extension of leave to Shri Saudagar Dusadh, miner, for ten days with effect from the 10th December, 1965?
It not, to what relief is the workman entitled ?
There was no reference of any termination of lien and putting the miner on the Badli list at all. No doubt at the time of the consideration of the case before the Industrial Tribunal, the management had relied upon Standing Order No. 9, but the Tribunal had come to a definite conclusion, that that Standing Order had no application to the concerned workman in that case. In the light of these facts and circumstances, a Bench of This Court held in that writ case, that Standing Order No. 9 was not applicable to the workman, a miner. Therefore, in our opinion, that decision is quite distinguishable. To hold in the instant case, that Standing Order No. 9 was not applicable to the concerned workman would really be going behind the reference. As indicated above, the Presiding Officer has stated at the end of the award that the action of the management in terminating the lien of Shri Babu Lal and placing him in the Badli list with effect from 8th June, 1966, was not justified on the facts of the case. If the Presiding Officer had come to the conclusion that Standing Order No. 9 was not applicable and that the action taken by the management had amounted to a termination of the service of Shri Babu Lal in some other manner the Tribunal would really have gone beyond the terms of the reference and that was not permissible for it to do. Reference may be made in this context to a decision of the Supreme Court of India, in the case of Delhi Cloth and General Mills Company Ltd. v. The Workmen and Ors. reported in 1967-I L.L.J. 423 : . It was held by the Supreme Court that the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto, clarifying, that the meaning of matters incidental thereto mean something happening as a result of, or in connection with the dispute, or associated with the dispute. The entire dispute in the instant case was whether the management had rightly or wrongly taken steps under Standing Order No. 9 and it is difficult to hold that the Tribunal could come to the conclusion that Standing Order No. 9 was not applicable to Shri Babu Lal and that something different had happened other than what was referred to for adjudication. If it be held that Standing Order No. 9 was not applicable at all, it will really amount to holding that the entire foundation of the dispute between the parties, as mentioned in the order of reference, was non-existent and that the true dispute was something else, as was mentioned by their Lordships of the Supreme Court in the case under reference. In such circumstances, we must proceed on the footing that the Tribunal was correct in approaching the case on the interpretation of Standing Order No. 9 and coming to its conclusion on the evidence led by the parties in that context and on the facts and circumstances of the case. In our opinion, the conclusion of the Tribunal about the arbitrary action of the management is really perverse in law. It is stated in paragraph 14 of the award that an employee should be protected against vindictive or capricious action on the part of the management and it is stated in paragraph 15 that an inquiry may be made as to whether the management had acted with honest purpose or not. But, in coming to the conclusion that the action of the management in not accepting the medical certificate or certificate of the Mukhiya of the Gram Panchayat was arbitrary, no conclusions have been given as to any vindictiveness or capricious action or absence of bona fides on behalf of the management. With reference to the medical certificate or certificate of the Mukhiya of the Gram Panchayat, it may be mentioned that the medical certificate was not accompanied by any application for extension of the period of leave already granted to Shri Babu Lal although the Panchayat had made out a case that an application had also been forwarded. Then it may be noted that the order putting Shri Babu Lal in the Badli list was dated 8th June, 1966, whereas the Mukhiya’s certificate had been produced after Shri Babu Lal had returned, either on the 15th or 16th June, 1966. Therefore, the Tribunal was in error in the approach, when it stated that the management had not characterised the certificate granted by the Mukhiya as spurious and, therefore, the management was not right in rejecting the Mukhiya’s certificate. The entire approach of the Tribunal made in paragraphs 14 to 17 of the award is an erroneous approach, without a consideration of the real points which had arisen in the case. Therefore, the conclusion of the Tribunal to the effect that the action of the management was arbitrary cannot be upheld as a finding valid in law. It has been repeatedly laid down by their Lordships of the Supreme Court of India that Tribunals must be careful in considering whether mala fide existed or not and any conclusion on that point must be made carefully on sufficient and proper evidence. In that view of the matter, we must hold that the award is vitiated in law. For these reasons the award must be quashed. As no one has appeared to oppose this application, there will be no order for costs.
5. The interim order of stay stands vacated.