PETITIONER: MANAGEMENT OF BORPUKHURIE TEA ESTATE Vs. RESPONDENT: PRESIDING OFFICER, INDUSTRIAL TRIBUNAL ASSAM AND ANR. DATE OF JUDGMENT01/03/1978 BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. CITATION: 1978 AIR 992 1978 SCR (3) 439 1978 SCC (2) 667 ACT: Industrial Disputes Act, (Act XIV), 1947, S. 33(3)(b)- Amendment of an application changing the section applicable should be allowed by the Tribunals. HEADNOTE: Under Section 3 3 (2) (b )'of Industrial Disputes Act, 1947 during the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, the employer may in accordance with the Standing Orders applicable to the workmen concerned, in such dispute for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise that workman, provided that the workman has been paid his wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. Under s. 33(b)which overrides Section 33(2) no employer, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dis- pute by discharging or punishing whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Agreeing with the findings of the Enquiry Officer contained in the report submitted by him in respect of the allegation of grave misconduct under Cl. 10(a) (2) of the Standing Orders of the appellant's establishment, as applicable to Respondent No. 2, a protected workman, the Management decided to dismiss, him. As respondent No. 2 was a workman and an Industrial Dispute being reference No. 35 of 1964, was pending before the Industrial Tribunal, Assam at Gauhati, the management could not straightway dismiss the respondent. Accordingly, by its letter dated November 10, 1966, the Management informed respondent No. 2 that he had been found guilty of the charge contained in the charge- sheet served on him on September 19, 1966 and that he would be dismissed from service of the Company but that the punishment would-not be put into effect pending orders of the competent authority Under s. 33 of the Act. and in the, meantime, he would remain under suspension. On the same date, an application was made by the Management-appellant before Respondent No. 1, under s. 33(2) of the Act. Respondent No. 2 while admitting by his letter dated November 17, 1976, that he was not yet dismissed as per letter dated 10th November, 1966 but only had to be under suspension without pay till the decision of the authority concerned, requested the appellant to allow him to avail the privileges of drawing ration (at per staff ration rate) and to have free supply of tea and firewood, as per rules. Thereafter, on December 24, 1966, the respondent filed before the Industrial Tribunal a complaint under s, 33A of the Act alleging contravention of the provision$ of s. 33 of the appellant praying for a decision in the matter. On June 27, 1967 when the appellant's original application under s. 33(2)(b) of the Act was till pending, the appellant made an application to the Industrial Tribunal praying that the said application be treated as one under s. 33(3)(b) of the Act. By his order dated July 10, 1967, Respondent No.1 refused to treat the Management's original application under s. 33(2) of the Act as one under s. 33(3)(b) 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. The writ application filed by the appellant in the Assam High Court assailing the said orders was dismissed with the observation that the punishment of dismissal 440 having already been infficted without complying with the provisions of s. 33(3) (b) of the Act, an Ex Post Facto permission could not be granted. Allowing the appeal by special leave the Court HELD : 1. The Courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked into and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. 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. [444 F-G] Western India Match Co. v. Workmen, [1963] 2LLJ 459 at p. 464 applied. 2. The Labour Courts and Tribunals are compete-.it to allow the parties when they are not actuated by any oblique motive to modify their pleadings to subserve the interest of justice. [445 A] Patna Electric Supply Co. 'Ltd. Patna v. Bali Bai & Anr. [1958] S.C.R. 871, followed. 3. In the present case :-(a) The appellants original application being, in fact andin substance for permission under s. 33(3) of the Act, The Tribunal should dispose of the I same in conformity with law after going into the following points 1. Whether it is conclusively proved that the signatures of the Manager of the Borpukburie Tea Estate on the aforesaid cheque No. 53 were forged ? 2. What 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 ? 3. Whether a prima facie case for dismissal of the respondent is made out by the appellant? 4. whether the appellant's decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimisation ? 5. Whether the respondent was entitled to any payment in the interegnum between the conclusion of the enquiry and the final order of the Tribunal ? [445 A-E] [The Court gave further directions to dispose of the matter with utmost despatch not exceeding six months of the receipt of the order after going into the points suggested] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1764 of
1971.
(Appeal by Special Leave from the Judgment and Order dt. the
18th September, 1970 of the Assam & Nagaland High Court at
Gauhati in Civil Rule No. 236 of 1967)
F. S. Narinian, P. H. Parekh & S. N. Choudhari
For the Appellant
K. P. Gupta & B. B. Tawakley
For Respondent No. 2
441
Ex-Parte : For Respondent No. 1
The Judgment of the Court was delivered by
JASWANT SINGH, J.-This appeal by special leave s 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 Ganguli, respondent No. 2 (hereinafter referred to as
‘the respondent’) was employed in the Borpukhurie Tea Estate
belonging to Bishnauth Tea Company Ltd. (which is engaged in
the cultivation and manufacture of tea and employs a large
number of workmen of various 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, 1947 (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 Borpukhurie Tea Estate was encashed from a local
banker. On enquiry, 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 10(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 upon him to
submit 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 his
defence. At the conclusion of the enquiry, the Enquiry
Officer submitted his report stating therein that the
material adduced in the course of the enquiry proved that
the respondent 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 workman and an industrial
dispute, being reference No. 35 of 1964, was pending before
the Industrial Tribunal, Assam at Gauhati, the Management
could not straightaway dismiss the respondent. Accordingly,
by its letter dated November 10, 1966, the Management
informed the respondent that he had been found guilty of the
charge contained in the charge sheet served on him on
September 19, 1966 and that he would be dismissed from
service of the Company but that 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. The communication dated November
10, 1966 written on behalf of the appellant to the
respondent ran as under:-
442
“Shri N. K. Canguli,
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 pending orders
of the competent authority under section 33 of the
Industrial Disputes Act, 1947 and in the meantime you will
remain tinder suspension. As my enquiry into the charge
against you has concluded, you will not receive any
subsistence allowance during this period of suspension.
Yours faithfully,
Sd/1- 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 section 33(2) of the Act. On November 17, 1966, the
respondent addresed the following communication to the
Manager of the Borpukhurie Tea Estate :-
“The Manager,
Borpukhurie Tea Estate,
Charail P.O.
Sir,
It appears to me from your letter dated 10-11-
66 that I am not yet dismissed, only I have to
be on suspension without pay till you receive
any decision from the authority..
So, as I am not yet dismissed, you will allow
me to avail the privilege in connection with
any service with the Company as below and
other if there are.
(1) Ration “Rice & Atta” (As per staff
ration rate)
(2) Tea “Free of cost’ (Still 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
2’nd Clerk.”
443
On December 24, 1966, the respondent filed 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 appellant 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 Tribunal
praying that the said application be treated as one under
section 33(3)(b) of the Act. This application is reproduced
below for facility of reference :-
“1.- 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.
2. That a reading of the application will
clearly indicate 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.
3. That even the Management’s letter dated
10th November, 1966 addressed to Sri N. K.
Ganguli will also indicate that action was
being taken U/s 33(3) of the I.D. Act.
It is, therefore, prayed that the, Hon’ble
Tribunal may be pleased to treat the
application as one U/s 33(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 application under section 33 (2) of the Act as one
under section 33 (3) (b) 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 work-man ‘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 Constitution 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 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 permission
could not be granted. It is against this order that the
Management has come up in appeal to this Court.
Appearing in support of the appeal, Mr. Nariman has urged
that though it may be open to an Industrial Tribunal to
withhold the permission contemplated by section 33 (3) (b)
of the Act if it finds that an employer has not been able to
make out a prima facie case justifying 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
444
Industrial Tribunal to hold that the appellant had violated
the provisions of section 3 3 (3) (b) of the Act or to
refuse to accede to the prayer of the appellant to treat its
original application dated November 10, 1966 as one under
section 33 (3) (b) of the Act ignoring the Teal substance
thereof.
We find considerable force in the submissions made by Mr.
Nariman. The facts 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 respondent which expressly stated that as
the latter had been found guilty after due enquiry, he would
be dismissed from service of the Company 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 privileges of rations etc.
connected with his service on the plea that he had not ‘yet’
been dismissed, 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 10(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 Auction 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 the real pith and substance of
the application. The courts charged with the duty of
administering justice have to remember that it is not the
form but the substance of the matter that has to be looked
to and the parties cannot be penalised for inadvertent
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 Workmen(1) 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 ascertainment of
the substance deserve careful attention.”
It is equally important for the Court 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 ‘lie facts and
circumstances of the case and the purport of the
observations of this Court
(1) [1963] 2 L.L.J.459,464.
445
in Patna Electric Supply Co Ltd. Patna 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 to 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 industrial
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 :-
1. Whether it is conclusively proved that the
signatures of the Manager of the Borpukhurie
Tea Estate on the aforesiad cheque No. 5 3
were forged ?
2. What 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 ?
3. Whether a prima facie case for dismissal of
the respondent is made out by the appellant ?
4. Whether the appellant’s decision to dismiss
the respondent was bona fide or was it an
outcome of any unfair labour practice or
victimisation ?
5. Whether the respondent was entitled to any
payment in the interregrium between the
conclusion of the enquiry and the final order
of the Tribunal ?
Accordingly, we allow the 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 application dated November 10, 1966 as
one under section 33 (3) (b) of the Act and to dispose of
the same with utmost despatch not exceeding six months of
receipt of the order, after going into the point get out
above. The parties shall be allowed to- adduce such
evidence as they may like in respect of the aforesaid
points. The costs of this appeal shall be 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.
S.R.
Appeal allowed.
(2) (1958) S.C.R. 871.
446