# AIR INDIA CORPORATION, BOMBAY v. V. A. REBELLOW & ANR

- **Citation:** [1972] 3 S.C.R. 606
- **Court:** Supreme Court of India
- **Decided:** 1972
- **Bench:** C. A. Vaidialingam, I. D. Dua 0And G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/air-india-corporation-bombay-v-v-a-rebellow-anr-5572
- **Pages:** 16

## Headnote

Industrial Disputes Act (14 ·Of 1947), ~'- '33(1 )(b), 33(2)(b)
and
33A-Tenninntion of servic~~ 0/ en1p/oy~e-NOt for
111is-:onduct-Approval of Tribunal not obtained~Legalil•y.
The respondent htid be.en employed by the appellant as an Assistant
Station Superintendent. An order was passed· terminating his services with
immr~diate effect with P'1Yment of one month's salary in lieu of notice.
He filed a complaint under s. 33A of the Industrial Disputes Act, 1947
before the Labour Court before which. 1.1n industrial dispute was pending.
<J,lleging that the tcrn1ination of hf.s service was illegal for tl'r! reason
inter a/ia tlY.tt the approval of the Labour Court for such termination was·
not obtained.
Th~ uppellunt contended thut the respondent was not a
•.vorkman and thal hr.! was ·not conC:e'rned in the industrial dispute pending
in the Labour Court.
Pursuant to the directions of the Latour Court,
the appellant filed v. written statement in which it was pleaded that without
prejudice to the contention that this .case should be decided on the aforesaid
preliminary points raised by the appellant the order of termination of the
respondents' services was valid because his services were terminated under
Regulation 48 of the Air India Employees' Service Regulations framed
with previous app'roV':ll of the Central Govenunent, and under that regu ..
lation the services of a permanent employee may be terminated without
assigning any reason. It was added that without prejudice to the plea
that the appellant W'"JS not bound to discl~e any reason for terminating
the services of the respondent, the latrer•s services weTe terminated because of the appellant's total Jo-s of confiden~.e in the respondent on
account of gtave suspicioJns regarding his private cpnduct and behaviour
with the Air Hostess';?s of the appelJ-:in.t-Corporation.
The Labour Court
held on the preliminary
question
that
the respondent was a workman concerned in the industrial_ dispute pending before it and that his di··charge was in breach of s. 33 of the Act.
On the question whether t11c action taken by .tltc_?· appellant. W'3S hit
by s. 33 of the Act,
,\
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HELD: (1) Section
33(1)(b) bans the dischargi::
or punishment.
whether by dismissal or otherwise. of a workman for misconduct connected with a pending dispute \Vithout the express permiso::ion in writing
G
of the authority dealing with the pending proceeding.
Section 33(2) (b)
places a similar ban in reg:ird to matters not connected with the pendin~
dispute; but the employe:r is free, to discharge or dismiss a workman by
paying wages for one month provided he applies to the authority dealing
with the pending proceeding for approval of the action
taken.
Whether
lhe ~ction is taken under'· 33(l)(b) ors. 33(2)(b), the ban is imposed
bnly in regard to c.ction tokerr for misconduct whether corinected or un-·
connected with the dispute. Unlike under s. 33(3) which gives a blanket
R
protection to 'protected workmen•, an employer is free to take. action
against other workmen if it is not based orl any misconduct on their part.
f617B-D, C-Gl
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AIR INDIA v: v. A. REBELLOW (Dua,. J.)
60 7
l2) ln the present case, on the fac,e of it, the language of the order·
Jo~s not show th3t the respondent's services were terminated because of
any misconduct.
Prima· facie, therefore, the impugned order was not an
order discharging Or punishing the respondent for any misconduct. r618A-·
BJ
( 3) Action under Reg. 48 can be validly tak•!n by an employer at
his Sweet-will without assigning any reason, and he is not bound to disclose
why
he
does not want to continue in service a particular employee.
r620D-E1
( 4) It is however open to the restbondent to urge that reliance on.
Reg. 48 V.'as not bona fide and 'that it was a colourabl~ exercise of the
right confe:rred by the Regu!ation, because, the form of .the order is not
decisive and attending circumstances are open to consideration though th~
motive
ftJr the order, if not n1alafi

## Text

_Characters 0–39,942 of 40,944. This is a partial read: ask again with offset=39942 for what follows._

•
·•
606
AIR INDIA CORPORATION, BOMBAY
v.
V. A. REBELLOW & ANR.
Februarv 24. 1972
(C. A. VAIDIALINGAM, I. D. DUA
0AND G. K. MITTER, JJ.J
Industrial Disputes Act (14 ·Of 1947), ~'- '33(1 )(b), 33(2)(b)
and
33A-Tenninntion of servic~~ 0/ en1p/oy~e-NOt for
111is-:onduct-Approval of Tribunal not obtained~Legalil•y.
The respondent htid be.en employed by the appellant as an Assistant
Station Superintendent. An order was passed· terminating his services with
immr~diate effect with P'1Yment of one month's salary in lieu of notice.
He filed a complaint under s. 33A of the Industrial Disputes Act, 1947
before the Labour Court before which. 1.1n industrial dispute was pending.
<J,lleging that the tcrn1ination of hf.s service was illegal for tl'r! reason
inter a/ia tlY.tt the approval of the Labour Court for such termination was·
not obtained.
Th~ uppellunt contended thut the respondent was not a
•.vorkman and thal hr.! was ·not conC:e'rned in the industrial dispute pending
in the Labour Court.
Pursuant to the directions of the Latour Court,
the appellant filed v. written statement in which it was pleaded that without
prejudice to the contention that this .case should be decided on the aforesaid
preliminary points raised by the appellant the order of termination of the
respondents' services was valid because his services were terminated under
Regulation 48 of the Air India Employees' Service Regulations framed
with previous app'roV':ll of the Central Govenunent, and under that regu ..
lation the services of a permanent employee may be terminated without
assigning any reason. It was added that without prejudice to the plea
that the appellant W'"JS not bound to discl~e any reason for terminating
the services of the respondent, the latrer•s services weTe terminated because of the appellant's total Jo-s of confiden~.e in the respondent on
account of gtave suspicioJns regarding his private cpnduct and behaviour
with the Air Hostess';?s of the appelJ-:in.t-Corporation.
The Labour Court
held on the preliminary
question
that
the respondent was a workman concerned in the industrial_ dispute pending before it and that his di··charge was in breach of s. 33 of the Act.
On the question whether t11c action taken by .tltc_?· appellant. W'3S hit
by s. 33 of the Act,
,\
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E
HELD: (1) Section
33(1)(b) bans the dischargi::
or punishment.
whether by dismissal or otherwise. of a workman for misconduct connected with a pending dispute \Vithout the express permiso::ion in writing
G
of the authority dealing with the pending proceeding.
Section 33(2) (b)
places a similar ban in reg:ird to matters not connected with the pendin~
dispute; but the employe:r is free, to discharge or dismiss a workman by
paying wages for one month provided he applies to the authority dealing
with the pending proceeding for approval of the action
taken.
Whether
lhe ~ction is taken under'· 33(l)(b) ors. 33(2)(b), the ban is imposed
bnly in regard to c.ction tokerr for misconduct whether corinected or un-·
connected with the dispute. Unlike under s. 33(3) which gives a blanket
R
protection to 'protected workmen•, an employer is free to take. action
against other workmen if it is not based orl any misconduct on their part.
f617B-D, C-Gl
!\
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AIR INDIA v: v. A. REBELLOW (Dua,. J.)
60 7
l2) ln the present case, on the fac,e of it, the language of the order·
Jo~s not show th3t the respondent's services were terminated because of
any misconduct.
Prima· facie, therefore, the impugned order was not an
order discharging Or punishing the respondent for any misconduct. r618A-·
BJ
( 3) Action under Reg. 48 can be validly tak•!n by an employer at
his Sweet-will without assigning any reason, and he is not bound to disclose
why
he
does not want to continue in service a particular employee.
r620D-E1
( 4) It is however open to the restbondent to urge that reliance on.
Reg. 48 V.'as not bona fide and 'that it was a colourabl~ exercise of the
right confe:rred by the Regu!ation, because, the form of .the order is not
decisive and attending circumstances are open to consideration though th~
motive
ftJr the order, if not n1alafi(le, is not open to question. f619H;
6208-C]
fVorknien o/ .St1dder Office, Cinnamara v. Afanagcment, [19711 II L.L.J.
610, Chartered Bank,
Bonibav v. Chartered Bank
Emploxees'
Union.
[1960] l[ L.L.J.-
222 and Tcta Oil
Mills Co.
Ltd. v.
Wori:rner,
[1964] ][ L.L.J. 1!3, referred to.
(5) But the reason of the employer for the terminating the services o'f
his employee need not be his misconduct but may, inter-alia, be want of
full satisfaction with the employee's' overall suitability in the job assigned
to the employee. Such want of satisfaction does not imply misconduct of
the employee. r620E-Fl
(6) 'fhe loss of confidence in the pres.ent case canno.t be considered
to be mc;lafide.
Assuming that the re'3.SOn stated in the appellant's written
statement could be taken into account, the bona fides of .the appellant in
making the impugned order could not be challe.nged. The respondent had
to deal with Air hostesses in the performanc~ of his duties and if the
app~llant was not fuUy s'3.tisfied beyond -"SUSP.icion about his general conduct and behaviour while dealing with them it could not be said that ·the
loss cf confidence was not bona fide.
Once bona fide loss of cofidencc
is affirmed the impugned order must be consid~red to be immune· from·
challenge.
The opinion formed by the employer about the suitability of
his crnpl_oyee for the job
assigned to him, even
though erroneou·s, if
hona {idi:' is final '3.nd not subject to review by industrial adjudication.
Such an opinion may legitimately induce the employer to tetminate the
.employee's ~ervices, but, s_uch termination c~an, on no rational glrounds ..
be considered to 'be for misconduct, and lnust therefore
be held to bepermissible and immune from challenge. [620F-H; 62\A-BJ
Manage111en~ of U. B. Dlltt & Co. v. Workmen of U. B. Dutt & Co.
[1962] Supp. 2 S.C.R. 822, distinguished.
·
[The question whether the
reason stated in the appell-:lnt's
written
stat-:ment. filed without Prejudice and pursuant to the direction of the
Labour Court could be takc11 into account, left open.1 [621E-FJ
C1v1L APPELLATE JURISDICTION: Civil Appeal No. 1339 of
1967.
Appeal by special leave from the Award dated April 28, 1967
of the Central Govemm~nt Labour Court, Bombay in Application
No. LCB-39 ol 1965.
.
608
SUPREME COURT REPORTS
[ 1972] 3 '8.C.R.
S. D. Vimdalal, S. K. Wadia, D. N. Mishra 8iild 0. C. Mathur,
A
'.for the appellant.
K. P. V. Menon, S. R. Iyer and M. S. Narasimhan, for respondent No. 1.
The Judgment of the Court was delivered by
Dua, J. This is an appeal by special leave and the appellant,
the Air-India Corporation, Bombay assails Part I of the Award
with corrigendum, date<! April 28, 1967, given by the Central
Government Labour Court, Bombay, on the complaint dated
October 16, 1965 made by Shri V. A. Rebellow, respondent no. 1
in this Court (hereinafter referred to as the complainant) under s.
33-A of the Industrial Disputes Act, 1947 (hereinafter called the
Act). The complaint was originally filed by the complainant before the National Industrial Tribunal, Delhi, (Mr. Justice G. D .
. Khosla, retired Chief Justice of the Punjab High Court) in the
.Industrial Dispute Reference No. l ·of 1964 but was later trans-
[erred to the Central Government Labour Court and numbered as
.application no. LCB 39 of 1965.
The impugned award merely dealt with the preliminary points
raised by the appellant that the complainant was not a workman
cc,ncemed in the aforesaid industrial dispute and that there was
.no breach of s. 33 of the Act with the result that the complaint
under s. 33-A of the Act was incompetenll.
The Labour Court
held the complainant to be a workman concerned in the atoresaid
-indJJstrial dispute pending before the National Industrial Tribunal
-0n the date of his dismissal and that the dismissal was not a discharge simpliciter but in breach of the provisions of s. 33.
On
this finding his complaint was held to be maintainable. The two
questions canvassed in the present appeal are ( 1) whether the
complainant was a workman and was as such concerned in the
aforesaid dispute (Industrial Dispute Reference No. 1 of 1964)
and (2) whether the termination of his service was a dismissal as
alleged by him or was a mere termination of service not amounting
to dismissal: Broad facts necessary for understanding the controversy may now be stated :
The order which was challenged as amounting to the complainant's dismissal reads :
,,
CONFIDENTIAL
Dated June 19, 1965
(Thru: The Co111mercial Manager, Cargo)
Dear sir,
It has been deci!ofed to terminate your services, which
·We hereby do with immediate effect. You will be paid
one month's salary in lieu of n<>tice,
·
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AIR INDIA V. V, A. REBELLOW (Dua, ],)
609•
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2. Please arrange IQ return, as early as possible, all items
of Corporation's property in your possession to enable us
to settle your accounts.
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3. Your accounts will be settled after checking your
commitments.
·
Yours faithfully,
AIR INDIA
Sd/- S. K. KOOKA
Commercial Director"
On July, 1 §, 1965 the complainant acknowledged the above letter
terminating his services with inunediate effect and requested for
reinstatement because according to him there was nothing to
warrant such summary termination of his services. This is what
he wrote:
" .... In this connection I have to state that I have
served the Corporation for a period of over nine years
and to the date of terminating my services, there is nothing on record which warrants that my services.should
be terminated summarily. Hence it is requested that I
be reinstated and thereafter if the Management is of the
opinion that I have done something against the interest
and the fair name of the Corporation, I be charged accordingly, given an opportunity to explain my conduct
and after everything else if I am found guilty,
ac~ion
taken ~gainst me as the management deems fit.
With the experience I have with the management's
policy towards its employees, I am confident that I will
never be deprived of the opportunity I have asked for
and more so in the light of the faithful service I have
rendered. . ..... "
The following reply was sent to the complainant on September I
1965;
"
2. I have to inform you that your services were terminated on payment of 30 days' salary in lieu of notice, in
accordance with Rule 48 of the Air-India Employees·
Service Regulations."
616
SUPREME COURT .REPORTS
[1972] 3 S.C.R.
Regulation 48 of the Air-India Employees' Ser'Vice Regulations
which was described as Rule 48 in the letter of September 8, 1965
reads as under :
•
CHAPTER VIII
Cessation of service
•
•
•
48. Termination: The service of an employee may
be terminated without assigning any reason, as under :
(a) of a permanent employee by giving him 30 days'
notice in writing or pay in lieu of notice;
(b) of an empl_oyee on probation by giving him 7
days' notice in writing or any in lieu of notice;
(c) of a temporary employee by giving him 24 hours'
notice in writing or pay in lieu of notice.
Explanation: For the purposes of this Regulation,
the word "pay" shall include all emoluments which would
be admissible if he were on privilege leave."
In the complaint under s. 33-A of the Act it was alleged by the
complainant that the order dated June 19, 1965 smacked of vindictiveness or unfair labou_r practice and that his alleged termination
was a cloak for punishing him.
No facts were, however, stated in
support of this averment. According to the averments in this complaint, Regulation 48 postulates the existence of some relISOn for
the termination of service and since the Corporation had not disclosed any reason for the termination of the complainant's service
it was requested'that the Corporation be directed to disclose the
reason, if any, for the· termination of his service.
The real grievance of the complainant, it appears, was founded on the construction of Regulation 48 as ·is clear from the following avermcnts in
para 7 of the complaint :
"The complainant submits that on a reasonable construction of the said Rule, the Opposite Party is bound to
disclose the reason if any for the said termination in the
present proceedings. The complainant submits that any
other construction would be unreasonable and make the
said rule itself unreasonable, illegal, void as also in contravention of Articles 14, 16, 19 and 311 of the Consti~
tution of India and is therefore void and inoperative."
In regard to the question of the complainant bei11g a workman
.concerned in a pending indust;riaf dispute it was a,verred that the
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AIR INDIA v. v. A. REBELLOW (Dua,!.)
611
complainant had been employed by the Opposite Party as
an
Assistant Station Superintendent (Crew Scheduling) in the grade
of Rs. 300-25-500-50-650 and was confirmed in that post with
effect from 1st December, 1963, In po.ra 8 of the complaint it
was pleaded !hat :
"the proceedings in reference no, NIT No, 1 of 1964
were and are pending before this Hou'ble Tribunal and
the Complainant is a workman concerned in the said
dispute. The Complainant says that U!H.kr the circumstances afor~aid the Opposite Parry ought to have made
an application for approval before this Hon'ble Tribunal
under Section 33 (2) of the Industrial Disputes Act, 1947
but the Opposite party has made no such application nor
has the Opposite Party intima•t>.d that it proposed to
make such an application for approval while terminating
the services of the Complainant.
The
Complainant
says; that the Opposite Party has not obtained the
approval of this Hon'ble Tribunal in writing of the action
taken by it ggalnst the Complainant."
On these averments reinstatement was cbimed by the complainant
with full b1tck wages and allowances from the date of the alleged
termination of his ser\(ic,es,
E
It appears that pursuant to directions from t})e Labour Court
the appellant filed a further written statement dated June 30, 1966
and it was submiHed :
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"Without prejudice to the contention of the Opposite
Party that this case should be decided on the preliminary points above. as raised by the Opposite Party, as
the Complainant has repeatedly made a grievance that a
written statement on merits has not even been filed and
as this Honourable Tribunal also indicated at the preliminary hearing that a written statement on merits should
in any event be kept ready and that no further time would
be given to, the Opposite Party for preparing and filing
the same, the Op1Josite Party herewith begs to submit
this further written Statement."
With these preliminary submissions it was stated as follows in
paragraph 7 :
"With reference to paragraphs 6 and 7 of the Complaint, Regulation 48 of the Air-India Employees'
Service Regulations provides inter alia, that the services
of a pennanent employee may be terminated, without
assigning any rlll!son, by giving him thirty days' notice
in writing or pay in lieu of notice. The construction
612
SUPREME COURT REPORTS
[1972] 3 S.C.R.
sought to be put upon the said Regulation by the Com·
plainant is not correct, The opposite Party denies that .
Regulation 48 is unreasonable, illegal or void or in contraven,tion of Articl,es 14, 16, 19 and 311 of the Consti~
tution of India. The said· Regulations· have been framed
with the previous approval of the Central Government
under section 45 (2)(b) of the Air Corporation Act,
1953. The Opposite Party submits tha~ it was and is
not bound to gi"'._e or disclose any reason for tenninating
the service of tlie Complainant. Any contrary view
would, it is submitted, render the said Regulation No. 48
completely nugaUQry.
However, without prejudioo to
this, the OppoSite Party says that the Complainant's
service was terminated because of Ike total loss of con·
fidence on account of grave suspicions regarding his private conduct and behaviour with Air Hostesses of the
Corporation. The reports and statements from the Air
Hostesses concerned cannot be· disclosed as they involve
the reputation and future of young and unmarried girls.
Having regard to this, the Opposite Party could not continue the Complainant in its service and it was constrained to terminate his service in accordance with Regulation 48."
The complainant's averment that he was a workman concerned in
the proceedings in the industirial dispute was denied by the appellant in the first written statement dated March 15, 1966 in j>ara
1 which reads :
"(a) Tli.e Complainant was at ·no relevant time a
'worlanan' within the meaning of that term as defined
in Section 2 ( s) of the said Act. At the time of the tttmination of his service, the Complainant was an Assistant
· Station Superintendent and was employed in an administrative/ Supervisory . capacity, drawing a total salary
amounting to Rs. 690 per month.
Moreover, it may
also be pointed out that in its Staff Notice No. 130 dated
31st March,.1956, the'Opposite Party has given a classification of its ~nnel, whereili . the category of Assistant Station Superintendents has been classified as an
"Officer" category (vide Entry no. 1/28). A copy of.
the said Staff Notice is hereto annexed and marked Ex.
No. 1. Further, the said category of Assistant Superintendents has not been included among the categories of
workmen in the dispute in Ref. No. NIT/1. of 1964
pending bel'ore the National Industrial TribiJnal composed of Shri G. D. Khosla. Besides, the C1aB11 of 9ffi"
ccrs designated as Assistant Station Superin~dents •has
always been,. and. is, represented by the Air-India OjliCen
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AIR I.NDJA v. v. A. REBELLOW (.Qua, /.)
613
Association which is not an association repr~senting any
'workmen' and which.is not a party to the dispute in the
abovementioned reference.
Further, the said class of
Officers has not at· any time presented itself before the
National Industrial Tribunal nor has it been represented
at the hearing of the said dispute by any ·of the Uniort&
representing parties nos. 2 to 7 to the said dispute.
(b) Even assu~ng, without admitting, that the
Complainant is held to be a workman (which is denied)
sub~sections · 1 and 2 of section 33, and consequently
section 33A,. have, and can have, no application having
regard to the circumstances of tlhe present case. The sub~
.iect matter of the Complaint is not a matter connected
with the dispute in the Reference before the Natipnal
Industrial Tribunal nor is the,Complainant concerned in
the said dispute. Further, sut>isection (1) (b) and subsection 2(b) of Section 33 have application only in the
case of dismissal or discharge for misconduct in the cir·
cumstances set out therein, and not to a case of termiila·
tion of service simpliciter. In the pr~ent case, ·the
Opposite Party has bona fide terminated 'the service of
the Complainant under. the provisions of Regulation 48-'
of Air India Employees' Service Regulations which are·
applicable to the Complainant. There has, therefore,
been no breach ·of the provisions of sub-section (l)(b) or
sub-section 2(b) of section 33 and unless there is such a
breach there can be no invocation of Section 33A. Oti
the contrary, the Opposite Party repeats that the said
sub-sections are inapplicable."
The complainant and the appellant both filed lists of the com·
plainant' s duties in proof . of their respective contentions, Ex. E-1 .
being the appellant's list and 9x. W-13, the complairuμit's.
The Labour Court ~eld in the impugned award that the complainant as Assistant Station Superintendent was a Junior· Officer
and as such, as determined in the Khosla Tribunal Award, was' a
workman concerned in the industrial dispute before that Tribunal
and that his discharge was not discharge simpliciter-but .in breach
of s. 3 3 of the A~t. On this view the complaint was directed to be
considered on the·merits.
·
·
·
'
:
Jn this _Couit Shri Yunadlal argued that keepin~ in view the
compla~~nt's duties it is not possible to hold that he is a workman.
Accdrding to the submission the. complainant · was an officer
whose duties 'Yete primarily supervisory and, therefore, lie could
not be described as a workman. lbe complainant, it was furths
argued, was ~t least not a workman_ oon~rned·. in th~ industrial
J 1-Lt03 tS11p. Cl./72
.
-
614
SUPREME COURT REPORTS
[1972] 3 S.C.R.
dispute pel)ding before the Khosla Tribunal.
In any event, the
action taken by the appellant, not being for misconduct on th;
part of the appellant but under Regulation 48 was not hit bys. 3.J
of the Act.
We should like first to deal with t:he applicability of ss. 33 and
33A of the Act on the assumption that the complainant was a
workman and also as such interested in a pending industrial dispute. These sections read :
"33. Conditions of servh'e etc., to remain unchanged under certain circ\lmstances during pendency of
proceedings :
( 1) During the pendency of any conciliation proceeding before a concHation 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, no employer shall,-
( a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned
in such dispute, the conditions of service applicable to
them immediately before the commencement of such
proceeding; or
(b) for any misconduct connected with the dispute,
discharge or punish, whether by dismissal or otherwise,
any workmen concerned in such dispute, save with the
express permission in writing of the authority before
which the proceeding is pending.
(2) During the pendency of any such proce~ng in
respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a work-
. man concerned in such dispute, or, where there are
no such standing orders, in accordance with the terms
of the contract, whether express or implied,
between
him and the workman,-
( a) alter, in regard to any matter not connected
with the dispute, the conditions of service applicable to
that workman immediately before the commencement
of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or
otherwise, that workman :
Provided that no such workman shall be discharged
or dismissed, unless he has been paid wages for onQ
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>\IR INDIA v. v. A. REBELLOW (Dua, J.)
615
month and an application has been made by the employer to the authority before which the proceerung is
pending for approval of the action taken by the
employer.
( 3) Notwithstanding anything contained in subsection ( 2) no employer shall, during the pendency of
any such proceeding in respect of an industrial dispute,
take any action against any protected workman concerned in such dispute-
( a) by altering, to the prejudice of such protected
workman, the conrutions of service applicable to him
immediately before the commencement of such proceedings; or
(b) 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.
Explanation.-For the purposes of ·this sub-section,
a 'protected workman', in relation to an establishment,
means a workman who, being an officer of a registered
trllde union connected with the establishment, is recognised as such in accordance with rules made in this
behalf.
( 4) In every establishment, the .number of workmen to be recognised as protected workmen for the purposes of sub-section ( 3) shall be one per cent. of the
total number of workmen employed therein subject to
a minimum number of five protected workmen and a
maximum number of one hundred protected workmen
and for the aforesaid purpose, the appropriate Government may make rules providing for the distnbution of
such protected workmen among various trade unions, if
any, connected with the establishment and the manner in
which the workmen may be chosen and recognised as·
· protected workmen.
{ 5) Where an employer makes an application to a
conciliation officer, Board, an arbitrator,
a Labour
C:ourt, Tribunal or National Tribunal under the proviso
to. sub-section ( 2) for approval of the action taken by
!}im, the authority concerned shall, without delay, hear
such application and pass, as expeditiously as possible
such order in relation- thereto as it deemed fit. .
•
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SUPREME COURT REPORTS
[1972] 3 S.C.R.
33A Special provision for adjudication as to whether
conditions of service, etc., changed during pendency or
proceedings :
Where an employer contravenes the provisions of
section 3 3 during the pendency of proceec;lings before
a Labour Court, Tribunal or National Tribunal, any
emplciyee aggrieved by such contravention, may make
a complaint in writing, in the prescribed manner to
such Labour Court, Tribunal or National Tribunal and
on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the
complaint as if it were a dispute referred to or pending
before it, in accordance with the provisions of this Act
and shall submit its award to the appropriate Government and the provisions of this
Act shall apply
accordingly."
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The basic object of these two sections broadly . speaking
appears to be to protect the workmen concerned in the dispulei!
which form the subject matter of pending conciliation proceed~
ings or proceedings by way of reference under s. 10 of the Act,
against victimisation by the employer on account of raising or
continμing such pending disputes and to ensure that those. pending
proceedings are brought to expeditious termination in a peaceful atmosphere, undisturbed by any subseq\lent cause tending to
further exacerbate the already strained relations between the It
employer and the workm,en.
To achieve this objective a ban,
subject to certain conditions, has been imposed by s. 33 on the
ordinary right of .the employer to alter the terms of his employees'
services to their prejudice or to terminate their services under the
general law governing contract of employment and s. 33A provides for relief against contravention of s. 33, by way of adjudication of the. complaints by a~ved workmen comidering them
to be disputes referred or pending in aqcordance with the provi·
sions of the Act.
This ban, however, is designed to restrict
interference with the general rights and liabilities 'bf the parties
under the ordinary la'!" within the limits truly necessary for
accomplishing the above object. ,The employer is accordingly
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left free to deal with the employees when the action concerned is
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not punitive or mala fide or does not :!mount to victimisation or
. unfair labour practice.
The anxiety of the legislature to ellectively ll'chieve. the object of duly protecting . the. workmen against
victimisation or unfair labc;>ur practices consistently with the preservation of the employer's bona fide right to maintain discipline
and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the
overall scheme of these sections.
Turning first to s. 33, sub:s.
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( 1 ) of this section deals with the case of a workman concerned
in a pending dispute who has been prejudicially ilffected by an
action in regard to a matter connected with such pending dispute
and sub-s. ( 2) similarly deals with workmen concerned in regard
to matters unconnected with such pending disputes.
Sub-section
( 1 ) bans alteration to the prejudice of the workman concerned in
the conditions of service applicable to him immediately before
the commencement of the proceedings and discharge or punishment whether by disntlssal or otherwise of the workman concerned for misconduct connected with the dispute without the express
permission in writing of the authority dealing with the pending
proceeding.
Sub-section ( 2) places a similar ban in regard to
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matters not connected with the pending dispute but the employer
is free to discharge or dismiss the workman by paying wages for
one month provided he applies to the authority dealing with the
pending proceeding for approval of the action .taken. In the
case before u& we are concerned only with the ban imposed· against
orders of discharge or punishment as contemplated by cl. (b) of
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the two sub-sections.
There are no allegations of alteration of
the· complainant's terms of service. It is not necessary for us to
decide whether the present case is governed by sub-s.
( 1) or
sub-s. ( 2) because the relevant clause in both the sub-sections is
couched in similar language and V(e do not find any difference in
the essential scope and purpose of these two &uh-sections as far as
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the controversy before us is concerned. It is noteworthy that the
ban is imposed only in regard to action taken · for misconduct
whether connected or unconnected with the dispute.
The employer is, therefore, free to take action against his workmen if it
is not basea on any misconduct on their part. In this connection
reference by way of contrast may be made·to sub-s. (3) of s. 33
which imposes an unqualified ban on the employer in regard to
action by discharging or punishing the workman whether by dismissal or otherwise. In this sub-section we do not find any restriction such as is contained in cl. (b) of sub-ss. (1) and (2).
Sub-section ( 3) protecls "protected _workman" and the reason is
obvious for_ the blanket protection of such' a workman.
The
legislature in his case appears to be anxious for the interest of
healthy growth and development of trade union movement to
ensure for him complete protection against every kind or order
of discharge or punishment because of his special position as an
officer of a registered trade union recognised as such in accordance with the rules made in that behalf.
This explains the
restricted protection in sub-ss. (1) and (2).
It is in,the background of the. purpose and scope of s. 33(1)
and (2 l that we have to consider whether the action taken against
the complainant is hit bv eitll.er of these two sub-sections. We
have seen the form and ·the language of the impugiied order. On·
618
SUPREME COURT REPORTS
(1972] 3 s.c.R.
its face the language does not show that the complainant's services
were terminated because of any misconduct.
Prima facie, therefore, the impugned order is not an order discharging or punishing
the complainant for any misconduct.
But then the complainant's
learned counsel Shri Menon argued that the face or the fom1 of the
order is not conclusive and that the Court is entitled to and indeed
should go behind the form and by looking at the real substance
of the matter try to find the real cause and then come to its conclusion whether or not the order is a mere camouflage for an
order of dismissal for misconduct.
The true legal position has been stated by this Court more
than once and is by now beyond controversy.
In one of the most
recent decisions in The Wo1kmen of Sudda Office, Cinnamara v.
The Management(!) this.Court approvingly referred'to two of its
earlier decisions actually reproducing a passage from one of them.
This is what was said in Sudder Office case :
"It is needless to point out that it has been held by
this Court in The Chartered Bank, Bombay v.
The
Chartered Bank Employees' Union(') thafif the termination of service is a colourable exercise of the power
vested in the management or as a result of victimisation
or unfair labour practice, the Industrial Tribunal would
have jurisdiction to intervene and set aside such a termination.
In order to find out whether the order of
termination is one of the termination simpliciter under
the provisions of contract or of standing orders, the
Tribunal has ample jurisdiction to go into all the -circumstances which led to the termination simpliciter.
The form of the order of termination, is not conclusive
of the true nature of the order, for it is possible that the
fo1m may be merely a camouflage for an order of dismissal for misconduct. It is, therefore, open to the Tribunal to go behind the form of the order and look at the
substance. If the Tribunal comes to the conclusion that
though in form the order amounts to termination simp/iciter but in reality cloaks a dismissal for misconduct,
it will be open to it to set aside the order as a colourable
exercise of power by the management.
Principles to the same effect have also been reiterated in the
later decision of this Court in Tata Oil Mills Co. Ltd. v. Workmen & anr. (') where the Court observed as follows :
"The true legal position about the Industrial
Court's justification and authority in dealing with
(I) [1971]-II L.L.J. 620.
(2) [1960]-II L.L. J. 222.
(3) [1964]-II L.L.J. 113.
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61 ~
cases of this kind is no longer in doubt.
lt is true
that in several cases, contract of employment or provi· ·
sions in standing orders authorise an industrial employer
to terminate the service of his employe.:s after giving
notice for one month or paying salary for one month in
lieu of notice, and normally, an employer may, in a
proper case, be entitled to exercise the said power.
But where an order of discharge passed by an employer
gives rise to an industrial dispute, the form of the order
by which the employee's services are terminated would
not be decisive;
industrial
adjudication
would
be
entitled to examine the substance of the matter and
decide whether the termination is in
face
discharge
simpliciter or it amounts to dismissal which has put on
the cloak of discharge simpliciter.
If the Industrial
Court is satisfied that the order of discharge is punitive,
that it is ma/a fide, or that it amounts to victimisation
or unfair labour practice, it is competent to the Industrial Court to set aside the order and, in a proper case,
direct the reinstatement of the employee."
Shri Menon on behalf of the complainant, however, contended
that ignoring the form and language of the impugned order and
looking at the real substance of the matter it is clear as disclosed
by the appellant in the further written statement that the complainant's services were terminated because of a suspicion about
his private conduct and behaviour with Air Hostesses whose
names were considered not proper to be disclosed.
This, said
the counsel, makes out an allegation of misconduct which induced
the appellant to terminate the complainant's services and the case,
therefore, clearly falls within the mischief of s. 33.
The impugned order, he added, is a colourable exercise of the power under
Regulation 48, the real object of the appellant being essential!}'
to punish the complainant for misconduct.
No doubt, the position of the industrial workman is different
from that of a Government servant because an industrial employer
cannot "hire and fire" his workmen on the basis of an unfettered
right unde" the -contract of employment, that right now being subject to inC:~strial adjudication : and there is also on the other hand
no provision of the Constitution like Arts. 310 and 311 requiring
consideration in the case of industrial workmen.
We are here
only concerned with the question whether the. impugned action
of termin_ation of the complainant's services is for misconduct as
contemplated bys. 33(11) (b) ors. 33(2)(b). While considering this question it is open to the complainant to urge that reliance
on Regulation 48 is not bona fide, it being a colourable exercise
of the right conferred by that regulation.
He has in fact raised
620
SUPREME COURT REPORTS
[1972] 3 s.c.R.
this argument and it is this aspect which concerns us in this case.
A
Let us now scrutinise the present record for examining the position
from this aspect.
Now, the true position, as it appears to be clear from the
record of this case, is that the complainant's services were terminated under Regulation 48 by paying his salary for 30 days in
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lieu of notice.
The order does not suggest any misconduct on
the part of the complainant and indeed it is not possible to hold
this order to be based on any conceivable misconduct.
The form
of this order is no doubt not deci~ive and attending circumstances
are open for consideration, though motive for the order, if not
mala fide, is not open to question.
The further written statement
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which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost confidence in the complainant and this los~ of confidence was due to
a grave suspicion regarding the complainant's private conduct
and behaviour with Air-Hostesses employed by the appellant.
Regulation 48 which has been set out earlier as
its plain
language shows does not lay down or conJemplate any defined
essential pre-requisite for invoking its operation.
Action under
this Regulation can be validly taken by the employer at his sweet
will without assigning any reason.
He is not bound to disclose
why he does not want to continue in service the employee concerned.
It may be conceded that an employer must always have
some reason for terminating the services of his employee.
Such
reasons apart fiom misconduct may, inter\ alia, be want of full
satisfaction with his overall suitability in the job assigned to the
employee concerned.
The fact that the employer is
not fully
satisfied with the overall result of the performance of his duties by
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his employee does not necessarily imply misconduct on his part.
The only thing that remains to be seen is if in this · case the
impugned order is mala fide.
The record merely discloses that theappellan~ had suspicion abQtit the compl11inant's suitability for
the job in which he was enl.ployed and this led to loss of confidence in him with the result that his services were terminated
under Regulation 48: In our view, loss of confidence in such
circumstances cannot ·be considered to be mala fide.
We are G
unable to conc~ve of any rational challenge to the bona (ides of
the employer in making the impugned order in the above background.
The complainant, it may be remembered had to deal
with Air-Hostesses in the performance of his duties and if the
appellant was not fuily satisfied beyond suspicion about his general conduct and behav;iour while dealing with them it cannot be
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said that loss of confidence was not bona fade.
Once bona fide
loss of confidence in affirmed the impugned order must be considered to be immune from challenge.
The opin,ion formed by
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AIR INDIA V. v. A. REBELLOW (Dua, J.)
621
the employer about the suitability of his employee for the job
assigned to him even thou.$ erroneous, if bona fide, 1s m our
opinion final and not subject to review by the industrial adjudication.
Such opinion may legitimately induce the employer to
terminate the employee's services; but such termination can on no
ratiopal grounds be considered to be for misconduct and must,
therefore be held to be permissible and immune from challenge.
The decision in the case of Management of U. B. Dutt & Co.
v. Workmen of.U. B. Dutt & Co.(1) relied upon by the complainant's learned counsel is of no assistance to him. There one
S employed by the managemel)t as a cross cutter in the saw mill
was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied
the allegations of fact.
He was thereafter informed
about
a
departmental enquiry to be held against him and was suspended
pending enquiry. Purporting to act under r. 18(a) CJf the Standing
Orders, the appellant terminated the services of S without holding
any departmental enquiry.
On reference of the dispute to the
Industrial Tribunal this action was held not to be bona fide but a
colourable exercise of the power conferred under r. 13 (a) of the
Standing Order and since no attempt was made before it to defend
such.