# Buckingham and Carnatic Co. Ltd v. Workers of the - **Citation:** [1962] Supp. 2 S.C.R. 822 - **Court:** Supreme Court of India - **Decided:** 1959-03-10 - **Bench:** P. B. Ga, Je!'Idragadkar, A. IC SARKAii, K. N. WANCllOU - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/buckingham-and-carnatic-co-ltd-v-workers-of-the-2347 - **Pages:** 9 ## Headnote Induatrial Dilpul<-1'ermination of .•m.·ice of employee in lerln6 of contract-Dropping of propnsed deparlrrumtal •nquiry -If colcurable exercise of power-If ca11 be questioned before i11d1Utrial-tribu1.al-Principle tuminating Government Service -If IJf>Plits to indUdtrial emplcyeu. S, employed by the appellant 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 department enquiry to be held against him and was suspended pc~ding enquiry. Purporting to act under r. 18(a) of the Standing Orders, the appellant terminated the services of S, without holding any departmental enquiry. The industrial tribunal to which the dispute was referred held, that action taken, after dropping the proposed departmental pro· ceedings was not bonafid< and was a colourable cx.rcisc of the power conferred under r. 18(a) of the Standing Order and aince no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. The appellant contended that as the termination was strictly in accordance \Vith the terms of contract under r. 18(a) of the Standing Ordcn, it was entitled to dispense • • 2 S.C.R. SUPREME COURT BEPORTS with the service of an employee at any 1in1e Uy tirst giviug 14 days notice or, paying 12 days \vagc.s. Hel1l, that the en1ployer's decision tu discharge the ernployce under r. l8(a) of the Stle relating to termination ofGovernnient service stands on au entirely difl"ercut footing as cun1pared to industrial en1ployec.'i anPlits to indUdtrial emplcyeu. S, employed by the appellant 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 department enquiry to be held against him and was suspended pc~ding enquiry. Purporting to act under r. 18(a) of the Standing Orders, the appellant terminated the services of S, without holding any departmental enquiry. The industrial tribunal to which the dispute was referred held, that action taken, after dropping the proposed departmental pro· ceedings was not bonafid< and was a colourable cx.rcisc of the power conferred under r. 18(a) of the Standing Order and aince no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S. The appellant contended that as the termination was strictly in accordance \Vith the terms of contract under r. 18(a) of the Standing Ordcn, it was entitled to dispense • • 2 S.C.R. SUPREME COURT BEPORTS with the service of an employee at any 1in1e Uy tirst giviug 14 days notice or, paying 12 days \vagc.s. Hel1l, that the en1ployer's decision tu discharge the ernployce under r. l8(a) of the Stle relating to termination ofGovernnient service stands on au entirely difl"ercut footing as cun1pared to industrial en1ployec.'i anutl c{: C,. v. Workmt11 of U. B. J..1..1u d: C?. Wonchoo J, 8:::6 Sl.'PREME COURT REPORTS [1962] SUPP . receiving I:! a.i. or more as daily wagos, otherwi;;c, than undn rule 21. ho shall be given l4 days notice• c,r be paid 12 days wages." ft may Le mention<'d that r. :! I dPals with cases of miscond11ct and providPs for dismissu.! or suspension for misconduct and in sud1 a C'Mle the workman eo s11spc11d1·d is nut entitled to any wages during the period of MUspensiou. The claim thus put forward on behalf of the aμpellant iR tbat it is entitl«;d undt.>r r. IS(a) of tho ~tanding Orders which is a turm of contmct between the appellant and its employees to dispense with the service of any employee at any time by just giving 14 days notice or paying 12 days wages. ·we are of opinion that thi8 claim of the appellant cannot b1o1 accepted, and it iH too late in the day for an employer to raise such a ch\im for it amounts to a claim "to hire am! firo" an Prnployee a.s tho employer plcascg and thus <'flmpl!'tdy m·gative~ scrnritv of SN\'i~c· which has been seemed to ir.dustrial enipl0yccs t Ii rough industrial adjudication for over a long pc>riutl of tinw now. As far back as 195~, the Labc.ur Appellutt• Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by paymcnt of wages for a certain period without assigning any reRHon: (.1ee Buckingham and Carnaiic Co. Ltd. EU;. v. W orkei·s of the Company. de.) ('). It was of opinion that even in a case of this kind the n·quiremont of bona /ides is essential and if the termination of service is a colourable exercise of the powc·r or as a result of victimisation or unfair labour practice the iadustrial tribunal would hav" the jurisdiction to intervtne Rncl set a.~ide such termination. Furthc•r it held that where the termination of sen·ico is capricious, arbitrary or unm·ecssarily harsh on the part of the C'lllployer juclgccl by n01mal standards uf a reasonable man that may be cogent evidence of victimisation or unfair labour practice. These observations I. ( 195l) L.A.C. 490. 2 S.C.R. SUPREME COURT REPORTS 827 of the Labour Appellate Tribunal were approved by this Court in 'l'he Chartered Banlc, Bombay v. The Chartered Bank Employees' Union('). and Assam Oil Company v. It~ Workmen('). Therefore if as in this case the employer wanted to take action for misconduct and then suddenly dropped the departmental proceedings which were intended to be held and decided to discharge the employee under r. 18 (a) of the Standing Orders, it was clearly a colourable exercise of the power under that rule in as much as that rule was used to get rid of an employee instead of following the course of holding an inquiry for misconduct, notice for which had been given to t.he employee and for which a departmental inquiry was intended to be held. The reason given by the appellant in tho order terminating the services of Sankaran of July 8, 1958, namely, thah-the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank a11d file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot he accepted at its face v11lue; so that the necessity for an inquiry intended to he held for misconduct actually charged might he done away with. In any case oven if the inquiry was not held by the appellant and action was taken under r. 18 (a) it is now well-settled, in view of the decisions cited above, that the employer could defend the action under r. 18(a) by leading evidence before the tribunal to show that there was in faet misconduct and therefore the action taken under r. 18(a) was bona fide and was not colourable exercise of the power under that rule. But the tribunal has pointed out that the employer did not attempt to do so before it. It satisfied it.self by producing two witnesses but withholding the important witnesses on this question. In the circumstances, if the tribunal did not accept the evidence of the two witnesses (1) [1960] 3 $.C.R. 441. (2) [1960] 3 $.C.R. 457. 1962 The M a11ugement of U. B. Dutt &> Co. v, Workwtn of U. B Dutt & Co. Wtmchoo J. 1962 1 lw Manag11111nl of lJ. B. Dutt &:- Co. v. Worhnfn of U. B, Dull 4' Co. WachooJ, 828 SUPREME COURT REPORTS (1962] SUPP. who were produced it cannot be said to have gone wrong. L·arned counsel for the appellant however urges that the employer was empowered to take action under r. 18 (a) of the Standing Orders and having taken action under that rule, there was nothing for it to justify before the tribunal. We have already said that this position cannot be accepted in industrial adjudication relating to termination of service of an employee and has not been accepted by industrial tribunals over a long course of years now and the view taken by industrial tribunals has been upheld by this Court in the two cases referred to above. Learned counsel for the appellant, however, relies on ·the decision of this Court in Par8holam Lal Dhingru v. Union of India.(') That was however a ease of a. public servant and the considerations thai a1,ply to such a case are in our opinion entirely different. Stress was laid by the learned counsel on the obsNvations at p. 862 where it was ob:;erved as follows :- "It is true that the misconduct, negligence inefficiency or other disqualification may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is, as Ohagla C. J. has said in Srinivas Ganesh v. Union of India l') (supra), wholly irrelevant. It is urged that the same principle should be applied to industrial adjudication. It is enough to say that the position of government servants s~ds on ~ entirely different footing as compared to mdust~1al employees. Articles 310 and 311 of the Constitution apply to government servants and it is in the (I) [1958) S.C.R. 828. (2) A.J.R. (19~) Bom. 455. 2S.C.R. SUPREME COURT REPORTS 829 light of those Articles read with the Rules framed under Art. 309 that questions relating to termination of service of government servants have to be considered. No euch constitutional provisions have to be considered when one is dealing with industrial employees. Further an employer cannot nowpress his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees. That right is now subject to industrial adjudication and even a power like that granted by r. 18 (a) of the Standing Orders in thie case, is subject to the scrutiny of industrial courts in the manner indicated above. The appellant therefore cannot rest its case merely on r. rs (a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under r. 18 (a). The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination. In this case the tl'ibunal held that the exercise of power was colourable and it cannot be said that that view is incorrect, The appellant failed to rntisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable. It could have easily done so by producing satisfactory evidence ; but it seems to have reated upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences. Learned counsel for the appellant also drew our attention to another decision of this Court in 1962 The Managem Co. W-.OJ. 830 SUPREME COURT REPORTS [1962] SUPP. The Pat1U1 El.utrk Supply Co. Ltd. Patna v. Bali Rai ('). That Ctl8e in our opinion has no applicu.tion to the facts of this case because that oaee dealt with an application under 8. 33 of the Industrial Di~putes Act while the present proceedings are under s. IO of thfl Act and the considerations which apply under s. 33 are different in many respects from those which apply to an adjudication under 8. IO. The appeal therefore fails and is hereby dismissed with costs. Appeal dismissed. "CDAI BHAN v. THE STATE OF UTTAR PRADESH (J. L. KAPL'R and RAGHUBAR DAYAL, JJ.) c,-; m i11al J.a1»-Evirmation reuit'ed fron, accu-