# GUJARAT MINERAL DEVELOPMENT CORPORATION v. SHRI P. H. BRAHMBHATT

- **Citation:** [1974] 2 S.C.R. 128
- **Court:** Supreme Court of India
- **Decided:** 1973-10-30
- **Case number:** Civil Appeal No. 803 of 1973
- **Bench:** P. Jaganmohan Reddy, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gujarat-mineral-development-corporation-v-shri-p-h-brahmbhatt-6121
- **Pages:** 15

## Headnote

lndu3trial Disputes Ac1-Respondent a temporary employee ter"Jinattd from
stri·ic~Whtther termination a discharge sirnpliciter and tlie action take11 by
the employer, bonafide.
The respondent was appointed by the appellant in 1967 aa a temporary
senior Assistant on conditions set out in the letter of appointment. His services
wece terminated in 1971 when he was still in temporary aervice. Due to ill
health, the respondent applied for one mdnth's medical leave accompanied by a
doctor's certificate: but the leave was refused and he was asked to Join duty at
once because according to the appellant, there was nothing wrong with his
health. Ultimately, when on January 6, 1971, the employee did not appear for
medical checkup on the appointed day, the worker was discharged from service
retroipectively from November 9, 1970, with one months' pay in lieu of notice.
The Labour Court came to the conclusion, that the discharge was not a discharge simpliciter but an action taken for misconduct and was punitive.
The
principles of natural justice were not complied with and the .impusned action
camo under s. 11-A of the Industrial Disputes Act, and so, the appellant
Wai
directed to reinstate the respondent with half the wases from the date of discharge till the date of . his reinstatement.
. Before this Court, it was contended by the respondent that the order of di~
charge was defective because it purported to terminate the service of the respondent retrospectively from the day from which his services were not available to
the Corporation as he was absent without leave from November 9, 1970. The
appellants' counsel contended that where under a contract of service there
i'3
power to terminate the services, that .power having been exercised bonafide, the
termination cannot be held invalid. The question for decision before this Court
was whether the Special ·Labour Court arrived at a pervene findiq, or a ft.ading not warranted by the eVidence on record; or, were there any errors apparent
on the face of the record which vitiated that finding.
Allowing the appeal,
HEID (i) The order of termination cannot be held to be defective merely
because tho order was to take effect retrospectively from November 9, 1970. The
intention of the Corporation was to termmate the services of the respondent
from the dato from wpich his services were not avail~ble to the Corporation.
Even if the super·added part, namely, that the order should operate retrospec·
tively as from an anterior date, is invalid. there is no reason why the first part
of the order discharging the services of the respondent as from t,tie date of the
ordCr. does not take effect.
Therefore, the order discharging the services of the
respondent cannot be held to be iμvalid.
[134C]
Jeevaratnam v. State of Madras, [196711 LL.J. 391, referred to.
(ii) Normally, an employer may terminate the services _under the terms of
the contract or the standing orders as duly certified. but where an
Industrial
Dispute is raised, the form of the order is not conclusive and tho tribunal to
·which the dispute is referred can examine the question whether the discharae is
punitive, malafide or arbitrary. If it comes to any of these conclusion, it can
direct the reinstatement of the employee; but should not do so if the employer
has lost his confidence in the employee. If the Tribunal is satisfied that the
order is punitive. or malafide, or is made to victimise the workmen or amount!
to unfair labour practice, it is competent to set it aside. The test is whether the
act of the employer is bonafide or not. If it is not. and is a colourable exercise
of the power under the contract of service, or standing orders, the Tribunal can
discard it in a proper case. and direct re·instatement.
[134E]
Tata Engineering and Locomotive Co. Ltd. v. Prasad, (1969] 2 L.L.J. 779,
referred to.
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GUJARAT M.O.C. v. BRAHMBHATT (laganmohan Reddy, I).
129
(iii) This Court ordinarily does not entertain pleas on question

## Text

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128
GUJARAT MINERAL DEVELOPMENT
CORPORATION
A
v.
SHRI P. H. BRAHMBHATT
October 30, 1973
[P. JAGANMOHAN REDDY AND P. K. GOSWAMI, JJ.]
lndu3trial Disputes Ac1-Respondent a temporary employee ter"Jinattd from
stri·ic~Whtther termination a discharge sirnpliciter and tlie action take11 by
the employer, bonafide.
The respondent was appointed by the appellant in 1967 aa a temporary
senior Assistant on conditions set out in the letter of appointment. His services
wece terminated in 1971 when he was still in temporary aervice. Due to ill
health, the respondent applied for one mdnth's medical leave accompanied by a
doctor's certificate: but the leave was refused and he was asked to Join duty at
once because according to the appellant, there was nothing wrong with his
health. Ultimately, when on January 6, 1971, the employee did not appear for
medical checkup on the appointed day, the worker was discharged from service
retroipectively from November 9, 1970, with one months' pay in lieu of notice.
The Labour Court came to the conclusion, that the discharge was not a discharge simpliciter but an action taken for misconduct and was punitive.
The
principles of natural justice were not complied with and the .impusned action
camo under s. 11-A of the Industrial Disputes Act, and so, the appellant
Wai
directed to reinstate the respondent with half the wases from the date of discharge till the date of . his reinstatement.
. Before this Court, it was contended by the respondent that the order of di~
charge was defective because it purported to terminate the service of the respondent retrospectively from the day from which his services were not available to
the Corporation as he was absent without leave from November 9, 1970. The
appellants' counsel contended that where under a contract of service there
i'3
power to terminate the services, that .power having been exercised bonafide, the
termination cannot be held invalid. The question for decision before this Court
was whether the Special ·Labour Court arrived at a pervene findiq, or a ft.ading not warranted by the eVidence on record; or, were there any errors apparent
on the face of the record which vitiated that finding.
Allowing the appeal,
HEID (i) The order of termination cannot be held to be defective merely
because tho order was to take effect retrospectively from November 9, 1970. The
intention of the Corporation was to termmate the services of the respondent
from the dato from wpich his services were not avail~ble to the Corporation.
Even if the super·added part, namely, that the order should operate retrospec·
tively as from an anterior date, is invalid. there is no reason why the first part
of the order discharging the services of the respondent as from t,tie date of the
ordCr. does not take effect.
Therefore, the order discharging the services of the
respondent cannot be held to be iμvalid.
[134C]
Jeevaratnam v. State of Madras, [196711 LL.J. 391, referred to.
(ii) Normally, an employer may terminate the services _under the terms of
the contract or the standing orders as duly certified. but where an
Industrial
Dispute is raised, the form of the order is not conclusive and tho tribunal to
·which the dispute is referred can examine the question whether the discharae is
punitive, malafide or arbitrary. If it comes to any of these conclusion, it can
direct the reinstatement of the employee; but should not do so if the employer
has lost his confidence in the employee. If the Tribunal is satisfied that the
order is punitive. or malafide, or is made to victimise the workmen or amount!
to unfair labour practice, it is competent to set it aside. The test is whether the
act of the employer is bonafide or not. If it is not. and is a colourable exercise
of the power under the contract of service, or standing orders, the Tribunal can
discard it in a proper case. and direct re·instatement.
[134E]
Tata Engineering and Locomotive Co. Ltd. v. Prasad, (1969] 2 L.L.J. 779,
referred to.
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GUJARAT M.O.C. v. BRAHMBHATT (laganmohan Reddy, I).
129
(iii) This Court ordinarily does not entertain pleas on questions of fact, or
interfere with the findinas of .. fact so ·,as to convert itself into a third court of
fact.
But the Court will not hesitate to interfere with the findings
of fact,
where there has been illegality or an irregularity of procedure, or a violation of
the principles of natural justice resulting in the absence of fair trial, or where
there has been a gross miscarriage of justice, or where the Tribunal bas aiven ·
inconsistant and ·conflicting findings, or where the findings are vitiated by error
of law, or where the conclusion which reached by the courts below are 10
patently opposed to the. well~cstablished princiPles as tO aniount to miscarriage
of justice or where the finJing is not supported by any legal evidence and is
inconsistant with the material produced on record, or where the High Court or
the Tribunal below committed a serious error in· not examining evidence of a
central issue with the case which i: dt'i':rved. t'tC.
[135E]
(iv) In the present case. from the evidence it '\Ct~n1s th<.-t the responJei:.t had
made it a habit of remaining absent from duty without· obtaining prior permission: that he had very little· respect for his superiors; that he was haughty and
insolent and did not care for the rules of the Corporation and was a habitual
absentee without getting his leave sanctioned previously.
The Special Labour
Court had no b<Uis for coming to the conclusion that the respondent bad apolo·
gised for his wrongs and that the matter was properly '1ealt with.
The respon·
dent never apologised, but he was prevaricating. The respondent was always
adopting highly unreasonable llltitude which was detrimental to th; interests of
the Corporation. In the above circumstances, it would be misnomer to
say
that the action of the Corporation was not bonafide, but wa,, malafidc. Therefore. the findings of the Special Labour Court is perverse and could not be arriv·
Cd at on any reasonable view of the evidence.
[1400; 141C]
(v} The respoedent cannot be considered as a permanent employee of the
Corporation. because under rule 15 of the rules, an employee is
required
to
subscribe to a declaration before joinin~ duty in the form prescribed in Appe·ndix-1.
That form declares that he has understood the Gujarat Minerals Cor·
poration Ltd. ($taff) Service Rules. and he subscribes and a~rees to be bound
hy the said rules.
Such a declaration has not been sign-cd by the respondent and
therefore those rules arc not applicable io !he l<Spondenl.
{1'410]
(vi) Under Rule 7, the General Manager may temporarily employ ~uitable
candidates to vacant post~ in Class ]JI and JV only and the Chairman of the
Sub-Committee may authorise appointment of suitable candidates to a vacant
post An Class I and· II. It is a:lmitted tha1, 1he post held by the respondent falls
n1 one of the categories menucned in the above rule.
Under these
circumstances. the employment of d:e respondent was temporary and was not subject to
the rules.
I 141 Fl
(vii) Further, even if the said employee contributed to the Provident Fund,
the Provident Fund Act did not apply to the Respondent, because. till 1972, .the
Provident Fund Act did not apply to this Corporation. If the Provident Funi.!
Rules of the Corporation permit:ed a ten1porary employee ah>o to contribute to
it, the contribution by the respondent does not indicate that kc was a permanent
employee.
[141G]
f viii) As regards the question as to whether s. t 1 (A) of the Act is applicable
to the present case, it can b~ said that s. t 1-• .\ will not apply to an Industrial
Dispute referred prior to December 15, 1971, when the said section was brought
into operation.
Therefore. the said section is not applicable in the present case.
Further. this section has no retrospective effect on the pending reference. Il4 ll1J
Workn1e11 of Mis. Firestone Tyre and Rubber Co. of India Private l.td. v.
The Mana.f!eff!ent and Ors., rt9731 1 L.L.J. 278, referred to.
Under the circumstances. the termination of the services of the re!pondent
is not malafide or punitive and the appointment of the respondent being tem·
porary, the termination was a discharge simpliciter and the action taken by the
Corporation wn..; bonafide.
114201
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 803 of 1973.
10-L447Sup.Gl/74
!30
SUPREME COURT REPORTS
[ 1974 J 2 s.c.R.
Appeal by special leave from the award dated January 24, 1973
A
nf the Special Labour Court, Ahmedabad io Reference
(IC-IDA)
No. 4 of 1972 published io the Gujnrat Government Gazette Part 1-L
dated March 1,1973.
M. C. Chag/a, G._P. Vyas and R. P. Kapur, for the appellant.
Respondent appeared in ;Jerson.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-This appeal by special leave challenges
the award of the Special Labour Court, Ahmedabaq, by which the
respondent an employee of the appellant Corporation was directed to
be reinstated and paid as compensation half the wages includiog dearness allowance from the date of his discharge till the date of his reinstatement in service.
The respondent was appoioted by the appellant
on June 13, 1967 as a temporary Senior Assistant on conditions set'
out in the Jetter dated June 13, 1967. The respondent's services
contioued to be temporary as no order of appointing him on probation
was passed, and on the date when his services were termioated by an
order dated January 6, 1971, he was in temporary service.
According to the respondent's statement of claim in SeptemberOctober 1970 he was not keeping good health, none-the-less he usecl
to attend to his duties. However, io October 1970 his health deteriorated further and he went on sick leave for five days from October
14 to October 18. 1970. Thereafter though he joined and worked
he was under treatment. Then all of a sudden his health took a turn
for the worse and after the medical examinatjon by his physician he
was advised rest and medical treatment for one month.
In view of
this advice he made an application on November 7, 1970 for one
month leave on the ground of illness accompanied by a medical certificate of K. J. Vaidya who was a registered medical practitioner, bnt
the appellant did not give any reply immediately.
Later the appellant wrote a letter to the respondent asking him to "join duties at
once" because there was nothing wrong with his health and his !ea\'e
was not sanctioned.
We shall advert to the correspondence in greater detail later, but
for the present it is sufficient to set out what has been narrated by the
Special Labour Court, according to which the concerned workman
(the respondent) after receiving the reply on November 14, 1970 wrote
to the Corporation that the said suP.rior officer was not qualified to
opine about his health and it was necessary for him to take rest as
medically advised.
He also stated \hat he wanted to consult a physi·
chm in Bombay and if he decided to go there he would iotimate his
Bombay address to the Corporation. He alleged that this letter was
not immediately replied.
Thereafter, the concerned workman proceeded to Bombay and started receiving treatment from one Dr. K. C.
Mehta, M.D. (Born.), F.C.P.S.
He then received a letter from the
Corporation requiring him to report immediately to the Corporation
for being sent for a ·medical examination by the Civil Surgeon, Ahmedabad. The concerned workman contended that if he was requirecl to
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GUJARAT M.D.C. v. BRAHMBHATT (Jaganmohan Reddy, l.) 131
be examined by the Civil Surgeon, Ahmedab.ad, he should have been
informed about it before he left for Bombay and according to him,
this was not a bona fide direction. The concerned workman then sent
a mediCal certificate obtained from bis doctor with his letter dated
December 9, 1970, asking for further leave. The concerned workman
· then received a letter dated December 24, 1970 requiring him to
report to the Corporation within two days and informing him that if
he failed to do that, he would be dismissed from service.
He then
returned to Ahmedabad and wrote a letter. dated January 4, 1971
to the Corporation that he was prepared to.submit for the examina·
tion by the Civil Surgeon, Ahmedabad, and he should be sent an
authority for the purpose. According to the concerned workman,
instead of granting this request, the Corporation sent a letter dated
January 6, 1971 together with a discharge order, inforn1ing him that
he was. discharged with effect from November 9, 1970. The coneemed workman contended that the action taken against him was illegal
and improper; that the Corporation had no authoritr lo require him
to submit for exaniination by the Civil Surgeon; that it could not have
rejected a certificate from a registered medical practitioner and, there·
fore, he was entitled to be reinstated with full back wages.
As against these averments, the case of the Corporation was that
the concerned workmen was only a temporary employee and under the
contract of bis employment he was to be taken up as a probationer,
and after completion of the probationary period he was to be confirm·
ed. However, during his service, as he was found to be arrogant,
·careless, negligent and having scant respect for his superiors, no order
making him a probationer was passed l'nd he was continued only as a
temporary .employee in an expectation that he would improve and give
satisfaction to his superiors. According to the Corporation, assuming
that he had become a probationer, he was not confirmed; and so in
any event ·he w.as not a permanent workman. The Corporation then
alleged that during the tenure of his service, apart from other defects
in him, it was also found that in about October 1970, he was evading
to undertake about ten days' tour to Bombay.
So, · he was given a
memo requiring tim to submit his explanation, which he did, but in a
yery disrespectful languag~. Thereafter, he had ·gorte on Jeavo on
grounds of illness. It was then alleged that on November 7, 1970,
though he was present in office, looking quite healthy and fit, am! had
worked for the whole day,, yet he gave an application for leave for
30 days.
He gave this application to the inward clerk and not to his
superior o!Mer as it was the .usual practice, which he couk! have fol·
lowed very easily. He had attached a certificate to the k:cvc application; but the certificate was from a Vaidya who was only ·1 P .. M.P:
The certificate did not diScfose ·any serious disease,
and hence on
considering these facts, the leave application was refused and he was
asked to report for duty. A letter to that effect was sent to him under
certificate of posting, but that letter was returned to the .Corporation
with an unusual postal endorsement viz. "Left-particulars :tiot known".
A copy of this· letter was then. sent. to him by registered post at the
very address and the same was'reqeived by him on November 14, 1970.
The concerned workman then wrote a letter refusing to report for • ·
132
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
duty and stating that he would go to Bombay for consultation with an
eminent physician.
Thereupon, the Corporation wrote another letter
dated 27/30 November, 1970 calling upon him to present himself at
the head office so that he can be sent to the Civil Surgeon for a medical
check-up because it wanted to verify as to whether his illness was
genuine or not.
According to the Corporation, this letter was sent to
him with a special messenger at his residential address on November
30, 1970 at 11.30 A.M. but a member of his family reported that he
had left for Bombay.
In the meanwhile. the Corporation received a
letter on December 2, 1970 purporting to'have been sent from Bombay.
However, this letter did not bear any postal mark from any Bombay
post office.
The Corporation then wrote a letter to him at his Bombay
address on the same day asking him to comply with. the instructions
contained in the letter dated 27130 November, 1970.
According to
the Corporation, this letter seems to have been received by him on
December 4, 1970, and thereafter he sent a letter, dated December 9,
1970 together with an application for leave along with a medical corti·
ficate.
But in this letter, the respondent did not give any specific reply
to the directions to attend to the head office for his medical check-up.
The medical certificate also did not show that he was seriously ill.
Hence, the Corporation, by its letter dated D_ecember 24, 1970, sent
to his Bombay address, calling upon him to present himself at the
head office for a medical check-up.
According to the Corporation, a
letter dated·Januarv 4, 1971 was received from him asking for a letter
of authority to be presented before the Civil Surgeon, but the Corporation had reasons to suspect that the concerned workman was in fact
evading being medically examined.
Further, looking to his provious
record. it was found that it would not be proper to confirm such an
employee. or to continue him in service.
So, it was decided to discharge him.
An order terminating his services with one month's pay
in lieu of notice with effect from November 9. 1970 was passed and
was sent to him with a letter dated January 6,.1971.
The Corporation
alleged that in the past also he was found fo be remaining absent and
irregular in work and leaving his work without any leave or authority,
as such, the action taken against him was quite legal and proper and
he was not entitled to any relief.
The Corporation had raised contentions that the concerned workman was not a 'workn1an' within
th~
meaning of the term under the Industrial Disputes l\.ct, and the s•id
Act did not apply to the Corporation because it was a Government
concern.
The contention that on this account, th_is reference was in~
valid was not pressed before the Special Labour Court and accordinglv
no 'question of lack of jurisdiction was urged before us.
- ·
On the aforesaid averments,. the Special Labour Court posed the
question whether the termination of the services of the respondent was
a discharge simpliciter as alleged bv the Corporation or was it a discharge for misconduct which was of a punitive nature ?
On a perusal
of the correspondence the Labour Court came to the conlusion that
as the concerned workman did not report for medical check-up, but
wrote a letter asking for an authority to be presented before the Civil
Surgeon, his services were terminated which clearly amounted to an
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GUJARAT M.D.C. v. BRAHMBHATT (Jaganmohan Reddy,!).
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action taken for non-compliance with the requirements contained ir
the letters as well as for remaining absent without leave.
In· the
circumstances it held that the discharge was in pursuance of the threat·
ened disciplinary action and did not amount to a discharge simplici·
ter, in that the real nature of the action taken against him was for the
misconduct and was punitive.
On this conclusion it further held that
the principles of natural justice were not complied with bY calling upon
the workman to show cause against the proposed action nor was th'
workman given an opportunity to explain the allegations which formc.'
the basis of the impugned action.
That apart, in its view the impugned action came within the prCJVisions of s. 11 A of the Industrial Dis·
putes Act-hereinafter called 'the Act'- according to which it would
be the duty of the Court to satisfy itself whether the order or dismissal
or discharge was justified or not and in discharging that duty the Court
would be entitled to rely on the materials on record without taking any
fresh evidence in relation thereto. Though the Special Labour Court
came to the conclusion that the previous behaviour of the workman
showed that he was haughty and insolent and he had used imprope•
language to his superiors he was properly dealt with by being made to
apologise for his. wrongs and therefore he cannot be tried and punish-·
ed twice for the same wrong inasmuch as the action for the termination of his services was based on the· ground that the reasons urged
for leave were found to be not genuine and he had not submiffed himself to a medical check-up as required by the Corporation.
It was
further found that merely because his leave application was presented
in a particular manner, and because.it was accompanied by a certificate
from a registered medical 12~actitioner a Vaidya, no inference \VOU]1.i
arise that the grounds urged were absolutely false.
In the view of
the Special Labour Court the management of the Corporation in this .
case had approached the matter with a closed, and not an open, min.cl,·'.
nor did it consider thaf the circumstances on which· it relied were explainable on the assumption that the concerned workman was inno-.
cent.
Adverting to the letter written by the respondent on November 21.
1970 in reply to the Corporation's letter of Nov~mber 4, 1970, informing him that his. leave was refused and that he should immed;ately
report for duty. the Spedal. Lal:i.Q!lr Gourt :ooserved that this letter
seems .10 have been written in· a rnt~er harsh langtiage, but explains
away the conduAt-afprobably 'being <1.ue to leave being refused by the
superior officers o! the Corporation.
111 the view it took, it held that
the discharge of the respondent cannot be justified.
It is obvious from the order terminating the service; of the res·
pondent that it is an order of discharge.
But that order th.ough dated
January 6, 1971, purports to terminate the services of the rcsponde1tt
as from November 9, · 1970 on the ground that bis services were no
longer required.
In the covering letter of the same <late, a month'~
H
salary was sent in lieu of one month's notice as provided in the Service
· Rules of the Corporation.
The respondent contends that this order
is defective because it purports to terminate his services retrospectively
from Noveniber 9, 1970. Though the order is one purporting to
/
134
SUPREME COURT REPOR!S
[ 1974) 2 S.C.R.
terminate his. services from a date anterior. to the date of the order of' A ·
termination, that order ex facie is severable. In fact it 1s an order
discharging the services of the respondel)t as from the date of the order
with the super-added direction that the order should operate retrospec-
. tively as from an anterior date.
Even if. the super-added part is invalid, there is no reason why the first part of the order does not toke
effect. It was so held bY, this Court in. leevaratnam v. State of ... fadras('). The intention of the Corporation was no doubt to terminate
the services of the respondent from the date from which his services
were not available to· the Oirporation as .he was absent without leave.
. For that reason the Corporation stated in the covering le!ter·that the
rest of his dues will be sent· to him hereafter, which probably were
intended to cover the period for which the leave was not granted or
this may be in respect of th<> provident fiind de. In any case, as we
have said earlier, the order of termination cannot be held defective
merely because the order was io take effect from Novembe_r ·9, 1970.
We will, . therefore, treat the order as an order of termination as from
the date of the order with one month's salary in lieu of one month's
notice which would more than m~et the requirements, because there ;;;
a dispute as to whether even under the Service Rules the respondent
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wa• entitled to seven days pay only in lieu of notice.
In our view,
I>
the order cannot be held to be invalid.·
·
The appellant's counsel contends that wher~ under " contract of
service there is power to termina!e the services, that power having
been exercised bona fide, the termination cannot be held to be in-
. valid, . and ·consequently it is open to an employer, where there is
such a power, to terminate the services of an employee or to discharge him without giving any reasons. .It is true, normally an employer may terminate the services under the terms of the contract or
. the standing orders as duly certified, but where an industrial dispute
is raised the form of the order is not conclusive, . and the Tribunal to
which the dispute is referred can examine the question whether the
discharge WaS punitive, ma/a fide, vindictive, or arbitrary. If it comes
to any of these conclusions, it could direct reinstatement of the employee. But even in such cases the Tribunal should not direct reinstatement if it comes to the conclusion that the employer has Jost his confidence in the employee, where the reposing of such confidence is a
necessary concomitant of his services.
In other words, the order of
discharge simr>liciter is not conclusive and when an industrial dispute
is raised, the Tribunal adjudicating such dispute can examine the substance of the matter and determine whether the termination is in fact
discharge simpliciter or dismissal, though the 'order is one of simple
termination of service. If it is satisfied that the order is punitive or
ma/a fide or is made to victimize the workman or ·amounts to unfair
labour practice, it is competent to set it aside.
The test is whether
the act of the employer is bona fide or not. If it is not and is a:
colourable exercise of the power under the contract of service or
st~nding orders, the Tribunal can discard it and in a proper case direct
remstatement. See also Tala Engineering and Locomotive Companv
Ltd. v. Prasad(2)
·
(t) [1967] I L.L.J .. 391.
(2) [1969] 2 L.L.J. 799.
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GUJARAT M.D.c. v. BRAHMBHATT (Jaganmohan Reddy,!).
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. The principles being clear, the only question is whether the Special
Labour Court .arrived at a perverse finding or a finding not ·warranted
by the evidence on record or are· there any errors apparent on the
face of lhe record which vitiate that finding?
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The respondent who personany argued his case· c_ontended that in
Bengal Chemical & Pharmaceutical Works Ltd. v. The Employees( I),
it was held by this Court that though Art. 136 is couched in widest
terms, it is necessary for this Court· to exercise its di;cretionary' jurisdiction. only in cases '\>'here awards are made in violation of the principles of natural. justice, causing substantial and grave injustice or
raises an important principle of industrial law requiring elucidation
and final decision by .this Court or discloses such other exceptional and
special circumstances which merit the consideration of this Court. It
is· true that the decisions of this Court warrant· the submission that
before redress is claimed under Art. 136 .the party claiming it should
show that the impugned order or award is defective. by reason of
excess of jurisdiction or of a substantial error in apply .the law or of
$ettled principle or suffers from gross and. palpable error. occasioning
manifest and substantial injustice : per Hidayatbllah, ·J., in Kamani
Metals & Alloys Ltd. v. Their Workmen( 2 ).
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It may, however, be stated that this Court does not generally entertain pleas on questions of fact or interfere with findings of fact so as
to convert itself into a third court of fact.
The reason is obvious,
because different persons may -come to different conclusions on an
appreciation of evidence depending upon the way in which the credibility of the evidence given by the witnesses is judged. In: so judging
the· evidence, various contributory factors may play a vital part, such
as the knowledge and· experience of men and affairs.
However an
appellate court ot a court having jurisdiction to entertain petitions challenging the verdict will not hesitate to interfere with findings of fact
where there has been an· illegality or an irregularity of procedure, or
a violation of the principles of natural justice, resulting in the absence
F · of fair trial or where there has been a gross miscarriage of justice, or
where the tribunal has SJXlken in two voices and has given inconsistent
and conf!iciing findings, or where the findings are· vitiated by. error
of law or where the c0nclusions reached by the courts below are so
patently opposed to the well-established principles as to amount to
miscarriage of justice or where. the finding is not supported by any
legal evidence and is wholly inconsistent with the material produced
on th" record, or where the High. Court or the tribunal below, committed a serious error in not examining evidence on a central issue with
. the care which it deserved. These principles have been affirmed in
the various decisions of this Court and are so well·established that it is
unnecessary to refer to those decisions.
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Applying these principles what we· have to see in this case is, is
any interference in the award called for. No doubt the Special Labour
Court gave a clear finding that the behaviour of the workman showed
(') [19591 1 L.L.J. 413. .
(2) [19671 2 L.L.J. 56, 60 (S.C.).
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. I 1914 J 2 s.c.R.
. that he ·was haughty and insolvent and that he had ·used improper language to his superiors. Having given that finding it thouY:t that h~
was properly dealt with by be!ng made to. apologis.e for his wrongs
and therefore he ,cannot be tned and punished twice for the sam~
wrong.
While we 'consider that the finding arrived at is amply justi·
ed by the record, the subsequent glossing over of .the serious charge
against the respondent is unwarranted on the evidence on record.
Several letters were addressed to the respondent by the Corporation
and he was .given several memos in respect of his work, attitude and
conduct while in service. He seems to have made it a habit of remain·
ing absent from duty without obtaining prior permission as is evide'1t
from the various letters. By its letter dated October 23, 1967, tho
Corporatron informed the. respondent that he remained absent from
3rd to 6th and 1 lth of that month without prior approval of any of
his superiors and he was told that availing of such leave by lhe Senior
Assistant cannot ·be tolerated by the management. He was asked to
explain within two days from the date of the ·receipt of that letter,
why disciplinary action should not be taken against him for remaining
absent from the office. By his letter dated October 26, 1967, the
respondent explained that he was suffering from acute dysentery from
3rd to 6th October and therefore he was compelled to remain on leave
during that period: This letter shows that he was aware that remain·
ing absent without prior sariction of leave was improper but it was
explained that he could not get prior approval for leave.
Again by
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its .Jetter dated January 19, 1968, the Corporation informed the respondent that he remained absent from his duties on January 15, 1968
without prior approval of any of his superiors and he was asked to
explain· why disciplinary action should not be taken against him for
availing of leave in this manner which previously also he had availed of
two days' leave in similar manner. ·On October 9, 1969 a memo was
issued to the respondent that in contravention of the instruction issued
under Office Circular dated July 5, 1969, he had remained absent oa
October 4, 1969 ·without prior approval of leave in writing from any
of his' superiors; ·and he was ·asked to explain immediately why his
absence should not be treated as leave without pay. Again on May
13, 1970, · another inemo was issued 'to the respondent saying tliat
he was in the habit of proceedin~ on cosual leave without' getting the
same sanctioned before hand; In that memo it was stated that whenever he was, asked by his departmental .head to give reason for his
remaining on casual leave he was trying to evade giving specific reasoi1s
for. absenting himself from duties.· The memo further stated that:"..
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•. you are in the habit of deliberately ignoring day to day instructions ·
is_sued to you by your departmental head, e.g., you have been often
told to be punctualin attending office, ·not to leave your seat during
office hours without any reasonable cause; or office work, not to while
away your time by going on 5th F1oor and chitchating with the mem·
bers of the staff etc.
Even then it is found that you have persisted in
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ignoring all these instructions. . That you are showing scant respect
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.or your superiors".· He gave an explanation which was aru'!lllentative
and vague.
On June 26, 1970 he was again served with another memo
_stating.that it was found that_ on 25th morning at about 11.30 he had
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GUJARAT.M.D.C. v. BRAHMBHAJT (Jaganmohan Reddy, I). i 37 /
some visitors with whom he left the office without intimating his immediate superk1r and later he had left a leave application for half day
casual leave and left -the office without intimating his superior. He
was asked to note that this was highly indisciplined and to show cause
why action may not be taken against_ him: In his reply dated June 29,.
1970 he said that it was not 11.30 a.m. but J.30 p._m. that he had
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left the office and said that he had conveyed the messa~e through some
one but evidently he did not convey . the message.
He was given
a warning on June 30, 1970 that he had violated the instructions by
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not submitting the explanation in time before 5.30 p.m. on June 16,
1970 and also that the explari'ltion given by him was most unsatisfactory, and the facts stated therein were incorrect.
On December 24,
1969 he was given a warning for returning late from recess on that
date at 2.50 p.m. instead of at 2.30 p.m. and he was informed that
the authorities viewed it as gross irregularity and indiscipline on his ·
part in not observing office timings and was strictly warned that in
future if he was found irregular in observing office timings, l1e will be ·
liable for strict disciplinary action.
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After this, on another . occasion the respondent by letter dated
October 20, 1970 was asked to undertake tour to Bombay for a week
· D · to ten days before Diwali, but he refused to comply.
Thereafter .a
memo dated October 23/26, 1970 was issued to the respondent thae
he was told by the Assistant Sales Organiser on October 20, 1970
to proceed on tour to.Bombay for sale of Silica Sand and that he was
specifically instructed to undertake the. tour before Diwali, but he had
arrogantly ·refused to accept the original letter and returned the same
.¥
bwidth hthe1
trhemaErk that ~e c~nntot ut;idertatke the todur ont ground of hist
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ven pnor ms rue ions o procee
on our were no
complied with.
Instead of carrying out these instructions he proceeded on leave immediately on the ground of ill health. and did not carry
out the instructions.
When he was once again instrucied in writing
as stated alxwe, he had shown gross disobedience, insubordil1ation and
disrespect to his superiors and gross ne•Fgence in his work. It was .
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further stated in that memo that besides the above incident, it had been
found on several occasions in the past that he was in the habit of
deliberately violating the instructions issued to him by his superiors from
time to _time in respect of his duties ·:and showing scant respect to
his superiors and· that the Management, had taken a serious view of
this· and he was asked io submit his Written explanation on or before
October 27, 1970 why his services should not be terminated forthG . with. To this memo the respondent replied on October·28; 1970, in
which he described the allegations rontained in the memo dated October 23/26, 1970 as "absolutelv false, frivolous and concocted". He
also said "a tour before a week ahead of Diwali should not be- fruitful" and that it would_ be.wastage of money "which any layman can
appreciate".
He also stated therein that he personally felt that the
Corporation was resorting to a sort of stunt to send him on tour before
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Diwali maliciously to put him in hot water since management did not
arrange so far for his visiting cards with desiiroation to represent the
Corporation while promoting the sale of Silica Sand. The Corporation
legitimately took exception to this letter and by memo dated November
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SUPREME COURT REPORTS
[ 1974 1 2 s.c.R.
3, 1970, informed the respondent that his' explanation was couched
in impolite, insulting, unparliamentary and disrespectful language, and·
he had cast unwarranted and baseless aspersions against his superiors
and the mangement in respect of,which the management. tcok a very
serious view to this sort of behaviour amounting to insubordination on
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the part of a Senior· Assistant. In view of this he was asked to
withdraw all those allegations and aspersions and to tender an unconditional written apology before 5.30 p.m: on November 4, 1970, · B
expressing sorrow for the same, . failing which the management will
have to take serious disciplinary action against him. The respondent
·thereafter began to hedge and did not offer an unconditional written
apology.
By his 12tter dated Novembor 4 .. 1970, he said "While
referring yours above, I do not infer what is inferred by Management,
but however if so is inferred by the Management; l feel sorry". He
was then informed by a memo dated .November 6, 1970 that there
was. nothing to be inferred when everything was ~bundantly clear,
and that instead of straightaway withdrawing all the allegations and
aspersions against the management contained in his explanation dated
. October 28, 1970, he had raised the question of inference by the
management. He was, therefore, once again asked to withdraw all
the allegations and aspersions and to offer unconditional apology for
the .same before 5.30 p.m. on· November 6, 1970. Again by letter
dated November 7, 1970 the respondent did not offer an unconditional apology _but write as follows :
"While referring yours above I again feel sorry that the
Managerr:ent still feels my reply dated 28th of October 1970
offending though not, which is a matter of great regret".
It will thus be observed that by neither of these two letters did he
either Withdraw the allegations made against the Corpora!ion or its
officers, nor offer an unconditional apology. His only regret was that
the management felt his reply offending though it was not.
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Even so, on the· same day, i.e. November 7, 1970, the respondent
sent. a letter enclosing therewith a leave application for
30 days
earned leave from November 9, 1970 to December 8, 1970 (8th
November 1970 being Sunday) accompanied by a medical certificate
in original. In the medical certificate the illness was shown as "Due
to aihnent for having too fever, general debility, and swelling
on
lever etc." and the person certifying was a Vaidya. Thereafter at
no time did the respondent care to have his leave mentioned before
availing of leave, nor did he return to work till his services were
terminated.
. The Corporation asked the respondent to appear before it for
being sent to the Civil Surgeon, Ahmedabad, but · the respondent
began to dodge.
The Corporation sent a letter dated November 9, ·
1970. under certificate of posting informing the respondent that bis
leave application was violative of ·certain provisions of the Service
Rules and that he was well aware that as provided in the Service
Rules of the Corporation; application for earned leave is ordinarily
required to be submitted 15 days before the date from which leave
is required and that it was obligatory on the part of every employee
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GUJARAT M,D.C. v. BRAHMBHATT. (laganmohan Reddy, 1).
13 9to furnish his address during leave which· he had failed to state in
his leave application and he had absented himself from duty without
getting his leave sanctioned even though he was present in the office
on November 7, 1970 and ·there was.nothing wrong with his health.
It was also stated therein that instead of personally handing over
his leave application to the Head of his D~partmcnt, he. had adopted
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