1. This is an application by the State Transport Controller, Orissa requesting this Court to issue a writ of certiorari or any other appropriate writ calling for the records of the Industrial Dispute Case No. 5 of 1963, to set aside and quash the award given therein on 25th November, 1963 by the Industrial Tribunal. Orissa, which was published in the Orissa Gazette dated, 13th December 1963 and whereby the order of dismissal passed on 19th December 1960 against their employee Lakhman Pradhan was held illegal and unjust and he was ordered to be reinstated.
2. Lakhman Pradhan was appointed by the management of the Orissa State Transport Service (hereinafter described as the management) on 19th November 1957 as a cleaner purely on a temporary basis (vide Annexure- A to the written statement filed by the second party before the Industrial Tribunal), It was expressly stated in the letter of appointment that 'the services may be terminated at any time without notice.'
3. It is said that during his service Lakhman Pradhan was found misbehaving several times for which charge-sheets were drawn up against him and he was punished.
4. The last of these charge-sheets dated 10th September 1960 was drawn up against him on behalf of the management by Shri P. S. Rama Rao, the then Assistant Transport Manager. It related to the allegations of the period prior to 10th August 1960. It is marked Ext. 7 on the record and reads as follows :--
'You Shri Lakhman Pradhan Cleaner, Sambalpur are hereby called upon to explain the following charges appearing hereinafter.
1. On 10th June 1960 you were allotted duties as night watchman of the office of the undersigned but you did not attend to the duties and disobeyed the orders of the S.S.M.
2. When the Senior Station Master, Sambalpur called for you by the other cleaner you did not listen to them and later on you arrived before the Senior Station Master and misbehaved with him unmannerly and refused to attend duty.
3. That once you had abused the Assistant Station Master Shri Meher when asked by him to go on duty.
4. That you had to perform the town mail duty on 30th June 1960 but never cared to do so.
5. That you had been suspended from duty vide this Office No. 116 dated 6th January 1959 and proceedings were drawn up against you in this Office No. 1811 dated 19th January 1959 for your such kind of indisciplined conduct and disobedience of order of Superior Officer for which you have been ordered severe punishment in this office No. 2973 dated 21st May 1959.
From the above charges it is seen that you are a regular offender of frequently remaining absent from duly willfully, disobedience of orders of Superior officers and, therefore, you are called upon to explain within seven days of the receipt of these proceedings through the Senior Station Master, Sambalpur, why you should not be discharged from service for the above offences. If your explanation is not received in time it will be presumed that you have no explanation to offer and the proceedings will be disposed of ex parte.
P. S. Rama Rao.
Assistant Transport Manager.'
5. It appears that while this charge-sheet was still pending investigation, two more allegations were thereafter made against Lakhman Pradhan. They related to the incidents of 2nd and 3rd November, 1960 in the course of which he was alleged to have assaulted and misbehaved with some lady passengers. As to these incidents, however, there was never any charge drawn against Lakhman Pradhan. Despite that Shri Jagannath Das instead of proceeding with the charge-sheet dated 10-9-1960 took up the investigation of these two new incidents. In the course of that investigation he claimed to have, on 8th November 1960, questioned Shrimati Dumaluni, Kamanath Das the driver, and the petitioner Lakhman Pradhan. The replies given by these persons according to him tallied with what they had stated earlier about these two incidents before Shri Behera. Therefore, on the basis of these materials Sri Jagannath Das finally found that these allegations were true and on November 8, 1960 recorded his finding in these words.:
'The cleaner appeared before me on the 8th. The assaulted lady was also present. The facts were duly enquired into and it was proved that the cleaner was insolent. For this such a bad character such a cleaner should not be kept in the Department. Terminate his services.'
This finding is marked as Ext. 1/a on the record and is found noted in the corner of the paper marked Ext. 1. Accordingly, thereafter, by the letter dated 9-11-1960 his services were terminated. This letter is Ext. 11 on the record and reads as follows:
'Office of the Assistant Transport Manager Sambalpur.
Dated 9. Novr. 1960.
The services of Lakhman Pradhan, temporary cleaner State Transport Service, Sambalpur are terminated with immediate effect as his services are no longer required in this Department.
Sd. J. N. Das.
Assistant Transport Manager, Sambalpur.'
6. This gave rise to a dispute in the course of which the legality and validity of the order terminating the services of Lakhman Pradhan was strongly challenged by the workmen of the management represented through the Orissa Transport Employees Union, Sambalpur. The Government of Orissa, thereafter, in due course, in exercise of the powers conferred upon them by Sub-section (5) of Section 12: read with Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (Act XIV of 1947) referred that dispute to the Industrial Tribunal, Orissa by their order of reference dated 9-3-1963. Therein the subject matter of adjudication was referred to in these terms:
'Whether the retrenchment of Shri Lakhman: Pradhan, cleaner of the State Transport Service, Orissa is legal and justified; if not, what relief he is entitled to.'
7. The Industrial Tribunal on hearing the parties finally gave the award dated November 25, 1963 holding that the aforesaid order terminating the service of Sri Lakhman Pradhan was neither legal nor justified, and that he was entitled to reinstatement. It appears that before the Tribunal the validity and the legality of the aforesaid order terminating the services of Shri Lakhman Pradhan was challenged mainly on two grounds :
(i) That the order of termination of his services was in fact and in law a case of 'retrenchment' as defined in Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter to be called the Act) and therefore the same not having been effected in accordance with the requirements of Section 25F of the Act was void and illegal:
(ii) That in any case the termination of the services of Lakhman Pradhan was a colourable exercise of the power under the contract and was in fact and substance the result of action taken agginst him for misconduct but without giving him a fair opportunity to defend himself against the allegations made in regard thereto, as provided in Article 311(2) of the Constitution or as warranted by the rules of natural justice and therefore it was neither valid nor just, and it was brought about by a colourable exercise of power given under the contract.
8. In regard to the first ground. the conclusion come to by the Tribunal was that--
'The order dated 9-11-60 passed by Sri Jagannath Das, Asst. Transport Manager, Sambalpur (Ext. 11) is not an order of retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act (vide National Garage v. J. Gonsalves, (1961-62) 21 F.J.R. 435: (AIR 1962 Bom 152 FB).'
But alternatively thereafter it also held that even;--
'If we assume the Order of 9-11-60 'Ex.11'to be an order of retrenchment, then it is to be held that this order is illegal. What is illegal is also unjustified. As this Order is inoperative in law, it is to be held that Shri Lakhman 'Pradhan has not been retrenched, in the eye of the law, and consequently, he shall be deemed to be continuing in the service of the State Transport Services, Orissa.'
Then as to the second ground, the Tribunal concluded that:
'It is not a case of termination of service in bona fide exercise of the power derived by the management from the contract of the service entered into with the employees (Annexure A to the written statement filed by the Union.)'
'Even he has been discharged from service for misconduct as contended by the management, through the evidence of Shri Jagannath Das (MW1) such discharge is neither legal nor justified for want of proper domestic enquiry and for lack of acceptable evidence in support of the allegations of misconduct.'
9. Lastly there was one more point canvassed on behalf of the management before the Tribunal. That was to the effect that thereference made by Government was incompetent as the dispute referred to was not an Industrial dispute but only an individual dispute. This point was disposed of by the Tribunal in these terms:
'The Union of which the cleaner was a member, has come forward to challenge the validity of the order passed by the management against Shri Pradhan on 9-11-60.'
'Consequently this dispute acquired the character of an industrial dispute even prior to the reference. I am therefore to hold that the reference is fully competent.'
In conclusion, therefore, the Tribunal, in the light of these findings, held as already stated that Shri Lakhman Pradhan was entitled to reinstatement.
10. It is against this order under the award that the management has now come up to this Court under Article 226 of the Constitution of India for the reliefs as stated above.
11. Now so far as the facts relating to the sequence of events which ultimately lead to the termination of the services of Shri Lakhman Pradhan are concerned, they are more or less proved. In fact they are substantially admitted by the management witness, Shri Jagannath Das, who was examined as M.W. 1 before the Tribunal. This Shri Jagannath Das in his deposition inter alia stated that:.
'On receipt of Ext. 7 the charge sheet, L. Pradhan did not submit any explanation. There was an incident on 2-11-1960, and there was another incident on 3-11-1960. On 2-11-60 L. Pradhan assaulted a woman in Sambalpur Bus Stand. On 3-11-60 he misbehaved with a girl at Bhatli. I received Ext. 1 from the senior Station Master with regard to these two incidents. Regarding these two incidents I did not draw any charge regarding Lakhman Pradhan. This is a copy of the final order passed by me on 8-11-60 relating to the incidents of November 2 and 3, 1960. Ext. 11. I was satisfied that the lady was assaulted in Sambalpur Bus Stand by this cleaner in course of my enquiry.'
Further he also added that--
'Regarding the earlier incidents, my predecessor in office had drawn up charges against L. Pradhan. But Sri Pradhan on receipt of such charge-sheet did not care to submit any explanation to him. I therefore thought that it will not be of any use to draw up fresh charges against Sri Pradhan. So I enquired into the allegations myself and found that the allegations are true.'
12. It is therefore in the light of these facts and sequence of events that the submissions made in this Court on behalf of the respective parties have to be judged and appreciated.
13. Now in the Court substantially all the findings of the Industrial Tribunal as given in the award have been challenged by the management either on the ground that the entire award as a whole suffers from lack of jurisdiction and is therefore void, or on the ground that the findings as arrived at therein are, on their very face, illegal and' contrary to law.
14. In law it is well established as held in Newspapers Ltd. v. State Industrial Tribunal, AIR 1957 SC 532. that--
'In spite of the fact that the making of a reference by Government under the Industrial Disputes Act is the exercise of its administrative powers, that is not destructive of the right of the aggrieved party to show that what was referred was not an industrial dispute at all, and therefore the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a party's challenge.'
Relying on this rule of the law, the first submission made by the learned Advocate General appearing for the management is that the present dispute is not an 'industrial dispute', but only an individual dispute and as such the reference made by the Government is incompetent and the award given in pursuance thereof by the Industrial Tribunal is one without jurisdiction. This part of the submission made by the learned Advocate General is based on the footing:
(i))That there is no evidence to show that Lakhman Pradhan is a member of the Orissa Stale Transport Employees Union, Sambalpur;
(ii) That the Union had no authority to represent Lakhman Pradhan in the present proceeding:
(iii) That in any case there was no recognition given to this Union by Government. Accordingly, it has been contended that the mere fact that in the present proceeding before the Tribunal the case of Lakhman Pradhan was conducted by Sri Bastia, the Secretary and Sri Senapati, the Asst. Secretary of the Union can-dot make the individual dispute of Lakhman Pradhan an 'industrial dispute'. In support of this contention reliance has been placed by the learned Advocate General on the decision of the Calcutta High Court in Belsund Sugar Co. v. Labour Appellate Tribunal, AIR 1958 Cal 456.
15. The point has been elaborately Rone into by the learned Industrial Tribunal and it has, on facts, found that--
(i) Lakhman Pradhan is a member of the Orissa Transport Employees Union, Sambalpur:
(ii) That this Unioii has been registered as such by the Registrar of Trade Unions; and
(iii) That the Orissa Transport Employees Onion, is a Union of the employees of the State Transport Service, Sambalpur Zone.
It has further found that Sri Senapati, the Assistant Secretary and Sri Bastia, the General Secretary of the Union had due authority to deal with the case of Lakhman Pradhan, and that these persons had taken up the cause of Lakhman and pressed for his reinstatement not only during the conciliation proceedings, but also before the Transport Controller, Orissa. Accordingly, relying on the test as to when a dispute of this nature can be held to be an industrial dispute, as laid down in AIR 1957 SC 532 and Bombay Union of Journalists v. The Hindu, AIR 1963 SC 318, the learned Industrial Tribunal has found that
'this dispute acquired the character of an industrial dispute even prior to the reference. I am therefore to hold that the reference is fully competent.'
16. As observed in the aforesaid decision of the Supreme Court in AIR 1957 SC 532, that
'The use of the word 'workmen' in the plural in the definition of 'industrial dispute' Section 2(k) of the Industrial Disputes Act 1947) does not by itself exclude the applicability of the Act to an individual dispute because under Section 13(2) of the General Clauses Act, unless there is anything repugnant in the subject words in the singular shall include the plural and vice versa. But in order to get its true import it is necessary to view the enactment in retrospect, the reasons for enacting it, the evils it was to end and the objects it was to subserve. The Act has therefore to be viewed as a whole and its intention determined by construing all the constituent parts of the Act, together and not by taking detached sections or to take one word here and one word there. Exposition 'ex visceribusactus' is applicable.'
and when so viewed--
'The provisions of the Act lead to the conclusion that its applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute, viz, the workmen as a body or a considerable section of them make common cause with the individual workman and thus create conditions necessary for the State Government to refer the dispute to the Industrial Tribunal under the Act.'
But in this connection a question may arise as to when and at what point of time it is necessary that the workmen as a body or a considerable section of them must make common cause with an individual workman in order to make the dispute as Industrial Dispute. This question directly came up for discussion before the Supreme Court in case of AIR 1963 SC 318. Therein dealing with the subject, their Lordships have laid down that.
'In each case in ascertaining whether an industrial dispute has acquired the character of an industrial dispute, the test is whether at the date of the reference the dispute was taken up or supported by the Union of the workmen of the employer against whom the dispute is raised by an individual workman or by appreciable number of workmen. (See Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan, AIR 1957 SC 104. AIR 1957 SC 532 and Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR 1958 SC 353). If the dispute was in its inception an individual dispute and continued to be such till the date of reference by Government it could not be converted into an industrial dispute by support subsequent to the reference, even of workmen interested in the dispute.'
17. Therefore, in order that the dispute may be held to be an industrial dispute it is necessary that it should fulfil two conditions, (1) that the workmen as a body or a considerable section of them must be found to have made common cause with the individual workman, and (2) that the dispute was taken up or sponsored by the workmen as a body or a considerable section of them at a time before the date of reference. That being so, it must follow as observed in Muragan Transport v. Its workers (1960) 1 Lab LJ 349 (Mad) that 'In the absence of any evidence or proof to show that the general body of the Union authorised the Secretary or any of its other officers to make the demand, on behalf of the dismissed employees, on the management, the reference under Section 10 of the Industrial Disputes Act must be held to be invalid. ' as it happened in the case of AIR 1958 Cal 456 (which has been relied on by the learned Advocate General). In the latter case there was no evidence or material on the record to prove that the Secretary of the Union who helped the workmen's cause before the Tribunal had in fact any authority from the Union to represent them; rather in that case as found by the Industrial Tribunal the materials on record proved that they had no such authority. It was therefore on those grounds that it was therein held that the mere fact that the workmen were represented by the Secretary of the Union cannot change the character of the dispute into an industrial dispute, because the industrial worker has a right to be represented by the Union through the Secretary of the Union.
18. But the facts in the present case are entirely different. In the present case it has been clearly found by the Industrial Tribunal not only that the All Orissa Transport Employees Union, Sambalpur (which is a Union of Employees of the State Transport Service, Orissa, Sambalpur Zone) had taken up the case of Lakhman Pradhan through its Assistant Secretary Sri Senapali and its General Secretary Shri Baslia in the proceedings before the Industrial Tribunal, but also that they had pressed his claim even before the Transport Controller, Orissa, which happened to occur long before the date of reference by the Government and that there was never any objection taken or any plea raised by the management at any point of time that the Union had no authority to represent the case of Lakhman Pradhan. Further the Tribunal has also found as a fact that the aforesaid General Secretary and Assistant Secretary had necessary authority to represent the case of Lakhman Pradhan. This finding finds full support from the materials on the record, as for example, the order of reference and the cause title of the award. Therefore on the facts of the present case there is no scope for the submission made by the learned Advocate General that the finding as arrived at by the Tribunal on the question as to whether there was any industrial dispute or not is wrong and much less that the same is wrong on the very face of it. Therefore it follows that in the present case neither the reference was incompetent nor the award as given in pursuance thereof suffered from any lack of jurisdiction.
19. The second submission made by the learned Advocate General relates to the alternative finding given by the Tribunal to the effect that even
'If on the other hand it is assumed that Shri Lakhman Pradhan was actually retrenched as stated in the order of reference then it is to be held that it was illegal and therefore not justified.'
Obviously the aforesaid finding is just the opposite to what the Tribunal had previously found, viz. that
'The order dated 9-11-60 passed by Shri Jagannath Das, Assistant Transport Manager (Ext. 11) is not an order of retrenchment within the meaning of Section 2(oo) Industrial Disputes Act (vide (1961-62) 21 F.J.R. 435: AIR 1962 Bom 152 (FB)).'
One is therefore naturally put to certain amount of surprise as to how these two contradictory findings could have been arrived at on the same facts. It is however clear that the question as to whether the termination of the services of Lakhman Pradhan was a case of retrenchment or not has after all to be judged in the light of the definition of retrenchment' as given in Section 2(oo) of the Industrial Disputes Act, 1947. That clause provides that--
' 2 (00). 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action but does not include--
(a) voluntary retirement of the workman,
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the employee concerned contains a stipulation in that behalf; or
(c) termination of the service of a workman on grounds of continued ill health.'
In the case of Hariprasad v. A. D. Divelkar, AIR 1957 SC 121, their Lordships of the Supreme Court while dealing with this definition have observed that,
'In no case is there any retrenchment unless there is a discharge of surplus labour or staff in a continuing or running industry. '
The learned Advocate General, therefore relying on this authority of the Supreme Court has contended that as here there is no evidence on the record to prove that the termination of the services of Lakhman Pradhan was due to the fact that he was a surplus hand the Tribunal should have held that it was a case of termination simpliciter and not of retrenchment. Accordingly it has been submitted that the Tribunal in holding that it was a case of retrenchment within the meaning of Section 2(oo) of the Act has erred in law. In support of this contention reliance has also been placed on the decision in Municipal Corporation of Greater Bombay v. Labour Appellate Tribunal, (S) AIR 1957 Bom 188, AIR 1962 Bom 152 (FB) Burra Kur Coal Co. Ltd v. Azimuddin, AIR 1960 Pat 554 and British India Corporation Ltd v. Industrial Tribunal Punjab, AIR 1962 Punj 154. In all these cases the aforesaid observation of the Supreme Court in (S) AIR 1957 SC 121 has been construed to mean what has been contended before us by the learned Advocate General. Therefore, the law on the subject seems now to be settled. Here, however on merit it cannot be altogether ruled out that the order dated 9th November 1960 which has already been quoted above at least by implication suggests that it was a case of discharge by way of surplusage. That order specifically mentions that ' His services are no longer required in the Dept.' Therefore, it may mean that his services were terminated as he was then found to be surplus hand. Ins view however, of the fact that Mr. Govind Das appearing for the Union has not supported the award of the Tribunal on the footing that this is a case of-retrenchment, it is therefore, not necessary for us to give any definite finding on this aspect of the case.
20. The submission made by Mr. Govind Das is that in any case this much is clear that at least at its inception there was a conclusion arrived at by the Government when they made the reference that it was a case of retrenchment; therefore, that by itself was enough to give jurisdiction to the State Government to refer the dispute to the Tribunal as provided in the Act. And, once the dispute is referred to a Tribunal, it is open to it to find out not only as to whether it was a case of retrenchment or not, but also whether the action taken against the workman under the contract even if that may not be a case of retrenchment as contemplated by Section 2(oo) of the Act was not a simple case of termination simpliciter but a case of termination by way of punishment and as such a case of dismissal without having recourse to the procedure provided for such a case under law or to put it differently whether it was a colourable exercise of power and was not bona fide or was the result of victimisation or unfair labour practice; and if on enquiry the Tribunal finds that it was so, it is within the jurisdiction to give the necessary relief to workmen which, in the circumstances of the case, may be considered just and proper. In other words, the Tribunal in that case will have wide authority to find out the real as against the apparent, or to put it differently to lift the veil and to find out the actual behind it. In my opinion, this part of the submission made by Mr. Govind Das is correct both on principle and authority. I say on principle because 'social justice', as observed in R.M.M. Sangh v. Appollo Mills Ltd., AIR 1960 SC 819 and as by implication incorporated in some of the provisions of the Industrial Disputes Act, is not based on contractual relations and is not to be enforced on the principles of contract of service. It is something outside these principles and is invoked to do justice without a contract to back it from the provisions made to the effect in the Act. Section 10(1) gives wide power to the Government to prefer any matter appearing to be connected with or relevant to the dispute to a court for enquiry and Clause (4) empowers the Tribunal to give its adjudication not only to the points referred to it but also to matter incidental thereto. Now in the present case the point referred to the Tribunal for adjudication was, as already quoted above,
'whether the retrenchment of Shri Lakh-man Pradhan, cleaner of the State Transport Service, Orissa, is legal and justified, if not what relief he is entitled to'.
I agree with Mr. Govind Das that this point of reference has to be read in the light of the order which was passed on 9th November 60 terminating the service of Lakhman Pradhan. That was to the effect that
'The Services of Shri Lakhman Pradhan, temporary cleaner, State Transport Service, Sambalpur, is terminated with immediate effect as his services are no longer required in the Department',
and if so read it is obvious that what was substantially referred to by the Government to the Tribunal for adjudication was the illegality and unjustifiability of this order of termination passed by the management. It may be that in the eye of the Government it was a prima facie case of retrenchment. But the Government in referring the dispute to the Tribunal did not limit it to that aspect of the case alone. On the other hand, they added that if the Tribunal came to the opinion that the retrenchment made in this case was not legal and justified, it was further to find out whether in that case the workman was entitled to any relief. This point of reference therefore, was wide enough to cover all matters incidental to the case of retrenchment as made out by the Government in the aforesaid order of reference. In other words, it was thereunder, open to the Tribunal to find as to how far the order of termination on the facts of the case was legal and just as laid down in Buckingham and Carnatic Co. Ltd. v. Workers of the Co. 1952 Lab AC 490 LATI, W.I.A. Association v. Industrial Tribunal Bombay, AIR 1949 FC 111, Assam Oil Co. Ltd. v. Its Workers, AIR 1960 SC 1264, and U. B. Dult and Co. v. Its Workers, AIR 1963 SC 411. In AIR 1949 FC 111, the Federal Court while dealing with the scope of jurisdiction of an Industrial Tribunal observed
' Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the Tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by these limitations. In Volume I of 'Labour Disputes and Collective Bargaining' by Ludwig Teller, it is said at page 536 that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements.'
This view was thereafter more elaborately developed in the case of AIR 1960 SC 1264. In fact this authority is on all fours applicable to the facts of the present case. Therein their Lordships observed,
'If the contract gives the employer the power to terminate the services of his employee after a month's notice or subject to some other condition it would be open to him to take recourse to the said term or condition and terminating the services of his employees; but when the validity of such termination is challenged in industrial adjudication it would be competent to the industrial tribunal to enquire whether the impugned discharge has been effected in the bona fide exercise of the power conferred by the contract. If the discharge has been ordered by the employer in bona fide exercise of his power then the industrial tribunal may not interefere with it; but the words used in the order of discharge and the form which it may have taken are not conclusive in the matter and the industrial tribunal would be entitled to go behind the words and the form and decide whether the discharge is a discharge simpliciter or not. If it appears that the purported exercise of the power to terminate the services of the employee was in fact the result of the misconduct alleged against him then the tribunal will be justified in dealing with the dispute on the basis that despite its appearance to the contrary the order of discharge is in effect an order of dismissal. The exercise of the power in question to be valid must laways be bona fide. If the bona fides of the said exercise of power are successfully challenged then the industrial tribunal would be entitled to interfere with the order in question. It is in thiscontext that the industrial tribunal must consider whether the discharge is mala fide or whether it amounts to victimisation or an unfair labour practice, or is so capricious or unreasonable as would lead to the inference that it has been passed for ulterior motives and not in bona fide exercise of the power conferred by the contract. In some cases, the employer may disapprove of the trade union activities of his employee and may purport to discharge his services under the terms of the contract. In such cases, if it appears that the real reason and motive for discharge is the trade union activities of the employee that would be a case where the industrial tribunal can justly hold that the discharge is unjustified and has been made mala fide. It may also appear in some cases that though the order of discharge is couched in words which do not impute any misconduct to the employee, in substance it is based on misconduct of which, according to the employer, the employee has been guilty; and that would make the impugned discharge a punitive dismissal. In such a case fairplay and justice require that the employee should be given a chance to explain the allegation weighing in the mind of the employer and that would necessitate a proper enquiry. Whether or not the termination of services in a given case is the result of the bona fide exercise of the powers conferred on the employer by the contract or whether in substance it is a punishment for alleged misconduct would always depend upon the facts and circumstances of each rase. In this connection it is important to remember that just as the employer's right to exercise his option in terms of the contract has to be recognised so is the employee's right to expect security of tenure to be taken into account. These principles have been consistently followed by industrial tribunals and we think rightly. (Vide 1952 Lab AC 490 (LATI).'
Subsequently the same view is expressed by the Supreme Court in AIR 1963 SC 411. That was in these words.
'We are of opinion that this claim of the appellant cannot be accepted, and it is too late in the day for an employer to raise such a claim for it amounts to a claim 'to hire and fire' an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication for over a long period of time now. As far back as 1952, the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning any reason (See 1952 Lab AC 490 (LATI)). It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the termination of service is a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. Further it held that where the termination of service is capricious, arbitrary or unnecessarily harshon the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimisation or unfair labour practice. These observations of the labour Appellate Tribunal were approved by this Court in Chartered Bank, Bombay v. Chartered Bank Employees' Union, 1960-3 SCR 441: AIR 1960 SC 919, and 1960-3 SCR 457 : AIR 1960 SC 1264. 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 Rule 18 (a) of the Standing Orders, it was clearly a colourable exercise of the power under that rule inasmuch as that rule was used to get rid of an employee instead of following the course of holding an enquiry for misconduct, notice for which had been given to the employee and for which a departmental inquiry was intended to be held.'
It is therefore, now too late as observed in the aforesaid decision in AIR 1960 SC 1264 to contend that the contractual power of the employer to discharge his employee under the terms of the contract cannot be questioned in any case. That being so, it was open to the tribunal to find even if it was not a case of retrenchment but a case of termination alone whether that termination was a termination simpliciter or a termination by way of punishment. In the present case there is a clear finding given by the tribunal that
'It is not a case of termination of service in bona fide exercise of the power derived by the management from the contract of service entered into with the employees'
nor was there any fair enquiry into the allegation made against Shri Lakhman Pradhan. What the tribunal in substance means to say is that in the course of the enquiry Lakhman Pradhan was not given any fair opportunity to meet the allegations made against him or to cross-examine the witnesses who were produced on behalf of the management in course of that enquiry. This was obviously contrary to the procedure as laid down in Article 311 of the Constitution of India or as warranted by the rule of natural justice, and as such the order of termination of the service of Lakhman Pradhan was wrong in law and what is wrong in law is unjust as observed in India General Navigation and Rly. Co. Ltd. v. Their Workmen, AIR 1960 SC 219. It is true that the order of termination passed in the present case read by itself was innocuous and did not refer to any allegation made against Lakhman Pradhan, but there is the admitted evidence of the management witness Shri Jagannath Das that Ext. 11 is a copy of the final order passed by him on 8th November 1960 relating to the incidents of November 2 and 3, 1960, and the sequence of events, as already stated above, lead to the same conclusion that the termination of service of Lakhman Pradhan as effected in this case was the result of misconduct alleged against him. Therefore, it was not a case of a termination simpliciter but one by way of punishment vide, State of Bihar v. Gopi Kishore, AIR 1960 SC 689. In that view of the matter, I think, the submission made by the learned Advocate General that the order of the tribunal holding that the termination is invalid and inoperative and that Lakhman Pradhan will be deemed to be continuing in service is illegal and unjust, has to be rejected.
21. The next contention of the learned Advocate General is that Lakhman Pradhan is a Government servant and as such his conditions of service is governed and controlled by the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962, and not by standing orders made and published under the Industrial Employment (Standing Orders) Act, 1946. As such the order of termination of the service of Lakhman Pradhan passed on 19th November 1960 should have been judged in the light of the rules as provided in the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962, and on the principle as laid down by the Supreme Court in the case of Jagadish Milter v. Union of India, AIR 1964 SC 449. This contention is based on the assumption that under Section 13B of the Industrial Employment (Standing Orders) Act, 1946, its provisions are not to apply to the establishment of the State Transport, Orissa, in so far as the workmen employed therein are persons to whom the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 apply. This contention on behalf of the management was not made before the Industrial Tribunal. Therefore, it is now too late to be raised for the first time in this Court. Secondly even on merit it has no substance. It is true that the Industrial Tribunal has in its order described Lakhman Pradhan as a Temporary Government servant; therefore, it may be that his conditions of service is to be controlled and governed by the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 and not by the standing orders made under the Industrial Employment (Standing Orders) Act, 1946. But that does not make any substantial difference, for in that case his conditions of service instead of being governed by the standing orders made under the Industrial Employment (Standing Orders) Act, 1946 will be governed by the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962. Thereunder explanation h (ii) to rule 13 provides that the termination of service of a temporary Government servant in accordance with the terms of his appointment shall not amount to a penalty within the meaning of that rule. It may be so. But that will apply only to a case where the employee is a pure and simple Government servant and not where he is also a workman as defined under the Industrial Disputes Act. In the present case as it will be presently shown that Lakhman Pradhan is not a pure and simple Government servant, but he is also a workman as defined under the Industrial Disputes Act. Therefore, in such a case that rule could not stand in the way of the tribunal to find out whether his termination under the aforesaid order dated, 9th November 1960 was a case of termination simpliciter only or in fact a case of termination by way of punishment. Therefore, once it found that the termination of Lakhman Pradhan in the present case was by way of punishment, it necessarily followed from it that his termination was illegal and unjustified as coniemplated by the Industrial Disputes Act.
22. Under the Industrial Disputes Act, as provided in Section 2(s), 'workman' is any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection, with or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to the dispute. No doubt thereunder certain classes of servants are excluded, but there is no exclusion made therein in favour of the entire class of Government servants as such. Therefore, even if he was a Government servant he will not thereby cease to be a workman so long as his employment is one laid down in Section 2(s). It is so also clear from Section 2(g) wherein 'employer' has been defined to include both the Central Government and the State Government. It is not disputed that the establishment of the State Transport is an industry as defined in Section 2(j). Therefore, whether the employer of Lakhman Pradhan is the Government or any other person, that makes no difference. Had Lakhman Pradhan been only a pure and simple Government servant and not a workman, the position would have been entirely different. In that case his case would have been governed under the aforesaid rules and in the light of law as laid down in Parashotam Lal Dhingra v. Union of India, AIR 1958 SC 36. But in view of the fact that he is not only a Government servant but also a workman, his case has to be considered in the light of the considerations as provided in the Industrial Disputes Act.
23. It is true that in the case of termination of the service of a temporary employee who is a pure and simple Government servant, the question of motive operating in the mind of the authority in terminating his service does not alter the character of the termination and it is not material to, determine the said character as laid down in AIR 1958 SC 36. But in that case too the form in which the order terminating the service is expressed is not to be decisive. In AIR 1964 SC 449, their Lordships while agreeing with the view in regard to the motive as expressed in AIR 1958 SC 36, have at the same time made it very clear that--
'Since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, it must be emphasised that the form in which the order terminating his services is expressed will not be decisive. If a formal departmental enquiry has been held in which findings have been recorded against the temporary servant and as a result of the said findings, his services are terminated, in fact that the order by which his services are terminated, ostensibly purports to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounts to the dismissal of the temporary servant. That is why the form of the order is inconclusive, it is the substance of the matter which determines the character of the termination of services. In dealing with this aspect of the matter, we must bear in mind that the real character of the termination of services must be determined by reference to the material facts that existed prior to the order. '
To the same effect is the view expressed in AIR 1949 PC 111, AIR 1903 SC 411, AIR 1960 SC 1264. Sukhbans Singh v. Slate of Punjab AIR 1962 SC 1711, and P. C. Wadham v. Union of India, AIR 1964 SC 423. Therefore, even if the termination of service of Lakhman Pradhan had been a case of discharge of a pure and simple Government servant, that could not stand in the way of general court to go behind the form of the order and to find out its real nature. Here, however, as already found above, the employee is not only a pure and simple Government servant, but a workman as defined in the Industrial Disputes Act. Therefore, whether his service is governed and controlled by the Rule 13(h)(ii), Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 or by the standing orders made under the Industrial Employment (Standing Orders) Act, 1940, the tribunal had the jurisdiction to find whether the termination of Lakhman Pradhan in the present case was a termination simpliciter or by way of punishment, or in other words it was a case of a punitive action taken by the management against him. In fact, in the case of a Government servant as in the case of any other employee like him who is employed in an industrial undertaking and is guilty of misconduct, the proceedings that may be taken in respect thereof may be divided into two stages as observed in AIR 1958 Cal 456. In the first stage, there will be an enquiry under the Standing Orders, or the relevant rules applying to him. In such an enquiry, a charge-sheet has to be served and the employee must be granted every opportunity of defending himself. Often the enquiry is quite exhaustive and evidence both oral and documentary is taken. If the employee is found guilty of misconduct then, whether he can be dismissed or not depends on the Standing Orders, or the relevant rules applying to him. If he is dismissed in accordance with the provisions laid down by the Standing Orders or the relevant rules applying to him, then the employee has no further remedy unless of course there is a breach of contract or if the circumstances amount to what may be called wrongful dismissal. In such an event the employee will have his remedy in the ordinary Courts. Such a dispute however may reach the second stage and become an industrial dispute if it is taken up by the industry, that is to say, by a majority of workers in a particular industry or by a Union of such workers. Even so the employee cannot go further unless the Government in its discretion refers the matter for adjudication of an Industrial Tribunal under the relevant section of the Industrial Disputes Act. After the dispute has become an industrial dispute and has been referred for adjudication, then the Industrial Tribunal concerned comes to be in seisin of the matter. Such a Tribunal is severely restricted within the four corners of of the statute of its incorporation. It is a tribunal of restricted jurisdiction and must keep within the four corners of the Act of its incorporation. On the other hand, it has wider powers than the ordinary Courts, inasmuch as it administers a kind of law known as the law of industrial harmony. In the present case, we are concerned with the second stage of the proceedings. Therefore, the case of Lakhman Pradhan has to be looked at from the point of view of the law relating to the industrial harmony and not on the basis of the ontract between the parties.
24. Next it has been contended by the learned Advocate General that in any case Lakhman Pradhan in the course of the inquiry had been given all opportunities to defend himself against the allegations made and as such it cannot be held that the provisions of law as laid down in Article 311(2) of the Constitution of India or the rules of natural justice were not complied with in the course of that enquiry. I think this submission made by the learned Advocate General is based on misapprehension both in regard to the scope of protection as provided in Article 311(2) of the Constitution as also in regard to requirement of the rules of natural justice. What has to be done in order to comply with the rules of natural justice in such a case is elaborately laid down in Phulbari Tea Estate v. Its workmen, AIR 1959 SC1111. Therein their Lordships while dealing with this point have observed,
'This Court, speaking through Venkatarama Ayyar J. observed as follows in that connection ' 507 of SCR): (at p. 885 of AIR) * ' stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice required that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. '
In the present case, the findings given by the Industrial Tribunal in respect to most of these elements are in the negative. Therefore, the claim of the management that thej procedure as laid down in Article 311(2) of the Constitution of India or as warranted by the rules of natural justice were complied with, has no substance.
25. Lastly, the submission made on behalf of the management is that in any case 1958 SCK 499: (S) AIR 1957 SC 882. Lakhman Pradhan should not have been thrust on the establishment against their wishes by the order of retrenchment as has been done. In other words, it is submitted that even if the tribunal was of opinion that the order of termination was illegal and unjust, it should have at best allowed compensation to him and not ordered his retrenchment. In support of this contention reliance has been placed by the learned Advocate General on the decision in AIR 1960 SC 1264. It is true that therein it has been observed that.
' There is no doubt that the normal rule as that in cases of wrongful dismissal the dismissed employee is entitled to reinstatement, but there can be cases where it would not be expedient to follow this normal rule and to direct reinstatement. In the present case, the appellant's office is very small and Miss Scott undoubtedly occupied a position of some confidence with Mr. Gowan. The warning given by Mr. Gowan to Miss. Scott from time to time clearly brings out his dissatisfaction with her work, and if Mr. Gowan has sworn that he has lost confidence in Miss Scott it would be unfair to hold that the loss of confidence is due solely or substantially because Miss. Scott joined the Union of the appellant's workmen. It is no doubt true that the effect of the employer's plea that he has lost confidence in the dismissed employee cannot ordinarily be exaggerated; but in the special circumstances of this case we are inclined to hold that it would not be fair either to the employer or to the employee to direct reinstatement.' In the instant case, however, there is no evidence on the record that Lakhman Pradhan held any position of trust and confidence with the management. On the contrary, the evidence as is there is that he was an ordinary workman like any other in the employ of the management. In these circumstances, the considerations which weighed with their Lordships of the Supreme Court in the aforesaid case in disallowing reinstatement cannot be applied to the case of Lakshman Pradhan. Therefore, this contention also made on behalf of the management fails.
26. In the result, I find that there is no substance in this petition which is accordingly dismissed with costs. Hearing fee Rs. 200.
27. I agree.