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The Utkal Automobiles (P.) Ltd. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1974)IILLJ15Ori
AppellantThe Utkal Automobiles (P.) Ltd.
RespondentState of Orissa and ors.
Cases ReferredLtd. and Anr. v. Their Workmen
Excerpt:
.....come for repair to the workshop of the petitioner for which he had claimed sick leave and cost of medicines. the learned tribunal found that the management had failed to prove its case of voluntary retirement and so the workman's case that he was discharged from service must be accepted. that the workman wanted to go away, so he did not like to serve any longer under the management. the management in good faith issued the discharge certificate without understanding the motive of the workman. it will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or..........framing any charges and that the allegation in the petition that this was done following the model standing orders was false.4. it was contended on behalf of the petitioner that there being no separate standing orders except the model which the company follows, it is competent to take action against the opposite party no. 3 under rule 13 sub-rule (i) and that the finding of the learned tribunal being based on a mis-reading of the pleadings and evidence which is apparent on the face of it, justifies interference.5. rule 13(1) of the industrial employment (standing orders) central rules, 1946 provides:13. termination of employment,-(1) for termination of employment of a permanent workman, notice in writing shall be given either by the employer or the workman, one month's notice in.....
Judgment:

K.B. Panda, J.

1. The petitioner-company, Messrs. Utkal Automobiles (Private) Limited (hereinafter described as petitioner) had in its employment at Cuttack branch opposite party No. 3, Tulbahadur, as its watchman. Opposite party No. 3 was found negligent of his work. In spite of warnings, it is alleged, he did not improve. He was charge-sheeted on several occasions and suspended but thereafter excused. However, in the year 1967 as opposite party No. 3 did not like to serve any further he was paid his dues till 5-1-1967 and was relieved of his work. Yet he continued hovering round the company's premises and so a discharge certificate was issued to him by the director of the company on 8-8-1967 (annexure-1). The opposite party No. 3, however, did not raise any dispute with the management but complained before the District Labour Officer that he had been discharged from service for filing a complaint before the District Labour Officer regarding an accident in which he received injuries while working under the petitioner by a truck that had come for repair to the workshop of the petitioner for which he had claimed sick leave and cost of medicines.

2. Before the District Labour Officer the management denied the allegation of opposite party No. 3 and asserted, as in this petition, how he was negligent for which he had to be charge-sheeted and suspended several times but excused with warnings. Ultimately, he left service with a discharge certificate on 8-8-1967. As no settlement was arrived at the Conciliation Officer submitted a report to the State Government. Hence a reference was made to the Industrial Tribunal on the following terms;

Whether the discharge from service of Sri Tul Bahadur with effect from 8-8-1967 by the management of Utkal Automobiles (Private) Limited, Cultack is legal and/or justified? If not, to what relief he is entitled ?

Before the Industrial Tribunal the management examined its branch manager Mr. M.J. Ali and the opposite party No. 3 examined himself. The learned Tribunal found that the management had failed to prove its case of voluntary retirement and so the workman's case that he was discharged from service must be accepted. Accordingly, the learned Tribunal held that opposite party No. 3 will be entitled to be re-instated in service with full back wages (annexure 5). It is this finding of the learned Tribunal that is sought to be quashed in this writ petition under Articles 226 and 227 of the Constitution.

3. Opposite party No. 3 in his counter stated that he had never been found negligent of his work nor warned for his misconduct except on one occasion for late attendance in 1964. However, he asserted that the management without any fault illegally discharged him without framing any charges and that the allegation in the petition that this was done following the model standing orders was false.

4. It was contended on behalf of the petitioner that there being no separate standing orders except the model which the company follows, it is competent to take action against the opposite party No. 3 under Rule 13 Sub-rule (I) and that the finding of the learned Tribunal being based on a mis-reading of the pleadings and evidence which is apparent on the face of it, justifies interference.

5. Rule 13(1) of the Industrial Employment (Standing Orders) Central Rules, 1946 provides:

13. Termination of employment,-(1) For termination of employment of a permanent workman, notice in writing shall be given either by the employer or the workman, one month's notice in the case of monthly rated workmen and two weeks' notice in the case of other workmen : one month's or to weeks' pay, as the case may be, may be paid in lieu of notice.

In the instant case it is averred in the petition that opposite party No. 3 received all his dues till 5-1-1967 which has not been denied in the counter. Annexure-1 reads:

One month's pay will be paid to you in lieu of a month's notice and you are requested to collect the same from Cuttack office alongwith your other dues, if any.

It is in conformity with the petitioner's case.

6. Under annexure-2 the case of the petitioner before the Conciliation Officer was that:

That the workman wanted to go away, so he did not like to serve any longer under the management. He received all his dues till 5-1-67 and from that date he ceased to be in the employment. The relationship of master and servant came to an end.

That for some time thereafter he was just coming to the management's premises but ultimately he again asked for some money and seek employment elsewhere for which he wanted a discharge certificate. The management in good faith issued the discharge certificate without understanding the motive of the workman.

The workman is not entitled to any relief as he has voluntarily abandoned service under the management.

7. Annexure-1, therefore, according to the petitioner, was issued on the request of the opposite party No. 3 to get an employment elsewhere, but in fact his services had been terminated by which date he had got all his back dues.

8. That the opposite party No. 3 did not raise any dispute before the management goes without doubt. Again in the petition it is alleged that on behalf of the management the Branch Manager deposed before the Tribunal how they have no standing orders regulating the services of the workmen and they followed model standing orders. In the counter opposite party No, 3 only states that the deposition of the Branch Manager of the company that they follow model standing orders is false. The law is clear that if a company has no standing orders of its own duly approved, it is to be governed by the model standing orders. Thus the mere denial that the company does not follow the model standing orders, though stated by his Branch Manager in his deposition, can be safely brushed aside.

9. Coming to the next point, though we are conscious of our limitation in a writ of certiorari yet we are unable to hold that the view taken by the learned Tribunal can be sustained. In the impugned order it is said that:

This order (Ext. 1) shows that the workman was discharged from service as his services were no longer required. He was offered one month's pay in lieu of notice. The management's case in the written statement is that the workman voluntarily left the service of the management on 5-1-67 and that Ext. 1 was issued later on at the request of the workman for a discharge certificate. This case of the management has been given a go-bye at the time of hearing. Management witness No. 1 Sri M. J. Ali, the manager of the Cuttack Branch of the company, has stated that the workman was working till the date of his discharge, i.e., 8-8-67, and that the discharge was made under the model standing orders which are followed by the company. It is true that under standing order No. 13 of the model standing orders, the management has power to terminate the services of the workman by giving one month's notice or one month's pay in lieu of notice without assigning any reason. But neither these rulings nor the model standing orders have any application to this case. The evidence let in for the management cannot be accepted as it (the management) did not come up with a case in its written statement that this is a discharge simplicitor under the model standing orders.

10. This observation of the learned Tribunal is an error of record. The management under Ext. 2 in its written statement before the Tribunal has specifically made the case how opposite party No. 3 left his service receiving his back dues, yet he was 'just coming to the management's premises' and so the management issued the discharge certificate without understanding the motive of the workman. The evidence of the Branch Manager is nothing different from this. The only addition he has made is that he has referred to the model standing rules. That cannot be said to be making out a new case. The last two sentences in cross-examination of the Branch Manager should not be read in isolation ; but in the context and when so read it cannot be said that opposite party No. 3 even after receiving his dues till 5-1-67 continued in service till August. The managements' positive case is that opposite party No. 3 was just coming and finally prayed for a discharge certificate which was accordingly granted out of generosity of which he has made capital later on. Law is settled that in cases of dismissal on misconduct, the Tribunal does not, however, act as a court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse in Indian Iron & Steel Co., Ltd. and Anr. v. Their Workmen 1958-I L.L.J. 260 : A.I.R. 1958 S. C. 130. We do not think the instant case comes in any of the categories. We would, therefore, hold that the finding of the learned Tribunal is based on a misreading of the evidence and so cannot be allowed to stand.

11. Accordingly, the petition is allowed. Let a writ of certiorari be issued quashing the impugned award (annexure 5) dated 27-6-70. We, however, make no order as to costs.

R.N. Misra, J.

12. I agree.


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