P. Govindan Nair, C.J.
1. This Appeal is from the judgment in O.P. No. 4082 of 1972 by the employer, the Manager, Boots Pure Drug Company (India) Ltd. setting aside an Award passed by the second respondent to this appeal upholding the termination of the service of the 1st respondent who was employed as a driver under the appellant.
2. The first respondent was appointed by the appellant by Ext. P 1 Order dated 241.2.1970 he was transferred to the packing section as a packer. Exhibit P 2 mentioned that he will be paid the same emoluments as he had been drawing so far. in Ext P 3 representation against Ext. P 2 the 1st respondent claimed that the transfer was illegal; unwarranted and uncalled for. The reply to Ext. P 3 by the application is Ext. P 4 in which it was stated the if the 1st respondent 'do not report for duty in the packing section immediately, we will be constrained to make such action as we may deem fit and proper'. The 1st respondent did not report for duty and a memo of charge Ext P 5 was issued to him. The charge was disobedience of the orders Exts. P 2 and P 4, The explanation of the 1st respondent to the charge was Ext P 6 and the report on enquiry held in Ext. P 7. The Enquiry Officer found the charge established and on the basis of that finding the 1st respondent's services were terminated by Ext. W.3 produced before the Tribunal, the 2nd respondent.
3. It was contended before the learned single Judge that the order Ext. P 2 was illegal und that the first respondent was not obliged to obey that order and that, therefore, the dismissal for disobedience of the order Ext. P 2 and the order Ext. P 4 was not warranted. The contention was accepted by the learned lodge by the judgment under appeal. Apart from this, the learned Judge baa also held that the object issuing the order Ext. P 2 which was followed by Ext. P 4, was to harass the first respondent and considering what the learned Judge called 'fight' between the 1st respondent and the employer, it was further observed that one could easily spell out mala fides. The learned Judge, therefore, set aside the award and remitted the matter in the 2nd respondent, the Industrial Tribunal 'to pass a fresh award in the light of the observations made in this judgment,'
4. Counsel for the appellant contended that this Court had exceeded its jurisdiction under Article 226 of the Constitution and interfered with the findings entered by the Tribunal. The findings entered by the Tribunal were that the Order Ext. P 2 was a lawful order which the employee was bound to obey and in regard to the further question whether the employee Was motivated by extraneous considerations in directing the 1st respondent to work as a packer the Tribunal took the view that there were justifiable reasons for directing the 1st respondent to work as a packer.
5. We shall consider these two aspects in the reverse order and so shall take up first, the question of mala fides. The case of the employer as is amply borne out by the memos issued to the driver, the 1st respondent, as evidenced by Exts. W 2, W 3 and W 4 and W 7 marked by the workmen before the Tribunal was that the first respondent was not discharging his duties as a driver properly and to the satisfaction of the employer, it was elaborated before the Tribunal by stating that the employer had lost confidence in the 1st respondent's driving and was nervous to sit in the car When it was driven by the 1st respondent and did not consider it safe to sit in the car while it was driven by the 1st respondent. It was also the case of the appellant that the behaviour of the 1st respondent was not proper The tribunal has not meticulously considered whether the statements contained in Exts W 2, W 3, W 4 and W 7 were fully justified or not though the Tribunal has proceeded on the assumption that those statements were more or less correct. If the statements therein are correct it cannot be said that the employer was motivated by mala fides or by extraneous considerations like victimization of an employee or harassment of an employee. We do not wish to say anything more on this aspect but would like to indicate that the post of a driver is different from the post of a worker in a factory or some other employee who it may be said is ordinarily remotely controlled by the employer. Such an employee in the factory does not come into daily contact with the employer and his every action would not have some repercussion on the employer, as in the case of a manager sitting in a car driven by a driver; We must also say that an employee may bona fide loss confidence on a driver for reasons or grounds which another may not consider reasonable or just. In such cases the subjective satisfaction if honestly arrived at by the employer may be sufficient for an employer is say that he has lost confidence in his driver. We shall again guard ourselves by saying that we are not weighing the balance on one side or other by making these observations but only indicating by way of guides lines as to what is the approach to be made in cases of this type. We express no opinion whatever on these aspects because we are sure that they will be considered fully after hearing bona fides by the tribunal. We snail not tally further on this aspect excepting to say that the observation made by the learned Judge regarding mala fids or lack of bona fides or of action being taken as for harassment were with respect absolutely unjustified on the materials that were available. We also consider that we should not normally pronounce on those aspects finally. We, therefore, set aside such findings and observations from the judgment under appeal, These matters have to be considered by the Tribunal.
6. Passing on to the next point we feel equally certain that the learned judge if we may say so with respect has been correct in his view that the driver, the 1st respondent had been asked to discharge duties which did not portion to his employment. The order Ext. P 1 in the very 1st paragraph as clearly stated that the 1st respondent has been appointed 'as a driver'. Notwithstanding what is mentioned later on in Ext. P 1 'while in Cochin you will have to attend to delivery of stocks to dealers in nearby markets', we feel no doubt that the 1st respondent was appointed substantially as a driver. The fact that the 1st respondent worked during the time the vehicle that he was driving was not available, as a packer we are assuming for the purpose that he did discharge all the duties of a packer though this point is disputed will not make the driver a packer. From this conduct alone it would not be correct to infer that the 1st respondent's function was essentially and substantially that of a driver. He might have worked as a packer during the comparatively short period in a sprit of co-operation. From this we are not able to infer that the original contract of employment as seen from the order of appointment, Ext. P 1, and the admitted functioning of the respondent as a driver for a period of time got altered by conduct so as to create a new type of employment. The order Ext. P 2, therefore, treated merely as an order directing the first respondent to work as a packer cannot be said to be a law full order. The driver's disobedience to discharge the duties of a packer will not, therefore entail penal consequences for we consider that the two important aspects in the matter or employments care the nature of the duties pertaining to a post and the emoluments that are attached to the post. The award, Ext. W 15 passed by the tribunal, shows that the driver was on a scale of pay of Rs. 55-107 whereas the packer under the revised scale given under the award was only on a scale of Rs. 40-90. The driver was apparently appointed on the scale of a driver and it was contended that because Ext. P 2 stated that 'you will be paid the same emoluments as you have been drawing so far' it could not be inferred that the employer was willing to grant the scale of pay of a driver to the st respondent even when he worked as a packer By Ext. P 2 the intention has not been clearly expressed. It could very well be understood as a guarantee to the driver that he would continue to get what he was getting by way of emoluments on the date of the transfer. What is more important is that no driver, either from a sense of pride or because he is unsuited to do the work other than that of a diver would normally accept employment which from its very nature is less skilled than that of a driver and carrying less status and dignity (according to many) than that of a driver. This is an important aspect of the matter that the first respondent should have been in mind in dealing with the question whether the order Ext. P 2 was a lawful and reasonable order. In all the circumstances We agree with the view taken by the learned Judge in the judgment under appeal that the order Ext. P 2 was not a lawful and reasonable order.
7. The Tribunal acting under Section 33A of the Industrial Disputes Act, 1947 would be dealing with the matter as if the question had been referred to it under the Industrial Disputes Act It will thus have a very wide jurisdiction and it can deal with all aspects and modulate the relief's that can be granted. One of the aspects that will have to be borne in rind is whether in all the circumstances the employer was justified in saying that the 1st respondent should not function as a driver. If the employer was justified in saying so the question would arise whether the driver would be entitled to reinstatement or only to compensation and if only to compensation what should be paid. These are all aspects which the Tribunal will have to consider and which the Tribunal alone would be entitled to consider in the amplitude of its jurisdiction and with powers to adjust industrial relations.
8. We confirm the judgment under appeal to the extent to which it has set aside the award and directed the Tribunal to deal with the question afresh. The Tribunal will deal with the matter in the light of what we have stated in the judgment. We direct the parties to bear their respective costs.