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Kamal Kishore Goyal Vs. Union Co-operative Insurance Society Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 36 of 1972
Judge
Reported in1973(6)WLN729
AppellantKamal Kishore Goyal
RespondentUnion Co-operative Insurance Society Ltd. and anr.
DispositionAppeal dismissed
Cases Referred and State of Rajasthan v. Kailash Chandra Jain and Anr.
Excerpt:
.....bad infringed the right of shri goyal and he was justified to refuse to join as field officer'.the learned judge has gone on to state that the appellant's learned counsel could not place anything on the record which could enable him to judge whether the attitude of the management in taking him on the same salary on the post of field officer was wholly unjustified as has been stated the petitioner was informed by letter ex. we have made a reference to the contents of the letters and we are unable to find anything in them to justify the argument that the order of termination was punitive in character it has to be appreciated that the appellant was still on probation when his services were terminated by order ex 5 dated october 16, 1967 as he did not like to carry out order ex 4 dated..........obvious error in holding that the appellant automatically became a confirmed office assistant. the learned judge took note of the fact that the performance of the appellant in the service of the society was not satisfactory and, in that connection, he particularly noticed the further fact that it was not the case of the parties that the initial salary of the field officer was rs. 200/- and the denial to give it to the appellant infringed his right and justified the refusal on his part to work as a field officer. the learned single judge in fact held that even though the appellant's performance in the service of the society was not satisfactory, the manament was inclined to help him in continuing in service and agreed to appoint him as a field officer at his request. he accordingly held.....
Judgment:

P.N. Shinghal, J.

1. This is an appeal against the judgment of a learned Single Judge dated October 12, 1971, by which he has quashed the award (Ex-10) of the Regional Labour Commissioner dated July 3/4, 1969, as a birrator.

2. Appellant Kamal Kishote Goyal was appointed as office assistant in the Ajmer branch of Union Co-operative Insurance Society Ltd; hereinafter referred to as 'the Society', by order Ex. 1 dated December 2, 1966. He was to draw a consolidated salary of Rs. 135/ per month, and the appointment was on probation for a period of six months in the first instance The Society reserved the right to increase the period of probation and the appointment was terminable during the period of probation without assigning any reason. The appellant was, however, allowed to continue in service after the expiry of the period of probation.

3. He expressed a desire to wok as a field officer, and wanted to be given a trial in that capacity. This led to the making of order Ex. 3 dated October 6, 1967. The Divisional Manager made a reference, in that order, to the earlier letter of the appellant 'showing his desire to work as field officer at Bikaner'; and to the discussion with the appellant, and stated that although the appellant's performance was very poor when he was posted at Nagaur, the Society was giving him advance once again. It was stated further that while the Society did not want to increase its cost from the very beginning, the appellant's salary would be revised if his work was found satisfactory. A direction was given in the order that the Branch Manager, Ajmer, should relieve the appellant by October 15, 1967 and direct him to go over to Jaipur for further instructions as he was to proceed to Bikaner. Letter Ex 4 was simultaneously addressed to the appellant by the Divisional Manager on October 6, 1967 in which reference was made to his later of October 4, showing his 'desire to go to Bikaner to work in field'. The appellant was informed that he was being sent to Bikaner on the 'same salary', but an assurance was given that the question of increase in the salary would be thought over after seeing his per-formance. He was further informed that the decision to send him to Bikaner was final and that, if he did not agree to it, the Society would have to consider whether it should continue his services. He was asked to get ready by October 15, 1967 to go wherever he was posted in Rajasthan. The appellant, it appears, did not comply with the order of the Divisional Manager, and that led to the making of order Ex. 5 dated October 16, 1967 by which the Divisional Manager informed him that the Society was constrained to terminate his services with effect from October 16, 1967 and that he might collect his dues from the Ajmer office on any working day.

4. The appellant felt aggrieved against the termination of his service by the aforesaid order Ex. 5 dated October 16, 1967, and raised an industrial dispute It was ultimately referred to the Regional Labour Commissioner (Central) for arbitration. He gave his award Ex.10 dated July 3/4. 1969 It was held in the award that as the period of probat on expired on May 31, 1967 and the appellant continued in employment thereafter upto October 1967, he 'stood confirmed in that appointment by implication'. It was also held that the management had 'not acted bonafide' and that the impugned order (Ex 5) of termination of the appellant's service was illegal and unjurtified and the appellant would be deemed to be in the continuous employment of the Society as an office asistant and would be taken back immediately and paid 'all back wages etc.'.

5. The Society felt aggrieved against the award and filed a writ petition on January 15, 1970. It was pleaded, inter alia, that (i) the award suffered from an error apparent on the face of the record in as much as the appellant could not be held to be a confirmed employee of the Society, (ii) there was not an iota of evidence in support of the Arbitrator's finding that the Society had not acted bonafide, and (iii) the Arbitrator erred in holding that the Society did not have the right to transfer the appellant to Bikaner or to appoint him as a field officer when he had himself expressed the desire to work in that capacity at that place.

6. The learned Single Judge disposed of the writ petition by his impugned judgment dated October 12, 1971. He examined the Arbitrator's finding that the petitioner was a confirmed office assistant and, after considering Rule 8 of the Union Co-operative Insurance Society's Service Rules & Regulations and paragraph 27(v) of the Conditions of Employment of Employees in the Society, he held that the Arbitrator committed an obvious error in holding that the appellant automatically became a confirmed office assistant. The learned Judge took note of the fact that the performance of the appellant in the service of the Society was not satisfactory and, in that connection, he particularly noticed the further fact that it was not the case of the parties that the initial salary of the field officer was Rs. 200/- and the denial to give it to the appellant infringed his right and justified the refusal on his part to work as a field officer. The learned Single Judge in fact held that even though the appellant's performance in the service of the Society was not satisfactory, the manament was inclined to help him in continuing in service and agreed to appoint him as a field officer at his request. He accordingly held that the inferencc drawn by the Arbitrater about the absence of bonafides on the part of the Society was uncalled for and that the management was well within its rights in terminating the service of the appellant during the probationary period That was why the learned Single Judge quashed the a ward by his judgment dated October 12, 1971 against which the present appeal has been directed.

7. Mr. Mridul, learned Counsel for the appellant, has not challenged the finding of the learned Single Judge that the appellant did not stand confirmed automatically as an employee of the Society and that, on the other hand, he continued to be on probation without any right to a post in the service of the Society. We shall therefore examine the arguments which have been advanced before us with due regard to this basic fact which is now not in controversy.

8. It has been argued by the learned Counsel for the appellant that order Ex 5 dated October 16, 1967, by which the appellant's service was terminated with effect from that date, was not a bonafide order because it was not permissible for the learned Single Judge in disturb that finding of the Arbitrator as it was a pure question of fact and did not suffer from any error of law apparent on the face of the record. It has been urged that while the appellant no doubt wanted to be posted as a field officer, because that was a higher post, it was not permissible for the Society to compel him to take up that post on the lesser salary which he was drawing as office assistant, and that as order Ex 4 had the effect of compelling him to accept a post which he was not bound to accept, the learned Single Judge committed an error of law in disturbing the Arbitrator's finding of fact regarding lack of bonafides on the part of the management. The learned Counsel has pointed out that the Arbitrator's finding could not be disturbed by the learned Single Judge merely because he took a different view of the evidence bearing on it Reference in this connection has been made to the decisions in Kaushalya Devi and Ors. v. Bachittar Singh and Ors. AIR 1960 SC 168, Agnani (W M.) v. Badri Das and Ors. 190 (1) LLJ 684, Syed Yakoob v. K.S Radhakrishnan and Ors. AIR 1964 SC 47, Express Newspapers (P) Ltd v. Labour Court : AIR1964SC806 , Agra Electric Supply Company Ltd. v. Alladin and Ors 1969 (2) LLJ 540 and Bihar State Road Transport Corporation v. State of Bihar and Ors. 1970 (II) LLJ 138

9. In order to appreciate the argument of the learned Counsel, which has been made with reference to the plea of malafides mentioned in paragraph 17 of the appellant's statement of claim (Ex 8) dated March 17, 1969, it is necssary to examine the plea and the evidence bearing on it The relevant paragraphs, to which our attention has been invited, are Nos. 6, 17 and 19. It has been stated in paragraph 6 that instead of posting him to Bikaner or any other place in Rajasthan the management of the Society terminated the services of the appellant with effect from October 16, 1967. Reference in this connection has been made to the aforesaid letter Ex. 5 dated October 16, 1967 by which his services were terminated. Then it has been stated in paragraph 17 that the termination had not been 'inflicted' on the appellant 'in regular course, but it is the outcome and result of the management's malafide towards him as would be quite evident from the chain of the correspondence exchanged between workman and the management' It has further been stated, paragraph 19, that though 'in form' the order appears to be of 'termination simplicitor' in reality it was a 'cloaked (sic) dismissal for misconduct'. There is thus nothing in the statement of claim to show that the petitioner raised the plea of malafides on the basis of any particulars of details, and all that his learned Counsel has been able to urge before us is that it has been established by the 'chain' of letters.

10. We have examined the so called 'chain' of letters referred to in paragraph 17 of the statement of claim The learned Counsel for the appellant has urged before us that the 'chain' consists of letters Exs. 2, 3, 4 and 6 Letter Ex 2 is dated August 29, 1967 Under it the appellant was informed by the Branch Manager that it had been found that he was in the habit of avoiding office work as well as the instructions which were given from time to time, 'particularly in the case of his) leaving head quarters on 26ch August without prior permission' or leave application That letter does not show that any penalty was imposed, or was proposed to be imposed, on the appellant, or he was merely directed to report in the office of the Divisional Manager at Jaipur for further instructions There is thus nothing in the letter to show that there was lack of bonafides on the part of the management of the Society in issuing it. It may also be mentioned that the appellant has not led any evidence which could show that the issue of the letter was due to lack of bonafides on the part of the Branch Manager or any other officer of the Society. Letter Ex 3 dated Ocober 6, 1967 was issued by the Divisional Manager, and we have made a reference to it already It appears from the letter that the appellant had addressed a letter showing his desire to work as a field officer at Bikaner It shows further that although the Divisional Manager took note of the fact that the appellant's performance was very poor at Nagaur, he decided to give him a chance once again Reference was also made to the question of appellant's emoluments in that letter, and it was stated that if his work was found satisfactory, his salary would be revised. It was directed that the appellant may be relieved by October 15, and asked to go to Jaipur for further instructions as he was to proceed to Bikaner. We do not find anything in the letter to justify the plea of lack of bonafides on the part of management The Divisional Manager addressed letter Ex. 4 dated October 6, 1967 directly to the appellant, and, he again made a reference, in it to the appellant's letter showing his desire to go to Bikaner to work in the field. It was clarified that he would have to go to Bikaner on the same salary 'in the present circumstances', but the question of increasing the salary would be thought over after seeing his performance, It was clarified that if the appellant did not agree, the management would consider whether it should continue his service. He was accordingly asked to be ready by October 15, 1967 to go wherever he was posted in Rajasthan The letter does not contain anything which could be said to justify the plea of lack of bonafides on the part of the management of the Society. It is also significant that it is not the case of the appellant, and has not been urged by his learned Counsel, that he was willing to abide by the instructions contained in letter Ex. 4, or that he wrote back in reply, or otherwise informed the management, that, while he was not willing to work as a field officer, he was willing to serve as an office assistant. In these facts and circumstances, there is nothing wrong if the management issued letter Ex. 5 dated October 16, 1967 informing the appellant that they were constrained to terminate his services with effect from October 16, 1967, and that he could collect his dues on any working day during office hours. We have considered the cumulative effect of all these letters also, and we are unable to think that it could sustain the plea of malafides referred to in paragraph 17 of the statement of claim. As has ben observed in 'Judicial Review of Administrative Action' by S.A. de Smith, second edition, at page 313, the burden of proving abuse of power is not lightly discharged, specially if bad faith is alleged.

11. It may also be mentioned 'hat the appellant did not state the particulars or the details in support of his allegation regarding malafides That was a serious infirmity, without which it was not possible for the Arbitrator to examine and uphold the plea That the particulars and details in support of an allegation of malafides are necessary, does not require such argument because it is, for obvious reasons, impossible to examine a bald plea. This has been held to be so in J.L. Nair v. State of Punjab and Anr. , R.L. Buttail v. Union of India and Ors 1970 (II) LLJ 514, State of Haryana and Ors v. Rajindra Sareen 1972 (I) LLJ 205 It is therefore the allegations regarding malafides or lack of bonafides which can be examined when such a plea is taken, and as the particulars and details of the allegation have not been given, there was really no justification for the finding of lack of bonafides recorded by the Arbitrator.

12. Thus when the appellant has not found it possible to give the particulars and the details in support of his plea, and has not been able to sustain it by any evidence at all, there is nothing wrong if the learned Single Judge has taken the view that the inference about the absence of bonafides on the part of the management drawn by the Arbitrator was uncalled for.

13. The appellant's learned Counsel has invited our attention to paragraph 2 of the reply (Ex. 9) to the statement of claim where the Society has stated that the appellant expressed his inability to go to Bikaner unless his salary was increased, and that the Society had no alternative but to terminate his services as he was a mere probationer. It has been argued that this by itself was sufficient to establish the plea of lack of bonafides. We have already examined the relevant letters in which the question of salary was mentioned by the management, and we have given our reason for holding that they do not go to show lack of bonafides on the part of the management of the Society. It may also be mentioned that, as has been held by their Lordships of the Supreme Court in Jagdish Mitter v. Union of India : (1964)ILLJ418SC , if, while defending the plea of his malafides, the authority concerned makes a reference to certain facts justifying the order of discharge, and those facts relate to the misconduct, negligence or inefficiency of the employee, it can not logically be said that in view of the plea thus made it should be held that the order of discharge was the result of the considerations set out in the plea. It is significant that it was not the case of the appellant that he was being compelled to go and serve outside Ajmer, in a different capacity, on the same emoluments. His case has been stated in paragraphs 6, 17 & 19 to which reference has been made already and no more. The learned Single Judge has expressly taken note of the fact that it was 'not the case of the parties that the initial salary of the field officer was Rs. 200/- and, therefore, the denial of the management to give that start bad infringed the right of Shri Goyal and he was justified to refuse to join as field officer'. The learned Judge has gone on to state that the appellant's learned Counsel could not place anything on the record which could enable him to judge whether the attitude of the management in taking him on the same salary on the post of field officer was wholly unjustified As has been stated the petitioner was informed by letter Ex. 4 that the question of increasing his salary would be examined after seeing his performance as a field officer, and the petitioner did not think it necessary to apply for permission to continue on the post of office assistant. There is, as we have stated, no evidence at all in support of the plea of malafide.

14. In all these facts and circumstances, there is no justification for the argument of the learned Counsel for the appellant that it was not open for the learned Single Judge to set aside the finding of lack of bonafides given by the Arbitrator.

15. We have gone through the cases cited by the learned Counsel for the appellant, but they cannot be of any avail for the simple reason that the finding of lack of bonafides given by the Arbitrator was perverse inasmuch as there was no basis for the plea to that effect and there was not an iota of evidence on the record to justify it. It has been held in the cases which have been cited by Mr. Mridul that where finding is perverse or unreasonable, or suffers from an error apparent on the fate of the record, or is based on no evidence, it cannot be said to be a proper finding of fact and it is always permissible to re-examine it in the exercise of this Court's extraordinary jurisdiction.

16. It has next been argued that the order (Ex.6) by which the petitioner's service was terminated, was punitive in character, and was not an order of simple discharge of an employee by an employer, and that this Court should therefore examine the entire 'chain' of letters. Reference in this connection has been made to Assam Oil Co Ltd., New Delhi v. Workmen : (1960)ILLJ587SC , Free India Industries and Anr. v. Regional Provident Fund Commissioner and Anr. 1962 (II) LLJ 602, Utkal Machinery Ltd. v. Santi Patnaik 1966 (1) LLJ 398, Girja Singh v. Director-General, Calcutta State Transport Corporation and Ors. 1966 HI) LLJ 542, Bihar State Road Transport Corporation's case 1970 (II) LLJ 138, and a judgment of their Lordships of the Supreme Court dated 22-8-1973 in The Management of Brooke Bond India (P) Ltd. v. Y.K.Gautam Civil Appeal No. 2490/1969. We wanted to examine the argument of the learned Counsel, but he was unable to refer us to any evidence bearing on it, beyond inviting our attention to letters Exs. 2, 3, 4 & 5 We have already examined them & have given our reasons for taking the view that they do not disclose lack of bonafides on the part of the management of the Society. We have made a reference to the contents of the letters and we are unable to find anything in them to justify the argument that the order of termination was punitive in character It has to be appreciated that the appellant was still on probation when his services were terminated by order Ex 5 dated October 16, 1967 as he did not like to carry out order Ex 4 dated October 6, 1967. It is also significant that while it has been argued by the learned Counsel for the appellant that the appellant's services were terminated on account of misconduct, even the Arbitrator, on whose award considerable reliance has been placed by the learned Counsel, has stated that the termination of the employment was 'not due to Shri Goyal's unsatisfactory work as an Office Assistant during the probation period'. There is also nothing in the evidence on the record to show that the petitioner was removed on account of misconduct. The Society has made a mention of his disinclination to go on transfer, in the reply to the statement of claim, but that was meant to rebut the appellant's claim in the industrial dispute that the order of his removal was malafide. Nothing could therefore turn on such a plea, as it was taken by way of a defence. It has however been further argued that is was permissible for the appellant to support the Arbitrator's conclsion or finding that the termination of his appointment was punitive, on another ground, even though it did not prevail with the Arbitrator, and our attention in this connection has been invited to Raman Bhai Asha Bhai Patel v. Dabhi Ajitkumar Fulsinji and Ors. : [1965]1SCR712 which has been followed in B.R. Go operative Society v. Industrial, Tribunal Rajasthan and Anr. : (1967)IILLJ46SC . Reference has also been made to Marugon Mills, Ltd. v. Industrial Tribunal, Madras and Anr. 1965 (I) LLJ 422 for the further argument that if the termination of service can be shown to be in the colourable exercise of the power of the employer, or if it was the result of victimization or unfair labour practice, an industrial court would have the jurisdiction to intervene and help the workmen. The argument is however futile because when the learned Counsel was asked to refer to the other ground on which ha wanted to support his contention that the termination of the appellant's service was punitive, he actually referred to the letters which have been examined by us already. The argument is therefore quite futile. In fact the question of supporting the conclusion of the Arbitrator that the termination of the appellant's employment was punitive on another ground, does not arise because the Arbitrator has not held the termination to be punitive. The point does not appear to have been raised either before the Arbitrator or before the learned Single Judge and, as has been held in Bachan Singh and Ors. v. Gauri Shanker Agarwal and Ors. : AIR1971SC1531 , it cannot be entertained in this appeal. On the other hand, as the learned Single Judge has pointed out, the management was inclined to help the appellant and agreed to appoint him as a field officer, at his request, even though his performance in the service of the Society was not satisfactory.

17. A further argument has been raised that any attempt to transfer the appellant by order Exs. 3 and 4 dated October 6, 1967 was unjustified and illegal because he had the right to serve where he was, and reference has been made to the decisions in Dr. Prem Beharilal Saksena v. Director of Medical and Health Service, Lucknow and Anr. AIR 1939 AII 629, New India Flour Mills and Anr. v. Sixth Industrial Tribunal, West Bengal and Ors. 1963 (I) LLJ 745, Bejdih Colliery v. Madon Chattoraj and two Ors. 1967 (I) LLJ 589 and State of Rajasthan v. Kailash Chandra Jain and Anr. 1973 (I) SLR 183. It will be sufficient answer to say that the petitioner did not have any right to the post held by him as he was a probationer. The management transferred him at his own request, to give him another opportunity of serving the Society, with prospects of higher emoluments, and it is futile to contend that such a transfer could be said to be illegal or unjustified. The cases cited by the learned Counsel were different and cannot avail the present appellant. It may be mentioned that it is not the appellant's case that he was transferred to a post where he would have lost his status as a workman.

18. It has lastly been argued that the learned Single Judge committed an error of law in not sending the case back to the Arbitrator after quashing his award, and reference for this contention has been made to the observations in Garner's 'Administrative Law', third edition, at page 170 and T. Prem Sagar v. M/s Standard Vacuum Oil Company, Madras and Ors. : (1964)ILLJ47SC . What has been stated by Garner is that an order of certiorari is a judicial process whereby the order of the court below can be brought up before the supervising court, examined and 'quashed', but the record cannot be amended, as the order of certiorari is a process of review and not of appeal. When some such point arose for consideration in Premsager's case : (1964)ILLJ47SC , their Lordships of the Supreme Court observed as follows:

Incidentally, we ought to point out that even if the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of certiorari it would have been better if it had not made its can findings on the evidence and passed its own order in that behalf. In writ proceedings if an error of land apparent on the face of the record is disclosed and a writ is issue, the usual course to adopt is to correct the error and send the case back to the Special Tribunal for its decision in accordance with law.

There is nothing in Garner or in the judgment of their Lordships to justify the argument that it was not permissible for the learned Single Judge to grant the relief, in a case of certiorari, where it could be granted merely by quashing the defective order. This is all that learned Single Judge has done, for he has quashed the award dated July 3/4, 1969, and his order appears to be quite unexceptionable.

19. No other point has been argued and as we find no force in this appeal, it is dismissed with costs.


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