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1978 Supreme(SC) 92
SUPREME COURT OF INDIA
V.R. KRISHNA IYER AND JASWANT SINGH, JJ.
Management of Borpukhurie Tea Estate, Appellant
Versus
The Presiding Officer, Industrial Tribunal, Assam and another, Respondents.
Civil Appeal No. 1764 of 1971
Decided on 1-3-1978.
Advocates appeared
Mr. F. S. Nariman, Sr. Advocate (M/s. P. H. Parekh and S. N. Choudhari, Advocates with him), for Appellant; M/s. K. P. Gupta And B. B. Tawakley, Advocates for Respondent No. 2; Respondent No. 1, Ex Parte.
Subject
Industrial Law - Dismissal of Protected Workman
Act Referred
Headnote
Industrial Disputes Act, 1947 – Section 33 – Quash of Order – Claim of compensation - Whether it is conclusively proved that the signatures of the Manager of the Borpukhurie Tea Estate on the aforesaid cheque No. 53 were forged - What became of the report which appears to have been made by the appellant to the police in respect of the said cheque and what is the impact of the result of the report on the truth or otherwise of the alleged forgery - Whether a prima facie case for dismissal of the respondent is made out by the appellant - Whether the appellants decision to dismiss the respondent was bona fide or was it an outcome of any unfair labour practice or victimization - As the respondent was a workman and an industrial dispute, being reference No. 35 of 1964 was pending before the Industrial Tribunal, Assam at Gauhati, the Management could not straightaway dismiss the respondent. Accordingly, by its letter dated November 10, 1966, the Management informed the respondent that he had been found guilty of the charge contained in the charge-sheet served on him on September 19, 1966, and that he would be dismissed from service of the Company but that the punishment would not be put into effect pending orders of the competent authority under S. 33 of the Act, and in the meantime, he would remain under suspension. The communication dated November 10, 1966 written on behalf of the appellant to the respondent ran as under – Held, We find considerable force in the submission made by Mr. Nariman. The facts and circumstances of the case specially the underlined portions of the correspondence reproduced above i.e. the appellants very first letter dated Nov. 10, 1966 to the respondent which expressly stated that as the latter had been found guilty after due enquiry he would be dismissed from service of the Company but the punishment would not be put into effect pending orders of the competent authority under S. 33 of the Act and in the meantime he would remain under suspension, and the respondents own application dated November 17, 1966 to the Management for permission to avail of the privileges of the rations etc., in connection with his service on the plea that he had not yet been dismissed, as also the averments in the ultimate part of para 10 of the appellants application dated November 10, 1966 to the Industrial Tribunal to the effect that the respondent workman had been informed that the appellant had decided that he should be dismissed for misconduct under Cl. 10 (a) (2) of the Standing Orders but until permission of the Tribunal is received, he would be under suspension clearly show that the appellant had not dismissed the respondent but had only decided to dismiss him and the Industrial Tribunal and the High Court were manifestly wrong in making deduction to the contrary. It is unfortunate that both the Industrial Tribunal and the High Court tried to clutch at some stray words here and there to justify rejection of the appellants prayer to treat its original application as one under S. 33 (3) (b) of the Act and in so doing missed the real pith and substance of the application. The Courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked to and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. The following observations by this Court in Western India Match Company Ltd. v. Their Workmen, (1963) 2 Lab LJ 459 at p. 464 are apposite in this connection - Appeal allowed
B.B.TAVAKLEY, F.S.NARIMAN, K.P.GUPTA, P.H.Parekh, S.N.CHAUDHARY
JUDGMENT
JASWANT SINGH, J.:— This appeal by special leave is directed against the judgment and order dated September 18, 1970 of the High Court of Assam and Nagaland passed in Civil Rule No. 236 of 1967 filed by the present appellant.
2. The facts giving rise to this appeal are : Shri Naresh Kumar Ganguli, respondent No. 2 (hereinafter referred to as the respondent) was employed in the Borpukhurie Tea Estate belonging to Bishnauth Tea Company Ltd., (which is engaged in the cultivation and manufacture of tea and employs a large number of workmen of various categories to carry on its business) as a 2nd Clerk and was recognised as a (Protected Workman) within the meaning of S. 33 (3) of the Industrial Disputes Act, 1947, (hereinafter referred to as the Act). On September 11, 1969, the Companys cheque No. 53 which allegedly bore the forged signatures of the Manager of the Borpukhurie Tea Estate was encashed from a local banker. On enquiry Mansid Munda, the factory chowkidar stated that the cheque was cashed under instructions of the respondent and proceeds thereof amounting to Rs. 680/- were handed over to the latter at the garden office. As the act of the respondent prima facie constituted a grave misconduct under Clause 10 (a) (2) of the Standing Orders of the Establishment, a charge sheet was served on him on September 19, 1966 accusing him of obtaining money through Mansid Munda from the local banker by forging the Managers signatures on the aforesaid cheque and calling upon him to submit his explanation in regard thereto which he did on September 22, 1966. As the explanation tendered by the respondent (which was one of denial) was found to be unsatisfactory, an enquiry into the charge was held by Mr. R. R. L. Pennell, Superintendent of the Company. The respondent who was present throughout the enquiry was afforded opportunity to cross-examine the witnesses produced on behalf of the company and to produce evidence in his defence. At the conclusion of the enquiry, the Enquiry Officer submitted his report stating therein that the material adduced in the course of the enquiry proved that the respondent was guilty of grave misconduct as envisaged by the aforesaid clause of the Standing Order. The Management, therefore, decided to dismiss the respondent. As the respondent was a workman and an industrial dispute, being reference No. 35 of 1964 was pending before the Industrial Tribunal, Assam at Gauhati, the Management could not straightaway dismiss the respondent. Accordingly, by its letter dated November 10, 1966, the Management informed the respondent that he had been found guilty of the charge contained in the charge-sheet served on him on September 19, 1966, and that he would be dismissed from service of the Company but that the punishment would not be put into effect pending orders of the competent authority under S. 33 of the Act, and in the meantime, he would remain under suspension. The communication dated November 10, 1966 written on behalf of the appellant to the respondent ran as under :-
"Shri N. K. Ganguli,
2nd Clerk,
Borpukhurie T. E.
P. O. Charali.
Dear Sir,
You are hereby informed that you have been found guilty after due hearing of your case as prescribed by the Standing Orders, of the charge served on you in my letter of the 19th September, 1966.
You are accordingly informed that you will be dismissed from the service of the company.
This punishment will not be put into effect pending orders of the competent authority under S. 33 of the Industrial Disputes Act, 1947 and in the meantime you will remain under suspension. As my enquiry into the charge against you has concluded, you will not receive any subsistence allowance during this period of suspension.
Yours faithfully,
Sd/-
W. P. Swer
Assistant-incharge."
3. On the same date, an application was made by the Management before the Presiding Officer, Industrial Tribunal, Gauhati under S. 33 (2) of the Act. On November 17, 1966, the respondent addressed the following communicati
