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PETITIONER: MANAGEMENT OF BORPUKHURIE TEA ESTATE

       Vs.

RESPONDENT: PRESIDING OFFICER, INDUSTRIAL TRIBUNAL ASSAM AND ANR.

DATE OF JUDGMENT01/03/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R.

CITATION:  1978 AIR  992            1978 SCR  (3) 439  1978 SCC  (2) 667

ACT: Industrial  Disputes  Act,  (Act XIV),  1947,  S.  33(3)(b)- Amendment of an application changing the section  applicable should be allowed by the Tribunals.

HEADNOTE: Under Section 3 3 (2) (b )’of Industrial Disputes Act,  1947 during the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceeding  before an  arbitrator  or a Labour Court or  Tribunal  or  National Tribunal  in respect of an industrial dispute, the  employer may in accordance with the Standing Orders applicable to the workmen  concerned,  in  such  dispute  for  any  misconduct connected with the dispute, discharge or punish, whether  by dismissal  or  otherwise  that workman,  provided  that  the workman  has  been  paid  his wages for  one  month  and  an application  has been made by the employer to the  authority before  which the proceeding is pending for approval of  the action taken by the employer.  Under s. 33(b)which overrides Section 33(2) no  employer, during the pendency of any  such proceeding  in  respect of an industrial dispute,  take  any action against any protected workman concerned in such  dis- pute  by  discharging or punishing whether by  dismissal  or otherwise,  such  protected workman, save with  the  express permission  in  writing of the authority  before  which  the proceeding is pending. Agreeing with the findings of the Enquiry Officer  contained in the report submitted by him in respect of the  allegation of  grave  misconduct under Cl. 10(a) (2)  of  the  Standing Orders  of the appellant’s establishment, as  applicable  to Respondent  No.  2,  a  protected  workman,  the  Management decided to dismiss, him.  As respondent No. 2 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 straightway  dismiss  the respondent.   Accordingly, by its letter dated November  10, 1966,  the Management informed respondent No. 2 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,

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meantime,  he  would remain under suspension.  On  the  same date,  an application was made by  the  Management-appellant before  Respondent  No.  1,  under  s.  33(2)  of  the  Act. Respondent  No.  2  while  admitting  by  his  letter  dated November  17,  1976, that he was not yet  dismissed  as  per letter  dated 10th November, 1966 but only had to  be  under suspension  without pay till the decision of  the  authority concerned, requested the appellant to allow him to avail the privileges of drawing ration (at per staff ration rate)  and to  have  free  supply of tea and firewood,  as  per  rules. Thereafter,  on  December  24, 1966,  the  respondent  filed before  the Industrial Tribunal a complaint under s, 33A  of the Act alleging contravention of the provision$ of s. 33 of the appellant praying for a decision in the matter.  On June 27, 1967 when the appellant’s original application under  s. 33(2)(b) of the Act was till pending, the appellant made an application to the Industrial Tribunal praying that the said application be treated as one under s. 33(3)(b) of the  Act. By his order dated July 10, 1967, Respondent No.1 refused to treat  the Management’s original application under s.  33(2) of the Act as one under s. 33(3)(b) of the Act and  rejected the same as not maintainable holding that the Management had violated  the  provisions  of  the  Act  in  dismissing  the respondent  who was admittedly a protected workman  ’without obtaining  the  permission  from  the  Tribunal.   The  writ application  filed by the appellant in the Assam High  Court assailing the said orders was dismissed with the observation that the punishment of dismissal 440 having  already  been infficted without complying  with  the provisions of s. 33(3) (b)    of  the Act, an Ex Post  Facto permission could not be granted. Allowing the appeal by special leave the Court HELD : 1. 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 into and  the parties cannot be penalised for inadvertent errors committed by  them  in  the conduct of their  cases.   It  is  equally important  for the Courts to remember that it  is  necessary sometimes  in appropriate cases for promotion of justice  to construe the pleadings not too technically or in a  pedantic manner but fairly and reasonably. [444 F-G] Western  India Match Co. v. Workmen, [1963] 2LLJ 459  at  p. 464 applied. 2. The Labour Courts and Tribunals are compete-.it to  allow the parties when they are not actuated by any oblique motive to  modify  their  pleadings to  subserve  the  interest  of justice. [445 A] Patna  Electric  Supply Co. ’Ltd. Patna v. Bali Bai  &  Anr. [1958] S.C.R. 871, followed. 3.  In  the  present  case  :-(a)  The  appellants  original application being, in fact andin     substance      for permission  under s. 33(3) of the Act, The  Tribunal  should dispose  of  the I same in conformity with law  after  going into the following  points               1. Whether it is conclusively proved that  the               signatures  of the Manager of the  Borpukburie               Tea Estate on the aforesaid cheque No. 53 were               forged ?               2. 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 that report  on  the               truth or otherwise of the alleged forgery ?               3. Whether a prima facie case for dismissal of

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             the respondent is made out by the appellant?               4. whether the appellant’s decision to dismiss               the  respondent  was bona fide or  was  it  an               outcome  of  any  unfair  labour  practice  or               victimisation ?               5. Whether the respondent was entitled to  any               payment   in   the  interegnum   between   the               conclusion of the enquiry and the final  order               of the Tribunal ? [445 A-E] [The Court gave further directions to dispose of the  matter with utmost despatch not exceeding six months of the receipt of the order after going into the points suggested]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1764  of 1971. (Appeal by Special Leave from the Judgment and Order dt. the 18th  September, 1970 of the Assam & Nagaland High Court  at Gauhati in Civil Rule No. 236 of 1967) F. S. Narinian, P. H. Parekh & S. N. Choudhari For the Appellant K. P. Gupta & B. B. Tawakley For Respondent No. 2 441 Ex-Parte : For Respondent No. 1 The Judgment of the Court was delivered by JASWANT    SINGH, J.-This appeal by special leave s 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. 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  section  33(3)  of   the Industrial  Disputes Act, 1947 (hereinafter referred  to  as ’the Act’).  On September 11, 1966, the Company’s 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  Es- tablishment,  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  Manager’s 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.  Pennoll, 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

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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 protected 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  section 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:- 442 "Shri N. K. Canguli, 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  Standing Orders of the charge served on you in my letter of the  19th September, 1966. You are accordingly informed that you will he dismissed from the service of the company. This  punishment will not be put into effect pending  orders of   the  competent  authority  under  section  33  of   the Industrial  Disputes Act, 1947 and in the meantime you  will remain  tinder  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/1- W. P. Swer,                              Assistant-in-Charge." On the same date, an application was made by the  Management before  the Presiding Officer, Industrial Tribunal,  Gauhati under  section 33(2) of the Act.  On November 17, 1966,  the respondent  addresed  the  following  communication  to  the Manager of the Borpukhurie Tea Estate :- "The Manager, Borpukhurie Tea Estate, Charail P.O. Sir,               It appears to me from your letter dated 10-11-               66 that I am not yet dismissed, only I have to               be on suspension without pay till you  receive               any decision from the authority..               So, as I am not yet dismissed, you will  allow               me  to avail the privilege in connection  with               any  service  with the Company  as  below  and               other if there are.               (1)   Ration  "Rice  &  Atta"  (As  per  staff               ration rate)               (2) Tea "Free of cost’ (Still I am due to  get               a month ration)               (3)  Fire-wood "Free of cost (Already  to  get               for the further months of the year),               I  will be happy of your early action in  this               matter.  Soliciting an early confirmation.                               Yours faithfully,                             Sd/- N. K. Ganguli

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                             2’nd Clerk." 443 On December 24, 1966, the respondent filed before the Indus- trial  Tribunal  a complaint under section 33A  of  the  Act alleging  contravention of the provisions of section  33  of the  Act by the appellant and praying for a decision in  the matter.   On  June 27, 1967, when its  original  application under  section  33(2)(b) of the Act was still  pending,  the appellant  made  an application to the  Industrial  Tribunal praying  that the said application be treated as  one  under section 33(3)(b) of the Act.  This application is reproduced below for facility of reference :-               "1.-  That in submitting the application  U/s.               33(2)(b) of the Industrial Disputes Act  there               was a technical error made unintentionally  by               the applicant.               2.    That  a reading of the application  will               clearly  indicate that the Management in  fact               intended  to,  comply with the  provisions  of               section  33(3) of the Act and not  of  section               33(2)   of   the  said   Act,   although   the               application is described as such.               3.    That even the Management’s letter  dated               10th  November,  1966 addressed to Sri  N.  K.               Ganguli  will  also indicate that  action  was               being taken U/s 33(3) of the I.D. Act.               It  is,  therefore, prayed that  the,  Hon’ble               Tribunal   may   be  pleased  to   treat   the               application as one U/s 33(3) of the Industrial               Disputes Act and for this etc." By  his order dated July 10, 1967, the Presiding Officer  of the  Industrial Tribunal refused to treat  the  Management’s original application under section 33 (2) of the Act as  one under section 33 (3) (b) of the Act and rejected the same as not  maintainable holding that the Management  had  violated the  provisions of the Act in dismissing the respondent  who was  admittedly a protected work-man ’without obtaining  the permission from the Tribunal’.  Aggrieved by this order, the Management filed an application before the High Court  under Article  226 of the Constitution seeking issuance of a  writ of  certiorari  or mandamus or any  other  appropriate  writ quashing  the  aforesaid order dated July 10,  1967  of  the Industrial  Tribunal  but the same was  dismissed  with  the observation that the punishment of dismissal having  already been  inflicted  without complying with  the  provisions  of section  33(3)(b)  of the Act, an Ex Post  Facto  permission could  not  be granted.  It is against this order  that  the Management has come up in appeal to this Court. Appearing  in support of the appeal, Mr. Nariman  has  urged that  though  it may be open to an  Industrial  Tribunal  to withhold  the permission contemplated by section 33 (3)  (b) of the Act if it finds that an employer has not been able to make  out  a  prima facie case  justifying  dismissal  of  a workman  or if it finds that there is material to  establish that  the employer was guilty of unfair labour  practice  or victimisation,  there  was no justification in  the  instant case for the 444 Industrial Tribunal to hold that the appellant had  violated the  provisions  of  section 3 3 (3) (b) of the  Act  or  to refuse to accede to the prayer of the appellant to treat its original  application dated November 10, 1966 as  one  under section  33 (3) (b) of the Act ignoring the  Teal  substance thereof. We  find considerable force in the submissions made  by  Mr.

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Nariman.  The facts and circumstances of the case especially the  underlined  portions of the  correspondence  reproduced above i.e. the appellant’s very first letter dated  November 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 section 33 of the Act and in the meantime he would  remain  under suspension, and  the  respondent’s  own application  dated November 17, 1966 to the  Management  for permission  to  avail  of the  privileges  of  rations  etc. connected with his service on the plea that he had not ’yet’ been  dismissed, as also the averments in the ultimate  part of  paragraph  10  of  the  appellant’s  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 clause 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 Auction 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 appellant’s prayer to  treat  its original application as one under section 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 made by this Court in Western  India Match’ Company Ltd. v. Their Workmen(1) are opposite in this connection :-               Again, as in most questions which come  before               the Courts, it is the substance which  matters               and   not  the  form;  and  every   fact   and               circumstance relevant to the ascertainment  of               the substance deserve careful attention." It  is equally important for the Court to remember  that  it ’is  necessary sometimes in appropriate cases for  promotion of justice to construe the pleadings not too technically  or in a pedantic manner but fairly and reasonably. Keeping  in  view therefore the totality of ’lie  facts  and circumstances   of   the  case  and  the  purport   of   the observations of this Court (1) [1963] 2 L.L.J.459,464. 445 in  Patna  Electric  Supply Co Ltd.  Patna  v.  Bali  Bai  & Anr.(1) to. the ,effect that the Labour Courts and Tribunals are  competent  to  allow  the parties  when  they  are  not actuated by any oblique motive to modify their pleadings  to subserve  the interests of justice, we are of the view  that the present is an eminently fit case in which the industrial Tribunal  should treat the appellant’s original  application which  was  in fact and in substance for permission  as  one under section 33(3)(b) of the Act and dispose of the same in conformity with law after going into the following points :-               1. Whether it is conclusively proved that  the               signatures  of the Manager of the  Borpukhurie               Tea  Estate  on the aforesiad cheque No.  5  3               were forged ?               2. What became of the report which appears  to

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             have been made by the appellant to the  police               in- respect of the said cheque and what is the               impact  of  the result of that report  on  the               truth or otherwise of the alleged forgery ?               3. Whether a prima facie case for dismissal of               the respondent is made out by the appellant ?               4. Whether the appellant’s decision to dismiss               the  respondent  was bona fide or  was  it  an               outcome  of  any  unfair  labour  practice  or               victimisation ?               5. Whether the respondent was entitled to  any               payment   in  the  interregrium  between   the               conclusion of the enquiry and the final  order               of the Tribunal ? Accordingly, we allow the appeal, quash the aforesaid orders of the Industrial Tribunal and the High Court and remit  the case  to  the  former  with  the  direction  to  treat   the appellant’s aforesaid application dated November 10, 1966 as one  under section 33 (3) (b) of the Act and to dispose  of the  same with utmost despatch not exceeding six  months  of receipt  of  the order, after going into the point  get  out above.   The  parties  shall  be  allowed  to-  adduce  such evidence  as  they  may like in  respect  of  the  aforesaid points.   The  costs  of this appeal shall be  paid  by  the appellant   to   the  2nd  Respondent  Workman   which.   is ,quantified  at  Rs. 1500/-.  The order  in  C.M.P.  5411/71 shall stand. S.R.                            Appeal allowed. (2)  (1958) S.C.R. 871. 446