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PETITIONER: GUJARAT MINERAL DEVELOPMENT CORPORATION

       Vs.

RESPONDENT: SHRI P. H. BRAHMBHATT

DATE OF JUDGMENT30/10/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN GOSWAMI, P.K.

CITATION:  1974 AIR  136            1974 SCR  (2) 128  1974 SCC  (3) 601  CITATOR INFO :  RF         1986 SC 842  (5,15)

ACT: Industrial  Disputes  Act-Respondent  a  temporary  employee terminated  from  service Whether  termination  a  discharge simpliciter and the action taken by the employer, bonafide.

HEADNOTE: The  respondent was appointed by the appellant in 1967 as  a temporary  senior  Assistant on conditions set  out  in  the letter of appointment.  His services were terminated in 1971 when he was still in temporary service-.  Due to ill health, the  respondent  applied  for  one  month’s  medical   leave accompanied  by  a doctor’s certificate; but the  leave  was refused  and  he  was asked to join duty  at  once.  because according to the appellant, there was nothing wrong with his health.   Ultimately, when on January 6, 1971, the  employee did not appear for medical checkup on the appointed day, the worker  was  discharged from  service  retrospectively  from November 9, 1970, with one months’ pay in lieu of notice. The Labour Court came to the conclusion, that the  discharge was  not  a discharge simpliciter but an  action  taken  for misconduct  and  was punitive.  The  principles  of  natural justice were not complied with and the impugned action  came under  s. 11-A of the Industrial Disputes Act, and  so,  the appellant was directed to reinstate the respondent with half the  wages from the date of discharge till the date  of  his reinstatement. Before  this Court, it was contended by the respondent  that the order of discharge was defective because it purported to terminate the service of the respondent retrospectively from the  day from which his services were not available  to  the Corporation as he was absent without leave from November  9, 1970.  The appellants" counsel     contended   that    where under a contract of service there is power to terminate  the services,  that.power  having been exercised  bonafide,  the termination cannot  be  held  invalid.   The  question   for decision  before this Court was whether the  Special  Labour Court  arrived  at  a perverse finding,  or  a  finding  not warranted  by  the evidence on record; or,  were  there  any errors  apparent ’on the face of the record  which  vitiated that finding.  Allowing the appeal.

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HELD  (i)  The  order of termination cannot be  held  to  be defective  merely  because  the order  was  to  take  effect retrospectively from November 9, 1970.  The intention of the Corporation was to terminate the services of the  respondent from the date from which his services were not available  to the Corporation.  Even if the super-added part, namely, that the order should operate retrospectively as from an anterior date, is invalid. there is no reason why the first part of the order discharging the services of the respondent as from the date of the order, does not take effect.  Therefore, the order  discharging the-services of the respondent cannot  be held to be invalid. [134C] Jeevaratnam  v.  State  of  Madras,  [1967]  1  L.L.J.  391, referred to. (ii) Normally, an employer may terminate the services  under the  terms of the contract or the standing, orders  as  duly certified,  but where an Industrial Dispute is  raised,  the form  of  the order is not conclusive and  the  tribunal  to which  the  dispute  is referred can  examine  the  question whether  the discharge is punitive, malafide  or  arbitrary. If  it comes. to any of these conclusion, it can direct  the reinstatement  of the employee; but should not do so if  the employer  has lost his confidence in the employee.   If  the Tribunal  is  satisfied  that  the  order  is  punitive.  or malafide. or is made to victimise the workmen or amounts  to unfair  labour  practice, it is competent to set  it  aside. The  test is whether the act of the employer is bonafide  or not.  If it is not, and is a colorable exercise of the power under  the  contract  of service, or  standing  orders,  the Tribunal  can discard  it in a  proper  case.  and  direct reinstatement. [134E] Tata Engineering and Locomotive Co. Ltd. v. Prasad, [1969] 2 L.L.J. 779, referred to. 129 (iii)     This Court ordinarily does not entertain pleas  on questions of fact, or interfere with the findings of fact so as  to convert itself into a third court of fact.   But  the Court  will not hesitate to interfere with the  findings  of fact, where there has been illegality or an irregularity  of procedure,  or  a  violation of the  principles  of  natural justice  resulting  in the absence of fair trial,  or  where there has been a gross miscarriage of justice, or where  the Tribunal has given inconsistent and conflicting findings, or where  the findings are vitiated by error of law,  or  where the  conclusion  which reached by the courts  below  are  so patently  opposed to the well-established principles  as  to amount to miscarriage of justice or where the finding is not supported by any legal evidence and is inconsistent with the material produced on record, or where the High Court or  the Tribunal  below committed a serious error in  not  examining evidence of a central issue with the case Which it deserved. etc. [135E] (iv) In  the present case, from the evidence it  seems  that the respondent had made it a habit of remaining absent  from duty  without obtaining prior permission; that he  had  very little  respect for his superiors; that he was  haughty  and insolent  and did not care for the rules of the  Corporation and  was  a  habitual absentee  without  getting  his  leave sanctioned  previously.   The Special Labour  Court  had  no basis  for coming to the conclusion that the respondent  bad apologised  for his wrongs and that the matter was  properly dealt  with.   The respondent never apologised, but  he  was prevaricating.   The respondent was always  adopting  highly unreasonable   attitude   which  was  detrimental   to   the interests  of the Corporation.  In the above  circumstances,

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it  would  be  misnomer  to  say  that  the  action  of  the Corporation was not bonafide, but was malafide.   Therefore, the  findings  of the Special Labour Court is  perverse  and could  not  be  arrived at on any  reasonable  view  of  the evidence. [140G; 141C] (v)  The  respondent  cannot be considered  as  a  permanent employee  of the Corporation. because under rule 15  of  the rules, an employee is required to subscribe to a declaration before  joining duty in the form prescribed  in  Appendix-1. That  form  declares  that he  has  understood  the  Gujarat Minerals  Corporation  Ltd. (Staff) Service  Rules,  and  he subscribes and agrees to be bound by the said rules.  Such a declaration  has  not  been signed  by  the  respondent  and therefore those rules are not applicable to the  respondent. [141D] (vi) Under  Rule  7,  the General  Manager  may  temporarily employ suitable candidates to vacant posts in Class III  and IV only and the Chairman of the Sub-Committee may  authorise appointment of suitable candidates to a vacant post in Class 1  and  11.   It  is admitted that  the  post  held  by  the respondent  falls in one of the categories mentioned in  the above  rule.  Under these circumstances, the  employment  of the  respondent  was temporary and was not  subject  to  the rules. [141F] (vii)     Further, even if the said employee contributed  to the Provident Fund, the Provident Fund Act did not apply  to the  Respondent, because till 1972, the Provident  Fund  Act did  not apply to this Corporation.  If the  Provident  Fund Rule,;  of  the Corporation permitted a  temporary  employee also   to  contribute.  to  it,  the  contribution  by   the respondent  does  not  indicate  that  he  was  a  permanent employee. [141G] (viii)    As regards the question as to whether s. II (A) of the  Act is applicable to the present case, it can  be  said that  s.  11-A  will  not apply  to  an  Industrial  Dispute referred  prior to December 15, 1971, when the said  section was brought into operation.  ’Therefore, the said section is riot applicable in the present case.  Further. this  section has no retrospective effect on the pending reference. [141H] Workmen  of  M/s.  Firestone Tyre and Rubber  Co.  of  India Private  Ltd.  v. The Management and Ors., [1973]  1  L.L.J. 278, referred to. Under the circumstances. the termination of the services  of the   respondent  is  not  malafide  or  punitive  and   the appointment   of   the  respondent  being   temporary,   the termination was a discharge simpliciter and the-action taken by the Corporation was bonafide. [142D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 803 of 1973. -L447Sup.Cl/74 130 Appeal  by  special leave from the award dated  January  24, 1973  of  the Special Labour Court, Ahmedabad  in  Reference (IC-IDA)  No. 4 of 1972 published in the Gujarat  Government Gazette Part 1-L dated March 1,1973. M. C. Chagla, G. P. Vyas and R. P. Kapur, for the appellant. Respondent appeared in person. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-This appeal by special leave challenges the  award of the Special Labour Court, Ahmedabad, by  which the respondent an employee, of the appellant Corporation was directed to be reinstated and paid as compensation half  the

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wages  including  dearness. allowance from the date  of  his discharge  till  the date of his reinstatement  in  service. The  respondent was appointed by the appellant on  June  13, 1967  as a temporary Senior Assistant on conditions set  out in  the  letter  dated  June  13,  1967.   The  respondent’s services continued to be temporary as no order of appointing him  on  probation  was passed, and on  the  date  when  his services were terminated by an order dated January 6,  1971, he was in temporary service. According   to  the  respondent’s  statement  of  claim   in September  October  1970  he was not  keeping  good  health, nonetheless  he used to attend to his duties.   However,  in October 1970 his health deteriorated further and he went  on sick  leave  for five days from October 14  to  October  18, 1970.  Thereafter though he, joined and Worked. he was under treatment.  Then all of a sudden his health took a turn  for the  worse  and  after  the  medical  examination  by,   his physician he was advised rest and medical treatment for  one month.   In  view of this advice he made an  application  on November  7,  1970  for one month leave  on  the  ground  of illness accompanied by a medical certificate of K. J. Vaidya who was a registered medical practitioner, but the appellant did  not  give any reply immediately.  Later  the  appellant wrote a letter to the, respondent asking him to "join duties at once" because there was nothing wrong with his health and his leave was not sanctioned. We  shall  advert to the correspondence  in  greater  detail later, but for the present it is sufficient to set out  what has been narrated by the Special Labour Court, according  to which the concerned workman (the respondent) after receiving the reply on November 14, 1970 wrote to the Corporation that the  said superior officer was not qualified to opine  about his  health  and it was necessary for him to  take  rest  as medically advised.  He also stated that he wanted to consult a physician in Bombay and if he decided to go there he would intimate his Bombay address to the Corporation.  He  alleged that  this letter was not immediately replied.   Thereafter, the  concerned  workman  proceeded  to  Bombay  and  started receiving treatment from one Dr. K.  C. Mehta, M.D. (Bom.), F.C.P.S.  He  then received a letter  from  the  Corporation requiring  him to report immediately to the Corporation  for being sent for a medical examination by the Civil  Surgeon, Ahmedabad.   The concerned workman contended that if he  was required to  131 be examined by the Civil Surgeon, Ahmedabad, he should  have been  informed  about  it  before he  left  for  Bombay  and according  to him, this was not a bona fide direction.   The concerned workman then sent a medical certificate,  obtained from  his  doctor with his letter dated  December  9,  1970, asking  for  further  leave.   The  concerned  workman  then received  a letter dated December 24, 1970 requiring him  to report to the Corporation within two days and informing  him that  if  he failed to do that, he would be  dismissed  from service.  He then returned to Ahmedabad and wrote a  letter. dated  January  4,  1971  to the  Corporation  that  he  was prepared to submit for the examination by the Civil Surgeon, Ahmedabad,  and  he  should be sent  an  authority  for  the purpose.   According  to the concerned workman,  instead  of granting  this request, the Corporation sent a letter  dated January  6, 1971 together with a discharge order,  informing him  that  he was discharged with effect  from  November  9, 1970.  The concerned workman contended that the action taken against  him was illegal and improper; that the  Corporation had no authority to require him to submit for examination by

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the  Civil  Surgeon;  that  it could  not  have  rejected  a certificate  from.  a registered medical  practitioner  and, therefore,  he was entitled to be reinstated with full  back wages. As against these averments, the case, of the Corporation was that the concerned workmen was only a temporary employee and under  the contract of his employment he was to be taken  up as  a probationer, and after completion of the  probationary period he was to be confirmed. However, during his  service, as  he  was found to be, arrogant, careless,  negligent  and having scant respect for his superiors, no order making  him a  probationer  was passed and he was continued  only  as  a temporary  employee in an expectation that he would  improve and  give satisfaction to his superiors.  According  to  the Corporation,  assuming that he had become a probationer,  he was  not  confirmed;  and  so in any  event  he  was  not  a permanent workman.  The Corporation then alleged that during the tenure of his service, apart from other defects in  him, it was also found that in about October 1970, he was evading to  undertake  about ten days’ tour to Bombay.  So,  he  was given a memo requiring time to submit his explanation, which he did, but in a very disrespectful languages.   Thereafter, he  had gone on leave Oil grounds of illness.  It  was  then alleged  that on November 7, 1970, though he was present  in office,  looking quite healthy and ’it, and bad  worked  for the  whole day, yet he gave an application for leave for  30 days.  He gave this application to, the inward clerk and not to  his superior officer as it was the usual practice  which he  could  have  followed very easily.  He  had  attached  a certificate  to the leave application; but  the  certificate was from a Vaidya who was only a R.M.P. The certificate  did not  disclose any serious disease, and hence on  considering these  facts, the leave application was refused and  he  was asked to report for duty.  A letter to that effect was  sent to  him  under certificate of posting, but that  letter  was returned   to,the   Corporation  with  an   unusual   postal endorsement  viz.  "Left-particulars not known’.. A copy  of this  letter was then sent to him by registered post at  the very  address and the same was received by him  on  November 14,  1970.   The  concerned  workman  then  wrote  a  letter refusing to report for 132 duty and stating that he would go to Bombay for consultation with an eminent physician.  Thereupon, the Corporation wrote another  letter dated 27 ’ /30 November, 1970  calling  upon him to present himself at the head office so that he can  be sent to the Civil Surgeon for a medical check-up because  it wanted  to verify, as to whether his illness was genuine  or not.  According to the Corporation, this letter was sent  to him with a special messenger at his, residential address  on November  30, 1970 at 11.30 A.M. but a member of his  family reported that be had.left for Bombay.  In the meanwhile, the Corporation   received  a  letter  On  December   2,   1970, purporting  to  have been sent from Bombay.   However,  this letter  did  not bear any postal mark from any  Bombay  post office.   The Corporation then wrote a letter to him at  his Bombay address on the same day asking him to comply with the instructions  contained in the letter dated ?7/30  November, 1970.  According to. the Corporation, this letter  seems  to have  been  received  by  him  on  December  4,  1970,   and thereafter he sent a letter, dated December 9, 1970 together with  an application for leave along with a  medical  certi- ficate.  But in this letter, the respondent did not give any specific  reply  to  the directions to attend  to  the  head office  for his medical check-up.  The  medical  certificate

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also  did  not show that he was seriously ill.   Hence,  the Corporation, by its letter dated December 24, 1970, sent  to his  Bombay address, calling upon him to present himself  at the  head office for a medical check-up.  According  to  the Corporation,  a  letter dated January 4, 1971  was  received from  him asking for a letter of authority to  be  presented before the Civil Surgeon, but the Corporation had reasons to suspect that the concerned workman was in fact evading being medically  examined.   Further,  looking  to  his   previous record, it was found that it would not be proper to  confirm such an employee, or to continue him in service.  So, it was decided.to discharge him.  An order terminating his services with  one  month’s pay in lieu of notice  with  effect  from November  9,  1970  was passed and was sent to  him  with  a letter dated January 6,,1971.  The Corporation alleged  that in  the  past also he was found to be remaining  absent  and irregular in work and leaving his work without any leave  or authority,  as such, the action taken against him was  quite legal and proper and he was not entitled to any relief.  The Corporation  had  raised consitentions  that  the  concerned workman  was not a ’workman’ within the meaning of the  term under the Industrial Disputes Act, and the said Act did  not apply  to  the  Corporation  because  it  was  a  Government concern.    The  contention  that  on  this  account,   this reference  was  invalid was not pressed before  the  Special Labour  Court  and  accordingly  no  question  of  lack   of jurisdiction was urged before us. On  the aforesaid averments, the Special Labour Court  posed the question whether the termination of the services of  the respondent  was  a discharge simpliciter as alleged  by  the Corporation  or was it a discharge for misconduct which  was of  a punitive nature ? On a perusal of  the  correspondence the Labour Court came to the conlusion that as the concerned workman  did  not report for medical check-up, but  wrote  a letter  asking for an authority to be presented  before  the Civil  Surgeon, his services were terminated  which  clearly amounted to an 133 action  taken  for  non-compliance  with  the   requirements contained  in  the letters as well as for  remaining  absent without  leave.   In  the circumstances  it  held  that  the discharge  was in pursuance of the  threatened  disciplinary action  and  did not amount to a discharge  simpliciter,  in that the real nature of the action taken against him was for the.  misconduct  and was punitive.  On this  conclusion  it further held that the principles of natural justice were not complied  with  by calling upon the workman  to  show  cause against  the.-proposed action nor was the workman  given  an opportunity  to  explain the allegations which  former’  the basis of the impugned action.  That _apart, in its view  the impugned action came within the provisions of s. 11A of  the Industrial   Disputes  Act-hereinafter  called  ’the   Act’- according  to  which it would be the duty of  the  Court  to satisfy, itself whether the order or dismissal or  discharge was justified or not and in discharging that duty the  Court would be entitled to rely on the materials on record without taking  any fresh evidence in relation thereto.  Though  the Special  Labour  Court  came  to  the  conclusion  that  the previous  behaviour  of  the- workman  showed  that  be  was haughty and insolent and he had used improper ’language  to his  superiors he was properly dealt with by being  made  to apologise  for his wrongs and therefore he cannot  be  tried and punished twice for the same wrong inasmuch as the action for the termination of his services was based on the  ground that  the  reasons  urged for leave were  found  to  be  not

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genuine  and  he  had not submitted him self  to  a  medical check-up  as  required by the Corporation.  It  was  further found   that  merely  because  his  leave  application   was presented in  a  particular manner,  and  because  it  was accompanied  by  a certificate from  a  registered  medical practitioner  a  Vaidya, no inference would arise  that  the grounds  urged  were absolutely false.  In the view  of  the Special  Labour Court the management of the  Corporation  in this case, had approached the matter with a closed, and  not an open, mind, nor did it consider that the circumstances on which it relied were explainable on the assumption that  the concerned workman was innocent. Adverting  to  the  letter  written  by  the  respondent  on November  21, 1970 in reply to the Corporations  letter  of, November  4, 1970, informing him that his leave was  refused and that he should immediately report for duty, the  Special Labour  Court observed that this letter seems to  have  been written  in a rather harsh language, but explains  away  the conduct as probably being due to leave being refused by  the superior officers of the Corporation.  In the view it  took, it  held  that  the discharge of the  respondent  cannot  be justified. It is obvious from the order terminating the services of the respondent that it is an order of discharge.  But that order though  dated  January 6, 1971, purports  to  terminate  the services  of the respondent as from November 9, 1970 on  the ground  that his services were no longer required.   In  the covering letter of the same date, a month’s salary was  sent in  lieu  of one month’s notice as provided in  the  Service Rules of the Corporation.  The respondent contends that this order  is  defective because it purports  to  terminate  his services retrospectively from November 9, 1970.  Though  the order is one purporting to 134 terminate his services from a date, anterior to the, date of the order of termination, that order ex facie is  severable. In  fact  it  is an order discharging the  services  of  the respondent  as  from the date of the order with  the  super- added  direction  that the order should  operate  retrospec- tively  as from an anterior date.  Even if  the  super-added part  is invalid, there is no reason why the first part  of, the  order  does not take effect.  It was so  held  by  this Court-in  Jeevaratnam v. State of Madras(1).  The  intention of the Corporation was no doubt to terminate the services of the  respondent from the date from which his  services  were not  available to the Corporation as he was  absent  without leave.   For  that  reason the  Corporation  stated  in  the covering  letter that the rest of his dues wilt be  sent  to him  hereafter,  which probably were intended to  cover  the period for Which the leave was not granted or this may be in respect  of the provident fund etc, In any case, as we  have said  earlier,  the  order of  termination  cannot  be  held defective  merely because the order was to take effect  from November  9, 1970.  We will, therefore, treat the  order  as ’an order of termination as from the date of the order  With one month’s salary in lieu of one months notice which  would more than meet the, requirements, because there is a dispute as  to whether even under the Service Rules  the  respondent was entitled to seven days pay only. lieu of notice.  In our view, the order cannot be held to be invalid; The appellant’s counsel contends that where under a contract of  service there is power to terminate the  services,  that power  having  been  exercised bona  fide,  the  termination cannot be held to be invalid, and consequently it is open to an  employer, where there is such a power, to terminate  the

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services of an employee or to discharge him with-out  giving any reasons.  It is true, normally an employer may terminate the  services under  the  terms of  the  contract  or  the standing  orders as duly certified, but where an  industrial dispute. is raised the form of the order is not  conclusive, and  the  Tribunal  to which the  dispute  is  referred  can examine  the  question whether the discharge  was  punitive, mala  fide, vindictive or arbitrary.  If it comes to any  of these  conclusions,  it could direct  reinstatement  of  the employees.   But even in such cases the Tribunal should  not direct reinstatement if it comes to the conclusion that  the employer has lost his confidence in the employee, where  the reposing  of such confidence is a necessary  concomitant  of his  services.   In  other words,  the  order  of  discharge simpliciter is not conclusive and when an industrial dispute is  raised,  the  Tribunal  adjudicating  such  dispute  can examine  the substance of the matter and  determine  whether the   termination  is  in  fact  discharge  simpliciter   or dismissal, though the ’order is one of simple mala fide.  or is made   to  victimize  the workman or  amounts  to  unfair labour practice, it is   competent  to  set it  aside.   The test is whether the act of the employer is bona fide or not. If it is not and is a colorable exercise of the power  under the contract of service or standing orders, the Tribunal can discard  it and in a proper case direct reinstatement.   See also  Tata  Engineering  and  Locomotive  Company  Ltd.   v. Prasad(2) (1)  [1967] 1 L.L.J. 391. (2)  [1969] 2 L.L.J. 799. 135 The principles being clear, the only question is whether the Special  Labour  Court arrived at a perverse  finding  or  a finding not warranted by the evidence on record or are there any errors apparent on the face of the record which  vitiate that finding? The respondent who personally argued his case contended that in  Bengal  Chemical  & Pharmaceutical Works  Ltd.   V.  The Employees(1), it was held by this Court that though Art. 136 is  couched in widest terms, it is necessary for this  Court to  exercise  its discretionary jurisdiction only  in  cases where  awards  are made in violation of  the  principles  of natural justice, causing substantial and grave injustice  or raises  an important principle of industrial  law  requiring elucidation  and final decision by this Court  or  discloses such other exceptional and special circumstances which merit the  consideration  of  this Court.  It  is  true  that  the decisions  of this Court warrant the submission that  before redress  is claimed 1 under Art. 136 the party  claiming  it should show that the impugned order or award is defective by reason  of excess of jurisdiction or of a substantial  error in  apply  the law or of settled principle or  suffers  from gross   and   palpable  error   occasioning   manifest   and substantial  injustice  : per Hidayatullah,  J.,  in  Kamani Metals & Alloys Ltd.  V. Their Workmen(2). It  may,  however,  be  stated that  this,  Court  does  not generally entertain pleas on questions of fact or  interfere with  findings of fact so as to convert itself into a  third ’court  of fact.  The reason is. obvious, because  different persons may come to different conclusions On an appreciation of evidence depending upon the way in which the  credibility of  the  evidence given by the witnesses is judged.   In  so judging the evidence, various contributory factors may  play a  vital part, such as the knowledge and experience  of  men and  affairs.  However an appellate court or a court  having jurisdiction to entertain petitions challenging the  verdict

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will  not hesitate to interfere with findings of fact  where there   has  been  an  illegality  or  an  irregularity   of procedure,  or  a  violation of the  principles  of  natural justice,  resulting  in the absence of fair trial  or  where there has been a gross miscarriage of justice, or where  the tribunal has spoken in two voices and has given inconsistent and conflicting findings, or where the findings are vitiated by  error  of law or where the conclusions  reached  by  the courts below are so patently opposed to the well-established principles as to amount to miscarriage, of justice or  where the  finding is not supported by any legal evidence  and  is wholly  inconsistent with  the material  produced  on  the record, or where the High Court Dr the tribunal below,  com- mitted  a  serious  error in not  examining  evidence  on  a central  issue  with  the care  which  it  deserved.   These principles  have been affirmed in the various  decisions  of this   Court  and  are  so  well-established  that   it   is unnecessary to refer to those decisions. Applying  these principles what we have to see in this  case is,  any interference in the award called for.  No doubt the Special Labour Court gave a clear finding that the  behavior of the workman showed (1) [1959] 1 L.L.J. 413. (2) [1967] 2 L.L.J. 56, 60 (S.C.). 136 that  he  was  haughty and insolvent and that  he  had  used improper  language  to  his superiors.   Having  given  that finding it thought that he was properly dealt with-by  being made to apologise for his wrongs and therefore he cannot  be tried  and  punished  twice for the same  wrong.   While  we consider that the finding arrived at is amply justied by the record,  the subsequent glossing over of the serious  charge again st  the respondent is unwarranted on the  evidence  on record. Several letters were addressed to the respondent  by the  Corporation  and he was given        several  memos  in respect of his work, attitude and conduct while in  service. He  seems to.have made it a habit of remaining  absent  from duty  without obtaining prior permission as is evident  from the various letters.- By its letter = October 23, 1967,  the Corporation  informed the  respondent that  he  remained absent from 3rd to 6th and 11 th of that month without prior approval  of  any  of his superiors and  he  was  told  that availing  of  such leave by the Senior Assistant  cannot  be tolerated  by  them  management.  He was  asked  to  explain within two days from the date of the receipt of that letter, why disciplinary    action  should not be taken against  him for  remaining absent from the office.  By his letter  dated October  26, 1967, there a explained that he  was.suffering from  acute dysentery from 3rd to 6th October and  therefore he  was  compelled to remain on leave  during  that  period. This  letter shows. that he was aware that remaining  absent without  prior  sanction of leave was improper  but  it  was explained  that he could not got prior approval  for  leave. Again by its letter dated January 19, 1968, the  Corporation informed  the  respondent that he remained absent  from  his duties on January 15, 1968 without prior approval of any  of his  superiors and he was asked to explain why  disciplinary action should not be taken against him for availing of leave in  this manner which previously also he had availed of  two days’  leave, in similar manner.  On October 9, 1969 a  memo was  issued to the respondent that in contravention  of  the instruction issued under Office Circular dated July 5, 1969, he  had  remained absent on October 4,  1969  without  prior approval of leave in writing from any of his superiors,  and he  was asked to explain immediately why his absence  should

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not be treated as leave without pay.  Again on May 13, 1970, another memo was issued to the respondent saying that he was in  the habit of proceeding on casual leave without  getting the same sanctioned before hand.  In that memo it was stated that whenever he was asked by his departmental head to give, reason  for his remaining on casual leave he was          to evade  giving  specific reasons for absenting  himself  from duties.   The  memo further stated that :" you  are  in  the habit  of  deliberately  ignoring day  to  day  instructions issued to you by your departmental head e.g., you have  been often  told to be punctual in attending office not to  leave your seat during office hours without any reasonable cause , or office work, not to while away your time by going on  5th Floor  and  chitchating with the members of the  staff  etc. Even  then it is found that you have persisted  in  ignoring all these instructions.  That you are showing scant  respect for.your  superiors".   He  gave an  explanation  which  was argumentative  and  vague.  On June 26, 1970  he  was  again served  with another Memo stating that it was found that  on 25th morning at about 11.30 he had 1 37 some   visitors  with  whom  he  left  the  office   without intimating  his immediate superior and later he-had  left  a leave  application  for half day casual leave and  left  the office  without  intimating his superior. lie was  asked  to note  that this was highly indisciplined and to  show  cause why action may not be taken against him.  In his reply dated June  29, 1970 he said that it was not 11.30 a.m.  but  1.30 p.m.  that  he  had left the office and  said  that  he  had conveyed  the message through some one but evidently he  did not  convey the message.  He was given a warning on June  30 1970 that he had violated the instructions by not submitting the  explanation in time before 5.30 p.m. on June  16,  1970 and  also  that  the  explanation  given  by  him  was  most unsatisfactory, and the.facts stated therein were incorrect. On  December 24, 1969 he was given a warning  for  returning late  from  recess on that date at 2.50 p.m. instead  of  at 2.30 p.m. and he was informed that the authorities viewed it as  gross irregularity and indiscipline on his part in  ’not observing  office  timings and was strictly warned  that  in future  if  he  was  found  irregular  in  observing  office timings, he will be liable for strict disciplinary action. After  this,  on another occasion the respondent  by  letter dated  October  20,  1970 was asked to  undertake  tour  to Bombay  for  a  week to ten days   before  Diwali,  but  he refused  to comply.  Thereafter a memo dated October  23/26, 1970  was issued to the respondent that he was told  by  the Assistant Sales Organiser on October 20, 1970 to proceed  on tour  to  Bombay  for sale of Silica Sand and  that  he  was specifically instructed to undertake the tour before Diwali, but he bad arrogantly refused to accept the original  letter and  returned  the  same  with the  remark  that  he  cannot undertake the tour on ground of his bad health.  Even  prior instructions  to  proceed on tour were  not  complied  with. Instead  of carrying out these instructions he proceeded  on leave  immediately on the ground of ill health and  did  not carry  out  the  instructions.   When  he  was  once   again instructed  in writing as stated above, he had  shown  gross disobedience,   insubordination   and  disrespect   to   his superiors and gross negligence in his work.  It was  further stated in that memo that besides the above incident, it  had been  found on several occasions in the past that he was  in the habit of deliberately violating the instructions  issued to him by his superiors from time to time in respect of  his duties  and showing scant respect to his superiors and  that

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the  Management bad taken a serious view of this and he  was asked to submit his written explanation on or before October 27,  1970 why his services should not be  terminated  forth- with.   To this memo the respondent replied on  October  28, 1970, in which he described the allegations contained in the memo  dated  October  23/26,  1970  as  "absolutely   false, frivolous  and  concocted".  He also said "a tour  before  a week  ahead  of Diwali should not be fruitful" and  that  it would be wastage of money "which any layman can appreciate". He  also  stated therein that he personally  felt  that  the Corporation was resorting to a sort of stunt to send him  on tour before Diwali maliciously to put him in hot water since management  did  not arrange so far for his  visiting  cards with   designation  to  represent  the   Corporation   while promoting   the  sale  of  Silica  Sand.   The   Corporation legitimately took exception to this letter and by memo dated November 138 3,  1970, informed the respondent that his  explanation  was couched   in   impolite,  insulting,   unparliamentary   and disrespectful  language,  and he had cast  unwarranted and baseless aspersions against his superiors and the management in respect of which the management took a very serious view- to this sort of behavior amounting to insubordination on the part of a Senior Assistant.  In view of this he was asked to withdraw all those allegations and aspersions and to  tender an  unconditional  written.  apology  before  5.30  p.m.  on November  4, 1970, expressing sorrow for the  same,  failing which the management will have to take serious  disciplinary action  against  him.  The respondent  thereafter  began  to hedge  and did not offer an unconditional  written  apology. By  his  letter  dated  November 4,  1970,  he  said  "While referring  yours above, I do not infer what is  inferred  by Management, but however if so is inferred by the Management, I  feel  sorry".   He  was then informed  by  a  memo  dated November 6, 1970 that there was nothing to be inferred  when everything  was  abundantly  clear,  and  that  instead   of straightaway withdrawing all the allegations and  aspersions against  the management contained in his  explanation  dated October  28, 1970,. he had raised the question of  inference by  the management. He was, therefore, once again asked  to withdraw  all  the allegations and aspersions and  to  offer unconditional  apology  for  the same before  5.30  p.m.  on November  6, 1970.  Again by letter dated November  7,  1970 the  respondent did not offer an unconditional  apology  but write as follows               Management still feels my reply dated 28th  of               October 1970 offending though not, which is  a               matter of great regret". It  will  thus  be observed that by  neither  of  these  two letters did he either withdraw the allegations made against’ the Corporation or its officers, nor offer an  unconditional apology.   His only regret was that the management felt  his reply offending though it was not. Even  so,  on  the  same day i.e..  November  7,  1970,  the respondent  sent  a  letter  enclosing  therewith  a   leave application  for 30 days earned leave from November 9,  1970 to  December  8,  1970  (8th  November  1970  being  Sunday) accompanied  by a medical certificate in original.   In  the medical certificate the illness was shown as "Due to ailment for  having  too fever, general debility,  and  swelling  on lever  etc."  and  the  person  certifying  was  a   Vaidya. Thereafter  at no time did the respondent care to  have  his leave mentioned before availing of leave, nor did he  return to work till his services were terminated.

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The Corporation asked the respondent to appear before it for being     sent  to  the Civil Surgeon,  Ahmedabad,  but  the respondent began    to dodge.  The Corporation sent a letter dated November 9, 1970   under   certificate   of    posting informing the respondent that his leave application      was violative of certain provisions of the Service Rules   and that he was well aware that as provided in the Service Rules     o f the Corporation, application for earned leave is  ordinarily required to be submitted 15 days before the date from  which leave  is required and that it was obligatory on the part of every employee 139 to  furnish his address during leave which he had failed  to state in, his leave application and he had absented  himself from  duty without getting his leave sanctioned even  though he  was present in the office on November 7, 1970 and  there was  nothing  wrong  with his health.  It  was  also  stated therein that, instead of personally handing over his  leave application to the Head of his Department, he had adopted an uncommon  and  out  of  the  way  practice  of  getting  his application  inwarded through the Registry Branch  with  the result  that  his application did not  reach  the  Assistant Sales  Organiser  before  4.50  on  November  7,  1970,  and thereafter without caring to inquire whether, his leave  had been  sanctioned  or  not he had  absented  from  duty  from November  9, 1970 onwards, which action amounted  to  indis- ciplinary behavior and misconduct and the management took  a serious  view  of  the same.  He was  instructed  to  report immediately  for duty as his leave had not been  sanctioned, on  failure of which the management will be  constrained  to take  disciplinary  action against him.  It was  also  added that  it  Was difficult to believe that there  was  anything wrong  with  his  health Which required ’rest  for  30  days inasmuch  as he had attended the office in good health  from together  18,  1970  onwards upto  November  7,  1970  after enjoying leave from October 14 to October 17, 1970.  A  copy of this letter Was also sent to the respondent by registered post  acknowledgement  due on, November 12,  1970.   By  big letter  dated November 21, 1970, sent under registered  post acknowledgement  due the respondent admitted that  according to  Service Rules of the Corporation application for  earned leave is ordinarily required to be submitted within 15  days before  the date of commencement of leave.  But as the  word ’ordinarily’ implies there can be occasions for urgent leave when  the 15 days limit cannot be observed, and that  as  he urgently needed leave on medical advice, it was not possible for  him  to  apply in advance.   Regarding  furnishing  his address during leave, he thought that such address was to be furnished  if  there  was to be any  change  in  the  normal address during the leave period and that was why he did  not furnish  the  address  in the leave  application.   He  also stated  that  the officer who’ had signed the  letter  dated November 9, 1970, had no medical qualification and that even if he had, he had never medically examined him.   He, therefore,  wondered  how  the  officer  was  competent  to, certify   that  there  was nothing wrong  with  his  health. He further stated   that  he  was still  under  the  medical treatment and needed  rest as advised by the physician,  and that it was not proper that the management should force  him to resume duty under the threat of disciplinary actions.  He stated that he proposed to consult a good physician about     his health which was causing him a lot of worry and he may  have to  go  to  Bombay  in  next few  days  and  that  he  shall communicate his Bombay address to the Corporation if he went

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to Bombay.  The Corporation Thereafter wrote a letter  dated November  27/30,  1970  asking  the  respondent  to  present himself  in the Head Office immediately on Monday,  November 30. 1970, so that he could be sent to the Civil Surgeon  for medical. check-up, with a view to verify whether the  causes of  his  alleged illness were genuine or not.   This  letter could  not be delivered to him and so a copy of it was  sent to him at his Bombay address which he had in 140 the   meanwhile   furnished.   On  December  2,   1970   the Corporation  asked  the respondent that to comply  with  the instructions  contained ..in the letter dated  November  27, 30,  1970 enclosed therewith and to present himself  at  the Head Office for being sent to the Civil Surgeon for  medical check-up.   On  December 9, 1970 the respondent  again  sent another  application for leave for 39 days from December  9, 1970  .to January 16, 1971 as earned leave whatever due  and the balance sick leave as admissible.  He said that he  was under  the  treatment  of a renowned  and  highly  qualified physician Dr. K. C. Mehta, M.D., P.C.P.S., who had certified that  the  respondent was suffering from  chronic  gastritis with hyperacidity and general debility" and was advised rest for five weeks.  The Corporation by its letter dated  Decem- ber  24,  1970,  told the respondent that  the  question  of granting further leave for 39 days from December 9, 1970  to January 16, 1971 did not arise, as he had not proceeded  on duly sanctioned leave and had unjustifiably absented himself from duty from November 9, 1970.  The Corporation once again asked  the  respondent  by this letter  to  present  himself immediately  in  the Head Office within two days  from the receipt of the letter for his medical check-up by the ’Civil Surgeon,  Ahmedabad,  so that the management  could  take  a decision in respect of his request for leave.  By his letter dated  January  4,  1971 the respondent wrote  that  he  was willing  to appear before the Civil Surgeon, Ahmedabad,  for medical examination and asked the Corporation to send him  a letter of authority for appearance before the Civil  Surgeon so  that  the can show it to him and get  himself  examined. This  was  the  last straw,  which  ultimately  induced  the Corporation  to  terminate the respondent’s  services.   It, however did so without assigning any reasons. We  have  given  the  contents of all  these  letters  in  a chronological  .,order  which to any reasonable  mind  would show  that the respondent was houghty and insolent  and  did not care for the Rules of the Corporation and was a habitual absentee  without getting his leave  sanctioned  previously. The  Special  Labour Court had no basis for  coming  to  the conclusion that the respondent had apologised for his wrongs and   that.  the  matter  was  properly  dealt  with.    The respondent  never  apologised, but as we  have  pointed  out earlier,  he was prevaricating.  The  respondent’s  attitude was  that if it was inferred that he was insolent,  then  he was  sorry  but that he was not insolent.  This  is  not  an unconditional apology and the Corporation did not accept  it and  before any action could be taken against him be  stayed away  from  work  without obtaining prior  leave  and  never returned.    The  respondent  was  always  adopting   highly unreasonable   attitudes  which  were  detrimental  to   the interest of the Corporation.  In the above circumstances, it would  be  a  misnomer  to  say  that  the  action  of   the Corporation  wag  not  bona fide but was  mala  fide.   This finding  has  not an iota of justification. for,  the  final actions  of the Corporation leading to the,  termination  of the,  services  of  the respondent as is  evident  from  the correspondence,  were due to the fact that  the  respondent,

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though  asked to present himself at the Head Office so  that he could be sent to the Civil Surgeon for medical  check-up, defied  and was not prepared to abide by  those  directions. On the other hand, he wanted to impose 141 his  own  terms and required the Corporation to send  him  a letter  of’ authority so that he could show it to the  Civil Surgeon  and  get him self examined.   The  Corporation  was perfectly justified in taking the stand that the  respondent was  malingering inasmuch as he was prepared to travel  back from  Bombay to Ahmedabad but he was not prepared to  attend the Head Office so that he could be sent for medical  check- up. if the Corporation had been merciful in terminating his. services by discharging him simpliciter, that is not a fault to  be  laid  at their doors nor can it  be.  a  ground  for imposing  on  them the services of the  respondent  who  was indisciplined   and  arrogant,  a  conduct   subversive   of the  smooth  functioning of any  commercial  or-  industrial undertaking.   We  think the finding of  the  Special.Labour Court  is  perverse  and- could not be  arrived  at  on  any reasonable view of the evidence. It  has  also  been  urged that  the  respondent  should  be considered  as  a  permanent  employee  of  the  Corporation inasmuch  as according,, to the Service Rules a  probationer is  automatically  declared  as permanent if he  is  not  so confirmed  within two years.  This contention, in our  view, is  equally  untenable because, under Rule 15 of  the  Rules Which have been passed subsequent to the appointment of  the respondent,  an  employee  is required  to  subscribe  to  a declaration before joining duties in the form prescribed  in Appendix  1.  That  Form  declares, that  he  has  read  and understood  the  Gujarat  Mineral  Development   Corporation Limited   Staff)  Service Rules and that he  subscribes  and agrees to be bound by the said rules. Such a  declaration has not   been signed by the respondent and therefore, those Rules are not applicable to him. It is also evident that  rule 2(b) states that "these Rules are  applicable  to every whole time employee of the Corporation,, provided that employees under specific agreement or arrangement shall  not be governed by these rules or shall be governed by them only subject to such special terms, conditions or stipulations as may be provided for by such agreement or arrangement.  Under r.  17 the General Manager may temporarily  employ  suitable candidates to vacant  posts   in  Class III and IV only  and the Chairman or the Sub-Committe   may authorise appointment of suitable candidates to vacant posts  in Class I & II.  It is  admitted that the, post held by the respondent falls  in one  of  the categories mentioned in the , above  rule.   In these  circumstances  the employment of the  respondent  was temporary  and was not subject to the Rules.   The  argument that he contributed to the Provident Fund and therefore must be considered to be a permanent employee of the  Corporation is equally untenable, because the Provident Fund Act did not apply  to  this Corporation till 1972 which  is  after-  the termination of the, services of the respondent.  If the Pro- vident Fund Rules of the, Corporation permitted a  temporary employeealso  to contribute to it, the contribution  by  the respondent  does  not  indicate  that  he  was  a  permanent employee. The  next  question  is  whether  s.  11A  of  the  Act   is applicable’ to this case.  That section provides that  where an industrial dispute relating to the discharge or dismissal of a workman has been referred to aLabour Court Tribunal  or National Tribunal for adjudication and, in- 142

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the  course  of  the adjudication  proceedings,  the  Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the .order of discharge or dismissal was  not justified,  it  may, by its award, set aside  the  order  of discharge  or  dismissal and direct  reinstatement  .of  the workman  on such terms and conditions, if any as  it  thinks fit, or give such other relief to the workman including  the award  of  any .lesser punishment in lieu  of  discharge  or dismissal as the circumstances of the case may require.   We are, however, not concerned with the several questions which may  arise thereunder, because the section itself  will  not apply  to an industrial dispute referred prior  to  December 15,  1971, when s. 11A was brought into operation.   It  was held by this Court in The Workmen of M/s.  Firestone Tyre  & Rubber  Co.  of  India (Pvt.) Ltd.  v.  The  Management  and others(1), that this section has no retrospective  operation on the pending references In  our  view  the  termination  of  the  services  of   the respondent is not mala fide or punitive but the  appointment of  the  respondent being temporary, the termination  was  a discharge   simpliciter   and  the  action  taken   by   the Corporation  was  bona fide.  In the  circumstances  we  set aside the award of the Special Labour Court and maintain the ,order made by the appellant terminating the services of the respondent ,only as from 6th January 1971.  In respect  of the period 7th November 1970 to 6th January 1971 he will  be entitled to payment of his salary, if any due to him,  after leave to which he may be entitled- is sanctioned. The  appeal  is allowed, but in  the  circumstances  without costs. S.C.                            Appeal   allowed. (1) [1973] 1 L.L.J. 278. 143