judgement:
ON: Civil Appeal 885/1968.
(From the judgment and order dated 6 11 1967 of the Madhya Pradesh High Court in Second Appeal No. 913 of 1965).
647 section V. Gupte, R. P. Pandey and section section Khanduja, for the appellants.
F. section Nariman, J. B. Dadachanji, P. C. Bhartari, K. L. John for the respondents.
The Judgment of the Court was delivered by GUPTA, J.
Damadi Lal, Sheo Prasad and Tirath Prasad who were members of a Hindu Joint Family brought a suit for ejectment on July 31,1962 against their tenants Begamal and Budharmal on the grounds mentioned in clauses (a) and (f) of section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961.
The relevant provisions are in these terms: "Sec. 12.
Restriction on eviction of tenants. (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely (a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner; x x x x x x x x x x (f) that the accommodation let for non residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner there of or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned.
" Plaintiffs ' case under section 12(1)(a) was that the defendant tenants had defaulted in paying rent for the period October 1, 1961 to May 31, 1962 and did not also pay or tender the amount in arrears within two months of the service of the notice of demand.
Clause (f) of section 12(1) was invoked on the allegation that the accommodation let was required bona fide by the plaintiffs for the purpose of starting their own business.
Before the suit was instituted the plaintiffs had determined the tenancy from May 31, 1962 by a notice dated May 7 1962.
The house in dispute which is in Bazar Chowk in District Satna was let out to the defendants at a monthly rent of Rs. 275/ for the purpose of their business.
The plaintiffs reside in village Nadan, Tahsil Maihar, where they carry on their business.
The trial court by its judgment and decree dated November 11, 1964 dismissed the suit for eviction.
There was some dispute between 648 the parties as to the rate of rent; ultimately the plaintiffs admitted that the rent was fixed at Rs. 175/ per month with effect from August 1, 1961 by the Rent Control Authority and a sum of Rs. 1200/ , which was the amount in arrears, had been tendered to the plaintiffs by cheque on May 26, 1962 which the plaintiffs refused to accept.
The trial court was of opinion that the refusal was valid because "tendering by cheque is no valid tender" unless there was an agreement that payment by cheque would be acceptable and that the defendants were therefore defaulters within the meaning of section 12(1)(a).
However, in view of the dispute as to the amount of rent payable by the tenants, which was not determined during the pendency of the suit as required by section 13(2), the trial court held that no order for eviction under section 12(1)(a) could be made in this case and passed a decree for Rs. 1200/ in favour of the plaintiffs.
On the question of the plaintiffs ' requirement of the premises for their own business, the trial court found itself unable to accept the evidence adduced on behalf of the plaintiffs.
Of the witnesses examined by the plaintiffs on the point, the evidence of P.Ws. 1, 3 and 4 was not relied on because none of them was considered to be an independent witness and, further, because it was apparent from their evidence that what they said was what they were tutored to say by the plaintiffs.
The other three witnesses were plaintiffs Damadi Lal and Tirath Prasad (P.W.2 and P.W. 6 respectively) and Radhey Sham (P.W. 5), a son of plaintiff Sheo Prasad.
They were also disbelieved because of the following reasons.
Damadi Lal tried to give the impression that plaintiffs had no business except the cloth business and the grocery shop at Nadan.
He tried to conceal that they had a moneylending business and also agricultural lands.
Tirath Prasad stated that the main source of income of the family was from the moneylending business.
Tirath Prasad also disclosed that the plaintiffs had already a partnership business in cloth at Satna though Damadi Lal and P.W. 5 Radhey Sham did not admit this.
It also appears in evidence that the plaintiffs had yet another cloth business at a place called Ramnagar which was managed by Radhey Sham.
The plaintiffs claimed that they would start a business at Satna, but Damadi Lal 's evidence is that they had no income or saving.
Tirath Prasad also said that their income was not even sufficient for their maintenance.
Admittedly, plaintiffs had in their possession one room in the house which was let out to the defendants.
The plaintiffs did not adduce any evidence to show how the said accommodation was unsuitable or insufficient for them to start their own business.
It was also admitted that the plaintiffs had filed a suit for ejectment on an earlier occasion, but the defendants having agreed to pay increased rent the suit was not proceeded with.
According to the defendants the present suit was not instituted on the defendants ' refusal to increase the rent further to Rs. 500/ a month.
For the above reasons the trial court did not accept the case of bona fide requirement holding that P.W. 2, P.W. 5 and P.W. 6 were in the habit of suppressing the truth to suit their own purpose.
649 On appeal by the plaintiffs, the first appellate court reversed the decision of the trial court and decreed the suit.
The appellate court agreed with the trial court that sending a cheque did not amount to a valid tender of rent and, as the tenants did not apply under section 13(2), they were not entitled to protection against eviction on the ground of default.
As regards the plaintiffs ' case of requirement, the court found, that the criticism of the plaintiffs ' witnesses was not justified.
The appellate court thought that the fact that Tirath Prasad was carrying on a cloth business at Satna which Damadi Lal had kept back from court was irrelevant in view of the plaintiffs ' claim that some members of the family wanted to start a new business at Satna.
According to the appellate court the further fact that P.W. 5 Radhey Sham was running a cloth business at Ramnagar was indicative of the growing need of the plaintiffs ' family.
The room in the plaintiffs ' possession in the disputed house was not found suitable or sufficient for a wholesale business that the plaintiffs intended to start.
Referring to the trial court 's finding that the plaintiffs had no money to start a new business at Satna, the court found that the evidence did not support this.
The appellate court therefore held that the plaintiffs required the premises for their own business.
Dissatisfied with this decision, the defendants preferred a second appeal to the High Court.
During the pendency of the second appeal in High Court both the defendants died.
Budharmal died on or about January 27, 1966 and his legal representatives were brought on record and substituted in his place without objection.
Begamal died on March 2, 1967 and his heirs applied for being brought on record in his place as appellants.
The plaintiffs made an application praying for an order that the appeal had abated as a consequence of the death of both the defendants.
In this application the plaintiffs contended that Budharmal and Begamal were "merely statutory tenants and their right to resist ejectment on the basis of Madhya Pradesh Accommodation Control Act was merely a personal right" which was not heritable and had "not devolved upon their heirs".
By its order dated July 26, 1967 the High Court allowed the application for substitution made by Begamal 's heirs overruling the plaintiffs ' objection.
Ultimately on November 6, 1967 the High Court allowed the appeal setting aside the decree of the lower appellate court and restoring that of the trial court dismissing the suit.
The High Court found that the defendants were not in arrears of rent.
Differing from both the courts below the High Court held that the cheque which the defendants had sent to the plaintiffs in payment of the amount in arrears within a month of the service of the writ of summons on him amounted to a valid tender of rent as required by section 13, and in view of section 12(3) no order for eviction could be made.
Section 12(3) provides that no order for eviction of a tenant shall be made on the ground of default if the tenant makes payment or deposits rent as required by section 13.
This is what the High Court held on the validity of tender of rent by cheque: "The question is as to whether, instead of presenting the cash, if a cheque is sent to the landlord, that is sufficient tender of the arrears of rent or not. .
In the highly deve 650 loped society, payment by cheque has become more convenient mode of discharging one 's obligation.
If a cheque is an instrument which represents and produces cash and is treated as such by businessmen, there is no reason why the archaic principle of the common law should be followed in deciding the question as to whether the handing over of the cheque is not a sufficient tender of the arrears of rent if the cheque is drawn for that amount.
It is no doubt true that the issuance of the cheque does not operate as a discharge of the obligation unless it is encased, and it is treated as a conditional payment, yet, in my view, this is a sufficient tender of the arrears if the cheque is not dishonoured.
In the present day society, I am of the view, an implied agreement should be inferred that if the payment is made by a cheque, that mode of payment would be accepted.
" On the ground of bona fide requirement, the High Court found that there was no evidence to show that the plaintiffs had sufficient funds to start the wholesale business for which they sought to get possession of the disputed premises.
This is a point which has a bearing on the guanines of the plaintiffs ' claim.
The High Court took note of the fact that the plaintiffs made an attempt to keep back from the Court that they were carrying on business at two more places, one at Satna, and another at Ramnagar.
In this connection the High Court also referred to the defendants ' case that the plaintiffs sought to increase the rent from Rs. 275/ to Rs. 500/ a month and that when the defendants had the rent reduced by the Rent Controller to Rs. 175/ per month, the present suit was filed.
The High Court found that these circumstances which the trial court took into consideration were ignored by the lower appellate court.
The High Court accordingly held that the plaintiffs had failed to prove their case of bona fide requirement, set aside the decree of the appellate court, and restored that of the trial court dismissing the suit.
Before us, Mr. Gupte for the plaintiff appellants raised three contentions:(1) Begamal and Budharmal both of whom were statutory tenants had no heritable interest in the demised premises and, on their death, the right to prosecute the appeal in the High Court did not survive to their heirs and legal representatives; (2) payment by cheque was not a valid tender of rent and accordingly the suit should have been decreed on the ground of default; and (3) the High Court had no jurisdiction in second appeal to reverse the finding of the first appellate court on the question of reasonable requirement which was a finding of fact.
In support of his first contention Mr. Gupte relied on two decisions of this Court, Anand Nivas (Private) Ltd. vs Anandji Kalyanji Pedhi & Ors.
and Jagdish Chander Chatterjee and Ors.
vs Sri Kishan & Anr.
The statute considered in Anand Nivas ' case was Bombay 651 Rents, Hotel and Lodging Rates Control Act, 1947 as amended in 1959.
The question there was, whether a tenant whose tenancy had been terminated had any right to sublet the premises.
Of the three learned Judges composing the Bench that heard the appeal, Hidayatullah and Shah JJ.
held that a statutory tenant, meaning a tenant whose tenancy has determined but who continues in possession, has no power of subletting.
Sarkar J.delivered a dissenting opinion.
Shah J. who spoke for himself and Hidayatullah J. observed in the course of their Judgment: "A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer.
A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases.
His personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which subletting may operate.
" It appears from the Judgment of Shah J. that "the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions the original tenancy".
Sarkar J. dissenting held that word 'tenant ' as defined in the Act included both a contractual tenant , a tenant whose lease is subsisting as also a statutory tenant, and the latter has the same power to sublet as the former.
According to Sarkar J. even if a statutory tenant had no estate or property in the demised premises, the Act had undoubtedly created a right in such a tenant in respect of the property which he could transfer.
Jagdish Chander Chatterjee 's case dealt with the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and the question for decision was whether on the death of a statutory tenant his heirs succeed to the tenancy so as to claim protection of the Act.
In this case it was held by Grover and Palekar JJ., relying on Anand Nivas ' case, that after the termination of contractual tenancy, a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not inherit any estate or interest in the original tenancy.
Both these cases, Anand Nivas and Jagdish Chander Chatterjee, proceed on the basis that a tenant whose tenancy has been terminated, described as statutory tenant, has no estate or interest in the premises but only a personal right to remain in occupation.
It would seem as if there is a distinct category of tenants called statutory tenants having separate and fixed incidents of tenancy.
The term 'statutory tenancy ' is borrowed from the English Rent Acts.
This may be a convenient expression for referring to a tenant whose tenancy has been terminated and who would be liable to be evicted but for the protecting statute, but courts in this country have sometimes borrowed along with the expression certain notions regarding such tenancy from the 652 decisions of the English courts.
In our opinion it has to be ascertained how far these notions are reconcilable with the provisions of the statute under consideration in any particular case.
The expression 'statutory tenancy ' was used in England in several judgments under the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, to refer to a tenant protected under that Act, but the term got currency from the marginal note to section 15 of the Rent and Mortgage Interest (Restrictions) Act, 1920.
That section which provided inter alia that a tenant who by virtue of that Act retained possession of any dwelling house to which the Act applied, so long as he retained possession, must observe and would be entitled to the benefit of all the terms and conditions of the original contract of tenancy which were consistent with the provisions of the Act, carried the description in the margin "conditions of statutory tenancy".
Since then the term has been used in England to describe a tenant protected under the subsequent statutes until section 49(1) of the Housing Repairs and Rent Act, 1954 for the first time defile 'statutory tenant ' and 'statutory tenancy '. 'Statutory tenant ' was define as a tenant "who retains possession by virtue of the Rent Acts and not as being entitled to a tenancy, and it was added, " statutory tenancy ' shall be construed accordingly".
This definition of 'statutory tenancy ' has been incorporated in the Rent Acts of 1957 and 1965.
In England "statutory tenancy" does not appear to have had any clear and fixed incidents; the concept was developed over the years from the provisions of the successive Rent Restrictions Acts which did not contain a clear indication as to the character of such tenancy.
That a statutory tenant is entitled to the benefit of the terms and conditions of the original contract of tenancy so far as they were consistent with the provisions of the statute did not, as Scrutton L. J. observed in Roe vs Russell, "help very much when one came to the practical facts of life", according to him "citizens are entitled to complain that their legislators did not address their minds to the probable events that might happen in cases of statutory tenancy, and consider how the legal interest they were granting was affected by those probable events".
He added, ". it is pretty evident that the Legislature never considered as whole the effect on the statutory tenancy of such ordinary incidents as death, bankruptcy, voluntary assignment, either inter vivos or by will, a total or partial subletting; but from time to time put into one of the series of Acts a provision as to one of the incidents without considering how it fitted in with the general nature of the tenancy which those incidents might affect".
On the provisions which gave no clear and comprehensive idea of the nature of a statutory tenancy, the courts in England had been slowly "trying to frame a consistent theory", "making bricks with very insufficient statutory straw".
Evershed M. R. in Boyer vs Warbey said: "The character of the statutory tenancy, I 653 have already said, is a very special one.
It has earned many epithets, including "monstrum horrendum", and perhaps it has never been fully thought out by Parliament".
Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy; it has been said that he has only a personal right to remain in occupation, the statutory right of "irremovability", and nothing more.
We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute.
The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts.
But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute.
Tenancy has its origin in contract.
There is no dispute that a contractual tenant has an estate or properly in the subject matter of the tenancy, and heritability is an incident of the tenancy.
It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
It is not possible to claim that the "sanctity" of contract cannot be touched by legislation.
It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents ' predecessors in interest retained a heritable interest in the disputed premises even after the termination of their tenancy.
Section 2(i) of the Madhya Pradesh Accommodation Control Act, 1961 defines 'tenant ' to mean, unless the context otherwise requires: "a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made".
The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists.
The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention.
That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant 's power of subletting.
Section 14 is in these terms: 654 "Sec.
14 Restrictions on sub letting. (1) No tenant shall, without the previous consent in writing of the landlord (a) sublet the whole or any part of the accommodation held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub letting of the whole or any part of the accommodation held by the tenant.
" There is nothing to suggest that this section does not apply to all tenants as defined in section 2(i).
A contractual tenant has an estate or interest in premises from which he carves out what he gives to the sub tenant.
Section 14 read with section 2(i) makes it clear that the so called statutory tenant has the right to sub let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him.
Considering the position of the sub tenant of a statutory tenant in England, Lord Denning said in Solomon vs Orwell.
"When a statutory tenant sub lets a part of the premises he does not thereby confer any estate or interest in the sub tenant.
A statutory tenant has no estate or interest in himself and he cannot carve something out of nothing.
The sub tenant, like the statutory tenant, has only a personal right or privilege." In England the statutory tenant 's right to sub let is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as a tenant.
This is the basic difference between the English Rent Restrictions Acts and the Act under consideration and similar other Indian statutes.
In a Special Bench decision of the Calcutta High Court, Krishna Prosad Bose vs Sm.
Sarajubala Dasi, Bachawat J. considering the question whether a statutory tenant continuing in occupation by virtue of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 could sub let the premises let to him, said: "The Rent Control and Tenancy Acts create a special world of their own.
They speak of life after death.
The statutory tenancy arises phoenix like out of the ashes of the contractual tenancy.
The contractual tenant may die but the statutory tenant may live long thereafter.
The statutory tenant is an ex tenant and yet he is a tenant.
" The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations.
It must therefore be held that 655 the predecessors in interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court.
Mr. Gupte 's first submission thus fails On the ground of default, it is not disputed that the defendants tendered the amount in arrears by cheque within the prescribed time.
The question is whether this was a lawful tender.
It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque was sent by post and was met on presentation, the date or payment is the date when the cheque was posted.
The question however still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation.
Earlier, we have extracted a passage from the High Court 's Judgment on this aspect of the case.
We agree with the view taken by the High Court on the point.
Rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement.
In the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise.
In the circumstance of this case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent.
The second contention urged on behalf of the appellants must also be rejected.
Mr. Gupte 's last contention relates to the plaintiffs ' bona requirement of the premises.
The trial court found on the evidence that the plaintiffs ' claim was unjustified.
The first court of appeal reversed that finding and held that the plaintiffs ' requirement was bona fide.
The High Court in second appeal agreed with.
the trial court in holding that the landlord had no bona fide requirement.
Mr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact.
Mr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri vs Sain Das Berry to argue that the question was a mixed question of law and fact and that it was within the jurisdiction of the Court in second appeal to examine the correctness of the finding.
In answer Mr. Gupte referred to another decision of this Court Mattulal vs Radhey Lal which, relying on an earlier decision of this Court in Sarvate T. B. vs Nemi Chand, held that such a finding was one of fact and not a finding on a mixed question of law and fact.
We do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions.
Plaintiffs ' case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business at Satna.
The trial court 's finding was based inter alia on the evidence 656 that the plaintiffs had not adequate funds to start a new wholesale business.
The lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate court 's finding rests mainly on this consideration.
The High Court pointed out that plaintff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient " only for meeting the expenses of livelihood"; plaintif Tirath Prasad (P.W. 6) also admitted that "our present income is not sufficient even for our maintenance because there are many members in the family" It thus appears that the lower appellate court overlooked a very mate rial part of the evidence bearing on the question.
It is well establish ed that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law.
(see Radha Nath Seal vs Haripada Jana & Ors.
We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point.
In the result the appeal fails and is dismissed but in the circumstances of the case we make no order as to costs.
P.B.R. Appeal dismissed.

summary/full:
Section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961, enacts that notwithstanding anything to the contrary contained in any other law or contract no suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds given in the section.
The ground given in cl.
(a) is that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which the notice had been served on him by the landlord and the ground in cl.
(f) is that the accommodation let for non residential purpose is required bona fide by the landlord for the purpose of continuing or starting his business.
The appellants brought a suit under section 12(1)(a) and (f) of the Act for ejectment of their tenants.
The suit was dismissed by the trial court on the ground (i) that since the dispute as to the amount of rent payable by the tenants had not been determined during the pendency of the suit under section 13(2) no order for eviction could be made; (ii) that there was no bona fide requirement of the premises by the appellants for their own business and (iii) that the refusal by the appellant to accept the arrears of rent by cheque was valid because tendering by cheque was not valid tender in the absence of an agreement to that effect.
The first appellate court decreed the suit.
During the pendency of the second appeal in the High Court the tenants died.
The High Court allowed substitution of their legal representatives over ruling the appellants ' objection that the deceased tenants were mere statutory tenants and that the right to resist ejectment on the basis of the Rent Control Act was merely a personal right which was not heritable.
On merits, the High Court held that (i) offer of rent by cheque amounted to valid tender by the tenant and (ii) the appellants had failed to prove their case of bona fide requirement of the premises for their own use.
Dismissing the appeal, ^ HELD: There is no force in the contention that the defendants who were statutory tenants had no heritable interest in the demised premises and on their death the right to prosecute the appeal in the High Court had not survived to their heirs and legal representatives.
The predecessors in interest of the respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court.
[655A] (1) (a) The concept of statutory tenancy under the English Rent Acts and under the Indian statutes rests on different foundations.
The term statutory tenancy which is used for referring to a tenant whose tenancy has been terminated and who would be liable to be evicted but for the protecting statute, is 646 borrowed from the English Rent Acts.
Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy.
But in this country it is not possible to proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only personal right to remain in occupation without ascertaining what his rights are under the statute.
[654H: 653A C] Anand Nivas (Private) Limited vs Anandji Kalyanji Pedhi vs Sri Kishan & Anr.
, ; ; Roe vs Russel, ; Haskins vs Lewis ; Keeves vs Dean (207) and Boyer vs Warbey , referred to.
(b)Tenancy has its origin in contract.
A contracual tenant had an estate or property in the subject matter of the tenancy and heritability is an incident of tenancy.
It cannot be assumed that with the determination of the tenancy, the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
[653D] (c) The definition of a tenant contained in section 2(i) makes a person continuing in possession of a premises after the determination of his tenancy a tenant, unless a decree or order for eviction had been made against him, thus, putting him on par with a person whose contractual tenancy still subsists.
[653] (d) Section 14 which deals with restrictions on sub letting read with the definition contained in section 2(i) makes it clear that the so called statutory tenant has the right to sub let in common with contractual tenant and this is because he also has an interest in the premises occupied by him.
[654D] (2)(a) The High Court rightly held that the cheques sent to the appellants amounted to valid tender of rent.
It is well established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as a valid discharge of the debt and if the cheque was sent by post and was met on presentations the date of payment is the date when the cheque was posted.
[655B D] (b) Rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement.
In the contemporary society it is reasonable to suppose payment by cheque as implied unless the circumstances of a case indicate otherwise.
[655C] (3) The High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on the question of bona fide requirement of the premises by the appellants.
The lower appellate court overlooked a very material part of the evidence bearing on the question.
It is well established that if a finding of fact is arrived at ignoring important and relevant evidence the finding is bad in law.
[651B C] Radha Nath Seal vs Haripada Jana & Ors.
AIR 1971 S.C. 1049, followed.
Madan Lal Puri vs Sain Das Berry AIR 1973 S.C. 585; Mattulal vs Radhey Lal AIR 1974 S.C. 1956; and Sarvate T. B. vs Nemi Chand , refered to.


judgement:
Civil Appeal No. 27 of 1971.
(Appeal by special leave from the judgment and order dated 21st May 1970 of the Punjab & Haryana High Court at Chandigarh in civil writ No. 197 of 1968) J. Ramamurthi, for the appellant.
Naunit Lal and R. N. Sachthey, for respondents Nos. 1 and 2.
Bishamber Lal, for respondent No. 3.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Division Bench of the Punjab and Haryana High Court by which the appellant 's application under article 226 of the Constitution was rejected.
The appellant was a veterinary compounder serving at the material time under the Chairman, Panchayat Samiti, Hansi I. The Zila Parishad Trihunal transferred him from Hansi I Block to Singhani (Loharu Block) by its resolution of June 30, 1967.
The order appear to be transmitted by Memo No. 3201 A of July 6, 1967.
On July 27, 1967, the Chairman of the Panchayat Samiti, Hansi I, requested the Chairman of the Zila Parishad, Hissar, to reconsider the decision of transfer and to allow him to continue at his village Umra in public interest.
A copy of this letter writen to the Zila Parishad was forwarded to the appellant.
Since the appellant did not comply with the order of transfer, the Chairman, Zila Parishad mal, served a notice upon him on August 13, 1967.
, to show cause as to why he should not be dismissed from service on the grounds mentioned in the notice.
It is mentioned in the notice that this action has been taken under section 124 of the Punjab Panchayat Samitis and Zila Parishads Act,1961 (briefly the Act).
The particulars of charge described in the show cause notice are briefly as under: (1) You did not hand over charge of veterinary dispensary to Balwan Singh, Veterinary Compounder, on 25 7 1967.
in compliance with the transfer order dated 6 7 1967.
(2) You also did not hand over charge to the District Animal Husbandry officer who was ordered to personally take over charge from you on 26 7 1967.
(3) You were again asked by letter dated 2 8 67 to hand over charge to Balwan Singh Veterinary Compounder, but you did not hand over the charge.
632 (4) When Ch.
Bir Singh Lamba, Secretary, Zila Parishad Tribunal, along with Balwan Singh reached Umra on 10 8 67 between 4.30 and 5.00 P.M. in order to take charge from you they found you absent and the dispensary locked.
(5) That on 15 8 67 at about 4.00 P.M. when Balwan Singh went to take charge from him along with Ch.
Bir Singh Lamba, Secretary, Zila Parishad Tribunal, along with Ch.
Balbir Singh, Chairman, Zila Parishad, Hissar and Kali Ram, Member, Panchayat Samiti, Hissar, you refused to hand over charge to Balwan Singh Veterinary Compounder.
(6) When on 15 8 67 Ch.
Bir Singh Lamba, Secretary Zila Parishad Tribunal, with the help of Balwan Singh, was preparing a list of stock in the presence of the Chairman and others, you with Rattan Singh, Sarpanch, Gram Panchayat, Umra, Giani Ram of village Majahadpur and three or four other unknown villagers entered the office.
Giani Ram out of your group snatched the paper from Ch.
Bir Singh Secretary, Zila Parishad Tribunal and threatened them to leave the dispensary before they manhandled him.
You are thus at the root of all this incident.
The appellant submitted a reply on September 13, 1967, describing it as an interim explanation and reserving his right to submit a final reply after inspection of certain records and he requested for a date for inspection of the records.
In this reply he admitted to have received the transfer order and pleaded that he did not hand over charge to Balwan Singh on 25 7 1967 under instructions from the Chairman, Panchayat Samiti, who, according to him, was the appointing authority and he was carrying out his orders.
He particularly denied the incident of August 15, 1967, for which he was held principally responsible in the show cause notice.
It does not appear that the Zila Parishad Tribunal gave any opportunity to the appellant for inspection of records, nor sent any communication to him rejecting the request giving any justifiable reason.
The appellant seemed to have been waiting for some communication to his interim reply in order to submit final explanation when on December 5, 1967 he received the order of the Zila Parishad Tribunal dismissing him from service with immediate effect in pursuance of its resolution of December 1, 1967.
The resolution states: "The Tribunal has come to a conclusion that your reply is not a satisfactory one.
And the allegations made against him (sic) seemed to be correct".
That led to the appellant 's writ application in the High Court resulting in the impugned order.
The short question that arises for decision is whether the order of dismissal is in conformity with section 124 of the Act, or, in 633 other words, whether the same is in violation of the principles of natural justice.
We may, therefore, read the material provision under section 124(2) of the Act: 124(2): "The tribunal may suo motu or on the move of the Panchayat Samiti or the Zila Parishad or on the application of any servant of a Panchayat Samiti or Zila Parishad other than a government servant placed at their disposal enquire into the conduct of any servant of the Panchayat Samiti or the Zila Parishad and after making such enquiry as it may deem fit pass such orders imposing any punishment including dismissal or removal as it may deem proper; Provided that the tribunal shall not pass any such order in respect of a servant having a right of appeal under section 116; Provided further that the tribunal shall before passing any order of dismissal or removal give a notice to the servant to show cause against the action proposed to be taken against him".
A persual of section 124(2) goes to show that before any action is taken for dismissal or removal of an employee the Tribunal has to enquire into his conduct justifying such action.
This enquiry must necessarily have to be made in the presence of the employee giving him an opportunity to rebut the allegations mentioned against him.
It is only after affording him a reasonable opportunity to rebut the allegations in the charge and the Tribunal is satisfied that the misconduct is established the question of final punitive action either of dismissal or removal has to be considered.
Unlike as in article 311 of the Constitution, section 124(2) does not in terms mention two stages of a departmental enquiry for misconduct against an employee.
Even so, the nature of an enquiry with an object to dismiss an employee is such that a full and fair reasonable opportunity must be given to him to meet the charges.
The second proviso to section 124(2) provides in unmistakable terms that before passing any order of dismissal or removal a notice has To he given to the employee to show cause against the proposed action.
The action of dismissal or removal cannot be proposed, in all fairness, unless the Tribunal had reached a conclusion about the guilt after making a proper enquiry giving the employee a reasonable opportunity to defend.
In the instant case, apart from giving the show cause notice, no other communication was made to the appellant except the order of sal.
This is a clear case where the reasonable opportunity envisaged under section 124(2) has not been afforded to the appellant far marking an effective representation to establish his innocence.
It is easy to see that the summary order of dismissal must have been influenced by the allegations appreciation to the incident of August 634 15,1967 for which, we understand, even a criminal case was instituted against the appellant.
That criminal case, we are told, ended in acquittal of the appellant and others on June 10, 1970.
At any rate the said incident being included in the articles of charge against the appellant he did not have any opportunity whatsoever to establish his innocence when he had clearly denied the allegations even in his interim reply.
The principles of natural justice are clearly ingrained in the provisions of section 124(2).
It is a clear case where the provisions of section 124(2), which are of a mandatory character in a departmental enquiries have been violated vitiating the order of dismissal.
The High Court, therefore, should have accepted the petition of the appellant under article 226 of the Constitution and quashed the order of dismissal.
Although in the ordinary course it would have been open to the authority to institute a fresh enquiry his reinstatement, after the order of dismissal has been set aside, we are clearly of opinion that this is not a case where that procedure should be permitted.
For one reason the appellant was dismissed in December 1967 and he had been out of employment for over eight years.
He has also not many years to serve.
Besides, the serious allegations regarding the incident of August 15, 1967, which, according to us, must have influenced the authority to pass the order of dismissal, have not been found to be established in a judicial trial.
While, therefore, quashing the impugned order of dismissal, which we hereby do, we direct that the appellant shall be reinstated in service with immediate effect and there shall be no further enquiry to the allegations forming the subject matter of charge against him.
The period of absence shall be treated as leave without pay so that the appellant will not lose continuity of his service.
In the result the judgment of the High Court is set aside and the appeal is allowed with costs.
P.H.P. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was a Veterinary Compounder serving under the Panehayat Samiti, Hansi.
The Zilla Parishad Tribunaul tranferred him from Hansi to Singhani.
The Chairman of the Panchayat Samiti.
Hansi requested the Chairman of Zilla Parishad Tribunal served a notice on the appellant to show cause why he should not be dismissed for not having handed over the charge of the dispensary to the person who was appointed in his place and also on the ground that when the Secretary of the Zilla Parishaod Tribunal with the help of the compounder, who was directed to take charge from the appellant, was prepaering a list of stock, the appellant and others entered the office and one of the persons out of the appellant 's group snatched the papers from the Secretry and manhandled him.
The appellant submitted an interim explanation and reserved his right to submit a final reply after inspection of certain records was given to him.
The Zilla Parishad Tribunal did not give any opportunity to the appellant for inspecation of record nor sent any communication to him rejecting the request giving any justifiable reasons.
However, the appellant was served with a letter dismissisng him from service.
Section 124(2) of the Punjab Panchayat.
Samitis & Zilla Parishad.
Act, 1961, authorises the Tribunal to impose any punishment including the punishment of dismissal on any servant of the Panchayat Samiti or Zilla Parishad.
The proviso,howvever.
requires the Tribunal before passing any order of dismissal or removal to give a notice to the servant to show cause against the action proposed to be taken against him The appellant filed a writ petition in the High Court challengaing the dismissal order.
The High Court dismissed the writ petition.
Allowing the appeal by special leave, ^ HELD: (1) A perusal of section 124(2) goes to show that before any action is taken for dismissal or removal of an employee the Tribunal has to enquire into his conduct justifying such action.
This enquiry must necessarily be made in the presence of the employee giving him an opportunity to rebut the allegations made against him.
It is only after affourding him a reasonable opportunity to rebut the allegations in the charge and after the Tribunal is satisfied that the misconduct is established, the question of final punitive action either of dismissal or removal has to be considered.
The employee must be given a full and fair.
reasonable opportunity to meet the charges.
[633D E] (2) In the instant case apart from giving the show cause notice no other communication was made to the appellant except the order of dismissal.
This is a clear case where the reasonable opportunity envisaged under section 124(2) has not been afforded to the appellant for making an effective representation to establish his innocence.
Even in respect of the incident of 15 8 1967, the appellant was acquitted in a criminal case lodged against him.
In the instant case the provisions of section 124(2) which embody the principles of natural justice and which are of a mandatory character have been violated vitiating the order of dismissal.
[633G. 634A C] (3) In the ordinary course it would have been open to the authority to institute a fresh enquiry after the reinstatement.
But in this case, that procedure was not permitted because the appellant was dismissed in December, 1967, and 631 has been out of employment for over 8 years.
Secondly, he does not have many years to serve.
Thirdly, the serious allegations regarding the incident of 15 8 1967 have not been found to be established in a judicial trial.
The Court, therefore, quashed the order of dismissal and directed that the appellant should be treated on leave without pay and further directed that no further enquiry into the allegations forming the subject matter of charge should be made.
[634C E]


judgement:
Civil Appeals Nos.
600 601 and 1699 1714 and 877 878 of 1975.
Appeals by Special Leave from the Judgment and Order dated 30th January 1975 of the Gujarat High Court in Spl.
Civil Applns.
Nos. 15, 1194, 88, 89, 90, 107, 113, 121, 122, 124, 125, 166, 182, 202, 112, 123, 177, 1757, 149, 150 of 1974 respectively.
622 F. section Nariman, K. section Nanavati, P. C. Bhartari and J. B. Dadachanji, for Appellant (In CA 600/75).
K. section Nanvavati, P. C. Bhartari and J. B. Dadachanji, for the Appellants (In CA 601/75 and CA 1700 1714/75).
V. M. Tarkunde, K. section Nanavati, P. C. Bharatari and J. B. Dadachanji for the Appellant (in CA 1699/75).
V. N. Ganpule, for Appellants (In CA 877 878/75).
M. C. Bhandare and M. N. Shroff, for the Respondents (In CA 600 601 of 1975) and CA Nos.
1699 1714/75 and 877 to 878/75.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of civil appeals Nos. 600, 601, 877, 878 and 1699 to 1714 of 1975 which have been filed by special leave against the judgment of Gujarat High Court dismissing petitions under article 226 of the Constitution of India filed by the appellants.
The appellants in these petitions assailed the validity of sections 53A and 53B of the Bombay Industrial Relations Act, 1946 (Bombay Act No. 1 of 1947) (hereinafter referred to as the principal Act).
These sections along with some other provisions were inserted in the principal Act by the Bombay Industrial Relations and Industrial Disputes (Gujarat Amendment) Act, 1972 (Gujarat Act No. 21 of 1972).
The appellants also challenged the validity of the rules which were added to the Bombay.
Industrial Relations (Gujarat) Rules, 1961 as per notification dated June 4 1973.
In addition to that the appellants challenged the validity of notification dated December 17, 1973.
The principal Act was enacted to regulate the relations of employers and employees, to make provisions for settlement of industrial disputes and certain other purposes.
In 1956 the industrial policy resolution of the Government of India stated inter alia that in a socialist democracy labour is a partner in the common task of development and must participate in it with enthusiasm.
Emphasis was laid upon joint consultation of workers and technicians and for associating progressively labour in the management of the industry.
Stress was again laid on joint management councils at the tripartite conference held in July 1957.
Representatives of labour, management and Government were present at that conference.
There was, however, no statutory provision for joint management councils and whatever was done, was on a voluntary basis.
Sections 53A and 53B were inserted in the principal Act by Gujarat Act 21 of 1972.
The two sections read as under: "53.A(1) If in respect of any industry, the State Government is of opinion that it is desirable in public interest to take action under this section, it may, in the case of all undertakings or any class of undertakings in such industry, in which five hundred or more employees are employed or have been employed on any day in the preceding twelve months, by general or special order require the employer to constitute 623 in the prescribed manner and within the prescribed time limit a Joint Management Council, consisting of such number of members as may be prescribed, comprised of representatives of employers and employees engaged in the undertaking, so however that the number of representatives of employees on the Council shall not be less than the number of representatives of the employers.
Notwithstanding anything contained in this Act, the representatives of the employees on the Council shall be elected in the prescribed manner by the employees engaged in the undertaking from amongst themselves: Provided that a list of industries in respect of which no order is issued under this sub section shall be laid by the State Government before the State Legislature within thirty days from the commencement of its first Session of each year.
(2) One of the members of the Council shall be appointed as Chairman in accordance with rules made in this behalf.
53B (1) The Council shall be charged with the general duty to promote and assist in the management of the undertaking in a more efficient, orderly and economical manner, and for that purpose and without prejudice to the generality of the foregoing provision, it shall be the duty of the council (a) to promote cordial relations between the employer and employers; (b) to build up understanding and trust between them; (c) to promote measures which lead to substantial increase in productivity; (d) to secure better administration of welfare measures and adequate safety measures; (e) to train the employees in understanding the responsibilities of management of the undertaking and in sharing such responsibilities to the extent considered feasible; and (f) to do such other things as may be prescribed.
(2) The Council shall be consulted by the employer on all matters relating to the management of the undertaking specified in sub section (1) and it shall be the duty of the Council to advise the employer on any matter so referred to it.
(3) The Council shall be entrusted by the employer with such administrative functions, appearing to be connected with or relevant to, the discharge by the Council of its duties under this section, as may be prescribed.
624 (4) It shall be the duty of the employer to furnish to the Council necessary information relating to such matters as may be prescribed for the purpose of enabling it to discharge its duties under this Act.
(5) The Council shall follow such procedure in the discharge of its duties as may be prescribed.
" Consequent upon the insertion of sections 53A and 53B in the principal Act, the Bombay Industrial Relations (Gujarat) Rules were also amended and certain new rules were added.
Rule 47A relates to the manner of election of two persons from amongst employees in disputes.
Rule 61A reads as under: "61 A. Constitution of Joint Management Council.
Any employer who is required by an order made under sub section (1) of section 53 A to constitute a Joint Management Council shall constitute within a period of ninety days from the date of the said order a Joint Management Council consisting of ten members, out of which the number of representatives of the employer to be nominated by the employer and the number of representatives of employees engaged in the undertaking to be elected from amongst themselves shall be such as may be determined by the employer so however that the number of representatives of the employees on the Council shall not be less than the number of representatives of the employer.
" Rule 61B to rule 61T relate to election of employees representatives on the Management Council.
Rule 61U prescribes for appointment of Chairman of the Council.
Rule 61V deals with the constitution of the Council from time to time and the manner of filling in the vacancies.
Rule 61W relates to the number of meetings of the Council and provides that the Chairman shall also have a second or casting vote in the event of equality of votes.
Rule 61X makes other provisions for the meeting, while Rule 61Y deals with annual returns.
Rules 61Z, 61ZA and 61ZB to which reference has been made during the course of arguments read as under: "61 Z. Duties of the Council.
It shall be the endeavour of the Council: (i) to improve the working conditions of the employees; (ii) to encourage suggestions from the employees; (iii)to assist in the administration of laws and agreements; (iv) to serve generally as an authentic channel of communication between the management and the employees; (v) to create in the employees a sense of participation; (vi) to render advice, in the general administration of Standing Orders and their amendment when needed; 625 (vii)to render advice on matters pertaining to retrenchment or rationalisation, closure, reduction in or cessation of operations 61 Z A. Administrative functions with which the Council shall be entrusted by Employer.
The Council shall be entrusted by the employer with administrative functions in respect of: (i) operation of vocational training and apprenticeship schemes; (ii) preparation of schedules of working hours and breaks and of holidays; and (iii)payment of rewards for valuable suggestions received from the employees.
61 Z B. Matters in respect of which the Council shall be entitled to receive information.
The Council shall be furnished by the employer with information in respect of: (i) general economic situation of the concern; (ii) the state of the market, production and sales programmes; (iii)organisation and general running of the undertaking; (iv) circumstances affecting the economic position of the undertaking; (v) methods of manufacture and work; (vi) the annual balance sheet and profit and loss of statement and connected documents and explanation; and (vii)long term plan for expansion, re employment etc." Imugned notification dated December 17, 1973 reads as under: "No. KH SH 1988/BIR 1073 JH Whereas in respect of the industry specified in the Schedule annexed hereto the State Government is of opinion that it is desirable in public interest to take action under section 53A of the Bombay Industrial Relations Act, 1964 (Bom.
of 1947), in the case of all undertakings in the said industry in which five hundred or more employees are employed or have been employed any day in the preceding twelve months.
Now, therefore, in exercise of the powers conferred by sub section (1) of the said section 53 A, the Government of Gujarat hereby requires the employer of each such undertaking in the said industry to constitute a Joint Management Council in the manner and within the time limit specified in rule 61 A G of the Bombay Industrial Relations (Gujarat) Rules, 1961.
626 SCHEDULE Cotton Textile Industry as specified in the Government of Bombay Political and Services Department, Notification No. 2847/34 A, dated 30th May 1939 and the Government of Gujarat, Education and Labour Department, Notification No. BIR 1361, dated the 17th July 1961.
" Although a number of contentions were advanced before the High Court to assail the validity of sections 53A and 53B as well as the rules mentioned above, before us learned counsel for the appellants have restricted their challenge to the impugned provisions only on the ground of lack of legislative competence of the State Legislature.
So far as notification dated December 17, 1973 is concerned, we may state that the said notification is no longer in force and, instead of that notification a fresh notification date March 1, 1976 has been issued.
In the circumstances, no opinion need be expressed on the validity of notification dated December 17, 1973.
We also express no opinion on the reasons given by the High Court in upholding the aforesaid notification.
It is also, in our opinion not necessary to express any opinion about the validity of notification dated March 1, 1976 as this notification was issued subsequent to the decision of the High Court and was not the subject matter of writ petitions before the High Court.
We may now advert to the question of the legislative competence of Gujarat legislature to enact sections 53A and 53B reproduced above.
In upholding the contention of the respondent State that the impugned provisions were within the sphere of the legislative competence of the State legislature under entries 22 and 24 of List III in Seventh Schedule to the Constitution, the High Court has held that the subject matter of the above legislation was labour welfare even though it might have some incidental effect on corporate undertakings or controlled industries.
Dealing with rule 61ZB the High Court held that the information to be furnished should be of such a nature that its disclosure would not be harmful to the undertaking.
The information, it was held, should not be confidential or relating to trade secrets.
Sections 53A and 53B as already mentioned were inserted in the principal Act by Gujarat Act No. 21 of 1972.
This Act was published on October 19, 1972 after it had received the assent of the President.
According to the respondents, the above provisions have been enacted under entries 22 and 24 of List III of the Seventh Schedule to the Constitution.
Entry 22 relates to trade unions; industrial and labour disputes, while entry 24 deals with "welfare of labour including conditions of work, provident funds, employers ' liability, workmen 's compensation, invalidity and old age pensions and maternity benefits".
As against that, the contentions advanced on behalf of the appellants is that the impugned legislation falls under entries 43, 44 and 52 of List I in the Seventh Schedule which relate respectively to "incorporation, regulation and winding up of trading corporations including banking, insurance and financial corporations but not including 627 co operative societies;" "incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities;" and "industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest".
We have given the matter our earnest consideration, and we find no sufficient ground to interfere with the finding of the High Court that the impugned statutory provisions fall under entries 22 and 24 of List III in Seventh Schedule of the Constitution and that the State legislature was competent to enact the same.
The impugned provisions in our opinion, are intended in pith and substance to forestall and prevent industrial and labour disputes.
They constitute also in essence a measure for the welfare of the labour.
From a conceptual viewpoint, workers ' management of undertakings or self management represents the most far reaching degree of association of workers in decisions concerning them.
Probably the best known example of this type of workers ' participation is the Yugoslav system of self management.
Under that system, the workforce of the undertaking exercises the principal functions of management through the self management organs, the organisation and powers of which have been established since the sixties by the statute or internal regulations of the undertaking, namely, the workers ' assembly and the workers council.
For varying lengths of time, in a large number of countries, and by virtue of a legal obligation, workers ' representatives have been included in management organs in the public sector as a whole or in certain nationalised undertakings.
In the private sector, the system which has pushed workers ' representation to the furtherest degree is that of co determination applied in the Federal Republic of Germanv since the beginning of the fifties.
By an Act of 1951, equal representation of workers was established on the supervisory boards of large iron and steel and mining undertakings.
These boards generally include five workers ' representatives" five representatives of the shareholders and an eleventh member nominated by mutual agreement.
In addition, one of the members of the directorate or management board, namely, the "labour director" who is generally responsible for personnel questions and social affairs, may only be nominated or dismissed in agreement with the maiority of the workers ' members of that board.
Under an Act of 1952, the workers ' representation on the supervisory boards of the companies which do not belong to the above industries is one third of the total membership.
Pressure is however, being brought by the trade unions for equal representation of workers on the supervisory boards in sectors other than iron and steel and mining (see International Labour Organization Background Paper on Symposium on Workers ' Participation in Decisions within Undertaking in Oslo in August 1974).
The object of workers ' participation in joint management councils is to enlist co operation of workers with a view to bring about improvement in the performance of industrial organisations.
It is assumed that the above scheme would give a robust feeling of participation to the workers in the management and thus result in improved functioning of the industrial undertaking.
Another object appears to 628 be to democratise the industrial milieu and ensure egalitarianism in the process.
It has not been disputed on behalf of the appellants that the various objectives mentioned in clauses (a) to (f) of sub section (1) of section 53B pertain to welfare of labour.
What is, however, contended is that joint management councils may claim to exercise such functions under the opening words of sub section (1) of section 53B as can be discharged only by the Board of Directors.
This contention, in our opinion, is not well founded.
The impugned statutory provisions, in our opinion, should be so construed and implemented as would sustain their constitutional validity.
The functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes.
Such functions would be analogous to those specified in clauses (a) to (f).
If the impugned legislation in pith and substance relates to subjects which are within the competence of the State legislature, as it in fact does, the fact that there is an incidental encroachment on matters which are the subject matter of entries in List I would not affect the legislative competence of the State legislature to pass the impugned legislation.
The impugned rules, in our opinion, likewise relate to subjects which are within the competence of the State legislature.
The rules in the very nature of things can operate only in that field in which the parent Act can operate.
For about a hundred years the term industrial democracy has been often mentioned in the writings of socialists, trade unionists and social reformers.
Of late the industrialists have taken it over.
The reason for that is that industrialists have become conscious that any approach which has the effect of treating workers as if they were commodities is unsound and wasteful economically.
The industrialists, it has been said, tried paternalism or benevolent autocracy, and they have found that this did not work, just as Frederick the Great and his followers found that benevolent political despotism did not work.
Democracy in political terms means the consent of the governed in the governance of the country.
In industry it means that wage earners shall have an effective voice.
It has been observed by Edward Filence.
"labour. , having experienced the advantages of democracy in government now seeks democracy in industry.
Is it any stranger that a man should have a voice as to the conditions under which he works than that he should participate in the management of the city and the state and the nation ? If a voter on governmental problems, why not a voter on industrial problems ?" (See page 339, Personnel and Labour Relations by Nash/Miner).
The above approach postulates trade unions as a potential positive force.
For management and union to share the pluralist ideology requires more than agreement about joint decision making as such.
It requires also that neither side enforces claims or imposes policies which are found excessively burdensome by its counterpart.
As observed 629 by Alan Fox on page 303 of Beyond Contract Work and Trust Relations: "It follows from this analysis that management will be readier to accept pluralistic forms of decision making the greater its confidence that it will always be able, in the last resort, to bend employee claims towards acceptable compromises.
It may even be convinced of its ability to charm them away altogether or at least much reduce them by 'rational ' argument and persuasion designed to bring out the 'true ' common interests.
In this sense a formal acceptance of pluralistic patterns may mask unitary convictions on managements past about the nature of the enterprise.
It may regard joint decision making and a fully institutionalised handling of claims and grievances not as mechanisms for compromising genuine conflicts of interest but as devices which facilitate the 'working through ' of mistaken conceptions, psychological blockages, and organizational confusions by a process of 'rational ' clarification.
" It would appear from the above that the concept of joint management has a much wider connotation.
That wider aspect of joint management would plainly be impermissible under the impugned legislation as it has been enacted by the State legislature.
Such legislation can operate only within a limited field because that is the only way in which its constitutional validity can be sustained against the challenge on the ground of want of legislative competence by the State legislature.
With the above observations we dismiss the appeals, but in the circumstances leave the parties to bear their own costs throughout.
V.P.S. Appeal dismissed.

summary/full:
Sections 53A and 53B of the Bombay Industrial Relations Act, 1946, were inserted in that Act by the Bombay Industrial Relations and Industrial Disputes (Gujarat Amendment) Act, 1972.
They relate to the constitution of joint management councils, which include representatives of the employees also, for the purpose of forestalling and preventing industrial disputes.
Consequent amendments were made in the Bombay Industrial Relations (Gujarat) Rules.
The appellants challenged the two sections on the ground that the State Legislature was incompetent to enact them.
According to the appellants, the impugned legislation falls under Entries 43, 44 and 52 of List I, VII Schedule to the Constitution, which relate to matters of incorporation etc.
The High Court held that they fall under Entries 22 and 24 of List III, which relate to labour welfare and industrial disputes, and that the State Legislature was competent to enact them.
Dismissing the appeal to this Court, ^ HELD: It has been recognised during the last hundred years that the wage earners should have an effective voice in the management of the industry in which they are working.
The concept of joint management of industry by the employer and the employee may have a wide connotation, because, the joint management councils may not only perform such functions as pertain to welfare of labour, that is, those relating to the various objectives mentioned in cls.
(a) to (f) of section 53B(1) but may also claim to exercise such functions as can be discharged by the board of directors.
This wider aspect of the joint management would however be impermissible under the impugned provisions, because the provisions should be so construed and implemented as would sustain their constitutional validity.
They have been enacted by the State Legislature and so the functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes.
If the impugned legislation, in pith and substance, relates to subjects which are within the competence of the State Legislature, the fact that there is an incidental encroachment on matters which are the subject matter of Entries in List I, would not affect the legislative competence of the State Legislature to pass the impugned legislation.
[628A, 629E] Rules in the very nature of things can operate only in that field in which the parent Act can operate, and hence, the impugned rules, likewise, relate to subjects which are within the competence of the State Legislature.
[628D]


judgement:
Civil Appeal No. 2574 of 1972.
Appeal from the Judgment and Order dated the 2nd June, 1965 of the Calcutta High Court in Appeal from Original Order No. 287 of 1964.
Naunit Lal and (Miss) Lalita Kohli for the Appellant.
B. Sen, M. Mookherjee, Sardar Bahadur Saharya and Vishnu Bahadur Saharya for Respondent No. 1.
The Judgment of the Court was delivered by GOSWAMI, J.
This is an appeal at the instance of the workman on certificate of the Calcutta High Court from the decision of the Division Bench reversing the earlier judgment and order of the learned single Judge in an application under article 226 of the Constitution directed against the award of the First Industrial Tribunal, West Bengal, made under section 33A of the Industrial Disputes Act.
The appellant (hereinafter to be described as the workman) was employed by M/s Hindustan Motors Ltd. (hereinafter to be described as the company) since August 3, 1949.
On August 3, 1956, the workman entered into an agreement of service with the company wherein the first clause reads as follows: "The Employer agrees to and does hereby engage the services of the employee for a period of 5 years beginning with 1 6 56 and thereafter until this agreement shall be determined by either party hereto giving to the other 3 months ' notice in writing of such intended termination.
637 Provided that in case Employer finds the employee 's work satisfactory, Employer shall have the option to extend the period of service by a further term of 3 years".
The workman went on two months ' leave to Banaras for a change some time in 1960.
He requested for extension of leave for one month on medical grounds.
He actually sent an application on August 8, 1960, along with a medical certificate praying for extension of his leave.
The company asked the workman to get himself examined by the company 's medical officer within ten days.
As the workman was lying ill at Banaras, he could not comply with the directions of the company.
On September 5, 1960, he sent another telegram followed by a formal application enclosing a medical certificate for extension of his leave.
On September 15, 1960, the company sent a letter to him terminating his services on the ground of habitual absence which is a misconduct under the company 's standing orders.
At the time of this termination there was an industrial dispute pending between the company and its workmen.
Since the company did not ask for approval of its order from the Industrial Tribunal the workman made a complaint to the Tribunal under section 33A of the Industrial Disputes Act (briefly the Act).
The company contested the application.
The Tribunal made its award on September 27, 1962, ordering reinstatement of the workman with 50% of his back wages for the period of his forced unemployment as compensation.
The Tribunal directed that the award should be given effect to not later than one month of the publication of the award which was on October 26, 1962.
After a little over two months of the publication of the award, to be precise, on February 4, 1963, the company intimated to the workman to rejoin his service.
The workman reported for duty the following day on February 5, 1963.
On February 16, 1963, the company invoked clause (1) of the agreement which we have set out earlier and terminated the services of the workman by paying three months ' salary in lieu of notice.
This is the second round of litigation with which we are concerned in this appeal.
Since an industrial dispute was pending even on this date of termination of his service and the company did not apply to the Tribunal for approval of the order, the workman made a complaint to the Tribunal, as on the previous occasion, under section 33A of the Act.
The Tribunal accepted the complaint and held as follows: "In my opinion, the company has really dismissed the petitioner for a piece of conduct which must have appeared as misconduct in the eye of the company".
The Tribunal observed that the company in substance dismissed the workman for misconduct since the workman became "odious to the company" on account of his earlier success before the Tribunal in his application under section 33A of the Act.
The Tribunal, therefore, ordered his reinstatement with full back wages for the period of his forced unemployment as compensation.
This time the company did 638 not accept the award although on the earlier occasion the company did not choose to litigate and reinstated him as ordered by the Tribunal.
The company moved the Calcutta High Court under article 226 of the Constitution to quash the award.
The learned single Judge refused to interfere with the award holding that "the reason might have been the old reason of dismissal. ".
The learned Judge further observed that "the circumstances relied on by the Tribunal are not wholly irrelevant and the inference drawn by the Tribunal cannot be characterised as unreasonable".
The company appealed to the Division Bench of the High Court and the appeal was accepted.
The Division Bench held as follows: "It may be that having regard to the sequence of events that took place in this case the termination of service of the respondent No. 1 by the letter of 16th February 1963 may be regarded as a colourable exercise of the power under the contract of employment or may even be regarded as one of unfair labour practice or mala fide, but the discharge cannot be said to be for any misconduct.
There is no evidence for discharge on any specific misconduct.
The definite case of the respondent No.1 has been that it was by way of retaliatory measure that his services were terminated.
This may be true and may show that the action on the part of the appellant company was mala fide.
But until it is established that there has been a contravention of section 33 of the Act which would create jurisdiction in the Industrial Tribunal to entertain an application under section 33A, or in other words, unless it is established that there has been dischrge for misconduct, the Tribunal had no jurisdiction to set aside the order of termination in an application under section 33A".
On the application of the workman the High Court granted a certificate to him under article 133(1)(c) of the Constitution.
That is how this matter has come before us for a decision.
We should at the outset observe that this is not an appeal against the award of the Industrial Tribunal but is only directed against the judgment of the High Court under article 226 of the Constitution.
In an application under article 226 of the Constitution the High Court was concerned only with the question of jurisdiction of the Tribunal in entertaining the application under section 33A of the Act.
The question of jurisdiction again was intimately connected with the question whether the termination of service was for misconduct of the workmen.
The learned single Judge accepted the finding of the Tribunal when it held that the discharge was nothing but dismissal for misconduct and in that view of the matter did not find any justification for interfering with the award.
According to the learned Judge, therefore, no question of lack of jurisdiction of the Tribunal arose to merit interference with the award under article 226 of the Constitution.
639 The Division Bench, however, looked at the matter from a different viewpoint.
It assumed that the action of the management was even mala fide and so it could be wrongful and in an appropriate reference under section 10 of the Act the workman might be able to get proper relief.
The High Court, however, came to the conclusion that since clause (1) of the agreement was invoked by the employer it was not a case of discharge for misconduct and that being the position the Tribunal had no jurisdiction to entertain the complaint under section 33A even though the action of the company might be as a result of unfair labour practice.
Mr. Naunit Lal on behalf of the workman has assailed the conclusion of the Division Bench while Mr. Sen submits that the decision is legally unquestionable.
The question that arises for consideration in this appeal relates to the applicability of the proviso to section 33(2) (b) of the Act as amended in 1956.
Section 33(2)(b) at the material time reads as follows: "33(2): During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute.
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid 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".
We may also read section 33A of the Act as that is the section under which the complaint was originally made by the workman to the Industrial Tribunal.
33A: "Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly".
640 It is clear that the foundation of jurisdiction of the Tribunal to entertain a complaint under section 33A is the contravention of section 33 of the Act.
Section 33 may be contravened in a variety of ways.
We are concerned in this appeal only with one type of contravention, namely, that the employer did not make any application to the Tribunal for approval of the order of termination of service of the workman.
There is no dispute between the parties in this appeal that there was an industrial dispute pending before the Tribunal in which the workman was concerned and that the particular termination had nothing to do with that dispute.
The only point on which the parties differ is as to the nature of the order of termination of service.
The employer claims it to be a termination simpliciter in exercise of its right under a written contract of service entered between the parties in August 1956.
The workman on the other hand contends that termination of his service was meted out as a punishment for avenging the defeat of the employer in an earlier litigation under section 33A at the instance of the workmen.
In other words the workman contends that the order although purported, ex facie, to be a termination under the terms of the agreement, is in truth and reality an order of dismissal for misconduct.
Originally when the Act was passed in 1947 (Act 14 of 1947) section 33 imposed a ban on the employer against discharge, dismissal or punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities "except for misconduct not connected with the dispute.
" The section underwent a vital change for the employer when the Industrial Disputes (Appellate Tribunal) Act 1950 (Act 48 of 1950) was passed and section 33 was substituted and a total ban imposed against discharge, dismissal or any punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities.
The reservation of the right to the employer to take action even in case of misconduct, which was there in the original Act, was withdrawn.
As time passed, in view of representations from employers, the Parliament became alive to the question of discipline in the industry and reintroduced in an altered form the said right of the employer to take action during the pendency of proceedings before the Tribunal when the Act was amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956 (Act 36 of 1956).
We have already set out the material provision of section 33(2) (b) at the out set which has since restored to the employer the right to take punitive action under specified conditions.
To complete the picture we may note in passing that the section was further amended by the Industrial Disputes (Amendment) Act (Act 36 of 1964) with effect from December 19, 1964, whereby some words were inserted in sub section (2) of section 33 with which we are not concerned in this appeal.
From the provisions of section 33 it is manifest that punitive action by the employer in whatever form it may be passed is permissible against an ordinary workman, as distinguished from a protected workman even during the pendency of proceedings before the Tribunal 641 provided that the employer pays one month 's wages and also applies to the concerned Tribunal for approval of his action.
Since the action is punitive, namely, dismissal or discharge for misconduct, the Tribunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised thereby.
If the procedure of fair hearing has been observed the Tribunal has to find in an application under section 33 that a prima facie case is made out for dismissal.
If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established.
The submission of the employer is that since the termination of the workman is in exercise of the right under the written agreement it was not a case of discharge or dismissal for misconduct and there was, therefore, no obligation on the employer to make an application under section 33 of the Act and hence section 33 has not been contravened and the application under section 33A is not maintainable.
The question that arises for decision in this appeal is whether if a particular order of termination of service is not on account of misconduct and is merely a termination simpliciter the employer is still required to make an application under section 33 of the Act.
We have no doubt in our mind that section 33(2)(b) makes it obligatory upon the employer to make an application to the Tribunal under the proviso only when he discharges or dismisses a workman for misconduct.
It is submitted by Mr. Sen that misconduct contemplated in section 33(2)(b) must be a misconduct enumerated in the standing orders of the company.
We are unable to accept this submission.
Standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit.
Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action.
Ordinarily, the standing orders may limit the concept but not invariably so.
When, therefore, the Tribunal has found as a fact after taking note of the history and the entire circumstances of the case that the termination was on account of misconduct of the employee it is difficult to hold that there is any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, is not within the four corners of the description of the various misconducts mentioned in the company 's standing orders.
It is not possible, therefore, to accept the submission that the Tribunal committed an error of law or of jurisdiction in entertaining the application under section 33A. 642 Termination simpliciter or automatic termination of service under the conditions of service or under the standing orders is outside the scope of section 33 of the Act.
This does not mean that the employer has the last word about the termination of service of an employee and can get away with it by describing it to be a simple termination in his letter of discharge addressed to the employee.
It is also not a correct proposition of law that in case of a complaint under section 33A the Tribunal would be debarred from going into the question whether, notwithstanding the form of the order in sub stance, it is an action of dismissal for misconduct and not termination simpliciter.
The possibility that in an appeal against the award of the Tribunal this Court may have taken a different view about the termination does not affect the present issue.
Mr. Naunit Lal relies upon a decision of this Court in the Management of Murugan Mills Ltd. vs Industrial Tribunal Madras and Another in support of his contention that even termination simpliciter is within the sweep of section 33.
That was a case where the workman 's services were terminated "because he deliberately adopted go slow and was negligent in the discharge of his duty".
The Supreme Court in that case observed thus: "His services were therefore terminated for dereliction of duty and go slow in his work.
This clearly amounted to punishment for misconduct and therefore to pass an order under cl.
17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders".
The Supreme Court further observed: "In these circumstances the case was clearly covered by cl.(b) of section 33(3) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meeting out the punishment of discharge to him for misconduct".
The decision is, therefore, not an authority for the extreme proposition advanced by Mr. Naunit Lal.
Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios vs Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras vs Murthi (N.R.) and others in support of the above submission.
Although the decision of the Supreme Court in Murugan Mills ' case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment.
We are unable to hold that the Supreme Court in 643 Murugan Mills ' case (supra) went to the extent of re writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline.
To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.
If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of the Act.
In Air India Corporation, Bombay vs V. A. Rebellow & Anr.(1) this Court had to deal with the validity of an award made under section 33A although the Labour Court in that case had held that the workman was guilty of misconduct and that his services were terminated for that reason.
This Court did not agree with the aforesaid conclusion and dismissed the workman 's petition under section 33A of the Act.
In doing so this Court observed as follows: "It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute.
The employer is, therefore free to take action against his workmen if it is not based on any misconduct on their part".
We are, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doing so.
It is true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances and come to a decision whether the order was passed on account of certain misconduct.
This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever.
We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.
It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would not arise.
There remains, however another aspect to which the Tribunal did not properly address.
The workman in this case had a contract of employment only for 8 years at the most.
The reinstatement in his 644 case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964.
The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.
Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by the Tribunal.
We cannot be oblivious to the plight of this workman in his unequal fight with a big company.
He was serving the company since 1949 for about eleven years when he was first dismissed in 1960.
He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award.
Eleven years in actual service and sixteen years in litigation is a doleful tale by itself.
We, therefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20,000/ only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly order.
We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10,000/ on compassionate grounds.
In the result the judgment of the Division Bench of the High Court is set aside.
The award of the Tribunal is varied as stated above.
The appeal is allowed accordingly with no order as to costs.
No. 6664 of 1976 on behalf of the company for urging additional grounds is dismissed as not pressed.
P.B.R. Appeal Allowed.

summary/full:
The respondent terminated the appellant 's services on the ground of habitual absence which is a misconduct under the company 's standing orders.
Although there was a dispute pending before the Tribunal, the respondent did not make an application under section 33(2)(b) of the Industrial Disputes Act for its approval.
On an application by the appellant under section 33A of the Act, the Tribunal ordered his reinstatement.
A few months after the appellant rejoined duty the respondent terminated his services purporting to act under the agreement of service with him.
On a complaint by the appellant under section 33A, the Tribunal ordered his reinstatement.
A single Judge of the High Court dismissed the writ petition of the respondent holding that the discharge was nothing but dismissal for misconduct.
On appeal, the Division Bench held that since the employer invoked the terms of the agreement, it was not a case of discharge for misconduct and as such the Tribunal had no jurisdiction to entertain the complaint under section 33A.
Allowing the appeal. ^ HELD: The Tribunal has not committed any error of law or of jurisdiction in entertaining the application under section 33A and the Single Judge was right in not interfering with the award under Article 226 of the Constitution and the Division Bench was wrong in doing so.
[641H; 641E] (a) The Tribunal has found as a fact that the termination was on account of misconduct of the employee.
It is, therefore, difficult to hold that there was any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, was not within the four corners of the various misconducts mentioned in the standing orders.
[641H] (b) Standing orders only describe certain cases of misconduct and they cannot be exhaustive of all the species of misconduct.
Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action.
[641F] (c) Termination simpliciter under the conditions of service or under the standing orders is outside the scope of section 33 of the Act.
This does not mean that the employer has the last word about the termination of service of an employee.
It is also not a correct proposition of law that in case of a complaint under section 33A, the Tribunal would be debarred from going into the question whether notwithstanding the form of the order.
in substance, it is an action of dismissal for misconduct and not termination simpliciter.
[642 A B] Management of Murgan Mills Ltd. vs Industrial Tribunal, Madras and Another ; , held inapplicable.
Air India Corporation, Bombay vs V. A. Rebellow & Anr. ; , referred to.
636 Shyamala Studios vs Kannu Devar (S.S.) and Others, and Sri Rama Machinery Corporation (P) Limited, Madras vs Murthi (N.R.) and Others, , partly approved.
(d) Section 33(2)(b) makes it obligatory upon the employer to make an application to the Tribunal under the proviso when he discharges or dismisses the workman for misconduct.
From the provisions of section 33, it is manifest that punitive action of the employer in whatever form it may be passed, is permissible against an ordinary workman as distinguished from a protected workman even during the pendency of proceedings before the Tribunal provided that the employer pays one month 's wages and also applies to the concerned Tribunal for approval of his action.
Since the action is punitive, namely, dismissal or discharge for misconduct, the Tribunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised.
If the procedure of fair hearing has been observed, the Tribunal has to find in an application under section 33 that a prima facie case is made out for dismissal.
If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established.
[641E; 640H] (e) In the instant case even though the employer invoked the agreement for terminating the service of the employee it was open to the Tribunal to pierce the veil of the order and have a closes look at the circumstance and come to a decision whether the order was passed on account of certain misconduct.
This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse.
[643F]