TEXTILE LABOUR UNION BHAVNAGAR Vs. NEW JEHANGIR VAKIL MILLS COMPANY LIMITED BHAVNAGAR
LAWS(GJH)-1979-9-11
HIGH COURT OF GUJARAT
Decided on September 10,1979

TEXTILE LABOUR UNION, BHAVNAGAR Appellant
VERSUS
NEW JEHANGIR VAKIL MILLS COMPANY LIMITED,BHAVNAGAR Respondents

JUDGEMENT

M.P.THAKKAR, S.L.TALATI - (1.) An employee of a textile mill with a blemish free record of 34 years service within a short time of his promotion was served with an order dated June 30 1976 terminating his employment issued in purported exercise of powers under Standing Order 23 without complying with the mandatory requirement to record the reasons for such termination in writing. He thereupon approached the Labour Court by way of an application under sec. 44(4) of the Industries Relations Act 1946 made through the Union to which he belonged namely Textile Labour Union. The first Labour Court at Rajkot after recording evidence on the issue of mala fides by its judgment and order at Annexure A dated April 10 1976 rejected the prayer for reinstatement of the workman concerned but directed that the mill should pay gratuity retrenchment compensation and notice pay as also one months wages. Both the sides were dissatisfied by the said order and approached the Industrial Court of Gujarat at Ahmedabad. The Textile Labour Union Bhavnagar challenged the order passed by the Labour Court to the extent that it was against the workman by Appeal (IC) No. 32 of 1973. The Mill Company contended that the Labour Court ought not have directed payment of gratuity retrenchment and one years wages but ought to have rejected the application of the Union in toto by preferring Appeal (IC) No. 33 of 1973. The Industrial Court by its impugned judgment and order dated January 20 1979 dismissed the appeal preferred by the Union. So far as the appeal preferred by the Company was concerned the Industrial Court allowed the appeal and set side the order passed by the Labour Court directing payment of retrenchment compensation gratuity amount and one years salary etc. The Union concerned the Textile Labour Union of Bhavnagar has approached this Court by way of the present petition under Articles 226 of the Constitution and has challenged the legality and validity of the impugned order at Annexure B rendered by the Industrial Court.
(2.) Learned counsel for the petitioner has urged the following submissions in support of this appeal : (1) Having recorded a clear finding to the effect that the employer Mills had not recorded reasons for the termination of the services of the employee concerned the Industrial Court ought to have set aside the order of discharge on the ground of non compliance with the mandatory provision contained in Standing Order 23. (2) The Industrial Court ought to have held that the impugned order was passed in colourable exercise of powers under the guise of a discharge order as contemplated by Standing Order 23 though it was in fact a mala fide order passed in order to punish the workmen concerned. ( 3 ) The Industrial Court has committed an error apparent on the face of record in holding that the impugned order is in accordance with law.
(3.) It is not in dispute that the services of Bachubhai Bhankabhai, a permanent employee of the Mills who had put in about 34 years of service were terminated as per an order dated September 25 1976 issued in purported exercise of powers under Standing Order 23. It is the case of the employer Mills that it was an order of discharge simpliciter autho rised by the Standing Orders as is evident from the averments made in paragraph 5 of the written statement dated March 9 1977 filed under the signature of the General Manager of the Mills. For the sake of preciseness the relevant portion from paragraph 5 may be extracted:- "It is not true that Bachubhai Bhankabhai has been discharged from service with a view to punish him as alleged or otherwise. He has been discharged simpliciter as per the Standing Orders (Emphasis added) " The provision contained in Standing Order 23 in so far as material deserves to be quoted : "23 (1) The employment of a permanent employee may be terminated by one monthss notice or on payment of one months wages (including all allowances) in lieu of notice. (2) The reasons for the termination of service of a permanent employee shall be recorded in writing and shall be communicated to him if he so desires at the time of discharge unless such communication in the opinion of the Manager is likely directly or indirectly to lay any person to civil or criminal proceedings at the instances of the employee. It is clearly enjoined that (1) reasons must be recorded in writing before action is taken and (2) such reasons must be communicated before the discharge becomes operative if so desired unless the Manager forms the opinion that it is likely to expose any person to civil or original proceedings. In the present case the Industrial Court in the course of the discussion in paragraph 13 of the impugned order at Annexure B has recorded a firm finding that reasons were not recorded in writing as enjoined by Standing Order 23. To quote the Industrial Court It is however true that the reasons have not been recorded in writing. The Industrial Court has also recorded a clear finding to the effect that the reasons were not communicated to the workman concerned in writing. It is in fact doubtful whether the reasons were even orally communicated post facto though the Industrial Court notwithstanding the fact that there was only word against word came to the conclusion that the General Manager had orally told him later on why his services were terminated. The correctness of this finding has been challenged by the learned counsel for the petitioner but for the purposes of the present petition it is not necessary to examine this dimension of the matter. Admittedly reasons for the termination of the services of the employee concerned were not recorded in writing. Clause (2) of Standing Orders 23 casts a mandatory obligation on the management to record the reasons for the termination of service of a permanent employee in writing and to communicate such reasons recorded in writing to the employee concerned if so desired by him unless in the opinion of the Manager the communication of such reasons is likely directly or indirectly to lay any person open to civil or criminal proceedings at the instances of the employee. It is not the case of the management that the reasons were not communicated to the concerned workman because there was any such risk of civil or criminal proceedings being initiated. On a true reading of clause (2) it is evident that what are required to be communicated are the reasons recorded in writing. In order to comply with this provision in the first instance reasons for termination must be recorded in writing. In the second instance if so desired the same must be communicated to the workman concerned. In the present case a clear finding has been recorded that no reasons were required in writing at the time of termination of the services of the workman concerned. Even now learned counsel for the employer Mills is not in a position to contend that reasons were in fact recorded in writing. Under the circumstances this petition will have to be decided on the premise that there is a clear non-compliance with clause (2) of Standing Order 23. ;


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