Jaswant Singh, J. - (1.) This appeal by special leave which is directed against the judgment and order dated July 5, 1977 of the Bombay High Court dismissing the appellant"s special civil application No. 614 of 1972 and refusing to quash the order dated April 5, 1972 of the President, Industrial Court, Maharashtra, Bombay whereby the latter set aside the order of the 4th Labour Court at Bombay and directed reinstatement in service of Miss M. P. Padgaonkar, respondent No. 2 (hereinafter referred to as "the respondent") with full back wages on the ground that her termination of service was bad in law raises the following questions:-"Whether the termination of service of a permanent employee of the Bombay Electric Supply and Transport Undertaking on account of his unsatisfactory record of service can be regarded as punitive so as to compel the employer to hold a disciplinary enquiry or whether such termination can be effected by giving in writing to the employee the aforesaid reason for termination and one calendar month"s written notice or pay including allowances admissible in lieu thereof -
(2.) For a proper determination of the abovementioned question, it is desirable to state the circumstances which have given rise to the appeal. The respondent who was working since Feb. 4, 1959 as a clerk in grade A/G-V in the Consumers Department (North) of the B. E. S. T. (Bombay Electric Supply and Transport) Undertaking (hereinafter referred to for the sake of brevity as "the Undertaking") which is run by the appellant was informed by the Executive Assistant to the General Manager of the Undertaking vide communication dated Jan. 20, 1968, that her services would stand terminated from the close of work on Jan. 23, 1968, as her record of service was unsatisfactory. It was, however, stated in the communication that she would be paid one month"s wages in lieu of notice and would also be eligible for all the benefits as might be admissible under the Standing Orders and Service Regulations of the Undertaking. The appeal preferred by her against this order to the Assistant General Manages having remained unsuccessful, the respondent made an application before the Labour Court under S. 42 (4) of the Bombay Industrial Relations Act contending that the order terminating her services was invalid as it was not passed by the competent authority as envisaged by the Standing Orders and that the so called Executive Assistant to the General Manager had no authority to terminate her service because no validly sanctioned post of that designation existed on 20th or 23rd Jan. 1968. It was also contended by the respondent that the aforesaid order terminating her service besides being mala fide was violative of the principles of natural justice inasmuch as the same was passed without holding any enquiry or giving her a reasonable opportunity of defending herself against the vague and general allegations which formed the basis of the order. The Labour Court dismissed the application observing that though the post of Executive Assistant did not exist at the relevant time, the termination did not suffer from the vice of mala fides nor could it be said to be invalid as it was actually effected by the General Manager and was merely communicated by his Executive Assistant. The Labour Court further held that despite the fact that unsatisfactory record of service was mentioned as the reason for termination, it could not be said to be punitive. Aggrieved by this order of the Labour Court, the respondent filed an appeal to the President of the Industrial Court which was allowed by him vide his order dated April 5, 1972 on the findings that J. P. Fernandes who used the appellation of the Executive Assistant to the General Manager was not competent or authorised to terminate the service of the respondent; that the conclusion of the Labour Court that the impugned order was made by the General Manager himself was not warranted by the facts and conduct of the parties; that the law required the authority invested with the power of terminating the services of an employee to exercise that power in a conscious manner reflecting due care and attention and the draft order (Exhibit 41) which merely bore the initials of the General Manager could not be regarded as valid substitute for the conscious exercise of the power; that the order which expressly stated the unsatisfactory record of service as the reason for terminating the respondent"s services any thus cast a stigma on her was patently punitive and that Standing Order 26 did not create an absolute right in the management to terminate the services of an employee for misconduct without holding an enquiry or giving him a fair opportunity of being heard. Accordingly, the Industrial Court held that the impugned order was bad in law on both the counts viz. (i) that it was passed by an authority which was absolutely lacking in competence and (ii) that despite its punitive character it was passed without holding a domestic enquiry or giving an opportunity to show cause thereby violating the principles of natural justice. The appellant thereupon made an application to the High Court under Art. 226 of the Constitution challenging the order of the President of the Industrial Court. The High Court dismissed the petition holding inter alia that the fact that Standing Order 26 required reasons to be mentioned in the order terminating the services of an employee did not mean that an order of dismissal on the ground of misconduct could be converted into an order of discharge simpliciter by mentioning therein the nature of misconduct. It is against this judgment and order of the High Court that the present appeal is directed.
(3.) Appearing for the appellant, Mr. K. K. Singhvi has, in the first instance urged that the order terminating the respondent"s services could not be held to have been passed by an authority which was lacking in competence as it was actually made by the General Manager and was merely communicated over the signature of his Executive Assistant. Mr. Singhvi has alternatively urged that the Corporation having accorded sanction to the creation of the post of Executive Assistant on the Management Establishment (which was from time to time included in the Establishment Schedule prepared and sanctioned by the B. E. S. T. Committee) for the period beginning from 25th July, 1967 to 30th Sept., 1974 vide Resolution No. 1083 passed by it under S. 460-R of the Bombay Municipal Corporation Act No. III of 1888 at its meeting held on 16th Dec., 1974, even the Executive Assistant had plenary authority to take the impugned action. The learned counsel has next contended that the impugned order was one of discharge or termination of service simpliciter and could not be regarded as punitive regard being had to the fact that besides one month"s pay in lieu of notice, the respondent was paid all the benefits admissible to her under the Standing Orders and Service Regulations; that it was only to satisfy the requirement of proviso (i) to Standing Order 26 the unsatisfactory record of service was mentioned in the order as the reason for termination; that Standing Orders gave two options to the appellant (1) to terminate the service of the respondent in the manner it had done, or (2) to impose the penalty of dismissal as a result of a domestic enquiry. He has further submitted that even if the order is treated as punitive which could not have been passed without the prescribed enquiry, it could not be held to be bad in law as it was made good by the appellant on merits by adducing evidence before the Labour Court.;