SWARANSING LAXMANSING Vs. BOMBAY GARAGE AHMEDABAD LIMITED

JUDGEMENT

(1.) The petitioner was employed by the first opponent as a fitter. He was in the service of the first opponent for about 10 years. On 22-8-58 he was charge-sheeted for in sub-ordination and negligence in the discharge of his duties. After holding the necessary inquiry on 30 an order was passed against him discharging him from service with 13 days wages in lieu of notice. He claimed that as he had put in 10 years service he was entitled to gratuity in accordance with a settlement which had been arrived at between the Union of the employees of the first opponent and the first opponent. Under the terms of that settlement by clause (4) it had been provided as follows:

(2.) We have here to consider the effect of the order that has been passed by the manager of the first opponent on 30-8-1958. That order in terms states as under :

(3.) Mr. Patwari the learned Advocate for the first opponent strenuously urged before us that where a person has been found guilty of misconduct and is thereafter discharged from service the effect of the order is that he is dismissed from service and that if he is dismissed from service he is not entitled to claim any gratuity. He urges that gratuity is only payable to a person whose conduct is compatible with the faithful discharge of his duties. He says that in the present case the conduct of the petitioner was incompatible with the faithful discharge of his duties and that he is not entitled to claim any amount by way of gratuity. The question whether a person is entitled to gratuity or not is dependent upon the terms of the agreement between the workmen and the employer in a case where a settlement in that connection has been arrived at between the workmen on the one hand and the employer on the other. In this case we are concerned with the terms of the settlement and not with the general law which might have prevailed if no settlement had been arrived at in connection with the payment of gratuity between the workmen of the first opponent and the first opponent. The language used in the settlement is that gratuity would not be paid to an employee who is dismissed for dishonesty or for misconduct. In the present case the petitioner has been found guilty of misconduct. The only question that we have to consider is whether it could be said that he is dismissed for such misconduct. Mr. Patwari strenuously urged that the petitioner cannot but be regarded as having been dismissed for misconduct. He says that we must consider the language used having regard to the intention of the parties. According to his submission the intention of the manager who passed the order was not to pay any sum by way of gratuity to the petitioner. He has cited numerous authorities before us in connection with the construction which we are called upon to put upon the words used by the manager after finding the petitioner guilty of misconduct. He relied upon a recent decision of the Supreme Court reported in A.I.R. 1960 Supreme Court 919 Tale Chartered Bank Bombay v. The Chartered Bank Employees Union & Another. He relies upon a passage at page 922 of that judgment. Justice Wanchoo has there observed that there was no doubt that an employee could not dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal has no jurisdiction to inquire into the circumstances in which such termination of service simpliciter took place. He has further observed as follows: