DIGVIJAY CEMENT COMPANY LIMITED Vs. CHANDVANI JAMNADAS S

JUDGEMENT

(1.) These two petitions arise out of the same award by both the contesting parties in the following circumstances.

(2.) From the material placed on record in two petitions and the documents namely plaint, written statement, order of the trial Court on an application for temporary injunction and the memo of appeal in suit filed by Jamnadas Shobhraj Chandvani, an employee (hereinafter referred to as "J") challenging the termination to be illegal and seeking the relief for reinstatement, the scenario emerges like this. J was employed by Shree Digvijay Cement Co. Ltd. (hereinafter called "the Company") as trainee supervisor with effect from 1/09/1970 by order dated 1/09/1970 after holding interview. One of the conditions of the employment was that the services were liable to be terminated by giving thirty days' notice on either side after confirmation. During the probation period, it could be terminated without any notice. J was confirmed by order dated 1/11/1972. He was thereafter promoted to the post of Assistant Development Engineer by the Company on 13/07/1975. Thereafter, it appears that the Company was not satisfied with the performance of J and by its order dated 28/01/1983, services of J were terminated with effect from 1/02/1983. However, one month's salary in lieu of the notice was given. In the order, it was specifically mentioned that "you have been employed in supervisory capacity right from the beginning and were discharging supervisory functions." Vide letter dated 30/03/1983, employee-J took up the stand that his service conditions are governed by the Model Standing Orders applicable to the Company as also the provisions of the Industrial Disputes Act are applicable. He also raised the contention in his notice that the notice is illegal as it was not in consonance with the provisions of the Industrial Disputes Act. This was apart from contesting allegations about his unsatisfactory working. The company replied it by its letter dated 6/04/1983 taking the stand that since the date of joining, J was appointed as trainee supervisor and not as a workman and, therefore, the Standing Orders did not apply to him either at the time of his joining or when he has been relieved from the service of the Company; that his services have been terminated strictly in accordance with the terms of employment.

(3.) In the first instance, employee filed the Civil Suit No. 71 of 1983 in the Court of the Civil Judge. (S.D.), Narol challenging the termination order. The termination order was challenged primarily on the ground that it was passed without following the principles of natural justice as no inquiry was conducted against the charges levelled against him and the show-cause notice was not given and that the President of the Company is not competent authority to terminate the service of the plaintiff. The resolution of the Board regarding termination of service was the necessary precondition and that the defendants have not followed the rules and regulations in terminating the plaintiffs services. In the pleadings of the plaint, no averment to the effect as to whether the plaintiff was the supervisor or the workman has been raised nor any reference to termination being contrary to the provisions of the Industrial Disputes Act has been made. In the written statement, the Company denied the averments made in the plaint. In the written statement filed by the defendant-Company also, no reference to any provisions of the Industrial Disputes Act was made. In the additional plea raised in the written statement, no objection as to the maintainability of the suit on the ground of availability of remedy under the Industrial Disputes Act has been raised by the defendant-Company. It appears that in the affidavit filed along with the application for temporary injunction, the defendant had tried to project that the Company was controlled by the Government and was the instrumentality of the State. On these premises, though the trial Court granted ad-interim order, but by order dated 8/02/1983, rejected application for temporary injunction on the ground that the plea of the plaintiff that the defendant-Company is controlled by the Government is misrepresentation of facts and the plaintiff's case is not falling in the category of public employment. He was not entitled to the injunction in view of the specific provisions under the Specific Relief Act prohibiting for specific performance of the contract of service. J appealed before the Assistant Judge vide Misc. Appeal No. 18 of 1983. In Memo of Appeal also, no plea as to the termination being illegal being in breach of the provisions of the Industrial Disputes Act has been raised. However, it appears that during the course of hearing of appeal before the Assistant Judge, the plaintiff-appellant-J relied upon the provisions of Sec. 25F of the Industrial Disputes Act to urge that the requirement of Sec. 25F(b) has not been fulfilled regarding payment of compensation for the completed period of service before termination was effective and, therefore, termination by way of retrenchment was illegal. It is in response to this plea. the defendant Co. said that the termination order is not illegal since it gave one month's notice and asked the plaintiff to clear accounts. Regarding order being punitive, it was said that the same is not punitive and referring to the plaintiff's service condition, it was urged by the defendant that the plaintiff was not entitled to any relief. Thus, in substance. J had raised two-fold contentions in his appeal. Firstly that no inquiry to sustain the termination. Secondly, that no compensation was paid as per the provisions of the Industrial Disputes Act and, therefore, the termination was bad in law because of the breach of Sec. 25F. This amounted seeking enforcement of right arising from the provisions of Industrial Disputes Act. 1947 and the remedies lay as provided under the Act by raising industrial dispute and not by civil suit. The appellate Court came to the conclusion that from the contention raised by the plaintiff, it falls in the realm relating to validity of the retrenchment and, therefore, civil suit is not maintaining. He rejected the application for temporary injunction vide order dated 22/02/1983. It is informed by the learned Counsel for J that since then. the suit has been dismissed and the matter has come to an end.