LAWS(MAD)-1968-3-2

BHARATHI MILLS Vs. KRISHNASWAMI D

Decided On March 26, 1968
BHARATHI MILLS Appellant
V/S
KRISHNASWAMI D Respondents

JUDGEMENT

(1.) THESE two appeals seeking relief by way of cassation arise from the order of the tribunal of first instance at Pondicherry before which appeals were filed against the decision of the labour court of Pondicherry constituted under the French Labour Code of 1952, to adjudicate upon an individual dispute between one Kichenassami, formerly supervisor in the Bharathi Mills, Pondicherry, and the management. The prior facts which are necessary for the disposal of these two appeals are briefly the following.

(2.) IT is common ground that the supervisor in question started his service under the mills as an ordinary worker in 1946 and he had therefore completed in 1962, to which date the present enquiry relates, sixteen years of service. He has been promoted to the higher post of supervisor on 28 May 1962. On 19 September 1962, the management issued a notice to him in the following terms: The above instances clearly point out your negligence in the execution of your duty. You had been warned enough number of times to do your work properly. Nonetheless, there had been no improvement and your negligence and carelessness had caused much financial loss, as well as loss of reputation to the mill. In the circumstances the management finds your services not suitable and you are hereby given one calendar month's notice from 20 September 1962, to the effect that your services will stand terminated from 19 October 1962, The management very much regrets it has to take such a step, but it has been forced to do so to maintain their quality in the market and to preserve its clientele. All dues payable to you will be paid to you on 19 October 1962, which you are directed to collect from the central office. For Sri Bharathi Mills S. A. , Managing Director Managing Agents. In form, in this notice, the management purported to terminate the services of the worker in terms of the contract of service, which provided for such termination after notice. The worker took the stand that this termination, in effect, was not a termination according to the contract of employment, but was a camouflage for dismissal from service for misconduct and, therefore, it amounted to a wrongful breaking of the contract of service, giving him a right to claim damages within the meaning of Article 42 of the French Labour Code. The worker thereafter claimed from the management reliefs under five heads: (1) arrears of increment of salary at Rs. 5 per month for 1954 and 1955; (2) arrears of increment of salary at Rs. 8 per month from 1957 to 1962 ; (3) gratuity ; (4) provident fund; and (5) damages for wrongful dismissal in a sum of Rs. 43,920. The labour court observed that: Whereas the manager of the mill, Sri Bharathi, through his counsel, declares that the petitioner was dismissed for repeated negligence in the work. . . . Whereas the mill has not executed interim judgment dated 15 October 1963, ordering to produce the warnings served to the requesting party and the report of inquiry there was room to conclude that the " requesting party " was dismissed without having been the object of warnings for the repeated negligence which are attributed to him and which facts the labour court did not find proved. Thereupon, it held that the worker was entitled to payment of gratuity, provident fund and damages for wrongful termination of the contract of service, in a sum of Rs. 2,000, calculated at the rate of one month's pay for every year of service. The claim for arrears of increment was rejected. 2. Both the worker as well as the management appealed to the tribunal of first instance at Pondicherry. That tribunal confirmed the finding of the labour court that the present case involved an " abusive rupture" of the "agreement of service" and consequently the management was liable to pay the worker damages besides provident fund and gratuity. The claim for arrears of increment was negatived. So far as damages were concerned, on account of a more correct fixation of the salary, the amount was increased to Rs. 2,400 from Rs. 2,000. Against the above decision of the appellant tribunal relying upon the provisions of Article 207 of the Labour Code, relief by way of cassation is sought before this Court by the management in Special Appeal No. 315 of 1965 and by the worker in Special Appeal No. 318 of 1967.

(3.) THE question whether the order of termination of service of a worker is in reality an order in pursuance of the contract of service or one of dismissal for misconduct, is a question of fact to be decided on the facts and circumstances of each case. The form of the order is immaterial. What is material is its substance. Both the lower tribunals have come to the conclusion that the termination of the service of the worker in this case is really one of dismissal for misconduct. There was ample justification for this conclusion. The notice terminating the services of the worker starts with a preamble that the management was satisfied that the worker was negligent in the execution of his duty in spite of repeated warnings and that this negligence had caused much financial loss to the mill and also loss of reputation. These imputations made against the worker clearly amount to imputations of misconduct. Read with these imputations, the subsequent order terminating his services could properly be viewed as an order, amounting, in substance, to the punishment of dismissal. I see, therefore, no good reason to differ from the findings of the tribunals below, that the order, though in form is one terminating the contract of Service of the worker according to the terms of the contract, is in substance one of dismissal without giving the worker an opportunity to explain the alleged misconduct of negligence of duty, leading to financial loss to the mills.