M R FERNANDES Vs. AIR INDIA LTD

JUDGEMENT

(1.) HEARD the learned Advocates for the parties. Rule. By consent, the rule made returnable forthwith.

(2.) THE petitioner challenges the award passed by the Industrial Tribunal at mumbai, on 5th September, 2003 dismissing the complaint filed under s. 33a of the Industrial Disputes Act, 1947. The case of the petitioner in the complaint was that his services were terminated by the respondents solely on account of refusal to operate flight on 15th March, 2003 to Dubai and further to Trivandrum, and that the termination of the services was made by an order dated 11th april, 2003 to be effective from 11th May, 2003 and that in reply to the complaint of the petitioner, no other reason was assigned for termination of his services. Being so, even though the cl. (v) of the contract between the parties empowered the respondents to terminate the contract with one month's notice, without assigning any reason, the said clause was ab initio bad in law, and was not binding upon the petitioner, and therefore, taking recourse to the said clause, the respondents could not have terminated the services of the petitioner, and the Tribunal, therefore, acted illegally in dismissing the complaint. Reliance is sought to be placed in the decision of the Apex Court in the matter of Central inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. , in support of the contention of the petitioner that the cl. (v) of the contract is ab initio bad in law and cannot be acted upon to terminate the service of the petitioner. Reliance is also placed in the decision of the Apex Court in Food Corporation of India Workers' Union v. Food Corporation of India and Anr. , in support of the contention of the petitioner that the finding of the Tribunal on the point of absence of evidence in support of the claim of the petitioner was being totally misconceived, and in the decision in the matter of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. , while contending that, it was primarily for the respondents to place on record the materials in respect of justification for the order of termination. On the other hand, the respondents have sought to justify the impugned order by drawing attention to the order dated 9th December, 2003 passed in Writ Petition No. 2578 of 2003 which was the writ petition arising from the common award dated 5th September, 2003 in case of the petitioner herein as well as the petitioner in the said Writ Petition No. 2578 of 2003, and that the petitioner had failed to prove that the action of termination of the services was on account of any misconduct on the part of the petitioner, and that the petitioner had never sought to challenge the cl. (v) of the contract in any manner before the Tribunal nor it was the contention of the petitioner before the Tribunal that the respondents could not have resorted to the action in terms of cl. (v) of the contract. It was further contended on behalf of the respondents that, in order to justify the order under s. 33 (2) (b) of the said Act, it is primarily necessary for the complainant to establish that the termination was for any misconduct and the petitioner having not established the same, no fault can be found with the impugned order.

(3.) IT is not in dispute that the complaint filed by the petitioner was in terms of the provisions of s. 33 (2) (b) on the allegation that the termination of the services of the petitioner was for the alleged misconduct of refusal to operate the flight. It is also a matter of record that the petitioner had chosen not to lead any evidence before the Tribunal. The records in relation to the proceedings before the Tribunal also reveal that there was no challenge by the petitioner, to cl. (v) of the contract in the proceedings before the Tribunal. Undoubtedly, as pointed out by the learned Advocate for the petitioner, a grievance in that regard was made in the appeal before the respondents. However, no such plea was raised in the complaint before the Tribunal. The Tribunal, therefore, had no occasion to deal with the said issue while dismissing the complaint.