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1 - 10 of 10 (0.28 seconds)Article 311 in Constitution of India [Constitution]
Article 309 in Constitution of India [Constitution]
The Industrial Disputes Act, 1947
The Punjab National Bank, Ltd vs Its Workmen on 24 September, 1959
In The Punjab National Bank Ltd. v. Its Workmen
(1), this Court pointed out that there was a substantial
difference between the consequences of non-compliance with
s. 33 of the Industrial Disputes Act and Art. 311 (2) of the
Constitution. Compliance with s. 33 only avoids a penalty
under s. 31 (1) while compliance with Art. 311 (2) makes the
order of dismissal final. In a proceeding under s. 33 of
the Industrial Disputes Act the Tribunal is concerned only
to make a limited enquiry whether the proposal to terminate
the employment of a workman was
(1) [1960] 1 S. C. R. 806.
Parshotam Lal Dhingra vs Union Of India on 1 November, 1957
We are unable to agree with the judicial Commissioner that
the termination of employment of the respondent by the
Superintendent of Police by order dated December 6, 1957,
was in violation of. Art. 311(2) of the Constitution. It
is true that before the respondent was discharged from
service no enquiry was made as to any alleged misconduct,
nor was he given any opportunity of showing cause against
the proposed termination of employment. But it is well
settled that when employment of a temporary public
270
servant, is terminated pursuant to the terms of a contract,
he is not entitled to the protection of Art. 311(2). As
observed in Parshotam Lal Dhingra v. The Union of India (1)
by Das, C. J., "a termination of service brought about by
the exercise of a contractual right is not per se dismissal
or removal, as has been held by this Court in Satish Chander
Anand v. The Union of India (2). x x x x x x the termination
of the service did not carry with it the penal consequences
of loss of pay, or allowances under r. 52 of the Fundamental
Rules". But the State may instead of exercising its
contractual right seek to terminate the employment even of a
temporary employee for misconduct, negligence, inefficiency
or any other disqualification, and when an order of
termination of employment is passed for that purpose it
would amount to dismissal or removal attracting the
protection of Art. 311 of the Constitution. The form in
which the order is couched is not always decisive.
Article 226 in Constitution of India [Constitution]
Satish Chandra Anand vs The Union Of India on 13 March, 1953
We are unable to agree with the judicial Commissioner that
the termination of employment of the respondent by the
Superintendent of Police by order dated December 6, 1957,
was in violation of. Art. 311(2) of the Constitution. It
is true that before the respondent was discharged from
service no enquiry was made as to any alleged misconduct,
nor was he given any opportunity of showing cause against
the proposed termination of employment. But it is well
settled that when employment of a temporary public
270
servant, is terminated pursuant to the terms of a contract,
he is not entitled to the protection of Art. 311(2). As
observed in Parshotam Lal Dhingra v. The Union of India (1)
by Das, C. J., "a termination of service brought about by
the exercise of a contractual right is not per se dismissal
or removal, as has been held by this Court in Satish Chander
Anand v. The Union of India (2). x x x x x x the termination
of the service did not carry with it the penal consequences
of loss of pay, or allowances under r. 52 of the Fundamental
Rules". But the State may instead of exercising its
contractual right seek to terminate the employment even of a
temporary employee for misconduct, negligence, inefficiency
or any other disqualification, and when an order of
termination of employment is passed for that purpose it
would amount to dismissal or removal attracting the
protection of Art. 311 of the Constitution. The form in
which the order is couched is not always decisive.
The Chartered Bank, Bombay vs The Chartered Bank Employees' Union on 4 April, 1960
Counsel for the respondent urged that as in an application
made under s. 33 of the Industrial
272
Disputes Act for permission of an Industrial Tribunal to
discharge workmen pending adjudication the dispute in which
the employer or the workmen:' are concerned, the Tribunal is
bound to enter upon a full investigation and ascertain
whether the employer had acted mala fide or that the order
of discharge amounted to an unfair labour practice or that
it was a case of victimisation, the Court in making an
enquiry where the order of termination of employment of a
temporary public servant was merely one in enforcement of a
contractual right or An' attempt to dismiss an employee
because of misconduct..-' negligence or inefficiency, is
also obliged to enter, upon a critical investigation of the
reasons which induced the authority to make the impugned
order.' Counsel invited our attention to the decision of
this' Court in The Chartered Bank, Bombay v. The Chartered
Bank Employees' Union (1) and The Management of Chandramalai
Estate, Ernakulam v. Its Workmen(2) and submitted that the
considerations which were material in deciding an
application under s. 33 of' the Industrial Disputes Act were
also relevant in adjuring the true nature of the order
terminating employment of a public servant. In considering
an application under s. 33 of the Industrial Disputes Act
the Tribunal has, it is true, "to go into all the
circumstances which led to the termination simpliciter and
the employer cannot be permitted to say, that he is not
bound to disclose the circumstances' before the Tribunal.
The form of the order is not conclusive of the true nature
of the order: for it is possible that the form may be merely
a camouflage for an order of dismissal for misconduct. It
is therefore always open to the tribunal to go behind the
form and look at the substance; and if it comes to the
conclusion, for example, that though in form the order
amounts to termination simpliciter it in reality cloaks a
dismissal for misconduct it will be open to it to set it
aside as a colorable exercise of the power". But in our
view the principle of these'
(1) [1960] 3 C. S. R, 441.
The Management Of Chandramalai Estate, ... vs Its Workmen And Anr. on 4 April, 1960
Counsel for the respondent urged that as in an application
made under s. 33 of the Industrial
272
Disputes Act for permission of an Industrial Tribunal to
discharge workmen pending adjudication the dispute in which
the employer or the workmen:' are concerned, the Tribunal is
bound to enter upon a full investigation and ascertain
whether the employer had acted mala fide or that the order
of discharge amounted to an unfair labour practice or that
it was a case of victimisation, the Court in making an
enquiry where the order of termination of employment of a
temporary public servant was merely one in enforcement of a
contractual right or An' attempt to dismiss an employee
because of misconduct..-' negligence or inefficiency, is
also obliged to enter, upon a critical investigation of the
reasons which induced the authority to make the impugned
order.' Counsel invited our attention to the decision of
this' Court in The Chartered Bank, Bombay v. The Chartered
Bank Employees' Union (1) and The Management of Chandramalai
Estate, Ernakulam v. Its Workmen(2) and submitted that the
considerations which were material in deciding an
application under s. 33 of' the Industrial Disputes Act were
also relevant in adjuring the true nature of the order
terminating employment of a public servant. In considering
an application under s. 33 of the Industrial Disputes Act
the Tribunal has, it is true, "to go into all the
circumstances which led to the termination simpliciter and
the employer cannot be permitted to say, that he is not
bound to disclose the circumstances' before the Tribunal.
The form of the order is not conclusive of the true nature
of the order: for it is possible that the form may be merely
a camouflage for an order of dismissal for misconduct. It
is therefore always open to the tribunal to go behind the
form and look at the substance; and if it comes to the
conclusion, for example, that though in form the order
amounts to termination simpliciter it in reality cloaks a
dismissal for misconduct it will be open to it to set it
aside as a colorable exercise of the power". But in our
view the principle of these'
(1) [1960] 3 C. S. R, 441.
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