MAHENDRA SINGH DHANTWAL versus HINDUSTAN MOTORS LTD. & ORS.

Citation: [1976] SUPP. 1 S.C.R. 635 · Decided: 07-05-1976 · Supreme Court of India · Bench: HANS RAJ KHANNA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

635 
MAHENDRA SINGH DHANTW AL 
A 
" .. 
HINDUSTAN MOTORS LTD. & ORS. 
May 7, 1976 
[H. R. KHANNA, V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.] 
B 
Industrial Disputes Act, 1947-Ss. 33(2)(b) and 33A-Scope of . 
. Misconduct not n1entioned in Standing Orders-Standing Ordr!rs, if rxfiaustive 
of ,;II kinds of 111isconduct. 
Co11stit11tio11 of India, Art. 226-Scope of jurisdiction in industrial disputes. 
The respondent terminated the appellant's services on the ground -of habitual 
C 
absence which is a misconduct under the company's standing orders. Although 
tbe1e was a dispute pending before the Tribunal, the respondent did not make 
an application under s. 33 (2) (b) of the Industrial Disputes Act for its approval. 
On -an application by the appellant under s. 33A of the Act, the Tribunal ordered 
his reinstatement. A few months after the appellant rejoined duty the respon-
dent terminated hi~ services purporting to act under the agreemept of service 
with him. 
On a complaint by the appellant under s. 33A, the Tribunal ordered 
his reinstatement. 
A single Judge of the High Court dismissed the writ petition 
of the respondent holding that the di•charge was nothing but dismissal for mi•-
D' 
conduct. On appeal, the Division Bench held that since the employer invoked 
thtr terms of the agreement, it was not a case of discharge for misconduct and 
:as such the Tribunal had no jurisdiction to entertain 
the 
complaint under 
'· 3JA. 
1;,,. 
Allo\ving the appeal, 
I 
• 
, 
• 
HELD : The Tribunal has not committed any error of law or of jurisdictio• 
E 
in entertaining the application under s. 33A and the Single Judge was right it\ 
not interferini;i; with the award under Article 226 of the Constitution and the 
Divi'.'lion Bench V.',ilS · wronf! in d.oing so. 
[641H; 641E] 
\a) The Tribunal bas found as a fact that the termination was on account 
of misconduct of the employee. It is, therefore, difficult to hold that there wa~ 
any manifest error of law committed by the Tribunal in reaching that conclusion 
only because the misconduct, as found, was nOt within the four corners of the 
various misconducts mentioned in the standing orders. [64 lH] 
F 
(b) Standing orders only describe certain cases of misconduct and they canttot 
he exhaustive of all the species of misconduct. Even though a given conduct 
may not come within the SJ'etific terms of misconduct described in the standing 
orders. it may still be a mise-0nduct in the special facts of a case, which it may 
not be possible to condone and for which the employer may tale appropriate 
action. [641FJ 
(c) Termination sin1pliciter under the conditions of service or under the 
standin$; orders is outc;ide the scope of s. 33 of the Act. This does not mean 
that the employer has the last word about the termination of service of an 
employee. It is also not a correct proposition of law that in case of a complaint 
under s. 33A, the Tribunal would be debarred from going into the question 
\vhether notwithstandin~ the form of the· order. in substance, it is an action of 
dismissal for misconduct and not termination si111pUciter. 
[642-A-Il] 
Manar:t>n1ent of MurRan Mills Ltcl. 
v. 
Industrial Tribunal, Madrcu and 
Another [1965] 2 SCR 148, held inapplicable. 
Air India Corporation, Bombay v. V. A. Rebtllow & Anr. [1972] 3 S.C.R. 
6tll, referred to. 
G 
H 
636 
SUPREME COURT REPORTS [1976] SUPPLEMENTARY 
A 
Shyanzala Studios v. Kannu Devar (S.S.) and Others, [1966] 2 LLJ 428 and 
D 
E 
Sri Raina Machinery Corporation (P) Lilnited, Madras v. Murtlii (1V.J?.) and 
Others, [1966] 2 LLJ 899, partly approved. 
(d) Section 33(2) (b) makes it obligatory upon the employer to make an 
npplication to the Tribunal under the proviso when he discharges or di)n1isses 
1he workman for misconduct. From the provisions of s. 33, it is manife-st that 
punitive action of the employer in whatever form it n1ay be pas:;.ed. is permis-
sible ·against an ordinary workman as distinguished from a protected \vorkman 
even during the pendency of proceedings before the Tribunal provided that the 
employer pays one month's \vages and also applies to the concerned Tribunal 
for approval of his action. 
Since the action is pullitivc, namely, dismjssal or 
discharge for misconduct, the l'ribunal has to oversee the action to guarantee 
that no unfair labour practice or \-ictimisation h<ls been practised. 
If the proce~ 
dure of fair hearing has been observed, the Tribun:il has to find in <lll <ipplica-
tion un

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