M.R. Fernandes vs Air India Ltd. And Anr.
2004 Latest Caselaw 11 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

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 Section 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 1lth 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 Clause (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. 1986 Lab. I.C. 1312 : (1986) II L.L.J. 133 in support of the contention of the petitioner that the Clause (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 Clause (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 Clause (v) of the contract. It was further contended on behalf of the respondents that, in order to justify the order under Section 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 Section 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 Clause (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.

4. It is also a matter of record that the petitioner has not produced any material to establish that the termination was for the alleged misconduct. It is undisputed fact that the order of termination did not disclose any such ground of misconduct being the cause for termination of the service of the petitioner. Simultaneously, Clause (v) of the contract permits the respondent to take necessary action of termination of contract by issuing one month's notice. It is also not in dispute that the termination was by issuing one month's notice.

5. The Apex Court in Central Inland Water Transport Corporation's case (supra), has held that the officers of the Company had no real choice when it had accepted the job with the said Corporation but to accept the terms set out in the contract, and therefore, the clause providing termination of service of the officers by giving three months' notice was struck down. It was not the case of the petitioner before the Tribunal that there was any such situation prevailing at the time when the petitioner had accepted the service and while agreeing to Clause (v) of the contract, that the terms of the contract were accepted, as having no choice to the petitioner. Whether such situation prevailed at the time of execution of the agreement or not has to be established by the party making grievance in that regard by pleading necessary facts in that respect and producing the proof in support thereof. Undisputedly, the complaint nowhere discloses any such pleading nor any material in that regard was placed before the Tribunal in the course of hearing. Therefore, the Tribunal also had no occasion to deal with the said issue, and in fact, the Tribunal has made clear observation in that regard in the impugned award, wherein, it has been observed that "the Clause (v) has not been challenged before this Tribunal for violation of any provisions of this Act, empowering this Tribunal to declare that such a contract could not have been made." In the facts and circumstances of the case, therefore, merely by placing reliance in the decision of the Apex Court in Central Inland Water Transport Corporation's case (supra), no fault can be found with the said finding.

6. The Apex Court in Food Corporation of India. Workers' Union's case (supra), after considering the order of the Tribunal, which was impugned before the Apex Court, has held that the Tribunal had wholly misconceived the nature of the orders passed by the Apex Court in Food Corporation of India Workers' Union's case (supra) , and Civil Appeal No. 155 of 1990 and in conducting a fresh appraisal as to whether all or any of the 464 workmen included in the list were in the employment of the Corporation at the relevant time, and the approach of Tribunal even in the matter of marshalling or considering the material placed before it, was wrong for the reasons that the Tribunal was apparently of the view that there ought to have been evidence to prove the facts, as per the provisions of the Evidence Act. It was ruled by the Apex Court that the Tribunal is not a Court, and there should be only material and not evidence as required by the Evidence Act for the purpose of consideration by the Tribunal in such proceedings. Relying upon the said ruling, it was sought to be contended that, once the petitioner has pleaded in the complaint that the action of termination was on account of the refusal to operate the flight and that by itself would disclose the action being for misconduct on the part of the petitioner and no other reasons having been assigned by the respondents for termination of the service, it should have been considered as sufficient material to hold that the action on the part of the respondents to be on account of the alleged misconduct on the part of the petitioner and hence the findings of the Tribunal that there is no evidence on record and the burden has not been discharged by the petitioner are perverse.

7. As observed above, the application was essentially under Section 33(2)(b) of the said Act, It was primarily necessary for the petitioner to establish that the action was for misconduct, A mere statement in the complaint cannot be considered as sufficient material regarding the alleged illegal action on the part of the respondents. It was also contended that apart from the pleadings, there were documents in the form of letters dated 18th March, 2003 and 21st April, 2003 which were addressed by the petitioner to the Managing Director which disclose the case of the petitioner, and it was necessary for the Tribunal to consider the same. Perusal of the impugned order discloses that the Tribunal has not only referred to the complaint but has also referred to other materials on record. Undoubtedly, the Tribunal has also observed that the petitioner has not produced any evidence as such, on record. Mere observation in that regard by the Tribunal cannot be construed to mean that the Tribunal has discarded the order material on record while arriving at the findings about the absence of proof in support of the contention of the petitioner in his complaint. The complaint by itself can never be said to be a proof in support of the grievance of the complainant. The allegations in the complaint are necessarily to be established by sufficient material to be placed on record by the complainant. The Tribunal has not refused to refer any material on record, but, on the contrary, has observed that the materials placed by the complainant are not sufficient for proving the order to be mala fide. In other words, though there has been no elaborate discussion about the materials, the Tribunal has not refused to consider the materials on record. Besides, the Tribunal has also referred to the order of termination and has arrived at the conclusion that it nowhere discloses any intention on the part of the employer to punish the petitioner while terminating the service. Taking into consideration the said analysis of the materials on record, it cannot be said that the Tribunal has insisted for any evidence in terms of the Evidence Act. On the contrary, the Tribunal has held that the materials placed on record are not sufficient to warrant a conclusion about the action on the part of the respondents being on account of misconduct on the part of the petitioner. Viewed from this angle, the decision of the Apex Court in Food Corporation of India Workers' Union's case (supra) is of no help to the petitioner.

8. The Apex Court in Gopal Krishnaji Ketkar's case (supra) has held that "even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue." In other words, even if the party on whom the burden of proof lies fails to discharge the said burden, the Court can draw adverse inference if the opposite party in possession of an important document which can throw light on the matter in issue is with held by such party. In the case in hand, the issue was as to whether the action of termination of the service of the petitioner was on account of misconduct on his part. The petitioner has not been able to point out any document which can be said to have been withheld by the respondents which can disclose that the action of termination of the service of the petitioner was on account of misconduct on his part. It has also not pointed out any fact having been suppressed by the respondents which can disclose the action to be on account of the alleged misconduct on the part of the petitioner. Being so, the said ruling of the Apex Court in Gopal Krishnaji Ketkar's case (supra) is also of no help to the petitioner.

9. It is pertinent to note that the impugned award was a common award passed in the case of complaint by the petitioner as well as by one M.R. Wadia. The said M.R. Wadia had also challenged the said common award in Writ Petition No. 2578 of 2003 and the same was dismissed by the learned Single Judge of this Court by his order dated 9th December, 2003. While dismissing the said writ petition, it was observed that "It is not disputed before me that before the application under Section 33(2)(b) is entertained, it will be necessary to prove that the termination was for any misconduct. It is also an admitted position that if the termination is one simpliciter then the provisions of Section 33(2)(b) would not apply and consequently the application under Section 33-A must fail.... In the present case, the petitioner had full opportunity of at least discharging the initial burden by stepping Into the witness box. He has not done so. The only document which he has produced is a Newspaper cutting which appears in the paper, 7 days after his termination.... The respondent had not led any evidence. In the circumstances, there was infact no material before the Tribunal and thus no fault can be found with the order of the Tribunal." The contentions sought to be raised by the Petitioner against the impugned award are in no way different from those which were raised by M.R. Wadia, except that the materials which were sought to be relied upon were in the form of letters by the petitioner instead of a newspaper cutting. As already observed above, the Tribunal, on consideration of all such materials, has arrived at the findings and those findings cannot be said either to be perverse or not borne out from the record. There is no substance in the contention of the petitioner that the action on the part of the respondents was on account of the alleged misconduct on the part, of the petitioner. In fact, it is a case of simpliciter termination of service, and it was in consonance with the Clause (v) of the contract between the parties.

10. In the circumstances, therefore, there is no ease made out for intereference by this Court in writ jurisdiction in the impugned award. The petition fails and is accordingly dismissed with no order as to costs. Rule is discharged.

11. Certified copy be expedited.