Dismissal of a Workmen or
Termination of an Employee
1.
Mohan
Singh vs Jaipur Metals And Electricals [1997 (75) FLR 771, (1996) IILLJ 551 Raj]
Refusal by a
driver to work on weekly off days, on emergent duty will justify dismissal.
2.
Workmen
Of Messrs Firestone Tyre vs Management & Others [1973 AIR 1227, 1973 SCR
(3) 587]
The
International Labour Organisation, in its recommendation concerning termination
of. employment at the initiative of the employer adopted in June 1963, has
recommended that a worker aggrieved by the termination of his employment should
be entitled, to appeal against the termination among others, to a neutral body
such as an arbitrator, a court, an arbitration committee or a similar body and
that the neutral body concerned should be empowered to examine the reasons
given in the termination of employment and the other circumstances relating to
the case, and to render a decision on the justification of the termination.
It is now
obligatory on an employer to hold a proper domestic enquiry in which all
material evidence will have to be adduced. When a dispute is referred for adjudication
and it is found that the domestic enquiry conducted by the management is defective,
or if it is found that no domestic enquiry at all had been conducted, the order
of discharge or termination passed by the employer becomes, without anything
more, Unjustified and the Labour Tribunals have no option but to direct the
reinstatement of the workmen concerned, as his discharge or dismissal is
illegal.
Even in cases
where a domestic enquiry has been held and finding of misconduct recorded, the
Labour Tribunals have now full power and jurisdiction to reappraise the
evidence and to satisfy themselves whether the evidence, justifies the finding
of misconduct. Even if the enquiry proceedings are held to be proper and the
finding of misconduct is also accepted, the Tribunal has now power to consider
whether the punishment of dismissal or discharge was necessary for the, type of
misconduct of which the workman is found guilty. In such circumstances, the
Tribunal can also give any other relief to the workman, including the imposing
of a lesser punishment. In cases where an employer had not conducted any
enquiry or when the enquiry conducted by him is held to 'be defective, the
employer will not be given any opportunity to adduce evidence before the Labour
Tribunal for justifying his action.
3.
The
Workmen of Firestone Tyre and Rubber Co. of India Private Limited v. The
Management [1973-I-LLJ-278]
The right to
take disciplinary action and to decide upon the quantum of punishment are
mainly managerial functions, but if a dispute is referred to a Tribunal the
latter has power to see if action of the employer is justified.
Before
imposing the punishment an employer is expected to conduct a proper en-quiry in
accordance with the provisions of the Standing Orders, if applicable, and
principles of natural justice. The enquiry should not be an empty formality.
When a proper
enquiry has been held by an employer, and the finding of misconduct is
plausible conclusion flowing from the evidence, adduced at the said enquiry,
the Tribunal has no jurisdiction to sit in judgment over the decision of the
employer as an appellate body. The interference with the decision of the
employer will be justified only when the findings arrived at in the enquiry are
perverse and the management is guilty of vicitmisation, unfair labour practice
or mala fide.
Even if no
enquiry has been held by an employer or if the enquiry held by him is found to
be detective, the Tribunal in order to satisfy itself about the legality and
validity of the order, had to give an opportunity to the employer and employee
to adduce evidence before it. It is open to the employer to adduce evidence for
the first time justifying his action, and it is open to the employee to adduce
evidence contra.
The effect of
an employer not holding an enquiry is that the Tribunal would not have to
consider only whether there was a prima facie case. On the other hand, the
issue about the merits of the impugned order of dismissal or discharge is at
large before the Tribunal and the latter, on the evidence adduced before it,
has to decide for itself whether the misconduct alleged is proved. In such
cases, the point about the exercise of managerial functions does not arise at
all. A case of defective enquiry stands on the same footing as no enquiry.
The Tribunal
gets jurisdiction to consider the evidence placed before it for the first time
in justification of the action taken only, if no enquiry has been held or after
the enquiry conducted by an employer is found to be defective.
It has never
been recognised that the Tribunal should straightaway without anything more,
direct, reinstatement of the dismissed or discharged employee, once it is found
that no domestic enquiry has been held or the said enquiry is found to be
defective.
It has never
been recognised that the Tribunal should straightaway without anything more,
direct, reinstatement of the dismissed or discharged employee, once it is found
that no domestic enquiry has been held or the said enquiry is found to be
defective.
Once the
misconduct is proved either in the enquiry conducted by an employer or by the
evidence placed before a Tribunal for the first time, punishment imposed cannot
be interfered with by the Tribunal except in cases where the punishment is so
harsh as to suggest victimisation.
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