The Hon’ble Apex Court in re: S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424, has held that the subjective satisfaction must be based on adverse material of the incumbent. It was held as under:
“In Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, a bench of three Judges of the Hon’ble Apex Court was to consider whether uncommunicated adverse remarks would be conisered to order compulsory retirement. The Court considering the scope of Fundamental Rule 56(j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a Government Servant compulsorily though the order is passed on the subjective satisfaction of the Government, the Government or the Review Committee shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to record of and performance during the later years. The record so considered would naturally include the entries in the confidential records, character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it, uncommunicated adverse remarks were taken into consideration. Further, this does not mean that judicial scrutiny is excluded altogether. Though the court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order if mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, in short, if it is found to be a perverse order, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions.” Mukhtar Ahmad v. State of U.P., 2018 (3) ESC 1432.
In Nand Ram v. Garware Polyster Ltd., (2016) 149 FLR 306, it was held that where the management at Aurangabad first took a decision to transfer the workman from Aurangabad to Pondicherry and then to close the unit at Pondicherry. It was then held that while industrial dispute of termination from service could validly be raised at Pondicherry, however, in such a case, it does not mean that the adjudication proceedings initiated at Aurangabad, where the management took a decision to close the Pondicherry unit, were without jurisdiction.
In matters of industrial dispute, the principle of part cause of action does apply and there is no rule, that only if the two or more States will be competent to make a reference. It will depend on the facts of each case. Also, it may have to be borne in mind, how much or which part of the cause of action arose inside the State where a reference happens to be made. Also, in case of two references arising in two different States, involving the same set of facts or cause of action, different tests may have to be evolved to see which of the two references arose first or which of the reference is more comprehensive or which may require to be decided first or which would suite the parties. Veritaz Health Care Ltd. v. State of U.P.¸ 2017 (3) AWC 3051.
When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination. As held by the Hon’ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others, (2013) 10 SCC 324, ‘reinstatement’ would mean putting the workman back to the stage when he was terminated. On such reinstatement, the punishment of removal gets substituted by the punishment of withholding of three annual increments for three years with cumulative effect.
As per shorter Oxford English Dictionary, Vol. 2, 3rd Edition, the word reinstate means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in a former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state.
As per Black’s Law Dictionary, 6th Edition, “reinstatement” means: “The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer”. B.S. Raju v. A.P.S.R.T.C., 2017 (152) FLR 832.
Words “reasonably practicable” does not mean “impracticable”. Practicable means “capable of being put into practice, carried out in action, effected, accomplished, or done, feasible”. Whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b) of Article 311(2), proviso. It should be looked into point of view, by an ordinary concerned, as he would have thought or opined and take a reasonable view of prevailing situations. The reasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority who is competent to do so at present and available on the spot knowing each and every aspect of the facts and circumstances necessary for knowing whether an enquiry is reasonably practicable or not. A disciplinary authority however is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry since the case of Department is weak or must fail if conducted. The statutory provisions also require the disciplinary authority to record its reasons for arriving at the satisfaction that the enquiry is not reasonably practicable. Ram Gopal v. Union of India, 2017 (152) FLR 822.
The three necessary ingredients for the application of Section 17-B of the Industrial Disputes Act, 1947 are (i) the Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court; and (iii) the workman should not have been employed in any establishment during such period.
It is apparent that Section 17-B of the Industrial Disputes Act was introduced for the purposes of mitigating hardship faced by the workman who had been reinstated but the reinstatement had been delayed on account of the contest laid by the employer before the High Court or the Supreme Court. It is also clear that Section 17-B of the Act, 1947 proposed to provide “payment of wages last drawn”. The object of introducing Section 17-B of the Act appears to ensure that a workman, in whose favour an award for reinstatement has been passed, is at least paid his last drawn wages. The purpose of introducing Section 17-B of the Act appears to be not to provide for a punitive measure or a disincentive for the employers to challenge the award passed by the Labour Court, but to mitigate the hardship faced by the workman on account of delays occasioned because of pendency of litigation before the High Courts and the Supreme Court. The Parliament in its wisdom, obviously thought it fit that the workman having succeeded in obtaining an award of reinstatement ought to be paid at least last wages that were drawn by him. It is also made a condition that for purposes of obtaining wages under Section 17-B of the Act, the employee should not be gainfully employed elsewhere. This object appears to be not to discourage an employer from assailing the award but to ensure that the workman who has prevailed before the Labour Court does not suffer for want of subsistence allowance for his sustenance. Management Committee v. Presiding Officer, 2016 (150) FLR 518.
The term “industrial dispute” connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression “dispute or difference” as used in the definition given under section 2(k) of the Industrial Disputes Act, 1947, therefore, means a controversy fairly definite and of real substance, connected with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.
To understand the meaning of the word “dispute”, it would be appropriate to start with the grammatical or dictionary meaning of the term:
“Dispute.—to argue about, to contend for, to oppose by argument, to call in question—to argue or debate (with, about or over)—a contest with words; an argument; a debate; a quarrel;”
Black’s Law Dictionary, 5th Edition, P. 424 defines “dispute” as under:
“Dispute.—A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined and in relation to which jurors are called and witness examined.”
Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Henc an “industrial dispute” cannot be said to exist until and unless the demand is made by the workman and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant. Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1.