PETITIONER:
HINDUSTAN STEELS LTD., ROURKELA
Vs.
RESPONDENT:
A. K. ROY & ORS.
DATE OF JUDGMENT:
18/12/1969
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
VAIDYIALINGAM, C.A.
CITATION:
1970 AIR 1401 1970 SCR (3) 343
1969 SCC (3) 513
CITATOR INFO :
R 1971 SC2171 (3,4,6)
RF 1972 SC1975 (15)
RF 1973 SC2650 (13)
RF 1978 SC1428 (18)
R 1981 SC1253 (17)
F 1983 SC 454 (15)
R 1985 SC 617 (3)
D 1985 SC1128 (9)
R 1990 SC1054 (21)
ACT:
Industrial Tribunal -Discretion-Termination of service for
reasons of security-Tribunal ordering reinstatement-Duty of
Tribunal to exercise discretion properly-Constitution of
India Article 226-High Court’s duty to interfere in cases of
improper exercise of discretion.
HEADNOTE:
The first respondent was appointed in 1958 as a skilled
workman by the appellant Company. He had executed a bond to
serve the Company for five years in consideration of the
Company having borne.the expenses of his training. In
accordance with the practice of the Company a verification
report about him was called for as was done in the case of
other workmen also. On a report from the Police the
Security Officer recommended that it was not desirable to
retain the respondent in the company’s service any longer.
The respondent at the time was working as a fitter in the
blast furnace of the works. In December 1960 he was served
with an order by which his service was terminated. The
Industrial Tribunal, on a reference of the dispute, rejected
the Union’s allegation as to victimisation or unfair labour
practice. Nevertheless it held that it was improper on the
part of the Company not to have disclosed the report to the
respondent, that the order of termination was in fact
punitive in nature and considering the action taken as
disproportionate the order was illegal and unjustified. The
Tribunal therefore directed reinstatement with full back
wages. On a petition for a Writ of Certiorari the High
Court upheld the Tribunal’s order. It also held that the
case was not one of those exceptions to the general rule of
reinstatement and the Tribunal having exercised its
discretion it could not interfere with the Tribunal’s order.
The appeal to this Court was limited only to the question
whether the relief to the first respondent should have been
reinstatement or compensation.
HELD : (1) In the circumstances of the case the Tribunal was
not justified in directing reinstatement and the High Court
erred in refusing to interfere with the order of the
Tribunal merely on the ground that it could not do so as it
was a case where the Tribunal had exercised its Discretion.
The Tribunal has the discretion to award compensation
instead of reinstatement if the circumstances of a
Particular case are unusual or exceptional so as to make
reinstatement inexpedient or improper. The Tribunal has to
exercise its discretion judicially and in accordance with
the well recognised principles in that regard and has to
examine carefully the circumstances of each case and decide
whether such a case is one of those exceptions to the
general rule. If the Tribunal were to exercise down by this
Court it would be a case either of no exercise of discretion
or of one not legally exercised. In either case the High
Court in exercise of its jurisdiction can interfere and
cannot be content by simply saying, that since the Tribunal
has exercised its discretion, it will not examine the
circumstances of the case to ascertain whether or not such
exercise
344
was properly and in accordance with settled principles made.
If the High Court were to do so, it would be a refusal on
its part to exercise jurisdiction. [351 B-E]
In the present case the termination of service was not on
account of victimisation or unfair labour practice. It is
clear that the Company terminated the service of the workman
only because it felt that it was not desirable for reason of
security to continue the workman in its service. Therefore
what was relevant at the stage when the Tribunal came to
decide what relief the workman was entitled to was the
question whether the management genuinely apprehended as a
result of the report that it would be risky to retain the
workman in the company’s service. If, on an examination, of
the circumstances of the case the Tribunal came to the
conclusion that the apprehensions of the employer were
genuine and the employer truly felt that it was hazardous or
prejudicial to the interests of the industry to retain the
workman in his service on grounds of security the case would
be properly one where , compensation would meet the ends of
justice. The present case is one such. The Tribunal
exercised its discretion mechanically without weighing, the
circumstances of the case and the refusal by the High Court
to interfere was equally mechanical and amounted to refusal
to exercise jurisdiction. [351 F; 352 A-GI
Western India' Automobile Association v. Industrial Tribunal
[1949] F.C.R. 321, 348; United Commercial Bank Ltd. v. U.P.
Bank Employees Union, [19521 2 L.L.J. 577; Punjab National
Bank Ltd. v. Workmen, [1959] 2 L.L.J. 669; Assam Oil Co.
Ltd. v. Workmen, [1960] 3 S.C.R. 457; Working of Charottar
Gramodhar Sahakari Mandali Ltd. v. Charottar Gramodhar
Sahakari Mandali Ltd., C.A. 382 of 1966, dec. on August 14,
1967; Deomur Dulung Tea Estate v. Workmen, C.A. 516 of 1966,
dec. on October 26, 1967; and Ruby General Insurance Co.
Ltd. v. P.P. Chopra, C.A. 1735 of 1969, dec. on September
12, 1969, -referred to.
(ii)In the circumstances of the case it would be proper for
this Court to determine the amount of compensation.
Compensation for a period of two years at the rate of Rs.
160 per month, that being the last salary drawn by the
concerned workman would meet the ends of justice. [353 DI
Assam Oil Co. Ltd. v. Workmen, [19601 3 S.C.R. 457 and Utkal
Machinery Ltd. v. Workmen, [1966] 2 S.C.R. 434, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2127 of 1969.
Appeal by special leave from the judgment and order dated
January 27, 1969 of the Orissa High Court in O.J.C. No. 280
of 1965.
H.R. Gokhale, Govind Das and G. S. Chatterjee, for the
appellant.
R.K. Garg, S. C. Agarwala, and Sumitra Chakravarty for
respondent No. 1.
The Judgment of the Court was delivered by
Shelat, J. Respondent 1 was, in 1955, admitted as a trade
apprentice by the appellant-company in’ its works, the
company
345
agreeing to bear the cost of his training as such
apprentice, which it did for a period of 3 years. On
completion of his training, he was appointed in September
1958 as a skilled workman, i.e., as a fitter. The letter of
appointment under which he was engaged contained a clause
which required him to execute a bond to serve the company
for five years at least. The object of that clause
evidently was to ensure that he served the company at least
for five years in consideration of the company having borne
the expenses.of his training.
The evidence produced before the Industrial Tribunal shows
that the practice of the company, set up at the instance of
the Government of India and the Company’s Board of
Directors, was to have a confidential inquiry made to verify
the antecedents of its employees. ‘Such verification not
being practicable at the time of the appointment of each
employee, it used to be done after a workman was appointed.
The object of such verification was to ascertain whether it
was desirable or not in the interests of the company to
continue the service of the employee in respect of whom such
verification was made. The inquiry was made through the
police. On receipt of a verification report from the
police, the Senior Security Officer of the company would
make his recommendation and the company would terminate the
service of an employee where it was considered desirable in
the company’s interests not to continue such an employee in
service after giving 3 months’ notice or salary for that
period in lieu thereof.
Throughout the period of his service commencing from Sep-
tember’ 1958 no action was ever taken against respondent 1
although he had at one time joined a strike in the company’;
works and although he was an active member and the secretary
of the workmen’s union. A criminal case in relation to the
said strike was filed against him but had been subsequently
withdrawn. Prima facie, the fact that no action was taken
against him indicated that the company did not consider his
active participation in the union activities objectionable
so as to warrant any interference on its part.
In accordance with the practice of the company, however, a
verification report about him was called for as was done in
the case of other workmen also. On such a report from the
police, the Senior Security Officer recommended that it was
not desirable to retain him in the company’s service any
longer. Respondent I at the time was working as a fitter in
the blast furnace of the works. On December 9, 1960 he was
served with an order by which his service was terminated and
was informed that he would be entitled to 3 months’ pay in
lieu of a notice for that period.
346
On the union of which, as -aforesaid, he was the secretary,
having raised a dispute, alleging that the termination of
his service was the result of victimisation and unfair
labour practice,, the dispute was referred by the Government
of Orissa to the Industrial Tribunal. After inquairy, the
Tribunal rejected the union’s allegation as to victimisation
or unfair labour practice on account of any union
-activities carried -on by respondent 1. Nevertheless, the
Tribunal held that it was improper on the part of the
company not to have disclosed the said report to respondent
1 and not to have given him an opportunity to contest its
contents and vindicate himself. The Tribunal held that
though the said order was in form one of termination of
service, it was in fact punitive in nature and considering
the action taken against respondent I as disproportionate
further held that it was a case of victimisation, that
consequently the, order was illegal and unjustified and
directed reinstatement with full ‘back wages.
The company filed a writ petition in the High Court for
quashing the said order. Before the High Court the company
urged (a) that the termination of the service of respondent
1 was in bona fide exercise of the employer’s right to do
so, (b) that it did so only because of the said adverse
report and (c) that even if it was held that the said order
was not legal or justified, the proper relief to be granted
to the respondent in the circumstances of. the case was
compensation and not reinstatement, which meant imposition
of a workman against whom there was an adverse report and
whom the company did not consider it desirable to retain in
its service. The High Court rejected these contentions and
held that the Tribunal was right in holding that the
termination of service of respondent I was not in bona fide
exercise of the power of the employer to terminate an
employee’s service, that it was punitive in character and
was, therefore, not legal or justified. The High Court also
held that ordinarily the relief against an illegal termina-
tion of service was reinstatement though in some cases it
may be considered inexpedient to do so, in which event a
suitable compensation would be the proper relief. Lastly,
it held that the present case was not one of those
exceptions to the general rule of reinstatement and the
Tribunal having exercised its discretion it could not
interfere with the Tribunal’s order.
The company thereupon applied for special leave from this
Court. Though it was granted, it was limited only to the
question whether the relief to respondent I should have been
reinstatement or compensation. It is, therefore, not
possible for us to go into the question whether the Tribunal
and the High Court were right in their conclusion that the
termination of the service of respondent I was not in bona
fide exercise of the company’s right to order discharge
simpliciter or whether the order was punitive in
347
nature and therefore was not legal in the absence of any
domestic inquiry having been held. Besides, this appeal is
one against the High Court’s order refusing certiorari under
its writ jurisdiction and not a direct appeal under Art. 136
of the Constitution against the Tribunal’s order. These
considerations will have to be kept in mind while we are
considering this appeal.
Counsel for the appellant-company argued that even though he
could not challenge, in view of the limited special leave
granted to the company, the finding that the impugned order
was not termination simpliciter in bona fide exercise of the
employer’s right to terminate the service of -an employee,
he was entitled to agitate the question whether or not the
High Court, on the facts of this case, should have
interfered and ordered compensation in place of
reinstatement, particularly because : (a) the concerned
employee was posted in the blast furnace, -a crucial part of
the company’s works, in respect of which the company could
not hazard any risk, (b) the Tribunal had given a clear and
firm finding against the case that the workman had been
victimised on account of his union activities, and (c) the
Tribunal and the High Court had both set aside the company’s
order only because of their finding that it was punitive in
nature and that the punishment was so disproportionate, that
it amounted to victimisation. The proper order, counsel
submitted,) was to award compensation instead of imposing
the service of an employee whom the company considered risky
to retain in its service. Mr. Garg, on the other hand,
argued that the company’s action involved an important
principle, in that, an employer cannot be allowed to
terminate the services of his employees on police reports
which are not disclosed to the workmen or before the
Tribunal, and therefore, are not open to the workmen to
challenge. Such a course, he argued, would enable an
employer to put an end to the service of a workman not
because he is in fact a danger to the establishment but is
merely a member of a party or an association whose views and
policies such an employer does not like. In such a case, he
submitted, the termination of service would be in violation
of the constitutional right of association of an individual
and would be clearly unjustified, -and therefore, it would
not be a case for departure from the ordinary consequence
flowing from an illegal order of termination of service.
There can be no doubt that the right of an employer to
discharge or dismiss -an employee is no longer absolute as
it- is subjected to severe restrictions. In cases of both
termination of service and dismissal, industrial
adjudication is competent to grant relief, in the former
case on the ground that the exercise of power was mala fide
or colourable and in the latter case if it amounts to
victimisation or unfair labour practice or is in violation
348
of the principles of natural justice or is, otherwise not
legal or justified.’ In such cases, a tribunal can award by
way of relief to the concerned employee either reinstatement
or compensation. In the earlier stages the question whether
one or the other of the two reliefs should be granted was
held to be a matter of discretion for the tribunal. (see
Western India Automobile Association v. Industrial
Tribunal(‘), United Commercial Bank Ltd. v. U.P. Bank
Employees Union(‘). The view then was that to lay down a
general rule of reinstatement being the remedy in such cases
would itself fetter the discretion of the tribunal which has
to act in the interests of industrial harmony . and peace
and that it might well be that in some cases imposition of
the service of a workman on an unwilling employer might not
be conducive to such harmony and peace. Later on, however,
the earlier flexibility appears to have been abandoned -and
it was ruled that although no hard and fast rule could be
laid down and the Tribunal would have to consider each case
on its own merits and attempt to reconcile the conflicting
interests of the employer and the employee, the employee
being entitled to security of service and protection Against
wrongful dismissal, the normal rule in such cases should be
reinstatement. (sea Punjab National Bank Ltd. v. Workmen(‘).
This conclusion was adhered to, in some of the subsequent
decisions. But in the case of Punjab National Bank Ltd.(‘)
itself, as also in other subsequent cases, the rule was
qualified to mean that in unusual or exceptional cases where
it is not expedient to grant the normal relief of rein-
statement, the proper relief would be compensation and that
that would meet the ends of justice. The problem
confronting industrial adjudication is to promote its two
objectives, the security of employment and protection
against wrongful discharge or dismissal on the one hand and
industrial peace and harmony on the other, both leading
ultimately to the goal of maximum possible production.
As exceptions to the general rule of reinstatement, there
have been cases where reinstatement has not been considered
as either desirable or expedient. These were the cases
where there ad en strained relations between the employer
and the employee, where the post held by the aggrieved
employee had been one of trust and confidence-or where
though dismissal or discharge was unsustainable owing to
some infirmity in the impugned order, the employee was found
to have been guilty of an activity subversive of prejudicial
to the interests of the industry. These cases are to be
found in Assam Oil Co. Ltd. v. Workmen (4 ) Workmen of
Charottar Gramodhar Sahakari Mandali Ltd. v. Charottar
Gramo-
(1) [19491 F.C.R. 321, 348.
(2) (19521 2 L.L.J. 577.
(3) [1959] 2 L.L.J. 669.
(4) [1960] 3 S.C.R. 457.
349
dhar Sahakari Mandali Ltd.(‘), Doomur Dulung Tea Estate v.
Workmen (2 ) and Ruby General Insurance.Co. Ltd. v. P. P.
Chopra(3). These are, however, illustrative cases where an
exception was made to the general rule. No hard and fast
rule as to which circumstances would in a given case
constitute, an exception to the general rule can possibly be
laid down as: the Tribunal in each case, keeping the
objectives of industrial adjudication in mind, must in a
spirit of fairness and justice confront the question whether
the circumstances of the case require that an exception
should be made and compensation would meet the ends of
justice.
In the present case the facts are fairly clear. As
aforesaid, the concerned workman Was trained for a period of
3 years at the cost of the company. On completion of his
training the company engaged him as a skilled worker. He
worked as such from September 1958 to December 1960. At the
time of the termination of his service, he was working as a
fitter in the blast furnace, a vital part of the company’s
works, where both efficiency and trust would matter. Even
though he was said to have joined an illegal strike and a
criminal case had been filed against him, no steps, even
departmentally, were taken against him. Prima facie, there-
fore, this was not -a case where, the employer could be said
to be anxious to wantonly or unreasonably terminate his
service. Even though he was an active member and the
secretary of the union, the Tribunal found that the
termination of his service was not due to victimisation or
any unfair labour practice. There can also be no dispute
that the company ordered the termination of his service only
because of the, adverse report of the police against him.
The report was called for ‘by the company in accordance with
its practice of verifying the workman’s antecedents. The
evidence was that such verification was made in the case of
all workmen after they were engaged and that such verifi-
cation was not made before appointing them as it was not
practicable to do so. The practice was adopted at the
instance of the Government and in accordance with the
directions to that effect of the Board of Directors. The
letter of the Deputy Inspector General of Police
communicating the report made on the investigation by the
police was produced but neither the report nor the source of
information on which it was based nor the name of the person
who conducted the investigation was disclosed either to the
workman or the, Tribunal. The ground urged for such non-
disclosure was that the report was confidential and if
disclosed it would not be possible for the company to have
such investigations in future. The reason appears to be
that if the person conduct-
(1) C.A. 382 of 1966, dec. on August 14, 1967.
(2) C.A. 516 of 1966 dec. on October 26, 1967.
(3) C.A. 1735 of 1969,dec. on September 12, 1969.
350
ing such investigation were produced for cross-examination
by the workman or if his report were to be disclosed, the
name or names of the informants would come out with the
result that no informant in future would readily come
forward to give information about other workmen. Even in
criminal cases -an investigating officer is not compelled to
disclose the name of his informant.
But the Tribunal appears to have been impressed by the
company’s refusal to disclose the report although it was
clearly a confidential report. The Tribunal thought that
such a report might have been made by a person who was not a
responsible police officer or that it might be based on mere
rumour or hearsay evidence and might not be of a very
convincing nature. The High Court went one step further and
observed that it might be “as contended by opposite-party
No. I that the report is based entirely on the trade union
activities of the opposite-party in which case the
-discharge would itself be improper.” This observation was
not warranted in view of the Tribunal’s clear finding that
this was not a case of victimisation or unfair labour
practice on account of the union activities of the workman.
The High Court further was of the view that “even if the
Management terminated the services of Sri A. K. Ray, simply
on the ground that it received an adverse report against
him, the order of such termination of services in the
circumstances cannot be treated as legal or justified.” It
also observed that “it was not admitted by the opposite
party that there was any -adverse police report against
him.” But the management had examined P. B. Kanungo, the
Senior Personnel Officer, who had categorically testified
that the management had received such an adverse report -and
on the basis of that report the company’s Security Officer
had recommended the termination of service of the workman,.
There was no cross-examination on this part of his evidence.
The High Court, therefore, was not entitled to proceed on
the basis as if the fact of such adverse report was any
longer in- doubt. Indeed, the grievance was ‘not relating
to the factum of such report, but its non-disclosure and the
Tribunal in consequence not being able to weigh its
veracity. The fact of the Management having received the
police report which was adverse was no more in dispute; nor
the fact that the company’s Security Officer on the strength
of that report had recommended that it was not desirable to
retain the workman in service. The termination of his
service was by no means singular in any way, for, the evid-
ence was that verification of antecedents of all workmen
used to be similarly made and whenever the report was
adverse an order of discharge used to be made.
Since the special leave granted to the company is limited
only to the question of the kind of, relief that the
Tribunal ought to have given, we arenot in a position to go
into the question whether the termination of service was
legal or justified. We have, therefore,
351
to proceed on the footing that the Tribunal’s conclusion
that it was not legal was right.
The question, however, still is whether the Tribunal was, in
the circumstances of the case, justified in directing
reinstatement. It is true that some of the decisions of
this Court have laid down that where the discharge or
dismissal of a workman is not legal or justified, the relief
which would ordinarily follow would be reinstatement. The
Tribunal however, has the discretion to award compensation
instead of reinstatement if the circumstances of a
particular case are unusual or exceptional so as to make
reinstatement inexpedient or improper. The Tribunal has,
therefore, to exercise its discretion Judicially and in
accordance with well recognised principles in that regard
and has to examine carefully the circumstances of each case
and decide whether such a case is one of those exceptions to
the general rule. If the Tribunal were to exercise its
discretion in disregard of such circumstances or the
principles laid down by this Court it would be a case either
of no exercise of discretion or of one riot legally
exercised. In either case the High Court in exercise of its
writ jurisdiction can interfere and cannot be content by
simply saying that since the Tribunal has exercised its
discretion it will not examine the circumstances of the case
to ascertain whether or not such exercise was properly and
in accordance with the well-settled principles made. If the
High Court were to do so, it would be ‘a refusal on its part
to exercise jurisdiction.
In the present case, there could be no dispute that the
company, in accordance with its practice, called for a
verification report about the concerned workman. The report
was made by the police after investigation and on that being
adverse, the company’s security officer recommended to the
company that it was not in the interests of the company to
retain the workman’s services. There can be no doubt that
the company terminated the service of the workman only
because it felt that it was not desirable for reasons of
security, to continue the workman in its service. This is
clear from the fact that it was otherwise not interested in
terminating the workman’s service and had in fact insisted
that the workman should bind himself to serve it at least
for five years. The termination of service was not on
account,of victimisation or unfair labour practice as was
clearly found by the Tribunal. It is, therefore -abundantly
clear that the company passed the impugned order of
termination of service ‘ on account of the said adverse
report, the recommendation of its own security officer and
on being satisfied that it would not be in the company’s
interests to continue him in its service.
The Tribunal no doubt felt that it was not established
-whether the investigation and the report following it were
properly done
352
and made, that the company ought to have disclosed it to the
workman and given him an opportunity to vindicate himself
and that the non-disclosure of the report made the
termination illegal and unjustified. That may or may not be
right. But what was relevant, at the stage when the
Tribunal came to decide what relief the workman was entitled
to,, was the question whether the management genuinely
apprehended as a result of. the report that it would be
risky to retain the workman in the- company’s service. They
may have gone wrong in the manner of terminating the
workman’s service -as held by the Tribunal. But, if the
management truly believed that it was not possible to retain
the workman in the company’s service on grounds of security
and consequently could not place confidence in him any
longer, that present case would be one of those exceptional
cases where the general rule as to reinstatement could not
properly be applied. Thus of courie does not mean that in
every case where the employer says that he has lost
confidence in the workman, and therefore, has terminated his
service that reinstatement cannot be granted and the
Tribunal has to award compensation. On the other hand, it
on an examination of all the circumstances of the case, the
Tribunal comes to the conclusion that the apprehensions of
the employer were genuine and the employer truly felt that
it was hazardous or prejudicial to the interests of the
industry to retain the workman in his service on grounds of
security, the case would be properly one where compensation
would meet the ends of justice.
On a consideration of all the circumstances, the present
case, in our view, was one such case. The Tribunal
exercised its discretion mechanically without weighing the
circumstances of the case. That was no exercise of
discretion -at all. There is ample authority to the effect
that if a statutory tribunal exercises its discretion on the
basis of irrelevant considerations or without regard to
relevant considerations, certiorari may properly issue to
quash its order. [See S.A. de Smith, Judicial Review of
Administrative Action, (2nd ed.) 324-325]. One such
relevant consideration, the disregard of which would render
its order amenable to interference, would be the well-
settled principles laid down in decisions binding on the
tribunal to whom the discretion is entrusted. The refusal
by the High Court to interfere was equally mechanical and
amounted to refusal to exercise, its jurisdiction. Its
order, therefore, becomes liable to interference.
There is, therefore, no difficulty in holding that the order
of reinstatement passed by the Tribunal was liable to be
quashed and that the High Court erred in refusing to
interfere with it merely . on the ground that it could not
do so as it was a case where the Tribunal had exercised its
discretion. The question next is’, having held that the
order of reinstatement was not a proper order, in that,
353
it was not in consonance with the decided cases, do we
simply quash the order of the Tribunal and that of the High
Court and leave the concerned workman to pursue his further
remedy ? The other alternative would be to remand the case
to the, Tribunal to pass a suitable order. In either case,
in view of this judgment, no other order except that of
compensation can be obtained by him. If the case is
remanded and the Tribunal on such remand passes an order of
compensation and fixes the amount, such a course would mean
further proceedings and a I possible appeal. That would
mean prolonging the dispute, which would hardly be fair to
or conducive to the interests of the parties. In these
circumstances we decided that it would be more proper that
we ourselves should determine the amount of compensation
which would meet the ends of justice. Having come to that
conclusion, we heard counsel for both the parties. After
doing so and taking into consideration all the facts -and
circumstances of the present case we have come to the
conclusion in the light also of the decisions of this Court
such as Assam Oil Co. v. Its Workmen(‘), Utkal Machinery
Ltd. v. Workmen(‘) and the recent case of Ruby General
Insurance Co. Ltd. v. P. P. Chopra(3) that compensation’,
for a period of two years at the rate of Rs. 160/- per
month, that being the last salary drawn by the concerned
workman, would meet, the ends of justice.
We accordingly allow the appeal, quash the order of the
Tribunal and the High Court and instead direct the
appellant company to pay to the 1st respondent Rs. 3840 as
and by way of compensation. There will be no order of
costs.
R.K.P.S. Appeal
allowed.
(1) [1960] 3 S.C.R. 457.
(2) [1966] 2 S.C.R. 434.
(3) C.A. 1735 of 1969 decided on September 12, 1969.
354
HINDUSTAN STEELS LTD., ROURKELA
Vs.
RESPONDENT:
A. K. ROY & ORS.
DATE OF JUDGMENT:
18/12/1969
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
VAIDYIALINGAM, C.A.
CITATION:
1970 AIR 1401 1970 SCR (3) 343
1969 SCC (3) 513
CITATOR INFO :
R 1971 SC2171 (3,4,6)
RF 1972 SC1975 (15)
RF 1973 SC2650 (13)
RF 1978 SC1428 (18)
R 1981 SC1253 (17)
F 1983 SC 454 (15)
R 1985 SC 617 (3)
D 1985 SC1128 (9)
R 1990 SC1054 (21)
ACT:
Industrial Tribunal -Discretion-Termination of service for
reasons of security-Tribunal ordering reinstatement-Duty of
Tribunal to exercise discretion properly-Constitution of
India Article 226-High Court’s duty to interfere in cases of
improper exercise of discretion.
HEADNOTE:
The first respondent was appointed in 1958 as a skilled
workman by the appellant Company. He had executed a bond to
serve the Company for five years in consideration of the
Company having borne.the expenses of his training. In
accordance with the practice of the Company a verification
report about him was called for as was done in the case of
other workmen also. On a report from the Police the
Security Officer recommended that it was not desirable to
retain the respondent in the company’s service any longer.
The respondent at the time was working as a fitter in the
blast furnace of the works. In December 1960 he was served
with an order by which his service was terminated. The
Industrial Tribunal, on a reference of the dispute, rejected
the Union’s allegation as to victimisation or unfair labour
practice. Nevertheless it held that it was improper on the
part of the Company not to have disclosed the report to the
respondent, that the order of termination was in fact
punitive in nature and considering the action taken as
disproportionate the order was illegal and unjustified. The
Tribunal therefore directed reinstatement with full back
wages. On a petition for a Writ of Certiorari the High
Court upheld the Tribunal’s order. It also held that the
case was not one of those exceptions to the general rule of
reinstatement and the Tribunal having exercised its
discretion it could not interfere with the Tribunal’s order.
The appeal to this Court was limited only to the question
whether the relief to the first respondent should have been
reinstatement or compensation.
HELD : (1) In the circumstances of the case the Tribunal was
not justified in directing reinstatement and the High Court
erred in refusing to interfere with the order of the
Tribunal merely on the ground that it could not do so as it
was a case where the Tribunal had exercised its Discretion.
The Tribunal has the discretion to award compensation
instead of reinstatement if the circumstances of a
Particular case are unusual or exceptional so as to make
reinstatement inexpedient or improper. The Tribunal has to
exercise its discretion judicially and in accordance with
the well recognised principles in that regard and has to
examine carefully the circumstances of each case and decide
whether such a case is one of those exceptions to the
general rule. If the Tribunal were to exercise down by this
Court it would be a case either of no exercise of discretion
or of one not legally exercised. In either case the High
Court in exercise of its jurisdiction can interfere and
cannot be content by simply saying, that since the Tribunal
has exercised its discretion, it will not examine the
circumstances of the case to ascertain whether or not such
exercise
344
was properly and in accordance with settled principles made.
If the High Court were to do so, it would be a refusal on
its part to exercise jurisdiction. [351 B-E]
In the present case the termination of service was not on
account of victimisation or unfair labour practice. It is
clear that the Company terminated the service of the workman
only because it felt that it was not desirable for reason of
security to continue the workman in its service. Therefore
what was relevant at the stage when the Tribunal came to
decide what relief the workman was entitled to was the
question whether the management genuinely apprehended as a
result of the report that it would be risky to retain the
workman in the company’s service. If, on an examination, of
the circumstances of the case the Tribunal came to the
conclusion that the apprehensions of the employer were
genuine and the employer truly felt that it was hazardous or
prejudicial to the interests of the industry to retain the
workman in his service on grounds of security the case would
be properly one where , compensation would meet the ends of
justice. The present case is one such. The Tribunal
exercised its discretion mechanically without weighing, the
circumstances of the case and the refusal by the High Court
to interfere was equally mechanical and amounted to refusal
to exercise jurisdiction. [351 F; 352 A-GI
Western India' Automobile Association v. Industrial Tribunal
[1949] F.C.R. 321, 348; United Commercial Bank Ltd. v. U.P.
Bank Employees Union, [19521 2 L.L.J. 577; Punjab National
Bank Ltd. v. Workmen, [1959] 2 L.L.J. 669; Assam Oil Co.
Ltd. v. Workmen, [1960] 3 S.C.R. 457; Working of Charottar
Gramodhar Sahakari Mandali Ltd. v. Charottar Gramodhar
Sahakari Mandali Ltd., C.A. 382 of 1966, dec. on August 14,
1967; Deomur Dulung Tea Estate v. Workmen, C.A. 516 of 1966,
dec. on October 26, 1967; and Ruby General Insurance Co.
Ltd. v. P.P. Chopra, C.A. 1735 of 1969, dec. on September
12, 1969, -referred to.
(ii)In the circumstances of the case it would be proper for
this Court to determine the amount of compensation.
Compensation for a period of two years at the rate of Rs.
160 per month, that being the last salary drawn by the
concerned workman would meet the ends of justice. [353 DI
Assam Oil Co. Ltd. v. Workmen, [19601 3 S.C.R. 457 and Utkal
Machinery Ltd. v. Workmen, [1966] 2 S.C.R. 434, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2127 of 1969.
Appeal by special leave from the judgment and order dated
January 27, 1969 of the Orissa High Court in O.J.C. No. 280
of 1965.
H.R. Gokhale, Govind Das and G. S. Chatterjee, for the
appellant.
R.K. Garg, S. C. Agarwala, and Sumitra Chakravarty for
respondent No. 1.
The Judgment of the Court was delivered by
Shelat, J. Respondent 1 was, in 1955, admitted as a trade
apprentice by the appellant-company in’ its works, the
company
345
agreeing to bear the cost of his training as such
apprentice, which it did for a period of 3 years. On
completion of his training, he was appointed in September
1958 as a skilled workman, i.e., as a fitter. The letter of
appointment under which he was engaged contained a clause
which required him to execute a bond to serve the company
for five years at least. The object of that clause
evidently was to ensure that he served the company at least
for five years in consideration of the company having borne
the expenses.of his training.
The evidence produced before the Industrial Tribunal shows
that the practice of the company, set up at the instance of
the Government of India and the Company’s Board of
Directors, was to have a confidential inquiry made to verify
the antecedents of its employees. ‘Such verification not
being practicable at the time of the appointment of each
employee, it used to be done after a workman was appointed.
The object of such verification was to ascertain whether it
was desirable or not in the interests of the company to
continue the service of the employee in respect of whom such
verification was made. The inquiry was made through the
police. On receipt of a verification report from the
police, the Senior Security Officer of the company would
make his recommendation and the company would terminate the
service of an employee where it was considered desirable in
the company’s interests not to continue such an employee in
service after giving 3 months’ notice or salary for that
period in lieu thereof.
Throughout the period of his service commencing from Sep-
tember’ 1958 no action was ever taken against respondent 1
although he had at one time joined a strike in the company’;
works and although he was an active member and the secretary
of the workmen’s union. A criminal case in relation to the
said strike was filed against him but had been subsequently
withdrawn. Prima facie, the fact that no action was taken
against him indicated that the company did not consider his
active participation in the union activities objectionable
so as to warrant any interference on its part.
In accordance with the practice of the company, however, a
verification report about him was called for as was done in
the case of other workmen also. On such a report from the
police, the Senior Security Officer recommended that it was
not desirable to retain him in the company’s service any
longer. Respondent I at the time was working as a fitter in
the blast furnace of the works. On December 9, 1960 he was
served with an order by which his service was terminated and
was informed that he would be entitled to 3 months’ pay in
lieu of a notice for that period.
346
On the union of which, as -aforesaid, he was the secretary,
having raised a dispute, alleging that the termination of
his service was the result of victimisation and unfair
labour practice,, the dispute was referred by the Government
of Orissa to the Industrial Tribunal. After inquairy, the
Tribunal rejected the union’s allegation as to victimisation
or unfair labour practice on account of any union
-activities carried -on by respondent 1. Nevertheless, the
Tribunal held that it was improper on the part of the
company not to have disclosed the said report to respondent
1 and not to have given him an opportunity to contest its
contents and vindicate himself. The Tribunal held that
though the said order was in form one of termination of
service, it was in fact punitive in nature and considering
the action taken against respondent I as disproportionate
further held that it was a case of victimisation, that
consequently the, order was illegal and unjustified and
directed reinstatement with full ‘back wages.
The company filed a writ petition in the High Court for
quashing the said order. Before the High Court the company
urged (a) that the termination of the service of respondent
1 was in bona fide exercise of the employer’s right to do
so, (b) that it did so only because of the said adverse
report and (c) that even if it was held that the said order
was not legal or justified, the proper relief to be granted
to the respondent in the circumstances of. the case was
compensation and not reinstatement, which meant imposition
of a workman against whom there was an adverse report and
whom the company did not consider it desirable to retain in
its service. The High Court rejected these contentions and
held that the Tribunal was right in holding that the
termination of service of respondent I was not in bona fide
exercise of the power of the employer to terminate an
employee’s service, that it was punitive in character and
was, therefore, not legal or justified. The High Court also
held that ordinarily the relief against an illegal termina-
tion of service was reinstatement though in some cases it
may be considered inexpedient to do so, in which event a
suitable compensation would be the proper relief. Lastly,
it held that the present case was not one of those
exceptions to the general rule of reinstatement and the
Tribunal having exercised its discretion it could not
interfere with the Tribunal’s order.
The company thereupon applied for special leave from this
Court. Though it was granted, it was limited only to the
question whether the relief to respondent I should have been
reinstatement or compensation. It is, therefore, not
possible for us to go into the question whether the Tribunal
and the High Court were right in their conclusion that the
termination of the service of respondent I was not in bona
fide exercise of the company’s right to order discharge
simpliciter or whether the order was punitive in
347
nature and therefore was not legal in the absence of any
domestic inquiry having been held. Besides, this appeal is
one against the High Court’s order refusing certiorari under
its writ jurisdiction and not a direct appeal under Art. 136
of the Constitution against the Tribunal’s order. These
considerations will have to be kept in mind while we are
considering this appeal.
Counsel for the appellant-company argued that even though he
could not challenge, in view of the limited special leave
granted to the company, the finding that the impugned order
was not termination simpliciter in bona fide exercise of the
employer’s right to terminate the service of -an employee,
he was entitled to agitate the question whether or not the
High Court, on the facts of this case, should have
interfered and ordered compensation in place of
reinstatement, particularly because : (a) the concerned
employee was posted in the blast furnace, -a crucial part of
the company’s works, in respect of which the company could
not hazard any risk, (b) the Tribunal had given a clear and
firm finding against the case that the workman had been
victimised on account of his union activities, and (c) the
Tribunal and the High Court had both set aside the company’s
order only because of their finding that it was punitive in
nature and that the punishment was so disproportionate, that
it amounted to victimisation. The proper order, counsel
submitted,) was to award compensation instead of imposing
the service of an employee whom the company considered risky
to retain in its service. Mr. Garg, on the other hand,
argued that the company’s action involved an important
principle, in that, an employer cannot be allowed to
terminate the services of his employees on police reports
which are not disclosed to the workmen or before the
Tribunal, and therefore, are not open to the workmen to
challenge. Such a course, he argued, would enable an
employer to put an end to the service of a workman not
because he is in fact a danger to the establishment but is
merely a member of a party or an association whose views and
policies such an employer does not like. In such a case, he
submitted, the termination of service would be in violation
of the constitutional right of association of an individual
and would be clearly unjustified, -and therefore, it would
not be a case for departure from the ordinary consequence
flowing from an illegal order of termination of service.
There can be no doubt that the right of an employer to
discharge or dismiss -an employee is no longer absolute as
it- is subjected to severe restrictions. In cases of both
termination of service and dismissal, industrial
adjudication is competent to grant relief, in the former
case on the ground that the exercise of power was mala fide
or colourable and in the latter case if it amounts to
victimisation or unfair labour practice or is in violation
348
of the principles of natural justice or is, otherwise not
legal or justified.’ In such cases, a tribunal can award by
way of relief to the concerned employee either reinstatement
or compensation. In the earlier stages the question whether
one or the other of the two reliefs should be granted was
held to be a matter of discretion for the tribunal. (see
Western India Automobile Association v. Industrial
Tribunal(‘), United Commercial Bank Ltd. v. U.P. Bank
Employees Union(‘). The view then was that to lay down a
general rule of reinstatement being the remedy in such cases
would itself fetter the discretion of the tribunal which has
to act in the interests of industrial harmony . and peace
and that it might well be that in some cases imposition of
the service of a workman on an unwilling employer might not
be conducive to such harmony and peace. Later on, however,
the earlier flexibility appears to have been abandoned -and
it was ruled that although no hard and fast rule could be
laid down and the Tribunal would have to consider each case
on its own merits and attempt to reconcile the conflicting
interests of the employer and the employee, the employee
being entitled to security of service and protection Against
wrongful dismissal, the normal rule in such cases should be
reinstatement. (sea Punjab National Bank Ltd. v. Workmen(‘).
This conclusion was adhered to, in some of the subsequent
decisions. But in the case of Punjab National Bank Ltd.(‘)
itself, as also in other subsequent cases, the rule was
qualified to mean that in unusual or exceptional cases where
it is not expedient to grant the normal relief of rein-
statement, the proper relief would be compensation and that
that would meet the ends of justice. The problem
confronting industrial adjudication is to promote its two
objectives, the security of employment and protection
against wrongful discharge or dismissal on the one hand and
industrial peace and harmony on the other, both leading
ultimately to the goal of maximum possible production.
As exceptions to the general rule of reinstatement, there
have been cases where reinstatement has not been considered
as either desirable or expedient. These were the cases
where there ad en strained relations between the employer
and the employee, where the post held by the aggrieved
employee had been one of trust and confidence-or where
though dismissal or discharge was unsustainable owing to
some infirmity in the impugned order, the employee was found
to have been guilty of an activity subversive of prejudicial
to the interests of the industry. These cases are to be
found in Assam Oil Co. Ltd. v. Workmen (4 ) Workmen of
Charottar Gramodhar Sahakari Mandali Ltd. v. Charottar
Gramo-
(1) [19491 F.C.R. 321, 348.
(2) (19521 2 L.L.J. 577.
(3) [1959] 2 L.L.J. 669.
(4) [1960] 3 S.C.R. 457.
349
dhar Sahakari Mandali Ltd.(‘), Doomur Dulung Tea Estate v.
Workmen (2 ) and Ruby General Insurance.Co. Ltd. v. P. P.
Chopra(3). These are, however, illustrative cases where an
exception was made to the general rule. No hard and fast
rule as to which circumstances would in a given case
constitute, an exception to the general rule can possibly be
laid down as: the Tribunal in each case, keeping the
objectives of industrial adjudication in mind, must in a
spirit of fairness and justice confront the question whether
the circumstances of the case require that an exception
should be made and compensation would meet the ends of
justice.
In the present case the facts are fairly clear. As
aforesaid, the concerned workman Was trained for a period of
3 years at the cost of the company. On completion of his
training the company engaged him as a skilled worker. He
worked as such from September 1958 to December 1960. At the
time of the termination of his service, he was working as a
fitter in the blast furnace, a vital part of the company’s
works, where both efficiency and trust would matter. Even
though he was said to have joined an illegal strike and a
criminal case had been filed against him, no steps, even
departmentally, were taken against him. Prima facie, there-
fore, this was not -a case where, the employer could be said
to be anxious to wantonly or unreasonably terminate his
service. Even though he was an active member and the
secretary of the union, the Tribunal found that the
termination of his service was not due to victimisation or
any unfair labour practice. There can also be no dispute
that the company ordered the termination of his service only
because of the, adverse report of the police against him.
The report was called for ‘by the company in accordance with
its practice of verifying the workman’s antecedents. The
evidence was that such verification was made in the case of
all workmen after they were engaged and that such verifi-
cation was not made before appointing them as it was not
practicable to do so. The practice was adopted at the
instance of the Government and in accordance with the
directions to that effect of the Board of Directors. The
letter of the Deputy Inspector General of Police
communicating the report made on the investigation by the
police was produced but neither the report nor the source of
information on which it was based nor the name of the person
who conducted the investigation was disclosed either to the
workman or the, Tribunal. The ground urged for such non-
disclosure was that the report was confidential and if
disclosed it would not be possible for the company to have
such investigations in future. The reason appears to be
that if the person conduct-
(1) C.A. 382 of 1966, dec. on August 14, 1967.
(2) C.A. 516 of 1966 dec. on October 26, 1967.
(3) C.A. 1735 of 1969,dec. on September 12, 1969.
350
ing such investigation were produced for cross-examination
by the workman or if his report were to be disclosed, the
name or names of the informants would come out with the
result that no informant in future would readily come
forward to give information about other workmen. Even in
criminal cases -an investigating officer is not compelled to
disclose the name of his informant.
But the Tribunal appears to have been impressed by the
company’s refusal to disclose the report although it was
clearly a confidential report. The Tribunal thought that
such a report might have been made by a person who was not a
responsible police officer or that it might be based on mere
rumour or hearsay evidence and might not be of a very
convincing nature. The High Court went one step further and
observed that it might be “as contended by opposite-party
No. I that the report is based entirely on the trade union
activities of the opposite-party in which case the
-discharge would itself be improper.” This observation was
not warranted in view of the Tribunal’s clear finding that
this was not a case of victimisation or unfair labour
practice on account of the union activities of the workman.
The High Court further was of the view that “even if the
Management terminated the services of Sri A. K. Ray, simply
on the ground that it received an adverse report against
him, the order of such termination of services in the
circumstances cannot be treated as legal or justified.” It
also observed that “it was not admitted by the opposite
party that there was any -adverse police report against
him.” But the management had examined P. B. Kanungo, the
Senior Personnel Officer, who had categorically testified
that the management had received such an adverse report -and
on the basis of that report the company’s Security Officer
had recommended the termination of service of the workman,.
There was no cross-examination on this part of his evidence.
The High Court, therefore, was not entitled to proceed on
the basis as if the fact of such adverse report was any
longer in- doubt. Indeed, the grievance was ‘not relating
to the factum of such report, but its non-disclosure and the
Tribunal in consequence not being able to weigh its
veracity. The fact of the Management having received the
police report which was adverse was no more in dispute; nor
the fact that the company’s Security Officer on the strength
of that report had recommended that it was not desirable to
retain the workman in service. The termination of his
service was by no means singular in any way, for, the evid-
ence was that verification of antecedents of all workmen
used to be similarly made and whenever the report was
adverse an order of discharge used to be made.
Since the special leave granted to the company is limited
only to the question of the kind of, relief that the
Tribunal ought to have given, we arenot in a position to go
into the question whether the termination of service was
legal or justified. We have, therefore,
351
to proceed on the footing that the Tribunal’s conclusion
that it was not legal was right.
The question, however, still is whether the Tribunal was, in
the circumstances of the case, justified in directing
reinstatement. It is true that some of the decisions of
this Court have laid down that where the discharge or
dismissal of a workman is not legal or justified, the relief
which would ordinarily follow would be reinstatement. The
Tribunal however, has the discretion to award compensation
instead of reinstatement if the circumstances of a
particular case are unusual or exceptional so as to make
reinstatement inexpedient or improper. The Tribunal has,
therefore, to exercise its discretion Judicially and in
accordance with well recognised principles in that regard
and has to examine carefully the circumstances of each case
and decide whether such a case is one of those exceptions to
the general rule. If the Tribunal were to exercise its
discretion in disregard of such circumstances or the
principles laid down by this Court it would be a case either
of no exercise of discretion or of one riot legally
exercised. In either case the High Court in exercise of its
writ jurisdiction can interfere and cannot be content by
simply saying that since the Tribunal has exercised its
discretion it will not examine the circumstances of the case
to ascertain whether or not such exercise was properly and
in accordance with the well-settled principles made. If the
High Court were to do so, it would be ‘a refusal on its part
to exercise jurisdiction.
In the present case, there could be no dispute that the
company, in accordance with its practice, called for a
verification report about the concerned workman. The report
was made by the police after investigation and on that being
adverse, the company’s security officer recommended to the
company that it was not in the interests of the company to
retain the workman’s services. There can be no doubt that
the company terminated the service of the workman only
because it felt that it was not desirable for reasons of
security, to continue the workman in its service. This is
clear from the fact that it was otherwise not interested in
terminating the workman’s service and had in fact insisted
that the workman should bind himself to serve it at least
for five years. The termination of service was not on
account,of victimisation or unfair labour practice as was
clearly found by the Tribunal. It is, therefore -abundantly
clear that the company passed the impugned order of
termination of service ‘ on account of the said adverse
report, the recommendation of its own security officer and
on being satisfied that it would not be in the company’s
interests to continue him in its service.
The Tribunal no doubt felt that it was not established
-whether the investigation and the report following it were
properly done
352
and made, that the company ought to have disclosed it to the
workman and given him an opportunity to vindicate himself
and that the non-disclosure of the report made the
termination illegal and unjustified. That may or may not be
right. But what was relevant, at the stage when the
Tribunal came to decide what relief the workman was entitled
to,, was the question whether the management genuinely
apprehended as a result of. the report that it would be
risky to retain the workman in the- company’s service. They
may have gone wrong in the manner of terminating the
workman’s service -as held by the Tribunal. But, if the
management truly believed that it was not possible to retain
the workman in the company’s service on grounds of security
and consequently could not place confidence in him any
longer, that present case would be one of those exceptional
cases where the general rule as to reinstatement could not
properly be applied. Thus of courie does not mean that in
every case where the employer says that he has lost
confidence in the workman, and therefore, has terminated his
service that reinstatement cannot be granted and the
Tribunal has to award compensation. On the other hand, it
on an examination of all the circumstances of the case, the
Tribunal comes to the conclusion that the apprehensions of
the employer were genuine and the employer truly felt that
it was hazardous or prejudicial to the interests of the
industry to retain the workman in his service on grounds of
security, the case would be properly one where compensation
would meet the ends of justice.
On a consideration of all the circumstances, the present
case, in our view, was one such case. The Tribunal
exercised its discretion mechanically without weighing the
circumstances of the case. That was no exercise of
discretion -at all. There is ample authority to the effect
that if a statutory tribunal exercises its discretion on the
basis of irrelevant considerations or without regard to
relevant considerations, certiorari may properly issue to
quash its order. [See S.A. de Smith, Judicial Review of
Administrative Action, (2nd ed.) 324-325]. One such
relevant consideration, the disregard of which would render
its order amenable to interference, would be the well-
settled principles laid down in decisions binding on the
tribunal to whom the discretion is entrusted. The refusal
by the High Court to interfere was equally mechanical and
amounted to refusal to exercise, its jurisdiction. Its
order, therefore, becomes liable to interference.
There is, therefore, no difficulty in holding that the order
of reinstatement passed by the Tribunal was liable to be
quashed and that the High Court erred in refusing to
interfere with it merely . on the ground that it could not
do so as it was a case where the Tribunal had exercised its
discretion. The question next is’, having held that the
order of reinstatement was not a proper order, in that,
353
it was not in consonance with the decided cases, do we
simply quash the order of the Tribunal and that of the High
Court and leave the concerned workman to pursue his further
remedy ? The other alternative would be to remand the case
to the, Tribunal to pass a suitable order. In either case,
in view of this judgment, no other order except that of
compensation can be obtained by him. If the case is
remanded and the Tribunal on such remand passes an order of
compensation and fixes the amount, such a course would mean
further proceedings and a I possible appeal. That would
mean prolonging the dispute, which would hardly be fair to
or conducive to the interests of the parties. In these
circumstances we decided that it would be more proper that
we ourselves should determine the amount of compensation
which would meet the ends of justice. Having come to that
conclusion, we heard counsel for both the parties. After
doing so and taking into consideration all the facts -and
circumstances of the present case we have come to the
conclusion in the light also of the decisions of this Court
such as Assam Oil Co. v. Its Workmen(‘), Utkal Machinery
Ltd. v. Workmen(‘) and the recent case of Ruby General
Insurance Co. Ltd. v. P. P. Chopra(3) that compensation’,
for a period of two years at the rate of Rs. 160/- per
month, that being the last salary drawn by the concerned
workman, would meet, the ends of justice.
We accordingly allow the appeal, quash the order of the
Tribunal and the High Court and instead direct the
appellant company to pay to the 1st respondent Rs. 3840 as
and by way of compensation. There will be no order of
costs.
R.K.P.S. Appeal
allowed.
(1) [1960] 3 S.C.R. 457.
(2) [1966] 2 S.C.R. 434.
(3) C.A. 1735 of 1969 decided on September 12, 1969.
354