Heckett Engineering Co. Vs. Workmen
 INSC 194 (11 October 1977)
SINGH, JASWANT SINGH, JASWANT UNTWALIA, N.L.
CITATION: 1977 AIR 2257 1978 SCR (1) 693 1977
SCC (4) 377
Industrial Disputes Act, 1947-Section
10-General Clauses Act, 1897-Section 16-Dismissal by a person lower than the
appointing authority-Standing Orders-Construction of.
The respondent workman was appointed a
permanent driver by the appellant employer. The respondent while driving the
truck of the appellant-company met with an accident. The appellant called upon
the respondent to show cause why disciplinary action should not be taken
against him for the following acts of misconduct :
(1) Due to rash and negligent driving of the
truck, it was involved in a serious accident.
(2) The respondent picked up 4 unauthorised
passengers to travel in the truck.
(3) The respondent allowed one of the
unauthorised passengers to drive the truck.
(4) Respondent suppressed true facts in his
report of accident submitted to the appellant and gave a false statement.
The respondent submitted his explanation
which was found to be unsatisfactory. Thereafter the domestic enquiry was held.
In the domestic enquiry it was found that all the 4 charges were established
against the workman. On receipt of report of the domestic enquiry the Plant
Manager passed an order ,dismissing the respondent. After the conciliation
failed the Government of West Bengal referred the question "whether the
dismissal was justified ?", under s. 10 of the Industrial Disputes Act.
The Tribunal on consideration of the ,evidence came to the conclusion that the
appellant had been able to establish charges No. 2 and 3. The Tribunal,
however, set aside the order of dismissal ,on the ground that it had not been
passed by the authorised person observing that the appointment order of the
respondent showed that the General Manager was the appointing authority and
that it was signed by the Plant Manager acting ,on behalf of the General
Allowing the appeal by special leave,
HELD : (1) The finding of the Tribunal that
the Plant Manager of the ,Company had no authority to pass the impugned order
cannot be sustained. Under the standing orders appointment of permanent workmen
could have been 'Made by the Plant Manager, it was the Plant Manager who
actually passed the appointment order. Although, in the printed appointment
order where General Manager is mentioned the word 'General' was not deleted, a
glance at the appointment order shows that the Plant Manager did not sign on behalf
of the General Manager. There is nothing on the record to indicate that on the
relevant date the General Manager of the company was away on leave or was
otherwise absent and the Plant Manager was deputed to officiate or act for or
,on behalf of the General Manager. The Plant Manager has categorically affirmed
that he has been holding the office of the Plant Manager for 10 years. [697
F-H, 698 A-B] (2)The standing order 32 which is declaratory of the over- all
power of the company does not put any fetter on the power of the Plant Manager
to dismiss the workman whose appointment made by him if he is guilty of a
[699 A-B] (3)Whether or not section 16 of the
General Clauses Act 1897, in terms applies to standing order No. 32 of the
company which is certified under s. 5(3) of the Industrial Employment Standing
Orders Act 1946 is a moot point but the general doctrine underlying the said
sec. 16 can well be made applicable 694 to a ease of the present nature, for
the power to terminate service is necessary adjunct of the power of appointment
and is exercised as an incident to or consequence of that power.
In the present case appointment was made by
the Plant Manager and the power of appointment implies and carries with it the
power of dismissal. The, order of dismissal does not suffer from any infirmity.
[699 D--G] Lekhraj Satramdas Lalvani v Deputy Custodian-cum-Managing Officer
& Ors.  1 SCR 120 and Kutoor Vengayil Ravarappan Nayanar v. Kutoor,
Vengyil Madhavi Ammaa & Ors.
 FCR 667, relied on.
Hindustan Brown Boveri Ltd. v. Their Workmen
& Anr.  (1) LLJ 571 distinguished.
[The court left open to the workman, if so
advised, to approach the company for substitution of the order of discharge
with benefits of past service for the impugned order of dismissal.]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1346 of 1977.
Appeal by Special Leave from the Award dated
26-3-77 of the 9th Industrial Tribunal, West Bengal, Durgapur in Case No.
X-39 published under the Notification No.
I.R./IDL-84/77 dated the 29th April 1977.
Lal Narain Sinha, D. P. Ghosh and Sukumar
Ghose for the appellant.
P. K. Chatterjee and Rathin Das for the
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is directed against art award
dated March 26, 1977 of the Ninth Industrial Tribunal, Durgapur, made in case
No. X-39/75 and published vide Notification No. 1624-I.R., dated April 29, 1977
issued by the Labour Department of the Government of West Bengal.
The appellant, M/s Heckett Engineering
Company (India Branch) Burnpur (West Bengal) (hereinafter referred to as 'the
Company') is, a division or branch in India of M/s Harsco, Corporation, a
limited liability company incorporated and registered in U.S.A. It carries on
the business of recovery of iron and steel scrap from slags at its plant
located within the Steel works of the Indian Iron and Steel Company Limited,
Burnpur. The workmen employed by the company are represented by Heckett
Engineering Company (India Branch) Employees' Union, Puranhut, Bumpur
(hereinafter referred to as the Union') which is recognised by the Company.
It appears that Mihar Majhi (hereinafter
referred to as 'the, workman') who was employed as a permanent driver by the
Company was deputed on October 9, 1974, to carry some materials in Fargo Truck
No. NGGH 6891 from its Bumpur plant to its Jamshedpur plant and to bring
certain other materials from Jamshedpur plant to Burnpur plant in the same,
One Shankar Kumar Gupta, an employee of a
contractor working for the Company, was asked by the Company to accompany the
workman on the aforesaid mission as a 695 helper. After loading the truck with
the materials which had to be brought over from Jamshedpur plant of the
Company, the workman accompanied by Shankar Kumar Gupta set off for Burnpur on
October 12, 1974. While the truck was thus on its way back to Burnpur, the
workman stopped the truck near a tyre repairing shop at Chandil to have a
punctured tube repaired. While leaving the said shop, the workman picked up
four strangers in the truck in contravention of a circular of the Company forbidding
the carriage of any unauthorised person in any of its vehicles and resumed his
backward journey to Burnpur. At about 7.00 P.M. when the aforesaid truck driven
by the workman was going down a slope, it dashed violently against a wall of a
culvert at a place about two to-three kilometres from Chandil check post within
the jurisdiction of Nimdih police station resulting in extensive damage to the
truck. Instead of reporting the matter to the police, the workman went to the
residence of Mr. Bhattacharya, Chief Accountant of the Company's plant at
Jamshedpur, and told him that the differential of the aforesaid truck in which
he was carrying magnet and other material belonging to the Company and which
was being driven by him broke down on the road at about 7.00 P.M. a few miles
after Chandil due to overloading whereupon Mr. Bhattacharya advised the workman
to go and see the Works Manager of the plant at Jamshedpur. The workman did not
pay any heed to this advice and left for Burnpur where he verbally informed Mr.
V. K. Balan, the Plant Manager of the Company at about 6.00 P.M. on October 13.
1974, that the aforesaid truck which was loaded beyond its carrying capacity
had met with an accident at a place two miles before Chandil Check Post in
consequence of his losing control thereof due to failure of the brakes because
of which the truck dashed against a wall of a culvert. The Plant Manager
directed the workman to submit a report of the accident in writing at, the
office. Accordingly, the workman made the report Exhibit 'S' (PH) on the
following morning after getting the same written by an office assistant named
B. K. Guhathakurata.
Thereupon the Plant Manager accompanied by
the workman visited the place of accident for verification of the incident and
assessment of the damage. On October 17, 1974, the Plant Manager vide his
communication No. HB/CS/23/1974 called upon the workman to show cause why
disciplinary action should not be taken against him for the following acts of
misconduct which fall within the purview of sub- clauses (o), (m) and (v) of
Clause 31 (11) of the Standing Orders of the Company which are certified under
section 5(3) of the Industrial Employment Standing Orders Act, 1946 and as held
in- Agra Electric Supply Co. Ltd. v. Sri Alladin and Ors.(1) bind the Company
as well as all its employees :- "1. Due to rash and negligent driving of
Fargo Truck No. WGH 6891 (PT-518-D) on 12th October, 1974 on your way back to
Burnpur, the truck was involved in a serious accident.
2. You have picked up from Chandil four
unauthorised passengers to travel into the said truck.
(1)  1 S.C.R. 808.
3. You have also allowed one of the
unauthorised passenger to drive the said truck.
4. You have suppressed the true facts in your
report submitted on 14th October, 1974 and given a false statement regarding
the accident." Not 'satisfied with the explanation tendered by the
workman, the Plant Manager deputed Mr. M. M. Das, the then Personal Officer of
the Company, to hold a domestic inquiry into the above mentioned charges.
Accordingly, Mr. Das conducted a regular inquiry and found all the charges to
have been established against the workman. On the receipt of the report
submitted by Mr. Das, the Plant Manager passed an order on November 6/7, 1974
dismissing the workman. On, being apprised of the order of his dismissal, the
workman approached the Union which raised an industrial dispute whereupon the
matter was referred for settlement to the Conciliation Officer, Asansol. As the
conciliation proceedings proved abortive, the Government of West Bengal
referred the following issues under section 10 read with section, 2-A of the Industrial
Disputes Act, 1947, to the Ninth Industrial Tribunal, Durgapur for
"1. Whether dismissal of Shri Mihir
Majhi, driver, is justified?,
2. What relief, if any, is he entitled
to?" On a consideration of the material adduced before it, the Tribunal
while finding that the Company had been able to establish charges Nos.. 2 and 3
against the workman held that the aforesaid order of dismissal could not be
upheld as it was not made by an authorised person. relevant portion of the
order of the Tribunal is extracted below ready reference "Ext. 1 is the
appointment card. It shows that Shri Balan signed the appointment card on
behalf of the General Manager. It goes to show. that the General Manager was
the appointing authority and Mr. Balan only acted on his behalf. Therefore, it
cannot be said that Mr. Balan was the appointing authority.
Be that as it may, let me see whether under
the Standing Orders Shri V. Balan, the Plant Manager was competent to dismiss
Ext. 0 is the copy of the Standing Orders.
Para 32 of the Standing Orders contains the
provision regarding the disciplinary action.
This para enjoins that the Manager may
appoint an officer to hold the enquiry. It does not expressly set out as to who
is to pass an order of dismissal. But in this para it has been enjoined that
the company may, however, at his discretion award the other punishment
mentioned in this para in lieu of dismissal...... Under clause 4(b) of the
Standing Orders, a Manager includes the Plant Manager. But it does not include
or mean the company because the definition of the company is given in clause
4(a) of the Standing Orders. The definition of 697 the company does not include
either the General Manager or the Plant Manager, who has dismissed the workman
in question. There is not (sic) scrap of paper to show that Mr.
Balan was authorised by the company to pass
an order of dismissal. On the other hand, in para 32 of the Standing Orders it
has been clearly laid down that the company only has that right. I am,
therefore, of opinion that the order of dismissal was not passed by a person
authorised by the Standing Orders.
Consequently the order of dismissal cannot be
upheld and the workman is entitled to reinstatement." Aggrieved by this
order, the Company has come up in appeal to this Court as stated above.
Appearing on behalf of the appellant, Mr.
Lalnarayan Sinha has urged that the Industrial Tribunal has erred in holding
that charges Nos. 1 and 4 had not been brought home to the workman. He has
further urged that the appointment of the workman having been made by Mr. V. K.
Balan, the Manager of the Company's plant at Burnpur, the latter was fully
competent to dismiss the former and that the Industrial Tribunal was not right
in holding that the impugned order of dismissal ,was passed by an unauthorised
Mr. Chatterji has, on the other hand,
submitted that the findings of fact arrived at by the Industrial Tribunal in
respect of charges Nos. 2 and 3 are wholly unjustified. He has further
contended that the order of appointment of the workman having been made by the
General Manager, the dismissal in question could not be affected by an
authority other than the General Manager. Mr. Chatterji has lastly submitted
that the misconduct attributed to workman did not warrant the major penalty of
We have gone through the entire record and
have given our earnest consideration to the submission made by learned counsel
for the parties. While we are of the view that there is no warrant for
interfering with the findings of fact arrived at by the Tribunal with regard to
the establishment or otherwise of any of the charges against the workman which
are based upon the evidence on the record, we think that the other finding
arrived at by it viz. that Mr.
V. K. Balan, Plant Manager of the Company,
had no authority to pass the impugned order of dismissal cannot be sustained.
It would, in this connection, be profitable
to find out in the first instance as to who would make the permanent
appointment of the workman. A plain reading of- clause 5 (b) read with clause
7(d) of the Standing Orders shows that it was the Plant Manager of the Company
who was competent to make the appointment of the workman. That it was Mr. V. K.
Balan who, actually made the appointment in question cannot also admit of any
doubt. This is crystal clear from the appointment card, Exhibit 1(MH) which is
signed both by Mr.
V. K. Balan as well as the workman.
Let us now see whether Mr. V. K. Balan, Plant
Manager, acted for or on behalf of General Manager of the Company in making or
signing the appointment card of the workman. A glance at the appointment card,
Exhibit 1 (MH) is enough to show that Mr. V. K. Balan did not 698 sign the said
card for or on behalf of the General Manager.
It is true that the prefix
"General" before the word "Manager" on the printed card on
which Mr. V. K. Balan put his signatures does no appear to have been struck off
at the time of the issue of the card but that by itself is not enough to show
that the appointment was made by Mr. V. 'K.
Balan acting for or on behalf of the General
Manager of the Company. There is nothing on the, record to indicate that on the
relevant date, the General Manager of the Company was away on leave or was
otherwise absent and Mr. V. K. Balan had been deputed to officiate or act for
or on behalf of the General Manager. On the contrary, in the course of his
statement as O.P. witness, Mr. V. K. Balan has categorically affirmed that he
has been holding the office of the Plant Manager of the Company for the last
ten years. Thus neither the Standing Orders nor the appointment card nor the
statement of Mr. V. K. Balan nor any other material on the record supports the
observation of the Industrial Tribunal that "the General Manager was the
appointing authority and Mr. V. K. Balan only acted on his behalf.
The submission made on behalf of the workman
that in signing his appointment card, Mr. V. K. Balan acted for and on behalf
of the General Manager cannot be accepted for another reason also. If Mr. Balan
was competent to make the appointment of the workman as we have, by reference
to the Standing Orders, shown that be was, there could be no question of his
acting for or on behalf of the General Mana- ger in signing the appointment
card. The contention advanced in this respect on behalf of the workman is,
Having settled that Mr. V. K. Balan, who was
the Plant Manager on the relevant date was competent to make the appointment of
the workman and it was he who actually made the crucial appointment in that
capacity, let us now advert to the question whether Mr. Balan was competent to
pass the impugned order of dismissal.
Mr. Chatterji has, by reference to Standing
Order No. 32 of the aforesaid Standing Orders, stressed that it was only the
Company which was competent to pass the order of dismissal of the workman. The
relevant portion of the Standing Order on which reliance is place runs thus :-
" 32....... A workman shall be liable to be summarily dismissed without
notice or pay or wages in lieu of notice if he is found guilty of any
misconduct amounting to major misdemeanor. A workman dismissed for misconduct
will not be entitled to any past benefits or privileges of service provided by
the Company. The Company may however at its discretion give the workman
concerned the following punishments in lieu of dismissal :
(i) Discharge from Service with past benefits
(ii) Suspension without pay not exceeding
(iii)Censure or warning.
(iv) Withholding increment for one year.
(v) Fine." 699 The Standing Order
extracted above is not helpful to the.
workman. It does not put any fetter on the
power of the Plant Manager to dismiss a workman whose appointment is made by
him if he is guilty of a misconduct. It only confers, in our opinion, an
overall power on the Company to substitute the penalty of discharge from
service with past benefits of service or any other lighter penalty specified
therein for the penalty of dismissal awarded to a workman and can by no means
be interpreted to imply that the penalty of dismissal can be inflicted only by
the Company and not by the Plant Manager. It is a well settled rule of
constructionthat the language of a provision or a rule should not be construed
ina manner which would do violence to the phraseology used therein. It is
rather strange that the Industrial Tribunal has despite its observation that
the above quoted Standing Order does not expressly set out as to who is to pass
an order of dismissal held that the impugned order was not passed by a person
authorised by the Standing Orders. It may also be mentioned at this stage that
appear- ing as a witness for the Company, Mr. V. K. Balan has unequivocally
stated that he was entitled to pass the order of dismissal against the
concerned workman under the Standing Orders and that he did not need any
delegation of powers for passing such order. We may also in this connection
recall the provisions of section 16 of the General Clauses Act, 1897, Whether
or not the 'section in terms applies to the aforesaid Standing Orders of the
Company which are certified under section 5(3) of the Industrial Employment
Standing Order Act, 1946 may be a moot point but the general doctrine
underlying the section can well be made applicable to a case of the present nature
for it is now firmly established that the power to terminate service is a
necessary adjunct of the power of appointment and is exercised as an incident
to or consequence of that power (See Lekhraj Satramdas Lalvani v. Deputy
Custodian-cum-Managing Officer & Ors.(1) and Kutoor Vengayil Rayarappan
Nayanar v. Kutoor Vengayil Madhavi Amma & Ors (2). In Kutoor Vengayil
Rayarappan Nayanar v. Kutoor Vengayil Valia Madhavi Amma & Ors. (supra)
Mahajan, J. (as he then was) speaking for the Federal Court approved the
statement of Woodroffe On Receivers, Fourth Edition, that the power to
terminate flows naturally and as a necessary sequence from the power to create.
In other words, it is a necessary adjunct of the power of appointment and is
exercised as an incident to, or consequence of that power;
the authority to call such officer into being
necessarily implies the authority to terminate his functions.
As in the instant case, the appointment of
the workman was made by Mr. V. K. Balan as a Plant Manager and not for or on
behalf of the General Manager and as the power of appointment implies and
carries with it the power of dismissal, we are of the opinion that the order of
dismissal did not suffer from the infirmity of want of competence or of
authority to pass the order.
The decision of this Court in Hindustan Brown
Boveri Ltd. v. Their Workmen & Anr.(3) relied upon by Mr. Chatterji in
support of (1)  1 S.C.R. 120.
(2)  F.C.R. 667.
(3)  1 L.L.J. 571.
8-951SCI/77 700 his contention that the Plant
Manager was not competent to pass the impugned order of dismissal is clearly
distinguishable. In that case, despite the issue raised before the Labour Court
as to whether the demotion of one workman and the termination of service of the
other was in order, the Company did not at the proper stage inform or contend
before the Labour Court that the Works Manager was empowered to recruit and
dismiss the workman by virtue of the power of attorney executed in his favour
by the Company.
The judgment in that case also does not show
that the Works Manager was competent to appoint the workman under the standing
orders of the Company.
In conclusion, we would like to make it clear
that as charges Nos. 2 and 3 have been held by the Industrial Tribunal to have
been established against the workman and they constitute major misdemeanours
falling within the purview of sub-clauses (a), and (m) of clause (ii) of
Standing Order 31 of the aforesaid Standing Orders, we think that the order of
dismissal could have been passed by the punishing authority which in this case,
as already stated, was the Plant Manager. We may also observe that it is not
open to us to substitute the order of discharge with benefits of past service
for the impugned order of dismissal. The workman may, if so advised, approach
the Company in this behalf.
For the foregoing reasons, we allow the
appeal and set aside the aforesaid award of the Ninth Industrial Tribunal.
However, in view of the order of this Court
dated June 1, 1977, the appellant shall pay the costs of the appeal to the
P.H.P. Appeal allowed..