Management of Monghyr Factory of ITC
Ltd., Monghyr, Bihar Vs. The Presiding Officer, Labour Court Patna (Bihar)
& Ors [1978] INSC 113 (24 July 1978)
UNTWALIA, N.L.
UNTWALIA, N.L.
SINGH, JASWANT PATHAK, R.S.
CITATION: 1978 AIR 1428 1978 SCR (3)1044 1978
SCC (3) 504
ACT:
Supreme Court Rules 1966 Order XV-Rules 1, 5,
5A with Articles 131, 132, 135 of Constitution of India-Scope of- Whether the
leave of the Supreme Court is necessary to urge in appeal other grounds when
certificate granted by a High Court is restricted to a particular
ground-Considerations required to be looked into by the High Court while
granting the certificate.
Industrial Disputes Act, (14 of 1947), 1947,
S. 10(1)(c)- Whether a reference for adjudication of a labour dispute by the
Labour Court which is in the prescribed proforma without striking off the
appropriate words amounts to non- application of the mind and therefore the
reference void.
Standing Order No. 20 clause (i) and (ii) and
Standing Order 21(A) as certified under s. 5 of the Industrial Employment
(Standing Orders) Act, (Act 20) 1946-Difference between "habitual"
and neglect of work" explained-Relief which should be granted to the
workmen whose dismissal has been found to be wrongful, mala fide or illegal,
explained.
HEADNOTE:
A chargesheet to the effect viz.,
"Neglect of work in-that on 21-5-66 you packed approximately 130M, Embassy
packets with Scissors slides whilst operating M/C No. 14 resulting in loss of
200 (two hundred man hours approximately for opening up the packets and
changing the slides, and loss of material valued at Rs. 126/-
approximately." was served upon respondent no. 3 for his misconduct which
was followed up by a domestic enquiry which found him guilty. Accepting the
report his services were terminated.
On the raising of an industrial dispute it
was referred for adjudication by the Government of Bihar to the Labour Court,
Patna, respondent no. 1 by a Notification dated the 6th/17th February, 1968.
The Labour Court noticed "(1) from the documents of record it is
abundantly clear that the management and Shri Ram Krishan Pathak are not on
happy terms for several years" (2) "the service card indicates that
the service records of Shri Pathak are not neat and clean". In view of its
finding that the order of discharge was mala fide and unreasonable in the sense
that the workman was guilty of the charge of fault only and not of misconduct
the Labour Court made an award on November 23, 1970 ordering reinstatement of
Respondent No. 3 with all his back wages from the date of dismissal till the
date of reinstatement.
The Appellant challenged the award by filing
a writ petition in the High Court which was dismissed on July 23, 1973. At the
instance of the Management a certificate of fitness was granted by the High Court
on February 22, 1974. In the order granting the certificate the High Court
mentioned that out of three points urged by the appellant only one point
justified the ground of certificate as that point involved a substantial
question of law of general importance needing the decision by the Supreme
Court. Pursuant to the grant of the certificate, a petition of appeal was filed
in this Court, followed in the usual course by a statement of the case. Various
other points which have been argued on behalf of the management before the
labour court as also in the High Court were taken in the petition of appeal and
the statement of the case. However no separate petition was lodged by the
appellant along with the petition of appeal in accordance with Rule 5 of Order XV
of the Supreme Court Rules 1966. The appellant restricted his arguments only to
the three following points out of the several argued before the High Court,
viz. (a) That the reference is invalid on the very face of it, that it
was-mechanically made by the Government without the application of mind. (b)
That the workman was guilty of misconduct within the meaning of 1045 clause
(ii) of Standing Order 20 applicable to the appellant and both the Courts below
have committed errors of law on the face of the record in taking a contrary
view. (c) That in any view of the matter on the facts and in the circumstances
of the case it was not expedient, fit or proper to order reinstatement of the
concerned workman and in lieu thereof only compensation should have been
allowed.
A preliminary objection was raised on behalf
of respondent no. 3 to the effect that the appellant, having not complied with
the requirement of Rule 5 of Order XV of the Supreme Court Rules 1966, could
urge only one point on the basis on which the certificate was granted by the
High Court and not other.
Allowing the appeal in part the Court
HELD : (1) (a) Rule 5 of Order XV of the
Supreme Court Rules, was not applicable and compliance thereof was not
necessary to enable the appellant to urge and reiterate any of the points taken
by it in the High Court; (b) Rule 5-A of Order XV suggests that the High Court
'is required to record the reasons or the grounds for granting the certificate.
In this case the High Court in its order gave the reasons and finding that at least
one of the points was such that could justify the granting of the certificate
under Art. 133(1) and granted the certificate to appeal to the Supreme Court;
and (c) The certificate granted is an open
one enabling the appellant to urge all the points arising in the appeal in this
Court. There is nothing either in any provision of the Constitution or the
rules to indicate the points other than the one which enabled the High Court to
grant the certificate could not be raised in this Court without its leave.
[1049BE] (2) For the purpose of granting the certificate all that the High
Court is the ground mentioned in the constitutional provision. Even if a single
such question of law is found to arise in the case, a certificate must be
granted.
Once the certificate is granted and the
appeal is lodged in the Supreme Court it is open to the appellant to raise all
grounds which properly arise in the appeal. The circumstance, that there are
grounds which were not found sufficient for the grant of a certificate does not
preclude the Supreme Court from entertaining them as grounds arising in the
appeal. The stage at which the High Court considers the grant of a certificate
under Art. 133(1) and the stage at which the Supreme Court hears the appeal are
two distinct stages and different jurisdictions are exercised with respect to
each stage. Considerations pertinent to the grant of a certificate are not
identical with considerations which govern the hearing of the appeal.
Accordingly even if some of the points raised by the appellant in the High
Court in support of the petition for a certificate are found insufficient for
that purpose, they can still be considered as grounds during the hearing of the
appeal. The amendment brought about in Art. 133(1) makes no difference in the
matter of the applicability of the principle to the point at issue. In the
instant case it is clear that the leave of this Court was not necessary to
enable the appellant to urge in appeal the other grounds of attack in relation
to the award as affirmed by the High Court.[1049 F-H, 1050 A. D] Addagada
Raghavamma & Anr. v. Addagada Chenchamma & Anr., [1964] 2 SCR 933
followed. , (3)Order XV of the Rules is not confined to a certificate granted
by a High Court under clause (1) of Art. 133 only.
But it relates to a certificate granted under
clause (1) of Art. 132 also. Order XV of the Rules will be clearly attracted to
such a situation stated in Art. 132(3). When a certificate is granted under
Art. 133(1) only, then the party appealing to the Supreme Court can urge as one
of the grounds in appeal filed pursuant to such certificate that a substantial
question of law as to the interpretation of the Constitution has been wrongly
decided. An express provision to this effect was, perhaps, thought necessary to
remove any doubt for the raising of such a new point even without the leave of
the Court. That being so, it will be highly unreasonable to hold that in an
appeal filed in accordance with Art. 133(1) of the Constitution the appellant
cannot urge any new grounds and must be confined to the grounds which enable
the High Court to grant the certificate. [1050 E, F, H, 1051A] 1046 (4)The
reference, in the instant case, was not bad for the alleged non-application of
the mind by the Government though care should always be taken to avoid the mere
copying of the words from the Statute while making an order of reference.
[1051 F-G] (a)To keep an order of reference
free from the pale of attack on the groundthat the Government did not apply its
mind to the fact whether the disputeis only apprehended on whether a specific
dispute existed. the Government must specify one or the other in their order of
reference. The Government should clarify the position in such cases and remove
the ambiguity by filing a counter when the reference order is challenged on
this ground. [1051 H,1052-A] In the instant case, neither the one nor the other
was done although the State was made a party respondent to this writ petition,
and (b) on the facts and in the circumstances the industrial dispute existed
when it was referred to by the Government to the Labour Court for adjudication
and the Government made the reference on being satisfied that it was so. There
was no question of dispute being apprehended.
The mention of the words "or is
apprehended" in the order of reference is a mere surplus age and does not
in this case, necessarily lead to the conclusion that the reference was made in
a cavalier manner without any application of mind;
and (c) The observation in M/s. Hindustan General
Electrical Corporation Ltd. Karampura v. State of Bihar & Ors. AIR 1967
Pat. 284 indicating that even if no definite opinion was formed as to the
existence or apprehension of a dispute, the reference could be made are not
quite correct.
(d) In Kurji Holy Family Hospital case, 1970
labour and Industrial Cases, 105, while making the reference an identically
defective phraseology was used without specifying whether the industrial
dispute existed or was apprehended. The view expressed by the Patna High Court
therein viz. "merely because in the notification the words "or is
apprehended" are also there, it cannot be said that the Government were
not satisfied as to the existence of a dispute was not quite accurate either
though it can be sustained on a slightly different basis. [1052 A, C-D, F, 1053
C, E] Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr., [1964]
2 S.C.R. 933, Hindustan General Electrical Corp. Ltd.
Karampura v. State of Bihar & Ors., AIR
1967 Pat. 285; India Paper Pulp Co. Ltd. v. India Paper Pulp Workers' Union
& Anr., [1949-50] FCR 348; State of Madras v. C.P. Sarathy & Anr.,
[1953] SCR 334; Swadeshi Cotton Mills Co. Ltd. v. State of U.P. & Ors.,
[1962] 1 SCR 422; Management of Express Newspapers Ltd. v. Workers & Staff
employed under it and Ors. [1963] 3 SCR 540 discussed and explained.
(5)The argument that even neglect of work
simpliciter can be a misconduct within the meaning of sub-clause (i) of clause
(ii) of Standing Order 20 apart from its being a fault within the meaning of
sub-clause (b) of clause (i) of the said Standing Order, as the word 'habitual'
in the former merely qualifies the word 'negligence' and not the expression
'neglect of work' is not correct. [1056A] Mere neglect of work cannot be both.
If it is so it is a fault. If it is habitual, that is, if it is repeated
several times then only it is misconduct. It may well be that fault of one kind
or the other as enumerated in sub- clause (a) to (g) of Standing Order 20(i) if
repeated more than once may be habitual within the meaning of Standing Order
20(ii)(i) and especially in the light of the fourth fault being a misconduct
within the meaning of Standing Order 20(a). But on the facts of this case there
being no charge against respondent no. 3 that he was guilty of habitual neglect
of work, the Labour Court found that the negligence of the workman was not of a
serious kind. Some others in the factory also contributed to it. [1056 B-C]
(6)While considering the proper relief to be granted to the workman whose
dismissal has been found to be wrongful, mala fide or illegal, though no hard
and fast rule could be laid down the Tribunal has to consider each case on its
merits.
The past record of the employee, the nature
of his alleged present lapse and the ground on which the order of the
management is set aside are also relevant factors for consideration. The High
Court has the authority to 1047 interfere with the discretion of the Tribunal
where reinstatement was ordered without proper, adequate and justifiable
factors in support of the alternative relief of compensation. [1056D, 1057A, E]
Punjab National Bank Lid. v. Workmen, [1960] 1 SCR 806;
Buckingham & Carnatic Mills Ltd. v.
Workmen, 1951 11 L.L.J.
314; quoted again with approval; Ruby General
Insurance Co.
Ltd. v. Chopra (P.P.) 1970 1 LLJ 63;
Hindustan Steels Ltd.
Rourkela v. A. K. Roy & Ors. [1970] 3 SCR
343 followed.
Western India Automobile v. Industrial
Tribunal Bombay & Ors. (1949-50) SCR 321 referred to.
In the present case; (a) the Labour Court
without applying its mind, in spite of its noticing the unsatisfactory record
of respondent no. 3, as to whether it was a fit case where reinstatement should
be ordered or compensation should be awarded, followed the former course which
was affirmed by the High Court. (b ) every case has to be adjudged on its
special facts and in the instant case, the service record of the employee
showed that he had committed several faults in the past, was sometimes warned,
sometimes suspended and sometimes reprimanded for all those omissions and
commissions. In the incident in question he was clearly guilty of neglect of
duty in putting wrong slides, although they were wrongly supplied to him, while
packing the cigarettes on the packing machine. Even shortly before the incident
in question according to his own showing he was once warned for absence from
proper place of work without permission and was suspended for three days for an
act subversive of discipline before he was dismissed in June 1966. Therefore it
was not a fit case where the High Court ought to have sustained the order of
reinstatement as passed by the Labour Court [1057 F-H, 1058 B, C, E] [The Court
directed payment of a sum of Rs. 30,000/- to respondent no. 3 within a month's
time by way of compensation in addition to the gratuity and provident fund
admissible to him less any amount paid already.]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 864 of 1974.
From the Judgment and Order dated 23-7-73 of
the Patna High Court in C.W.J.C. No. 31 of 1971.
G. B. Pai, O. C. Mathur and K. J. John for
the Appellant.
Santokh Singh for Respondent No,. 3.
R. C. Prasad and U. P. Singh for Respondent
Nos. 1 and 4.
The Judgment of the Court was delivered by
UNTWALIA J. This appeal on certificate granted by the Patna High Court under
Article 133 (1) of the Constitution of India as it stands after the 30th
Constitution Amendment Act is by the Management of the Monghyr Factory of India
Tobacco Company Limited impleading the Labour Union as respondent no. 2 and the
concerned workman as respondent no. 3. The State of Bihar is respondent no. 4.
Respondent no. 3 was working as an operator
on a packing machine in the appellant's factory at Monghyr on May 21, 1966 when
he is said to have committed certain acts of misconduct. A chargesheet was
served on him by the Management on May 24. At the domestic inquiry held by the
Management, he was found guilty and eventually dismissed from service on June
9, 1966. On the raising of an industrial dispute, it was referred for
adjudication by the Government of Bihar to the Labour Court, Patna', respondent
no. 1 by a 10 48 notification dated the 6th/17th February, 1968. The Labour
Court made an award on November 23, 1970 ordering reinstatement of the workman
Shri Ram Krishan Pathak, respondent no. 3, with III his back wages from the
date of dismissal till the date of reinstatement. The appellant challenged the
award by filing a Writ Petition in the High Court, which was dismissed on July
23, 1973.
At the instance of the Management, a
certificate of fitness was granted by the High Court on February 22, 1974.
Since by that time Art. 133(1) had been amended by the 30th Constitution
Amendment Act, the certificate was granted in accordance with it. In the order
granting the certificate it is mentioned that three points were urged by the
appellant but the High Court thought that two of them were such as would not
justify the grant of the certificate, but one of the points involved in the
case was a substantial question of law of general importance and the said question
needed to be decided by the Supreme Court. Pursuant to the grant of the
certificate a petition of appeal was filed in this Court followed in the usual
course by a statement of the case. Various other points which have been argued
on behalf of the Management before the Labour Court as also in the High Court
were taken in the petition of appeal and the statement of the case.
Mr. G. B. Pai appearing in support of the
appeal urged only the three following points out of the several argued before
the High Court :-- (1) That the reference is invalid as on its very face it
indicates that it was mechanically made by the Government without application
of mind.
(2) That the workman was guilty of misconduct
within the meaning of clause (ii) of Standing Order 20 applicable to the
appellant and both the Courts below have committed errors of law on the face of
the record in taking a contrary view.
(3) That in any view of the matter on the
facts and in the circumstances of this case it was not expedient, fit or proper
to order reinstatement of the concerned workman and in lieu thereof, only
compensation ought to have been allowed.
Mr. Santokh Singh, appearing for the Union
and representing the workman raised a preliminary objection and submitted that
the appellant having not complied with the requirement of Rule 5 of Order XV of
the Supreme Court Rules, 1966, hereinafter to be called the Rules.
could urge only one point on the basis of
which the certificate was granted by the High Court and no other. Aft. Ram
Chandra Prasad appearing for the State of Bihar refuted the first submission
made on behalf of the appellant while Mr. Santokh Singh combated the other two.
1049 We shall first deal with the preliminary
objection of Mr. Singh. Order XV, Rule 5 of the Rules reads as follows:-
"where a party desires to appeal on grounds which can be raised only with
the leave of the Court, it shall lodge along with the petition of appeal a
separate petition stating the grounds so proposed to be raised and praying for
leave to appeal on those grounds." It is true that no separate petition
was lodged by the appellant along with the petition of appeal in accordance
with Rule 5. But in our opinion the said Rule was not applicable and compliance
thereof was not necessary to enable the appellant to urge and reiterate any of
the points taken by it in the High. Court. Rule 5-A(d) of Order XV of the Rule
s enjoins that "an appeal on a certificate granted by a High Court under
Articles 132(1) and/or 133(1)(c) of the Constitution or under any other
provision, of law if the High Court has not recorded the reasons or the grounds
for granting the certificate" shall be put up for hearing ex parte before
this Court. Article 133(1)(c) mentioned in the above extracted words has got to
be read now (and it would 'be advisable to correct it by an amendment of the
Rule, if not already done) as Article 133(1). The said Rule suggests that the
High Court is required to record the reasons or the grounds for granting the
certificate. In this case, the High Court in its order gave the reasons and
finding that at least one of the points was such that could justify the
granting of the Certificate under Article 133(1) granted the certificate to
appeal to the Supreme Court. But it did not limit it to that extent alone, even
assuming it could do so. The certificate granted, as is commonly known, is an
open one enabling the appellant to urge all the points arising in the appeal in
this Court. Nothing was brought to our notice by Mr. Singh either from any
provision of the Constitution or the Rules to indicate that the points other
than the one which enabled the High Court to grant the certificate could not be
raised in this Court without its leave.
For the purpose of granting the certificate,
in that the High Court is required to consider is whether the case raises a
substantial question of the kind mentioned in the constitutional provision,
Even if a single such question of law is found to arise in the case, a
certificate must be granted. Once the certificate is ,ranted and the appeal is
lodged in the Supreme Court, it is open to the appellant to raise all grounds
which properly arise in the appeal. The circumstances that there are grounds
which were, not found sufficient for the grant of a certificate does not preclude
the Supreme Court from entertaining them as grounds arising in the appeal. The
stage at which the High Court considers the grant of a certificate under
Article 133(1) and the stage at which the Supreme Court bears the appeal are
two distinct stages, and different jurisdictions are exercised with respect to
each stage. Considerations pertinent to the grant of a certificate are not
identical with considerations which govern the hearing of the 16-329 SCI/78 10
50 appeal. Accordingly, even if some of the points raised by the appellant in
the High Court in support of the petition for a certificate are found
insufficient for that purpose, they can still be considered as grounds during
the hearing of the appeal.
The view which we have expressed above is
amply supported by the decision of this Court in Addagada Raghavamma and Anr. v.
Addagada Chenchamma and Anr.(1), wherein at page 945 it was said with reference
to Article 133 of the Constitution, as it stood before the 30th Amendment Act:-
"Under Art. 133 of the Constitution the certificate issued by the High
Court in the manner prescribed therein is a precondition for the
maintainability of an appeal to the Supreme Court. But the terms of the
certificate do not circumscribe the scope of the appeal, that is to say, once a
proper certificate is granted, the Supreme Court has undoubtedly the power, as
a court of appeal, to consider the correctness of the decision appealed against
from every standpoint, whether on questions of fact or law." The amendment
brought about in Article 133(1) makes no difference in the matter of the
applicability of the principle to the point at issue. Thus it is clear that the
leave of this Court was not necessary to enable the appellant to urge in appeal
the other grounds of attack in relation to the award as affirmed by the High
Court.
Order XV of the Rules is not confined to a
certificate granted by a High Court under clause (1) of Art. 133 only.
But itrelates to a certificate granted under
clause (1) of Art. 132 also Clause (3) of Art. 132 says :- "Where such a
certificate is given, or such leave is granted, any party in the case may
appeal to theSupreme Court on the ground that any such question as aforesaid
has been wrongly decided and, with the leave of the Supreme Court, on any other
ground." Order XV Rule 5 of the, Rules will be clearly attracted to such a
situation. In contrast, we may quote clause (2) of Art. 133 which says :-
"Notwithstanding anything in article 132, any party appealing to the
Supreme Court under clause (1) may urge as one of the grounds in such appeal
that a substantial question of law as to the interpretation of this
Constitution has been wrongly decided." It is interesting to notice that
when a certificate is granted under Art. 133(1) only, then the party appealing
to the Supreme Court can urge as one of the grounds in appeal filed pursuant to
such certificate 1 that a substantial question of law as to the interpretation
of the Constitution has been wrongly decided. An express provision to this (1)
[1964] 2S.C.R.933.
1051 effect was, perhaps, thought necessary
to remove any doubt for the raising of such a new point even without the leave
of the Court. That being so, it will be highly unreasonable to hold that in an
appeal filed in accordance with Art.
133(1) of the Constitution the appellant
cannot urge any new grounds and must be confined to the grounds which enabled
the High Court to grant the certificate. We, therefore, reject the preliminary
objection raised by Mr. Santokh Singh.
We now proceed to deal with the three
submissions made on behalf of the appellant.
POINT NO. 1.
The relevant words to be extracted from the
order of reference for deciding this point are the following :- "Whereas
the Governor of Bihar is of opinion that an Industrial dispute exists or is
apprehended between the management of the Imperial Tobacco Company of India
Limited.......... and their workmen represented by Tobacco Manufacturing
Workers' Union............ Now, therefore, in exercise of the powers conferred
by clause (c) of sub- section (1) of Section 10 of the Industrial Disputes Act,
1947 (14 of 1947) the Governor of Bihar is pleased to refer the said dispute
for adjudication to the Labour Court, Patna ........" The dispute referred
was in the following terms:- "Whether the dismissal of Shri Ram Kishan
Pathak is proper and justified ? If not, whether he is entitled to
reinstatement and/or any other relief ? Mr. Pai's contention is that on the
facts of the case either an industrial dispute existed or it could be
apprehended.
It could not be both. It was necessary for
the Governor to be satisfied about the one or the other, namely, whether the
dispute "exists or is apprehended". The use of both the phrases in
the order of reference demonstrates that there was no application of mind of
the authorities concerned before making an order of reference. The point is not
free from difficulty. The High Court repelled it relying upon its two earlier
decisions. On a close scrutiny, however, on the facts of this case we do not
feel persuaded to hold that the reference was bad for the alleged non
application of the mind of the Government. We would, however, like to observe
that care should always be taken to avoid,, a mere copying of the words from
the Statute while making an order of reference. Ordinarily and generally in a
large number of cases, a reference is made when the Government finds that an
industrial dispute exists. There are cases where a dispute is only apprehended
or even there may be some where some disputes exist and some are apprehended.
To keep an order of reference free from the pale of attack on such a ground,
the Government will be well-advised to specify one or the other in their order
of reference. As observed in some of the cases of this Court, to be alluded 'to
hereinafter, the Government should clarify the position and remove the
ambiguity by filing a counter when 1052 the reference order is challenged on
this ground. We are unhappy to note that neither the one nor the other was done
in this case although the State was made a party respondent in the Writ
Petition.
Out of the cases cited at the Bar on the
first point., we shall refer only to a few which are very near it, there being
no direct decision of this Court on it. The Labour Court repelled the
contention of the Management apropos the alleged invalidity of the reference,
by stating in paragraph 9 of its order-"The fact that a dispute existed
cannot be denied." In that Court the next attack on the, competency of the
reference was on the ground that the concerned workman was not a member of the
Union on the date when the cause giving rise to, the dispute arose, and,
therefore, the Union could not have espoused his cause to make it an industrial
dispute. While repellency this argument, the Labour Court said in the 10th
paragraph :-In my opinion there appears no merit in the contention made on
behalf of the management and it is held that in reality an industrial dispute
existed when the appropriate Government was approached to refer the matter to
this Court for adjudication.' On the facts and in the circumstances of this
case, therefore, we have no doubt in our mind that the industrial dispute
existed when it was referred by the Government to the Labour Court for
adjudication, and the Government made the reference on being satisfied that it
was so. There was no question of the dispute being apprehended. The mention of
the words "or is apprehended" in the order of reference is a mere
surplus age and does not, in this case, necessarily lead to the conclusion that
the reference was made in a cavalier manner without any application of mind.
We may first briefly deal with the two Patna
decisions which were relied upon by the High Court in repelling the first point
of the appellant. They are-(1) Mls. Hindustan General Electrical Corporation
Ltd., Karampura v. State of Bihar and others(1) and (2) Kurji Holy Family
Hospital v.
State of Bihar and others(2). In the case of
Hindustan General Electrical Corporation (supra) although the relevant
phraseology in the order of reference was in identical terms, the argument
advanced was somewhat different. In that case it was urged on behalf of the
petitioner management that there was no industrial dispute before the Labour
Court. It was a simple dispute between an individual workman and the management
and hence the Court had no jurisdiction to decide it. The High Court, while
rejecting this argument, observed at page 285 column 2 "Moreover, it is
well known that even an individual dispute between a workman and an employer
might have the potentiality of becoming an industrial dispute, and if there is
an apprehension that such an industrial dispute might exist, the Government
have jurisdiction to make a reference under Sec.
10(1). In the order of reference, which I
have already quoted, the Government had made it clear that in their opinion
there was in existence an (1) A.I.R. 1967, Patna, 284.
(2) [1970] Labour and Industrial Cases, 105.
1053 industrial dispute or else, there was an
apprehension of the existence of such a dispute. In the circumstances of this
case, this opinion of the Government must be held to be not liable to challenge
in this application." It would thus be seen that neither in argument nor
in the judgment attention was focussed whether the reference could be bad when
the order of reference did not indicate precisely as to the existence of an
industrial dispute or whether it was apprehended. The observations, extracted
above, indicating that even if no definite opinion was formed as to the
existence or apprehension of a dispute, the reference could be made, are not
quite correct. In Kurji Holy Family Hospital case (supra) the dispute raised
related to the action taken by the management against two of its employees.
While making the reference an identically defective phraseology was used
without specifying whether the industrial dispute existed or was apprehended.
The validity of the reference in this. case was directly attacked on the
ground-"the Government were not definite while making the reference
whether a dispute was existing or was apprehended and were not able to form any
opinion in the matter." This argument was repelled by the Bench of the
High Court relying upon its earlier decision in the case of Hindustan General
Electrical Corporation (supra) and three decisions of this Court and a decision
of the Federal Court which will be shortly adverted to. Finally it was said at
page 111 column 1 :-"In the circumstances, there can be no doubt that a
dispute was existing on the date of the reference. Merely because in the notification
the words "or is apprehended" are also there, it cannot be said that
the Government were not '.satisfied as to the existence of a dispute." The
view so expressed by the Patna High Court is not quite accurate. But it can be
sustained on a slightly different basis as discussed by us above.
In the case of The India Paper Pulp Co. Ltd.
v. The India Paper Pulp Workers' Union and another(',) the attack on the order
of reference, as could appear from page 355, was not identical to the one with
which we are concerned in this case. But the lacunae pointed: out were that the
order of the Government did not mention any industrial dispute and secondly,
the order, as worded, was only an order of appointment and there were no words
of reference to the Tribunal. The attack was repelled by Kania C.J. on the same
page in these words :- "It is sufficient if the existence of a dispute and
the fact that the dispute is referred to the Tribunal are clear from the order.
To that extent the order does not appear to be defective. Section 10 of the Act
however requires a reference of the dispute to the Tribunal. The Court has to
read the order as a whole and determine whether in effect the order makes a
reference." (1) [1949-50] Federal Court Reports 348.
17-329 SCI/78 1054 The Court found on reading
the order as a whole 'that the order could be reasonably construed to
constitute a reference to the Industrial Tribunal. In State of Madras v.
C. P. Sarathy and another(1) it was contended
at page 345 that "the reference was not competent as it was too vague and,
general in its terms containing no specification of the disputes or of the
parties between whom the disputes arose." This argument was repelled by
Patanjali Sastri C.J., with reference to the decision of the Federal Court in
the case of The India Paper Pulp Company (supra). The learned Chief Justice
added at page 346 :- "This is, however, not to say that the Government
will be justified in making a reference under section 10(1) without satisfying
itself on the facts and circumstances brought to its notice that an industrial
dispute exists or is apprehended in relation to an establishment or a definite
group of establishments engaged in a particular industry, and it is also
desirable that the Government should, wherever possible, indicate the nature of
the dispute in the order of reference." Even in this case the attack to
the validity of the reference was not on the ground exactly as has been done in
the present case. In The Swadeshi Cotton Mills Co. Limited v. The State of U.P.
and others(2) the, reference was assailed on somewhat different grounds. The
argument was not accepted by Wanchoo J., as he then was, by saying at page 432,
:- "This opinion is naturally formed before the order is made. If
therefore such an opinion was formed and an order was passed thereafter, the
subsequent order would be a valid exercise of the power conferred by the
section. The fact that in the notification which is made thereafter to publish
the order, the formation of the opinion is not recited will not take away the
power to make the order which bad already arisen and led to the making of the
order." Says the learned Judge further at page 434 "We are equally
not impressed by Shri Pathak's argument that if the recital is not there, the
public or courts and tribunals will not know that the order was validly passed
and therefore it is necessary that there must be a recital on the face of the
order in such a case before it can be held to be legal. The presumption as to
the regularity of public acts would apply in such a case; but as soon as the
order is challenged and it is said that it was passed without the conditions
precedent being satisfied the burden would be on the authority to satisfy by
other means (in the absence of recital in the order itself) that the conditions
precedent had been complied with" (1) [1953] S.C.R. 334.
(2) [1962] 1 S.C.R. 422.
10 5 5 In the case of The Management of
Express Newspapers Ltd. v. Workers & Staff employed under it and others(1)
the point canvassed and decided was a different one. The attack was on the
wordings of issue no. 2 referred to the Industrial Tribunal for adjudication.
The argument was that this issue had in fact been determined by the Government
and nothing was left to the Tribunal to consider or decide. It wouldappear from
pages 555 and 556 that this argument was not accepted. In our opinion, reliance
on this case by the appellant before us or bythe High Court in the case of
Kurji Holy Family Hospital (supra) is not quite apposite.
For the reasons stated above, on the facts of
this case, we do not feel persuaded to accept the first contention of the
appellant as correct.
POINT NO. 2 To substantiate this point Mr.
Pai relied upon the relevant words of clauses (i) and (ii) of Standing Order 20
and Standing Order 21 (a). Standing Order 20(i) says :- "The following
acts or omissions shall be treated as faults (a) Careless work.
(b) Laziness or neglect of work Standing
Order 20(ii) provides:- "The following acts or omissions shall be treated
as misconduct:- ............
(1) Habitual negligence or neglect of
work." Standing Order 21(a) provides for different kinds of punishment in
cases of first, second and third faults committed within the meaning of
Standing Order 20(i).
Lastly it is provided in the Standing Order
21(a) that-"In the case of a fourth fault by the same worker such worker
shall be reported to the Factory Manager by the head of the department as a
worker regarded guilty of misconduct as defined in Order No. 20(ii)." Mr.
Pai submitted with reference to the service card of respondent no. 3 which was
an exhibit before the Labour Court that his service record was bad, he bad
committed several faults in the past and the fault in question even if it was a
fault was a fourth one which could be treated as a misconduct under Standing
Order 21 (a) entailing dismissal of the workman. This argument, as presented
before us. is not well-founded and must be rejected. No such stand was taken in
either of the Courts below. Nor was the charge framed on this line. The charge
served on respondent no. 3 is as follows:- "Neglect of work in-that on
21-5-66 you packed approximately 130 M. Embassy packets with Scissors slides
whilst operating M/C. No. 14, resulting in loss of 200 (two hundred) man hours
approximately for opening up the packets and changing the slides, and loss of
material valued at Rs. 126/- approximately." (1) (1963) 3 S.C.R.
1056 Mr. Pai submitted that even neglect of
work simpliciter can be a misconduct within the meaning of 'sub-clause (1) of
clause (ii) of Standing Order 20 apart from its being a fault within the
meaning- of subclause (b) of clause (i) of the said Standing Order as the word
'habitual' in the former merely qualifies the word 'negligence' and not the
expression 'neglect of work'. This argument has to be stated merely to be
rejected. Mere neglect of work cannot be both. If it is so, it is a fault. If
it is'habitual that is, if it is repeated several times then only it is
misconduct. It may well be that fault of one kind or the other as enumerated in
sub-clauses (a) to (g) of Standing Order 20(i) if repeated more than once may
be, habitual within the meaning of Standing Order 20(ii) (1), and especially in
the light of the fourth fault being a misconduct within the meaning of Standing
Order 20(a), but ,on the facts of this case, there was no charge against
respondent no. 3 that he was guilty of habitual neglect of work. Moreover the
Labour Court found that the negligence of the workman was not of a serious
kind. Some others in the factory also contributed to it. We, therefore, reject
point no. 2.
POINT NO. 3 The law as to the proper relief,
which should be granted to the workman whose dismissal has been found to be
wrongful, mala fide or illegal has gradually been developed by the Federal Court
and this Court. In Western India Automobile Association v. Industrial Tribunal,
Bombay, and others() the argument on behalf of the employer that reinstatement
could not be ordered in an industrial adjudication as no contract of service
would be specifically enforced, was rejected. In some cases the view taken was
that there should be a general rule of reinstatement except in very exceptional
cases.
Later on. it was ruled that no hard and fast
rule could be laid down and the Tribunal would have to consider each case on
its merits.
In The Punjab National Bank, Ltd. v. Its
Workmen(2) Gajendragadkar J., as he then was, speaking for himself and other
learned Judge has 'said at page 833:- "It is obvious that no hard and fast
rule can be laid down in dealing with this problem.
Each case must be considered on its own
merits, and, in reaching the final decision an attempt must be made to
reconcile the conflicting claims made by the employee and the employer. The
employee is entitled to security of service and should be protected against
wrongful dismissals, and so the normal rule would be reinstatement in such
cases.
Nevertheless in unusual or exceptional cases
the tribunal may have to consider whether, in the interest of the industry
itself, it would be desirable or expedient not to direct reinstatement. As in
many other matters arising before the industrial courts for their decision this
question also has to be decided after balancing the relevant factors and
without adopting any legalistic or doctrinaire approach." (1) [1949-50]
S.C.R. 321.
(2) [1960] 1 S.C.R. 806.
1057 At the same page the learned Judge
approvingly quoted from the well-known decision of the Full Bench of the Labour
Appellate Tribunal in the case of Buckingham & Carnatic Mills Ltd. v. Their
Workmen (1). A sentence from that quotation will be of use in deciding this
case also. It runs thus :-"The past record of the employee the nature of
his alleged present lapse and. the ground on which the order of the management
is 'set aside are also relevant factors for consideration." Shelat J.
speaking for this Court in the case of Ruby General Insurance Company, Ltd. v.
Chopra (p.p.) (2) considered some other reported and unreported decisions and
concluded at page 66, column 2 thus:- "These decisions clearly show that
though industrial adjudication may not regard a wrongful dismissal as amounting
to termination of service resulting only in a right to damages as under the law
of master and servant and would ordinarily order reinstatement, it can refuse to
order such reinstatement where such a course, in the circumstances of the case,
is not fair or proper. The tribunal has to examine, therefore, the
circumstances of each case to see whether reinstatement of the dismissed
employee is not inexpedient or improper." The same learned Judge
reiterated the principles in Hindustan Ltd., Rourkela v. A. K. Roy &
Ors.(3) and pointed out at page 348 :-"As exceptions to the general rule
of reinstatement, there have been cases where reinstatement has not been
considered as either desirable or expedient." On a consideration of the
entire facts and circumstances of the case. this Court took the view in
Hindustan Steel's case that High Court had the authority to interfere with the
discretion of the Tribunal where reinstatement was ordered without proper,
adequate and justifiable factors in support of the grant of the alternative
relief of compensation.
Finally a compensation for a period of about
two years was determined payable by the management to the workman concerned in
lieu of the order of reinstatement.
In the present case the Labour Court found
that the order of discharge was mala fide and unreasonable in the sense that
the workman was guilty of the charge of fault only and not of misconduct.
Domestic inquiry was found to be fair and proper from its procedural aspect.
The Labour Court also noticed the following facts :-
1. "From the documents on record it is
abundantly clear that the management and Shri Ram Kishan Pathak are not on
happy terms for several years."
2. "The service card indicates that the
service record of Shri Pathak are not neat and clean." Yet without
applying its mind further as to whether it was a fit case where reinstatement
should be ordered or compensation should be awarded, it followed the former
course.
(1) [1951] II L.L.J., 314.
(2) [1970] 1 LLJ 63.
(3) [1970] 3 S.C.R. 343 1058 The High Court
while affirming the order of the Labour Court in this regard did refer to some
of the relevant decisions of this Court and correctly enunciated the principles.
But it seems to us that it felt fettered in treating the facts referred to in
those cases as if they were exhaustive examples of the circumstances under
which reinstatement could be ordered. In that view of the matter the High
Court, on comparison of the facts of the present case did not feel persuaded to
travel outside the limits of those facts. But it 'should be remembered, as
observed in the Punjab National Bank case (supra), that every case has to be
judged on its special facts. In the present case the service card of the
employee shows that he bad committed 'several faults in the past and was
sometimes warned, sometimes suspended and sometimes reprimanded for all those
omissions and commissions. In the incident in question, he was clearly guilty
of neglect of duty in putting wrong slides, although they were wrongly supplied
to him, while packing the cigarettes on the packing machine. Even shortly
before the incident in question, as pointed out to the High Court on behalf of
respondent no. 3 himself, he was once warned for absence from proper place of
work without permission and was suspended for three days for an act subversive
of discipline before be was dismissed in June, 1966. We were also informed by
the management that respondent no. 3 has superannuated, according to them in
December, 1972. The fact that he has superannuated was not disputed by Mr.
Santosh Singh. What was, however, asserted on his behalf was that he bad
superannuated not in December, 1972, but about two years later. At the time of
the hearing of the appeal, the management offered to pay a very reasonable
amount of compensation and all sums of money due to the workman on account of
gratuity and provident fund.
We think on the facts and in the
circumstances of this case it is not a fit case where the High Court ought to
have sustained the order of reinstatement as passed by the Labour Court. We,
accordingly, direct that in lieu of reinstatement, respondent no. 3 will be
entitled to get a compensation of Rs. 30,000/which will, roughly speaking.
include almost all sums of money payable to
the workman such as basic pay, dearness allowance etc. etc. for a period of
about five years. Out of the said sum of Rs. 30,000/- total amount, of Rs.
14,250/- are said. to have been paid by the appellant to respondent no. 3 in
pursuance of the interim orders made by the High Court and this Court. The
balance of Rs. 15,750/- on account of compensation is to be paid.
Adding to that the sums of gratuity Rs.
8.852/- and provident fund--Rs. 2,451 /- the total amount payable comes to Rs.
27,053/-. The management has also agreed to make an management to the workman
concerned comes to Rs. 30,000/- over and above the sum of Rs. 14.250/- already
paid. We direct the appellant (and at the time of the hearing of the appeal it
has agreed to do go to pay the said sum of Rs. 30,000/- to respondent No. 3
with a month from today.
The appeal is accordingly allowed to the
extent and in the manner indicated above. There, will be no order as to costs.
S.R. Appeal allowed.
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