Associated Cement Companies Ltd. Vs.
T. C. Shrivastava & Ors [1984] INSC 72 (29 March 1984)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
PATHAK, R.S.
CITATION: 1984 AIR 1227 1984 SCR (3) 361 1984
SCALE (1)596
CITATOR INFO :
F 1985 SC1416 (68,96) RF 1986 SC 555 (6)
ACT:
Industrial Employment(Standing Orders) Act,
1946- Standing Orders-Certified Standing Order No.17-Providing that all
dismissal orders shall be passed by the Manager or Acting Manager who shall do
so after giving the accused an opportunity to offer any
explanation-Interpretation of- Whether contemplates second opportunity to
workman after conclusion of enquiry and before inflicting punishment of
dismissal-Whether enquiry gets vitiated in absence of such opportunity.
HEADNOTE:
Four workmen of the appellant company in
Civil Appeal No. 209/73 were charged for misconduct as defined in Standing
order No. 16. The enquiry officer found them guilty of the charges. On the
basis of the Enquiry officer's report and after looking into the previous
record of the workmen, the General Manager dismissed them. On a dispute having
been raised it was referred to the arbitrator, first respondent, under section
10A of the Industrial Disputes Act 1947. The arbitrator held that the enquiry
which was otherwise fair and valid was vitiated because no second opportunity
was given to the workmen before dismissing them as required by the Standing
order No. 17. The Arbitrator set aside the dismissal of two workmen and
confirmed that of the other two. The management and the workman challenged the
award in the High Court by two writ petitions. The High Court confirmed the
award and dismissed both the writ petitions.
Hence these appeals by management and the
workmen.
Allowing the appeal of the management and
dismissing that of the workmen.
HELD: Under Standing order No. 17 no second
opportunity of showing cause on the question of punishment is contemplated.
[367D] Neither under the ordinary law of the land nor under industrial law a
second opportunity to show cause against the proposed punishment is necessary.
This of course, does not mean that the standing order may not provide for it but
unless the Standing order provide for it either expressly or by necessary
implication, no enquiry which is otherwise fair and valid will be vitiated by
non-affording of such opportunity. [369B-D] Standing Order No. 17 provides that
a worker may be suspended, fined or dismissed if found guilty of misconduct as
defined in Standing Order No. 16. Para 3 of Standing Order No. 17 says that
"all dismissal orders shall be passed by the Manager or Acting Manager who
shall do so after giving the accused an opportunity to offer any
explanation." The question is whether para 3 provides for such second
opportunity being given to the delinquent ? The words "all dismissal
orders shall be passed by the Manager after giving, the accused an opportunity
to any offer explanation" in para 3 of Standing Order No. 17 are wholly
inappropriate to convey the idea of a second hearing or opportunity on the
question of punishment but appropriate in the context of seeking an
explanation' in regard to the alleged misconduct charged against him. An
'explanation' is to be called from the 'accused' which suggests that the same
is to be called for prior to the recording of a finding that the delinquent is
guilty of misconduct; it is the alleged misconduct that is to be explained by
him and not the proposed punishment.
On a plain reading of the relevant words no
second opportunity of showing cause against the proposed punishment is
contemplated either expressly or by necessary implication. In other word, it is
clear that the opportunity spoken of by para 3 of Standing Order No. 17 is the
opportunity to be given to the delinquent to meet the charges framed against
him. Further, since the instant Standing Order was certified prior to the
enunciation of the law by Courts regarding the observance of the principles of
natural justice such as issuance of a charge-sheet, holding of an inquiry,
opportunity to lead evidence, etc. It merely contains a bald provision for
'giving the accrued an opportunity to offer any explanation'. In other words.
different stages in domestic inquiry were
never in the contemplation of the framers of the Standing Order. That being the
position it would be difficult to attribute any intention to the framers
thereof to provide for a second opportunity being given to the delinquent of
showing cause against the proposed punishment. [368A-E; 369C-H; 370A-B] The
view of the Arbitrator as also the view of the High Court proceed on an
assumption the Standing Order No. 17 deals with two different stages concerning
disciplinary proceedings against a delinquent, first holding of a departmental
inquiry into the charges where principles of natural justice must be implied
and second the infliction of graver punishment before awarding which
opportunity to show cause has been provided for; but the plain reading of the
Standing Order read as a whole does not warrant any such assumption and,
therefore, the construction placed on Standing order No. 17 by the Arbitrator
or the High Court is not possible much less reasonably possible. [373H; 371A-B]
In the instant case, admittedly, opportunity to offer explanation in regard to
the alleged misconduct was not only afforded but was availed of by the
concerned foul workers by submitting their written explanations to the Manager
where after the departmental inquiry was held. In other words Standing Order
No. 17 was fully complied with and what is more the Arbitrator has held that
the inquiry was otherwise fair and valid. [371D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 209 of 1973.
(Appeal by Special leave from the Judgment
and Order dated the 27th July 1972 of the Madhya Pradesh High Court in Misc.
Petition No. 129 of 1970) AND Civil Appeal No. 1140 of 1974 (From the Judgment
and order dated the 27th July, 1972 of the Madhya Pradesh High Court in Misc.
Case No. 365 of 1970.) 363 F.N. Kaku and D.N. Misra for the Appellants in CA.
No. 209 of 1973 & For the Respondent No.2 in CA. 1140/74.
M.K. Ramamurthy, Vineet Kumar and Naresh K.
Sharma, for the Respondent Nos.2 & 4 in CA.209/73 & for the Appellant
in CA. No.1140 of 1974.
The Judgment of the Court was delivered by
TULZAPURKAR, J. The principal question raised for our determination in these
appeals is: Whether on its proper construction the certified Standing Order 17
provides for second opportunity being given to a workman after conclusion of
the inquiry into his misconduct and before inflicting on him the punishment of
dismissal and if so whether the enquiry gets vitiated by not affording him such
opportunity? Facts giving rise to the question may be stated. The Associated
Cement Companies Limited (hereinafter called 'the Appellant') has quarries
worked by its department called Kymore & Bamangaon Lime-stone Mines at
Kymore, District Jabalpur, M.P. Workers employed in the said quarries have a
union called Kymore Quarry Karamchari Sangh and the four concerned workmen Rama
Shanker, Barmapradhan, Emmanual and Mohd. Rauf (hereinafter called the
Respondents') were at the material time the office bearers in the union.
In connection with the implementation of the
Recommendations of Second Central Wage Board for the cement industry, after
serving a strike notice on the management of the Appellant on 13th September,
1968, the Karamchari Sangh and all its Members went on a strike for 24 hours
commencing from the mid-night of 19th September, 1968 which was accompanied by
acts of intimidation, threats, ghearoes and unlawful obstruction. According to
the management before the commencement of the strike two meetings were
organized by the Respondents, one at 4 P.M. and the other at 11 P.M. on 19th
September at which fiery speeches were made by them wherein they not only
instigated the quarry workers to resort to strike but intimidated and prevented
the willing workers from 364 going to their work and threatened the supervisory
staff and officers with dire consequences if they tried to work the quarries
and what is more from the mid-night of 19th September till 4.30 A.M. on 20th
September the quarry Manager and the supervisory staff were ghearoed and at
4.30 A.M. the Agent's car stopped at the gate and he was unlawfully obstructed
from visiting the querry premises.
Since resorting to a strike without giving 14
days' prior notice as also the aforesaid acts on the part of the Respondents
amounted to serious misconduct under the certified Standing Orders applicable
to the quarries the Management served Charge-sheets dated 3rd of October. 1968
on the Respondents in which four common charges were levelled against all of
them; in addition a fifth charge was levelled against two of them Emmanual and
Mohd. Rauf; and yet another 6th charge was levelled against Mohd. Rauf. The
common charges were (a) themselves going on strike without 14 days' prior
notice, (b) inciting and instigating other workers to go on strike, (c) gheraoing
the Quarry Manager and other supervisory staff between mid-night and 4.30 A.M.
on 20th September and inciting others to
gherao the said staff and (d) forcibly and unauthorisedly occupying the area
near the quarry canteen between 4 P.M. on 19th Sept. and 1 A.M. on 20th Sept.
and installing and using loud-speakers for inciting the workers. Shri Emmanual
and Shri Rauf were further charged with threatening the gheraoed staff with
dire consequences, if they moved out; and Mohd. Rauf was charged in addition
for having restrained the Quarry Agent from entering the quarry premises. The
respondents were called upon to submit their explanation in respect of the
charges to the General Manager which they did; in their Explanations they by
and large denied the charges levelled against them. A departmental enquiry was
held against them by Shri H.S. Mathur during the course of which at one stage
the Respondents withdrew from the enquiry on 24th October, 1968 on the plea
that the Quarry Agent should be examined first which was not being done,
whereafter the enquiry proceeded ex-parte and on a consideration of the entire
evidence led before him the Enquiry Officer came to the conclusion that the
first three charges were fully proved and the fourth charge was partly proved
against all the respondents while the additional charges against Emmanual and
Mohd. Rauf were also proved. The Enquiry Report was forwarded to the General
Manager who after considering the same and after taking into account the
previous service record of the Respondents by his order dated 31st December,
1968 dismissed the Respondents from service. That order was served on the
Respondents on 30th January, 1969.
365 A dispute having been raised with regard
to their dismissal, by common consent, the same was referred to the arbitration
of Shri T.C. Shrivastava, a retired Judge of M.P. High Court, under sec. 10-A
of the Industrial Disputes Act, 1947 on 14th 'April, 1969. The Arbitrator gave
his Award on 9th February, 1970 whereby he came to the conclusion that the
enquiry which was otherwise fair and valid was vitiated because no second
opportunity was given to the Respondents of showing cause against the proposed
punishment before the issuance of their dismissal order as required by the
Standing Order No. 17; he further held that though before him the Management
had by leading evidence proved their mis-conduct by establishing the first
three charges against all, the fifth charge against Emmanual and Mohd. Rauf
(fourth charge being held not to have been proved) the punishment of dismissal
in respect of Emmanual and Mohd. Rauf could be confirmed but set aside the
dismissal in respect of Rama Shanker and Barmapradhan on the ground that while
fomenting the strike the conduct of Emmanual and Mohd. Rauf was graver than
that of Rama Shanker and Barmapradhan and instead ordered their reinstatement
but without back wages. The Appellant challenged the Award in the High Court by
means of a Writ Petition (Misc. Petition No. 129 of 1970) contending that the
Arbitrator had misconstrued Standing Order No. 17 and that no second
opportunity was required to be given to the Respondents and that in the
alternative the interference with the punishment of dismissal in respect of
Rama Shanker and Barmapradhan was erroneous while another writ petition (Misc.
Petition No. 365 of 1970) was filed by the Respondents against the punishments
that were awarded to each one of them the High Court by its judgment dated 27th
July, 1972 confirmed the Award of the Arbitrator by dismissing both the writ
petitions.
The Appellant has come up in appeal (being
Civil Appeal No. 209/73) by special leave challenging the interference with the
dismissal of Rama Shanker and Burma Pradhan while the Respondents have
preferred their appeal (being Civil Appeal No. 1140 of 1974) on a Certificate
granted by the High Court challenging the punishments operating against each one
of them. At this stage it may be stated that as regards Emmanual and Mohd. Rauf
the matter has been compromised between the parties which has already been
recorded by this Court with the result that Civil Appeal No. 1140 of 1974 in so
far as their dismissal is concerned no longer survives and the same needs to be
dealt with by us only as regards back wages that have been denied to Rama
Shanker and Burmapradhan.
366 In support of civil Appeal No. 209 of
1973 Counsel for the Appellant raised three contentions before us. In the first
place, he contended that the learned Arbitrator as well as the High Court have
erroneously construed the certified Standing order No. 17 as requiring a second
opportunity being given to a workman at the conclusion of the enquiry into his
mis-conduct and before inflicting upon him the punishment of dismissal; he
urged that the concept of second opportunity being given to a delinquent which
obtained under sec. 240(3) of the Government of India Act, 1935 or Art. 311 of
the Constitution prior to the insertion of the Proviso to Article 311 (2) could
not be invoked or applied to the instant case nor was such second opportunity
any requirement of the ordinary law of the land or of Industrial law and in
this behalf reliance was placed on two decisions of this Court in Hamdard
Dawakhana case and in Saharanpur Light Rly, case. Counsel urged that on proper
construction of the Standing order it should have been held that no second
opportunity was contemplated there under and therefore the finding that the
enquiry was vitiated deserved to be set aside and according to him if the
enquiry was valid and was not vitiated the punishment of dismissal imposed on
Rama Shanker and Barmapradhan could not be interfered with. In the alternative
counsel contended that assuming that the enquiry was vitiated for the reason
mentioned by the Arbitrator even than once serious mis- conduct was proved by
leading evidence before the learned Arbitrator it was not open to him to
interfere with the punishment of dismissal unless the punishment was so harsh
as to smack of victimisation. In the further alternative counsel contended that
assuming that the Arbitrator had power to interfere with the punishment in the
instant case having to the facts and circumstances he was not justified in
setting aside the dismissal of Rama Shanker and Barmapradhan especially on the
ground on which he did so namely, that the conduct of Shri Emmanual and Mohd.
Rauf was more grave than that of Rama Shanker and Barmapradhan while fomenting
the strike; counsel urged that passively taking part in the strike was
distinguishable from the more serious mis-conduct of fomenting or inciting the
strike and all the respondents were found guilty by the learned Arbitrator of
such serious misconduct and as such no distinction on the distinction on the
basis indicated between the two sets of workmen should have been made in the
matter of punishment, on the other hand counsel for the Respondents urged that
Standing order No. 17 had been properly construed by the Arbitrator and the
High Court and that construction should be upheld and in any case if two
constructions were reasonably possible no interference by this Court was called
for and counsel in that behalf relied upon the decision Agani (W.M.) v. Badri
Das and ors. Counsel further urged that once the enquiry got vitiated the
entire field of determining the mis-conduct as also the punishment there for
became open and the Arbitrator had jurisdiction and power to consider both the
aspects and that the Arbitrator in the facts and circumstances of the case had
justifiably interfered with the dismissal of Rama Shanker and Barmapradhan and
had directed their reinstatement.
From the rival contentions summarised above
it will appear clear that the real question that arises in these appeals is,
does the certified Standing order No. 17 provide for second opportunity being
given to a workman to show cause against the proposed punishment of dismissal,
for, it was not disputed before us that if no such second opportunity is
contemplated by it then the only ground on which the inquiry has been held to
be invalid by the learned Arbitrator and the High Court would disappear and the
Arbitrator could not have entered into merits of the case or interfered with
the punishment of dismissal inflicted upon Rama Shanker and Barmapradhan. The
question obviously depends upon the proper construction to be placed on said
S.O. 17. It may be stated that the certified S.O. 16 enlists several acts or
omissions that constitute 'misconduct' and striking work either singly or with
other workers without giving 14 days previous notice, inciting whilst on the
premises and worker to strike work and indulging in a Gherao, which would
amount to an 'act subversive of discipline or efficiency' are obviously
included therein.
S.O. 17 which deals with punishments and
procedure there for runs thus:
"17. A worker may be suspended for a
period not exceeding 4 days or fined in accordance with the Payment of Wages
Act or dismissed without notice or any compensation in lieu of notice it found
guilty of misconduct defined in Standing order No. 16.
368 All orders of suspension and fines shall
be in writing setting out the misconduct for which the punishment is awarded.
No officer below the rank of the Head of Department shall award the above
punishment All dismissal order shall be passed by the Manager or Acting ,
'Manager who shall do so after giving accuse an opportunity to offer any
explanation. Due consideration to the gravity of the misconduct and the previous
record of the worker shall be given in awarding the maximum punishment.
In the event of a discharge of dismissal, the
worker shall be paid off within the second working day following the discharge
or dismissal." The question is whether when paragraph 3 of the S.O.
says: "all dismissal orders shall be
passed by the Manager or Acting Manager who shall do so after giving the
accused an opportunity to offer any explanation", it contemplates giving
of a second opportunity to the delinquent to show cause against the proposed
punishment of dismissal after he has been found guilty or the opportunity
spoken of is the opportunity to meet the charges in the domestic inquiry? At
the outset the legal position as has been clarified by this Court in the
Saharanpur Light Railway Co.'s case (supra) may be stated. In the context of
certain modification sought to be introduced in a Standing order requiring a
second show cause notice this Court has observed thus: ' "As regards the
modification requiring a second show cause notice, neither the ordinary law of
the land nor the industrial law requires an employer to give such a notice. In
none of the decisions given by the Courts or the Tribunals , such a second show
cause notice in the case of removal has ever been demand or considered
necessary. The only class of cases where such a notice has been held to be
necessary are those arising under Art. 311. Even that has now been removed by
the recent amendment of that Article. To import such a retirement from Art. 311
in industrial matters does not appear to be either necessary or proper and.
would be equating industrial employees with civil servants.
In our view, there is no justification or any
principle for such equation.
369 Besides, such a requirement would
unnecessarily prolong disciplinary enquiries which in the interest of
industrial peace should be disposed of in short time as possible. In our view
it is not possible to consider this modification as justifiable either on the
ground of reasonableness of fairness and should therefore be set aside."
It is thus clear neither under the ordinary law of the land nor under
industrial law a second opportunity to show cause against the proposed
punishment is necessary. This, of course, does not mean that a Standing order may
not provide for it but unless the Standing order provides for it. either
expressly or by necessary implication no inquiry which is otherwise fair and
valid will be vitiated by non-affording of such second opportunity. The
question is whether para 3 of the Standing order No. 17 provides for such
second opportunity being given to the delinquent ? The relevant words are
" all dismissal order shall be passed by the Manager alter giving the
accused an opportunity to offer any explanation". The underlined words are
wholly inappropriate to convey the idea of a second hearing on opportunity on
the question of punishment but appropriate in the context of seeking an
explanation in regard to the alleged misconduct charged against him. An
explanation' is to be called from the 'accused' which suggests that the same is
to be called for prior to the recording of finding that the delinquent is
guilty of misconduct: it is the alleged misconduct that is to be explained by
him and not the proposed punishment. On a plain reading of the relevant words
no second opportunity of showing cause against the proposed punishment is
contemplated either expressly or by necessary implication.
In other words, it is clear to us that the
opportunity spoken of by para 3 OE S.O. 17 is the opportunity to be given to
the delinquent to meet the charge framed against him. In this connection it
will be pertinent to mention that the concerned S.O. was framed and came into
force on March 1, 1946 and was duly certified on October 16, 1954 under the
Industrial employment (Standing orders) Act, 1946 i.e. prior to the enunciation
of the law by Courts regarding the observance of the principles of natural
justice such as issuance of a charge-sheet, holding of an inquiry, opportunity
to lead evidence, etc. and it is well-known that after the enunciation of these
principles model standing orders have been framed to provide for the detailed
steps required to be undertaken during a domestic inquiry. Since the Instant
Standing order was certified prior to the formulation of the above principles
it merely 370 contains a bald provision for `giving the accused an opportunity
to offer any explanation'. In other words, different stages in domestic inquiry
were never in the contemplation of the framers of the S.O. That being the
position it would be difficult to attribute any intention to the framers
thereof to provide for a second opportunity being given to the delinquent of
showing cause against the proposed punishment. The latter part of para 3 merely
casts a unilateral obligation on concerned authority or the officer to give due
consideration to the gravity of the misconduct and the previous record of the
delinquent in awarding the maximum punishment.
It is true that the Arbitrator has
undoubtedly taken the view that the opportunity spoken of by para 3 does not
refer to the opportunity to meet the charges but refers to the further
opportunity being given to the delinquent to show cause against the graver
punishment of dismissal that may be proposed to be inflicted on him. But for
reaching such a conclusion he has resorted to some involved reasoning which is
not warranted by the Standing order if read as a whole. According to him in the
earlier paragraph which speaks of awarding lighter punishment there is no
reference to any opportunity being given to meet the charges but no punishment
not even lighter punishment can be inflicted without inquiry being held
according to the principles of natural justice and if such an inquiry as
implicit in cases of lighter punishments it would be so in cases of graver
punishment like dismissal and since specific mention of opportunity as made in
cases of graver punishment in the relevant sentence para 3 it must have a
meaning and the words cannot be considered a surpulsage and, therefore, the opportunity
mentioned in the relevant sentence of para 3 refers to the second opportunity
being given to the delinquent at the stage of inflicting the punishment of
dismissal. The High Court has confirmed the view of the basis that the first
part of the Standing order deals with several punishments and requires finding
of guilt in respect of each one of them and this procedure is, therefore,
different from that which has been contemplated in the last part of the
Standing order and that last part deals only with the punishment of dismissal
and for that punishment alone makes a special provision that no order awarding
that punishment will be passed unless the Manager gives an opportunity to a
workman to offer his explanation. In our opinion, the view of the Arbitrator as
also the view of the High Court proceed on an assumption that the Standing
Order No. 17 deals with two different stages concerning disciplinary
proceedings against a delinquent, first holding of a 371 departmental inquiry
into the charges where principles of natural justice must be implied and second
the infliction of graver punishment before awarding which opportunity to show
cause has been provided for; but the plain reading of the Standing Order read
as a whole does not warrant any such assumption and, therefore, we do not feel
that the construction placed on Standing Order No. 17 by the Arbitrator or the
High Court is possible much less reasonably possible. The ratio of this Court's
decision in Agnani (W.M.) v. Badri Das & Ors. (supra) is, therefore, not
attracted.
In view of the construction which we are
placing on S.O. No. 17, it will be clear that the only ground on which inquiry
was held to be invalid by the Arbitrator and by the High Court must disappear.
Admittedly, opportunity to offer explanation in regard to the alleged
misconduct was not only afforded but was availed of by the concerned four
workers (including Rama Shankar and Burma) Pradhan) by submitting their written
explanations to the Manager whereafter the departmental inquiry was held by
H.S. Mathur. In other words S.O. 17 was fully complied with and what is more
the Arbitrator has held that the inquiry was otherwise fair and valid. The
solitary ground on which the inquiry was held to be invalid having disappeared
it must follow that the Arbitrator had no Jurisdiction to enter into the merits
of the case or interfere with the punishment of dismissal inflicted upon Rama
Shankar and Burma Pradhan. That part of the Arbitrator's award which has been
confirmed by the High Court is, therefore, set aside. The alternative
contentions raised by counsel for the Management in these appeals do not
survive. C.A. No. 209 of 1973 (filed by the Management) is allowed and C.A. No.
1140 of 1974 (filed by the two workmen Rama Shankar and Burma pradhan) is
dismissed. There will be no order as to costs.
H.S.K. C.A. 209/72 allowed and CA. 1140/74
dismissed.
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