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Ballarpur Collieries Company Vs. State Industrial Court - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 364 of 1961
Judge
Reported in(1963)65BOMLR556; 1963MPLJ891
ActsIndustrial Disputes Act, 1947 - Sections 2, 10 and 25F
AppellantBallarpur Collieries Company
RespondentState Industrial Court
Appellant AdvocateR.K. Thakur, Adv.
Respondent AdvocateM.N. Phadke and ;M.W. Puranik, Advs.
Excerpt:
central provinces and berar industrial disputes settlement act (xxiii of 1947), section 1(3) - central provinces and berar shops and establishments act (xxii of 1947)--notification issued under section 1(3) of act xxiii of 1947--item '(iii) mines' in notification whether excludes from operation of act all activities or operations connected with mining industry--employee governed by act xxii of 1947 whose employment is of industrial character whether can also be governed by act xxiii of 1947--practice--tribunal--objection as to jurisdiction of tribunal--tribunal whether in deciding such question should give its reasons.;under item '(iii) mines' in the notification issued by the provincial government of the central provinces and berar on november 20, 1947, under section 1(3) of the central.....abhyankar, j.1. the petitioner, the ballarpur collieries company, is a registered partnership firm. it has its registered office at bisesar house in nagpur. the petitioner owns coal mines in chanda district in this region. the business of the company is to sell coal extracted from its mines. the head office of the petitioner is at nagpur and that consists of office staff of 35 persons. it was stated by the petitioner that the head office at nagpur carried on correspondence with lawful authorities, mines and customers and received amounts of the bills of coal supplied to the customers. the staff of the mines is transferable to the head office and vice versa. 2. respondent 3 was a stenographer. he had put in about 24 years' service as such with the concern. the present petitioner has.....
Judgment:

Abhyankar, J.

1. The petitioner, the Ballarpur Collieries Company, is a registered partnership firm. It has its registered office at Bisesar House in Nagpur. The petitioner owns coal mines in chanda district in this region. The business of the company is to sell coal extracted from its mines. The head office of the petitioner is at Nagpur and that consists of office staff of 35 persons. It was stated by the petitioner that the head office at Nagpur carried on correspondence with lawful authorities, mines and customers and received amounts of the bills of coal supplied to the customers. The staff of the mines is transferable to the head office and vice versa.

2. Respondent 3 was a stenographer. He had put in about 24 years' service as such with the concern. The present petitioner has acquired interest in the coal business from the predecessor with whom respondent 3 was also working. He was drawing a salary of Rs. 317 per month including allowances, etc., at the relevant time. It appears that the petitioner permitted respondent 3 to go on leave and join duties on return from leave on or about 19 June, 1959. On 22 June, 1959, respondent 3 had an interview with Seth Sunderlal, junior partner of the petitioner-firm. What happened at this interview is a matter of dispute between the parties.

3. Respondent 3 worked as usual up to 30 June 1959 in the office. On that date, according to respondent 3 he had submitted the calculation of the amount that may be payable to him by way of provident fund, etc., to Seth Sunderlal. This fact is not admitted by the petitioner. On 1 July, 1959, respondent 3 attended office but when he was told by Sri Kothekar, who was his immediate superior officer, to take some work for typing, respondent 3 declined on the ground that he was no longer in service. It does not appear from the record that any immediate complaint was made about this alleged refusal to obey the orders of Sri Kothekar by respondent 3. On 10 July, 1959, respondent 3 submitted another statement purporting to be the calculation of his claim for gratuity or compensation if for any reason he was to retire from service, or cease to be in service, to Seth Jamnadas, the managing director of the petitioner-firm. On the next date, i.e., 11 July, 1959, respondent 3 addressed a letter to Seth Jamnadas. It is to be found at pp. 66-68 of the paper book. In this letter addressed to Seth Jamnadas he has made a grievance that he had approached the managing director to explain his case and that seems to have annoyed the managing director. Letter was therefore written to put on record what was his version of the circumstances in which he had approached the managing director. Either on the same date or on the previous date, the petitioner-company through its personnel officer issued a letter bearing No. 221, calling upon respondent 3, within 48 hours of the receipt of the letter, to show cause why disciplinary action should not be taken against him and why his services should not be dispensed with. That letter is at p. 48-49 of the paper book. The charge imputed to respondent 3 in this letter is that he was not doing any typing work and whenever anyone called him or gave him work he refused to do the same on the pretext that he was unable to do it as he was on the verge of retirement, which was absolutely irrelevant in view of the fact that the terms of service expected him to work till he was in service or till he had submitted his resignation to the office. There is no reference in this letter to the alleged refusal to obey the orders issued by Sri Kothekar on 1 July, 1959. This letter was received by respondent 3 some time later and possibly on 13 July, 1959. On 11 July, 1959, respondent 3 had sent a note in the office that he would be unable to attend office on that date and he may be treated as on casual leave. He had sent another note on 3 July, 1959 that he was ill and would be unable to attend office for three or four days. Respondent 3 sent a reply to the show-cause notice received by him bearing No. 221 on 14 July, 1959. That reply is to be found at pp. 64 and 65 of the paper book, and is dated 14 July, 1959. He repudiated in this letter that he could be guilty of dereliction of duty. Respondent 3 in this letter in Para. 2 stated that in terms of the decision regarding termination of his services taken by the management and conveyed to him on 22 June, 1959, by Seth Sunderlalji in the presence of Sri Kanade, personnel officer, he ceased to be a member of the staff with effect from 1 July 1959.

4. On the next day, the petitioner-company sent another letter containing additional charges to respondent 3. That letter is dated 15 July, 1959, and is sent after respondent 3's letter dated 14 July, 1959. In this second chargesheet the petitioner stated that no one had conveyed to him (respondent 3) that his services would be terminated from 1 July, 1959. The letter charged him not only for not fulfilling the terms of contract of service but also for having signed the daily attendance register and refused to work from 1 July, 1959 till 10/11 July, 1959, which according to the petitioner amounted to shirking of duties of a stenographer besides being an attempt to cheat the petitioner. The charges, such as they were, are in general terms and not specific. This letter was received by respondent 3 on 18 July, 1959. As the letter intimated that an enquiry would be held by the Superintending Engineer of the company on 20 July, 1959, respondent 3 submitted a written statement in defence to the personnel officer. This written statement, dated 19 July, 1959, gives in detail the case of respondent 3. The statement is to be found at pp. 57 to 63 of the paper book. In Para. 3 of the statement respondent 3 disclaimed that he had ever made any claim for payment from 1 July, 1959 to 10 July, 1959, on which dates he had presented himself at the office and undoubtedly marked the attendance register. In Para. 4 he has again reiterated that the only person in the office who asked him to do some typing work was Sri Kothekar. He explained to Sri Kothekar that the management through Seth Sunderlalji had terminated his services and that he had been attending office for receiving dues, that is, compensation, gratuity, etc. He further stated that he had told Sri Kothekar that considering his long service, he would not mind doing typing work to assist the staff without payment but he only asked Sri Kothekar first to take permission of some officer and find out whether the company intended to assign work to him even after termination of his services by Seth Sunderlalji. The statement expressly asserts that after this incident of 1 July, 1959, even though respondent 3 attended office, nobody asked him to do any work, and that he was present from 11 a.m. to 5 p.m. up to 10 July, 1959. He also pointed out that his stand was that he was dismissed by the order of Seth Sunderlalji and that the only question that remained was regarding the calculation of compensation payable to him and, therefore, he could not be charged for any misconduct such as refusal to work, carelessness or neglect of duty or wilful disobedience to take dictation or refusal to carry out the work. In Para. 11 of the written statement, respondent 3 stated that he was prepared to continue in service in which case he would not claim any payment for the dates starting from 1 July, 1959, to the time he was ordered that he was at liberty to resume work in service. In Para. 17 he has stated that he had been most unjustly, illegally and wrongfully given a discharge without compensation and that the only dispute that remained was settlement of the compensation. He has styled his claim as claim for retrenchment compensation. At the end of this written statement there is a note that a list of witnesses is enclosed and such list of witnesses is to be found at p. 63 of the paper book. The list is headed 'list of witnesses under protest in enquiry.' This list shows that the witnesses whom respondent 3 desired to question were

(1) Personnel officer, Sri Kanade,

(2) Sri Kothekar,

(3) Seth Sunderlalji Daga, and

(4) Seth Jamnadas Daga, the managing partner, the Ballarpur Collieries Company.

5. In a post-script added as 'N. B.' to this list respondent 3 stated that he should be allowed to be assisted by counsel for examining and cross-examining these witnesses. This request was made in view of the fact that particular circumstances of the case have made the matter very difficult and such assistance was very badly needed by him to bring out the truth on record.

6. Thereafter enquiry was taken up on 20 July 1959, by the Superintending Engineer of the company, Sri Kutumbe. What happened at the enquiry on that date is recorded by the enquiry officer at pp. 31 and 32 of the paper book. It appears that the company was represented by the personnel officer and respondent 3 was present in person. The enquiry officer ascertained whether the letters exchanged between the parties were duly received by them and was satisfied that each party had received the letters sent by the other. It is noted in the record of the enquiry proceedings for this date by the enquiry officer that a copy of letter dated 11 July, 1959, addressed by respondent 3 to the managing director Seth Jamnadas Daga, is admitted to have been received by the complainant. Some discussion seems to have taken place between the enquiry officer and the personnel officer as to the nature of the enquiry or the manner in which it is to be conducted and the enquiry officer has noted the submission made by the personnel officer that this being a domestic enquiry no strict legal provisions were followed and that this is more or less a question of natural justice meaning possibly that the principles of natural justice were required to be observed in the conduct of the enquiry. The enquiry was then postponed to 23 July, 1959, as adjournment was sought by the personnel officer on behalf of the petitioner because a written statement was required to be filed in reply to the written statement of respondent 3 which was submitted on 19 July, 1959. Adjournment was sought and given expressly on this ground.

7. The enquiry was then resumed on 23 July 1959, and the procedure of the enquiry is to be found at pp. 33-40 of the paper book. After the adjournment of the enquiry on 20 July, 1959, respondent 3 had addressed two communications to the enquiry officer. By his letter dated 20 July, 1959 respondent 3 complained that he had requested the enquiry officer to be supplied with a copy of the proceedings but he was told that there was no such practice of the company permitting grant of such copies and, therefore, the copies were not given to respondent 3. He also complained that his request for assistance of a lawyer was also not granted on objection raised at the instance of the company. Respondent 3 also alleged that he had heard that the petitioner-company was trying to perpetrate what is called a farce of the enquiry. Thereafter he has mentioned that apprehending that justice would not be done to him in the enquiry proceedings he was intending to pursue other remedies under the Central Provinces and Berar Industrial Disputes Settlement Act. By another letter dated 21 July, 1959, addressed to the enquiry officer, respondent 3 requested that he should be allowed to take notes and copies of such documents as he considered important and necessary for his defence and for that purpose inspection of the documents may be given. Respondent 3 personally presented this application so that necessary orders may be urgently passed allowing respondent 3 to take notes and copies of the documents. He again reiterated his request for being allowed assistance of counsel. In a postscript added to this application respondent 3 requested that he should be furnished with a list of witnesses who will depose on behalf of the employer and then stated that he had submitted his list of witnesses whom he would want for cross-examination. This application is to be found at pp. 52 and 53 of the paper book.

8. The enquiry officer first proceeded to dispose of these applications when the enquiry was resumed on 23 July, 1959. As regards the request of respondent 3 for being supplied with the copies of the proceedings or for permission to copy the proceedings, the enquiry officer directed that the enquiry not being before a civil Court it was not possible to accede to this request but respondent 3 may take notes while the enquiry is proceeding. As regards the copies asked for in the application dated 21 July, 1959, the enquiry officer observed that no papers had been filed by the complainant uptil then, that is, till the order dated 23 July, 1959 and the question of providing copies did not arise. As regards the list of witnesses to be intimated to respondent 3 the enquiry officer ruled that since in such enquiries no previous intimation of witnesses is required and since the witnesses are to be produced by the persons concerned the list of employers' witnesses could not be given. Thereafter somewhat unusual procedure seems to have been followed by the enquiry officer. The enquiry officer proceeded to record the statement of the personnel officer Sri Kanade. Now this statement was recorded in the form of Sri Kanade dictating the contents of the statement to a writer and the writer typing that statement. It does not appear that this statement is the oral testimony or oral statement of Sri Kanade. The statement is in the nature of a reply on behalf of the petitioner-company to the written statement of respondent 3 which he had filed on 19 July, 1959. After this statement was recorded as dictated by Sri Kanade; the enquiry officer put certain questions to respondent 3 regarding the charges in respect of which the enquiry was being held. With regard to the first charge as to whether he refused to work when he was asked to type certain letters by Sri Kothekar, respondent 3 replied as follows :

'He wanted me to do some work, when I told him that you get permission from some officer when I can do it.'

9. It does not appear that any question was put to respondent 3 by the enquiry officer regarding the alleged refusal or neglect of respondent 3 to do the work after 1 July, 1959 till 10 July, 1959, during which period respondent 3 had attended office though that was one of the subject-matters of the charges for which the enquiry was held. Then as regards the alleged attempt to cheat the company by marking attendance in the attendance register, the enquiry officer asked respondent 3 as to why it was necessary for him to mark his attendance by signature when respondent 3 claimed that he had come to the office to claim his dues. The answer of respondent 3 was that the marking of the attendance register was just to establish that he was present in the office on those days. These are all the questions that seem to have been asked pertaining to the charges framed against respondent 3 for which the enquiry officer was making the enquiry. Then certain questions were asked by the enquiry officer to the personnel officer who represented the petitioner in the domestic enquiry. After ascertaining the rules or the provisions of law under which action is being taken or the relationship between respondent 3 and the petitioner is governed, the enquiry officer asked whether he was present at the time of the interview between respondent 3 and Seth Sunderlalji as alleged by respondent 3. The answer given by the personnel officer to this question was as follows :

'On or about 22 June, Seth Sunderlalji sent for Sri Bapat and told him that there were reports that he was hard of hearing and was not capable of discharging his duties as a stenographer. He also asked him his age. Sri Bapat replied that at his age of 61 certainly he could not give work to the desired standard and admitted that defects creeping in due to age were there. Seth Sunderlalji put to him 'how about your voluntarily retiring by submitting your resignation' and Seth Saheb paying him some money so that he may not have to face hardships immediately.'

10. Thereafter the personnel officer seems to have filed certain documents including two documents which purported to be statement one of Sri S. N. Kothekar dated 18 July, 1959, and another statement of Sri Kothekar, dated 22 July, 1959, and a third statement of Sri Joshi, sales accountant, dated 22 July, 1959. The list of the documents of which a copy is at p. 44 of the paper book shows that the documents were filed on 23 July, 1959, before the enquiry officer. It does not appear that the copies of the above three documents, at any time, were made available to respondent 3. Excepting putting questions to the personnel officer and respondent 3, the enquiry officer did not record statements from any other person and the enquiry was closed on 23 July, 1959. The enquiry officer submitted his report a week later on 30 July, 1959. That report is to be found at pp. 24 to 30 of the paper book. After giving a resume of the proceedings on the two dates the enquiry officer referred to the decision given by him regarding the request made by respondent 3 during enquiry either orally or in writing. In Para 3 of the report the enquiry officer has stated that respondent 3 wanted to see the copies of the documents filed by the company. He was informed that no documents except those admitted by him had been filed by the company till the day of the enquiry. There is no reference to the documents such as the statements of Sri Kothekar and Sri Joshi filed by the company on the last day of the enquiry and whether any action was taken by the enquiry officer to supply respondent 3 with copies of those statements. The enquiry officer then noted the point for decision which arose as a result of the complaint and the chargesheets supplied. He has formulated the points thus :

'(1) Whether it is a fact that Bapat has refused to obey the lawful and reasonable orders of his superior on 1 July 1959.

(2) Whether it is a fact that Bapat has shown a callous disregard towards his duties and committed neglect of work.

(3) Whether Bapat, in spite of having come to the office and having signed the attendance register, did not work and thus tried to cheat the company.'

11. He has also put in issue the question whether the services of respondent 3 have been really terminated by Seth Sunderlalji and Seth Jamnadasji. The enquiry officer found respondent 3 guilty of all the three charges enumerated above. With regard to charge 1, namely, alleged refusal of respondent 3 to obey the orders of Sri Kothekar, the enquiry officer observed as follows :

'Bapat however contends that he acted that way because he gathered an impression that his services were no more required as per talk he had with Sri S. N. Daga. With all that impression I do not think that Bapat was justified in refusing to carry out the orders given by Sri Kothekar when there was no documentary evidence in the hands of Bapat to indicate that his services are not required by the company.'

12. Similarly, with regard to charge 2, regarding disregard of duty while attending office, the enquiry officer held that it was the duty of respondent 3, to work in office till such documentary authority about his retirement was received by him. As regards charge 3, namely, the attempt to cheat by marking attendance on the attendance register, the enquiry officer took the view that the conduct of respondent 3 in applying for leave for one day or for sick leave for three days is inconsistent with the conduct of a man who was under the impression that he was retired or discharged from service. The enquiry officer has also observed that the provisions of the Industrial Disputes Act, 1947, governed the relations between the petitioner-company and its employees like respondent 3, and that the Central Provinces and Berar Shops and Establishments Act, 1947, is not the statute which governed the relations between the employer and the employee, like respondent 3, in the matter of holding enquiries for disciplinary action. He ultimately found respondent 3 guilty of gross negligence of work, callous disregard for his services and of having attempted to cheat the company and also of having made allegations against the company though this last accusation was not the subject-matter of any charges. The enquiry officer however recommended that respondent 3 may be dismissed under S. 23(1) of the Central Provinces and Berar Shops and Establishments Act with effect from 1 August 1959.

13. It does not appear from the record that this report of the enquiry officer was communicated to or made available to respondent 3. The petitioner-company through its managing director however passed an order on 31 July, 1959, dismissing respondent 3 under S. 23 (1) of the Shops and Establishments Act and that order is to be found at p. 70 of the paper book. It is stated in the order after referring to the chargesheet furnished as follows :

'... the charges levelled against you of refusal to obey the lawful and reasonable orders of the superior, gross neglect of work, callous disregard for services, attempt to cheat the company and making false allegations against the company are proved and the enquiry officer has recommended the punishment of dismissal to you. As a result, under S. 23 (1) of the Shops and Establishments Act applicable to the company, you are dismissed from the service with effect from 1 August, 1959 with one month's wages.'

14. It is necessary to state here one event which took place during the pendency of the enquiry, namely, an application filed by respondent 3 before the Assistant Commissioner of Labour under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. A copy of this application is filed on record by the petitioner and is to be found at pp. 15 to 20 of the paper book. The application was registered as Industrial Application No. 146 of 1959. In Para. 3 of the application it is stated by respondent 3 that on 22 June, 1959, Seth Sunderlal Daga sent for the applicant and terminated his services on the ground that the applicant was aged 61. The applicant complained that the termination of services in this manner was contrary to law and the provisions of the Industrial Disputes Act, 1947, S. 25F, and also contrary to the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. The relief claimed in this application was that respondent 3 should be paid compensation by way of retrenchment compensation and also compensation for illegal dismissal or removal. While this application was pending before the Assistant Commissioner of Labour, respondent 3 filed another application which is the subject-matter of the present proceedings on 19 August, 1959. That application challenged the order of dismissal passed against respondent 3 on 31 July, 1959. It was registered as Industrial Application No. 168 of 1959 and for some time both these applications were simultaneously pending before respondent 2. The application filed on 22 July, 1959 (Application No. 146 of 1959) however was dismissed by respondent 2 on 3 October, 1959. While dismissing this application, respondent 2 observed that the enquiry which is necessary to be made on the basis of the second application (Industrial Application No. 168 of 1959) will certainly afford an opportunity to respondent 3 to state the full case taking also into consideration the earlier alleged oral dismissal and the effects thereof. As none of his rights under the act are likely to be curtailed in case the earlier application is dismissed, that application was ordered to be dismissed on the ground that it was not prosecuted. It is not disputed that no enquiry was held on that application. It appears, however, that the documents filed in the proceedings started on that application were treated as documents filed along with the other documents in the proceedings commenced on foot of subsequent application.

15. The application which has given rise to the present petition is to be found at pp. 71 to 75 of the paper book challenging the order of dismissal on seven grounds enumerated in Para. 9 of the application. Among other grounds urged in support of the claim, respondent 3 complained that the witnesses required by him were not called to submit to cross-examination, that he was not supplied with the findings of fact and was never given any real opportunity to defend himself, that he was not allowed the inspection of the documents on record, that he was not given sufficient time to copy the documents so as to enable him to take assistance of counsel to coach him for cross-examining the witnesses called by him for cross-examination. He also made a specific complaint that the witnesses who could possibly depose to the truth of the allegations against him were never called by the enquiry officer. He, therefore, claimed that his dismissal from service was illegal within the meaning of S. 16(3) of the Central Provinces and Berar Industrial Disputes Settlement Act and claimed the relief of reinstatement and compensation payable under the law.

16. The petitioner-company filed a detailed written statement opposing the application. It denied the allegations of fact stated in respondent 3's petition regarding the interview between Seth Sunderlal and respondent 3 on 22 June, 1959, and what happened thereat. It reiterated that the findings of the enquiry officer were correct and that respondent 3 was found guilty by the domestic tribunal of all the charges levelled against him. It further contended that apart from adequate and reasonable opportunity being given to respondent 3, action taken against respondent 3 was also justified and offered to prove that the action was justified by leading evidence before the Assistant Commissioner of Labour. Besides these contentions based on facts, the petitioner raised two more legal contentions, viz., that the application under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act was misconceived in as much as respondent 3 was not governed by the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act, because the petitioner-company which is merely a head office of mining undertaking was excluded from the application of the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act and that the head office being registered as a shop was a commercial establishment under the Central Provinces and Berar Shops and Establishments Act, 1947, the relations between the petitioner and its employees were exclusively governed by he provisions of the Shops and Establishments act and the action taken against respondent 3 was fully within the powers under the Shops and Establishments Act and that there was no question of respondent 3 making any grievance against the order passed against him. As a branch of this argument, it also contended that the petitioner-company having been governed by the Shops and Establishments Act was by necessary implication excluded from the operation of either the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, or the Industrial Disputes Act, 1947, passed by the State or Dominion legislatures respectively.

17. The petitioner-company examined the personnel officer, the enquiry officer, two other of its employees and Seth Sunderlal, the junior partner of the company, before the Assistant Commissioner of Labour. Respondent 3 also went into the witness-box on his own behalf. The Assistant Commissioner of Labour has allowed the application filed by respondent 3 holding that the enquiry was not proper and was vitiated by violation of the principles of natural justice. He has also come to the conclusion that the enquiry was not bona fide and that the framing of the charges was merely a pretext availed of by the petitioner-company to avoid the liability for the payment of compensation if respondent 3 were to be discharged because of superannuation. He also held that the provisions of the Industrial Disputes Settlement Act, 1947, passed by the State legislature applied to the company and governed the relationship between the company and respondent 3 and respondent 3 was, therefore, entitled to file the application under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act for a relief under the Act. He negatived the contention of the petitioner that the provisions of the Shops and Establishments Act applied and the action taken thereunder furnished any immunity to the company at the hands of respondent 3 even if his case was governed by the provisions of the State Industrial Disputes Act. On these findings, the Assistant Commissioner of Labour granted compensation to respondent 3 but refused to order reinstatement in service.

18. Against this order, the petitioner filed a revision application under S. 16(5) of the Central Provinces and Berar Industrial Disputes Settlement Act before the State industrial court. The State industrial court has rejected the revision application substantially affirming the findings recorded by the Assistant Commissioner of Labour. The petitioner has now come up to this Court invoking the jurisdiction of this Court under Arts. 226 and 227 of the Constitution of India.

19. The case was argued at length and with remarkable ability on behalf of the petitioner by Sri R. K. Thakur. In support of the petition Sri Thakur. In support of the petition Sri Thakur raised five points which required decision of the case, viz. :

(i) whether the petitioner is governed by the Central Provinces and Berar Shops and Establishments Act, 1947, and the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 (XXIII of 1947), is excluded from its operation or application,

(ii) is the petitioner governed in respect of the relationship between the petitioner and its employees and the head office by the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947,

(iii) assuming that the provisions of the Central Provinces Act XXIII of 1947 are applicable to the petitioner and its employees, is the action taken by the petitioner against respondent 3 within the authority of that Act,

(iv) is the action taken against respondent 3 in holding the enquiry and dismissing respondent 3 vitiated because of violation of any principles of natural justice, and

(v) whether the authorities below had not exceeded their jurisdiction in re-assessing and re-valuing the action on merits in holding that the charges were not established.

20. We propose to deal with each of the points in the same order. It is undoubtedly true that the petitioner-company, at any rate, its head office at Nagpur, is registered under the provisions of the Central Provinces and Berar Shops and Establishments Act, 1947. Under that Act, either a commercial establishment or a shop is required to be registered as such. It was not clear during arguments whether the petitioner's head office was registered as a commercial establishment or as a shop. A commercial establishment under the Shops and Establishments Act means an establishment which is not a shop but which carries on the business of advertising, commission agency, forwarding or commercial agency, or which is a clerical department of a factory or of any industrial or commercial undertaking, or which is an insurance company, joint-stock company, bank brokers' office, exchange, or such other class of establishment as the Provincial Government may, by notification, declare to be a commercial establishment for the purpose of this Act. Shop, on the other hand, is defined as any premises where goods are sold either by retail or wholesale or both or where services are rendered to customers, and includes offices, store-rooms, godowns or warehouses, whether in the same premises or otherwise, used in connexion with such trade or business but does not include a restaurant, an eating-house or a commercial establishment, or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act. It does not appear that any goods are sold in the head office as such though orders may have been received for the supply of coal and in that sense the business of selling or supplying coal products from the mines owned by the petitioner-company may be carried on. Perhaps the business done by the head office is more consistent with its description as commercial agency or more appropriately a clerical department of any industrial or commercial undertaking. The petitioner has itself averred that it owned coal mines and that it did the business of raising, supplying and selling of coal.

21. By reference to S. 23 of the Shops and Establishments Act, it is contended that the petitioner as an employer was entitled to dismiss its servant for misconduct after giving one month's notice or wages in lieu of notice. The action is being taken against respondent 3 in pursuance of this power of a master recognized in S. 23 of the Shops and Establishments Act. If action is taken under this Act, then it cannot be styled as action taken in contravention of law. According to the petitioner, this is a special Act which governs the conditions of service between the petitioner and its employees so far as the right of the employer to dismiss a servant is concerned. It is, therefore, contended that to the establishment to which the provisions of the Shops and Establishments Act applied no other provisions in respect of the same matter will be applicable in as much as it may lead to conflicting results. So far as the power of dismissal of an employee in a commercial establishment which is governed by the Shops and Establishments Act is concerned, the petitioner contends that the provisions of S. 23 of that Act is the only law which governed the relationship and that every other Act must be excluded by implication. It is not possible to accept this contention urged on behalf of the petitioner. That this is not the effect of the Shops and Establishments Act is clear while we compare the aim and object and the ambit of the legislation which is to regulate the conditions of work and employment in shops, commercial establishments, restaurants, eating-houses, theatres and other establishments. The Act purports to regulate relationship of employer and employee in what are called commercial employments. On the other hand, the provisions of the Industrial Disputes Act which was passed by Parliament or the Industrial Disputes Settlement Act which was passed by the State legislature covered altogether a different field and much wider area. They govern all the relations between the employer and employee in an industrial employment and in effect lay down conditions of service over and above what are determined by a contract of service between an employer and employee. Whereas the purpose of the Shops and Establishments Act is limited, the object with which the legislation such as the Industrial Disputes Act of 1947 is put on the statute book and amended from time to time clearly shows that it covers a wider field of industrial relations and is mainly for adjudication and determination of industrial and labour disputes. A perusal of the provisions of the Shops and Establishments Act shows that there is no means or machinery or forum before which a dispute by an employee who is dismissed under S. 23, even assuming that the dismissal was improper or wrong, can be taken under the Shops and Establishments Act. What S. 23 provides is a limited security against dismissal from service, except for misconduct, after one month's notice or one month's wages in lieu of notice. This safeguard which is provided in S. 23 is of a very limited character and no other provision of the Act can be pointed out to show that the general relations between the employer and employee and the rights and obligations of one party vis-a-vis the other are regulated or governed by any other provisions of this Act. On the other hand, the provisions of the State or the Central Industrial Disputes Act govern the totality of relationship between the employer and employee. When the employment is of an industrial character, it may well be that the employee who may be said to be governed by the Shops and Establishments Act also comes to be governed by the legislation regarding the industrial employment and the relationship between the employer and employee in the industrial field. Such overlapping of jurisdiction or field regarding relationship between the employer and employee when the employment partakes of both the characters, namely, commercial employment and industrial employment, is not excluded by any provisions of the Shops and Establishments Act. We are, therefore, clear that the mere fact that the head office of the petitioner-company is registered under the Shops and Establishments Act, either as a commercial establishment or as a shop, will not exclude the application of the provisions of the Industrial Disputes Act or the Central Provinces and Berar Industrial Disputes Settlement Act, if they are otherwise applicable to the petitioner-company. We, therefore, find it difficult to accept the contention urged on behalf of the petitioner.

22. The main contention of the petitioner, however, is that the petitioner's head office situate at Nagpur is not governed by the provisions of the Industrial Disputes Settlement Act, 1947. It is not disputed that the head office is a part of integrated activity of the petitioner-company which carries on the business of producing coal and its sale and supply to its various customers. The employees in the head office admittedly are liable to be sent for work at the mines, though in the office there, and vice versa, the activities of the employees in the head office are intimately connected with the activities of the company at the mines where coal is produced dressed and made marketable by some process there. The company has its own independent standing orders possibly under the Standing Orders Act, 1946, to govern the activities of its employees at the mines. It was not clear whether those standing orders have also been settled under the State Act. It is stated that those were settled under the Central Act, namely, Standing Orders Act, 1946.

23. According to the petitioner, the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act were to be applied to any particular industry by a notification to be issued by the Provincial Government as provided in S. 1(3) of Act XXIII of 1947. That sub-section provides that S. 1 shall come into force at once, but the Provincial Government may by notification bring the remaining sections or any of them into force in such area or industry and on such date as may be specified in the notification. It is thus clear that unless there is a notification by the Provincial government bringing into force all or any of the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, in particular industry or in particular area, rest of the provisions will not apply to that industry. Such notification was issued by the Provincial Government of the Central Provinces and Berar on 20 November, 1947. That notification is to be found at p. 104 of the Madhya Pradesh Labour Manual, Vol. 1. That notification is as follows :

'In exercise of the powers conferred by Sub-section (2) of S. 1 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, the Provincial Government are pleased to direct that Ss. 2 to 61 of the said Act shall come into force on 21 November, 1947, in all the industries except the following, namely :

(i) Textile industry.

(ii) Employment in any industry carried on by or under the authority of the Central Government by an Indian State Railway or by a railway company operating an Indian State Railway.

(iii) Mines.

(iv) Saw mills.'

24. According to the petitioner, a close scrutiny of the notification shows that Ss. 2 to 61 of the Central Provinces and Berar Industrial Disputes Settlement Act were brought into force from 21 November, 1947 in all the industries except the four which are enumerated above. Among these four excepted industries is the industry of 'mines.' According to the petitioner, therefore, as long as this notification remained in force and it is not disputed that this notification so far as mines are concerned is still in force, all the activities of the petitioner-company regarding the industry of mines including, of course the employment of its personnel at the head office, which is intimately connected with the industry of mines, are all excluded from the operation of Ss. 2 to 61 of the State Act.

25. The Assistant Commissioner of Labour was invited to decide the issue of his jurisdiction by the petitioner as a preliminary issue. A complaint was made before us that the Assistant Commissioner of Labour ruled that he had jurisdiction under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, but did not give any reasons for that decision which was given on 26 March, 1960. It is pointed out that whenever an objection is taken to the jurisdiction of a tribunal, it is advisable that that question should be decided by giving reasons and not merely pronounce its ruling without reasons. We find there is sufficient force in this complaint and the tribunals should be well advised to bear in mind that whenever any objection to the jurisdiction of the tribunal is raised by one party or the other and the tribunal decides that question as a preliminary issue, which is generally done, the finding as to the jurisdiction or want of it must be followed by reasons. If the tribunal finds it has that Jurisdiction, it will proceed with the matter. On the other hand, if it has no jurisdiction, it is always open to the party against whom the decision is given to challenge the finding by appropriate proceedings in higher tribunal. Even though the Assistant Commissioner of Labour ruled on 26 March, 1960, that he had jurisdiction under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, reasons were available only as an annexure to the final order passed by the Assistant Commissioner of Labour on 16 August, 1960. The learned Assistant Commissioner of Labour has observed as follows in Para. 2 of the reasons given by him repelling the objection to his jurisdiction :

'A careful reading of the above notification shows that the notification excluded from the purview of the Act the 'textile industry', employment in any industry carried on by or under the authority of Central Government, etc., and 'mines' only and not 'mining or mineral industry.' Now there is much difference between 'mines' and 'mines or mineral industry.' The term 'mines or mineral industry' is comprehensive and will include all services of employment connected with the conduct of the mining industry including those employees engaged in the head office or elsewhere for administrative and sales work and not necessarily in mines or on mining operation. The term 'mines,' however, will indicate a restricted field-an area where mines are actually situated and mining operation is carried on. In view of this position, I am inclined to hold that the above-cited notification excludes from the ambit of the Act only 'mines' where mining operation is carried on but not other activities such as at the head office of the mines which are not, therefore, excluded from the purview of the Act and all the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act apply to the employees employed in the head office away from 'mines'.'

26. The same objection was pressed before the State industries court and the State industrial court, upholding the view of the Assistant Commissioner of Labour, observed as follows in Para. 10 of its order :

'The Assistant Commissioner has found that the head office at Nagpur is registered as a separate industrial establishment under the Central Provinces and Berar Shops and Establishments Act. There were no standing orders applicable to the establishment at the head office. The standing order applicable to the establishment of the 'mines' did not govern the conditions of service of the staff at the head office. The head office staff could be transferred as of right to the mines. The working conditions of the staff at the mines were different from those at the head office. It was further found that the notification made the Act applicable to all the industries but excluded from the operation of the Act some industries. The notification, however, does not exclude the 'mining or the mineral industry.' It only excludes 'mines'. It was pointed out that whereas the mining industry may include the establishment of the head office wherever situated, the term 'mines' indicated a restricted field, an area where the mines are situated and the actual operations are carried out. Thus, mines and the establishment carrying out the mining operation in the area of the mines, are excluded by the notification but not in the 'head office' of the industry situated away from the area of the mines. In my opinion, this view of the learned Assistant Commissioner is correct; the applicant working as a stenographer in the head office at Nagpur is governed by the Central Provinces Act. The application under S. 16 made by him is therefore maintainable.'

27. It is contended by Sri Thakur that the Courts below had not appreciated that what is excluded from the operation of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, by the notification issued by the Provincial Government is not merely mines but the industry of mines. According to Sri Thakur, there is no difference between an industry of mines and mining industry. Industry of mines, according to him, must include all operations connected with mining and also further activities connected with disposal, sale or other dealings with the products of the mining operation. If the ambit of exclusion of an industry of mines does not include a mining industry as a whole, according to Sri Thakur, the distinction will be without any difference. If this contention is correct, then we have no doubt that the head office of the petitioner-company which is an integral part of the mining industry conducted by the company, and which according to the petitioner is excluded by the notification of the Provincial Government from the provisions of the Central Provinces and Berar Industrial Disputes Settlement act, would automatically be excluded from the operation of this Act. Sri Thakur has also invited our attention to Sch. I of the Central Industrial Disputes Act, where there is a list of industries which may be declared to be public utility services under Sub-clause (vi) of Clause (n) of S. 2 of the Central Act. Item 4 of that list is 'coal.' The contention is that the purpose of the items in the list given in the schedule is to indicate the industries which are to be declared to be public utility services. No item in this list uses the word industry after any item. What is meant is that the list does not describe as banking industry, cement industry, coal industry, etc.; the item mentions only the product or the activity and yet all these are described as industries which are to be declared as public utility services. By parity of reasoning it is contended that the State Government, in the instant case, in issuing the notification also has not used the words 'mines industry,' because the concept or the basic idea of exclusion is with regard to industries and no other activity. It was not, therefore, necessary, according to Sri Thakur, for the Provincial Government to re-emphasize by adding the words 'mines industry' or 'mining industry' and the same purpose is served by indicating mines as one of the industries which are excluded from the operation of the Act.

28. On the other hand, it is contended on behalf of respondent 3 that there is a well-understood distinction between the industry of mines in the sense of mining operation and the whole process of mining industry or a mining undertaking. By reference to the notification, it is pointed out that the notification makes a distinction between certain items which are excluded by way of an industry as a whole and certain items which are excluded in respect of particular activities. First two items in the notification describe the industry to be excluded as textile industry and employment in any industry carried on by or under the authority of the Central Government. On the other hand, next two items describe the particular activity which is to be excluded as (iii) mines or (iv) saw mills. What is contended is that the only activity which is excluded from the operation of the Central Provinces and Berar Industrial Disputes Settlement Act, so far as items (iii) and (iv) of the notification are concerned, is the activity in the mines or, in other words, the activity regarding mining or excavating operations so far as item (iii) is concerned or actual work of sawing in mills or the work actually carried on in saw mills but not any other work so far as item (iv) is concerned, howsoever intimately connected with the saw mills industry. It is pointed out that the industry of mines may well answer the description of industry and it is not necessary to cover in the description the whole of the mining industry if the Provincial Government intended that the exclusion should be only with regard to a part of that industry. That an industry may include a branch of an industry is clear from the definition of 'industry' given in S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act itself. Clause (c) of S. 2(14) of the Act says that 'industry' includes any branch of an industry or a group of industries. This definition itself postulates either a portion of what is otherwise an industry or combination of several processes each of them being itself an industry. It is, therefore, contended that what the Provincial Government intended to exclude from the operation of the provisions of the Act were only these operations or those activities which are carried on in the mines and not other activities connected with the mining industry as a whole. It is not disputed that mining industry will embrace several kinds of activities not only connected with excavation or winning of mineral products but also further activities connected with their sale or other work, which may mean the whole process or activity in running an industry as an integral whole. In support of this contention the learned counsel for respondent 3 has invited our attention to a decision of the Supreme Court in Serajuddin & Co. v. Their workmen : (1962)ILLJ450SC . Question arose in that case regarding an industrial dispute between the employer and the employees in the head office of a mining concern. That concern was engaged in the business of carrying on mining operations in the State of Orissa which had its head office at Calcutta. The staff employed by the concern at Calcutta looked after the general control of the mines and the sale of its mine products. Separate staff was employed at the mines site for supervising the work of mining operations. Certain disputes arose between the workmen employed at the head office and the management in regard to certain service conditions. It was accepted in that case that the personnel at the head office was liable to be transferred for work in the office at the mines in Orissa and vice versa. Such dispute was referred to an industrial tribunal in exercise of the powers under S. 10 of the Central Industrial Disputes Act by the State Government of West Bengal. An objection was raised that the appropriate Government to refer such dispute on the facts of that case was not the State Government but the Central Government. This contention was founded on the interpretation of the words 'appropriate Government' in S. 2(a)(i) of the Industrial Disputes Act, 1947. Section 2(a)(i) is as follows :

'(a) appropriate Government means -

(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute concerning a banking or an insurance company, a mine, an oil-field, or a major port ...'

29. The argument was that the words 'industrial dispute' used in S. 2(a)(i) necessarily take us to the definition of 'industry' in S. 2(j) and 'industrial dispute' takes us to the definition of 'workman' and the definition of 'workman' brings us to the definition of 'industry' in S. 2(j). Therefore, in construing the clause 'an industrial dispute concerning a mine' in S. 2(a)(i) one cannot avoid bringing in the wide definition of 'industry' in S. 2(j) and in the light of the said definition, a mine means the industry of mining and that would include the head office which exercises general supervision over the mining operations of a company thought it may be situated far away from the place where the said operations are conducted.

30. Their lordships in repelling this contention observed as follows :

'On the other hand, if we look at the definition in S. 2(a)(i), it would be noticed that where it was intended to refer to an industry as such, the definition uses the word 'industry', as for instance, it refers to an industrial dispute concerning any such controlled industry as may be specified in this behalf by the Central Government, whereas in referring to the dispute in regard to a mine, the definition does not refer to an industrial dispute concerning a mining industry but it merely says an industrial dispute concerning a mine. In this context, a mine is referred to just as a banking or an insurance company is referred. Therefore, in construing the words 'an industrial dispute' in relation to a mine, we must first determine what a mine means and this must be done without reference to the board definition of industry prescribed by S. 2(j) ...

If the scheme of the Act shows that office of the mine is outside the purview of the Act and the employees engaged in the office would, therefore, not ordinarily be governed by the major provisions of the Act, it would not be unreasonable to hold that an industrial dispute between such employees of the office of the mine and the employers is not a dispute in which the Central Government would be interested.'

31. The learned counsel for the respondent has, therefore, urged that the Provincial Government has advisedly used the word 'mine' and not the words 'mining industry'. As the word used in 'mines' it must necessarily refer to the activities which are carried on in a mine, namely, mining operation or excavation operation and not other operations which are implicit if the words used are 'mining industry'. In our opinion, the interpretation that is put on S. 2(a)(i) of the Central Act in the decision of the Supreme Court must guide the interpretation to be put on the item 'mines' in the notification issued by the Provincial Government under S. 1(3) of the Central Provinces and Berar Industrial Disputes Settlement Act. It must, therefore, be held that what is excluded from the operation of the provisions of the Act are no doubt operations connected with an industry but those operations only which are connected with the industry of mining or operations in the mine or excavation in the mine and not other operations or activities which govern a much larger area if the item were 'mining industry' as a whole.

32. In further support of this contention our attention is also invited to another decision of the Supreme Court in godavari Sugar Mills v. D. K. Worlikar : (1960)IILLJ247SC . The question involved in that case was whether the stenographer employed by the head office of the Godavari Sugar Mills, at Bombay, which had its sugar factory at a different place could be said to be an employee or the person employed in the sugar industry. In that case also the State Government of Bombay was required to issue a notification under the Bombay Industrial Relations Act indicating the industry to which the provisions of that Act were applicable. In that notification, which is reproduced at p. 249 of the report, the Government directed that the provisions of the Act shall apply to the following industry, namely, the manufacture of sugar and its by-products including

(i) the growing of sugarcane on farms belonging to or attached to concerns engaged in the said manufacture, and

(ii) all agricultural and industrial operations connected with the growing of sugarcane or the said manufacture, engaged in such concerns.

33. Repelling the contention that the notification embraced an employment in the head office because the head office was an integral part of the sugar industry as a whole, their lordships observed at p. 249 of the judgment as follows :

'It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by-products. If the expression 'sugar industry' had been used, it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word 'industry' prescribed in S. 2(19) of the Act : but the notification has deliberately adopted a different phraseology and had brought within its purview not the sugar industry as such but the manufacture of sugar and its by-products. Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such. That is a serious infirmity in the decision of the Labour Appellate Tribunal.'

34. We are, therefore, asked by the learned counsel for the respondent to hold that, in view of the notification of the Provincial Government excluding not the mining industry but only the industry in mines; it is not possible to construe the notification as excluding the head office which is connected with the mining industry of the petitioner-company and, therefore, must be held as an employment in the industry governed by the Act. It has also to be observed that the notification applied to all the industries except four which are excluded in the items given in the notification. Thus all the activities in the mining industry of the petitioner including the head office, which is an integral part of the industry, are within the Act but the activities in the mine or actual mining operations are alone excluded from the provisions of the Act.

35. This takes us to another contention of the petitioner on the same objection, namely, even assuming that the Act may apply to the mining industry as a whole and what is excluded is mines, respondent 3 has still to show that the head office of the petitioner is an industry within the meaning of S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act. It has been noticed in several decisions of this Court and other Courts that the word 'industry', either in the State Act or in the Central Act, is very wide and it includes any business, trade, manufacturing or mining undertaking or calling of employers, or any calling, service employment, handicraft or industrial occupation or avocation of employees, and any branch of an industry or a group of industries. The learned counsel for the petitioner suggested that the work carried on in the head office is obviously of administrative character; clerks are employed and the work is carried on for administration of the industry but divorced from it because mines are excluded. It is also contended that unless the activity with which the employment is concerned directly results in an industrial activity. In support of this proposition the learned counsel relied on two decisions of this Court in Tulsiram v. Assistant Commissioner of Labour : (1961)ILLJ711Bom and particularly the observations at p. 719 and another decision in S. Vasudevan v. S. D. Mital : (1963)IILLJ264Bom in which reference is made to the earlier case of Tulsiram Sadanand. The question in that case was whether an employee employed in a shop which carried on the business of purchasing and selling cloth could be said to be an employee working in an industrial establishment or an industry. After noticing the decision of their lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC , Corporation of City of Nagpur v. Its employees : (1960)ILLJ523SC and also the decision regarding the employment in a solicitor's office, National Union of Commercial Employees and another v. Meher. (Industrial Tribunal, Bombay) and others : (1959)IILLJ38Bom the Division Bench observed as follows : (1961)ILLJ711Bom :

'The important test for deciding whether any business, trade or a calling of an employer, service, employment, avocation or occupation of an employee constitute an industry within the meaning of the Act is not only the character of the activities indicated by the words included in the definition but their form and organization in relation to the employed labour force as an active and creative agent for achieving the fruits of the activity. It should be an activity which is predominantly carried on by employment of organized labour force for the production or distribution of goods or for rendering material services to the community at large or a part of such community. An activity pertaining to or in relation to private and personal employment has to be excluded from the definition of industry.'

36. Reliance was placed on these observations in the subsequent case of S. Vasudevan : (1963)IILLJ264Bom (vide supra) to hold that the employment in the office of the Accountant-General cannot be equated to the employment in an industry. It is, therefore, contended on behalf of the petitioner that the work with which respondent 3 was entrusted, viz., that of stenographer in the administrative section of the head office at Nagpur, cannot possibly be considered as an activity in an industrial employment or in an industry within the meaning of the Central Provinces and Berar Industrial Disputes Settlement Act. There would have been considerable force in this submission were it not for the fact that the head office is not an isolated office of the petitioner-company. The work done in the head office is an integral part of the business carried on by the petitioner-company which has undertaken mining as its business. Now, the undertaking, or the work of producing coal or winning coal, putting it in market for sale and supply to the customers is obviously an industry within the meaning of S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act. The work done by the employees, in the head office of such an undertaking, is a part and parcel of the industrial activity carried on by the petitioner-company. In fact, the petitioner has not disputed that the work done in the head office is intimately connected with its mining undertaking in as much as it books orders for supply of coal, distributes orders and sees that the orders are complied with by the despatch of goods from its coal mines. If that be the case and the nature of the activity carried on at the head office, it cannot be disputed that respondent 3 and other employees are engaged in an industry. We, therefore, hold that respondent 3 must be considered to be an employee engaged in an industry carried on by the petitioner-company and the mere fact that respondent 3 is employed in the head office will not avail the petitioner to contend that it is not governed by the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act.

37. This takes us to the next contention of the petitioner that even assuming that the petitioner was governed by the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act, its action in dismissing respondent 3 must be considered to be within the Act. For this proposition the petitioner pointed out that what is prohibited under the provisions of S. 16 of the Act is dismissal, discharge or removal of an employee in contravention of any provisions of this Act or in contravention of a standing order made or sanctioned under this Act. So long, therefore, as the action taken against respondent 3 is not in contravention of the provisions of the Act or in contravention of the standing order framed under the Act, it cannot be said that S. 16(3) is violated by the petitioner. It is an admitted position that there are no standing orders framed governing the employment of personnel in the head office of the petitioner-company. Therefore, no question of violation of the standing orders or the action being contrary to the standing orders would arise. To that extent the observations of the Assistant Labour Commissioner in Para. 20 of the order are not tenable in view of the decisions of the Courts. The learned counsel has referred to the following decisions : Maroti v. Member, State Industrial Court : AIR1959Bom61 , Abdul Salam v. Abdul Khalik : (1962)IILLJ239MP and Diwan Badri v. Industrial Tribunal . Relying on these decisions it is pointed out that the mere fact that an employer has not framed standing orders required to be framed under the provisions of the Industrial disputes Settlement Act will not by itself constitute the action taken against his employee by way of dismissal for misconduct as an act or action contrary to the provisions of the Act or contrary to law because retrenchment compensation payable to respondent 3 under S. 25F of the Central Industrial Disputes Act has not been paid is also not tenable. It is now well-settled that every termination of service is not retrenchment unless retrenchment is made because the employer considers the labour force to be surplus and the retrenchment is brought about to reduce the quantum of labour force. Reference need only be made to a Full Bench decision of this Court in Managing Director, National Garage v. Gonsalves : (1962)ILLJ56Bom . The question, however, still remains whether the employer who is governed in respect of persons employed in his industry by the provisions of the Central Provinces and Berar Industrial Disputes Settlement Act is entitled to dismiss an employee for misconduct after holding an enquiry with due compliance with well-recognized principles of natural justice in holding such an enquiry. It is pointed out by the learned counsel for the petitioner that the dismissal was according to law because under S. 23 of the Shops and Establishments Act the petitioner was entitled to dismiss respondent 3 after giving one month's notice or wages in lieu of such notice. If action is taken under S. 23 of the Shops and Establishments Act in dismissing an employee, it is urged that such dismissal cannot be considered to be contrary to law. Now, it is difficult to accept this contention. The Shops and Establishments Act does not provide for the manner in which an order of dismissal may be brought about in respect of an employee whose conditions of service are governed by the Industrial Disputes Act, 1947. Even though a dismissal may be justified, it has to be brought about by the process known to law or the conditions of service by which the parties are governed. It is not possible to accept the interpretation put on S. 23 of the Shops and Establishments Act by the learned counsel for the petitioner if the contention is that there can be dismissal contrary to conditions of service provided only one month's notice or one month's wages in lieu thereof is given. The first condition that has to be satisfied is that the dismissal has to be according to law. For the dismissal to be according to law, the law to which reference need be made is the law by which the relations between the employer and the employee are governed in a given case and that law in this case is the Industrial Disputes Act, 1947. It is now well-settled that even if an employer is entitled to dismiss an employee for misconduct, it has to be preceded by a proper enquiry and the manner of conducting that enquiry must not disregard the accepted principles of natural justice. That this is a sine qua non of taking action of dismissal against an employee is now well-settled and reference need only be made to a few decisions. In Manager, Kedia Ginning Factory and Oil Mills v. State Industrial Court at Nagpur (1962) S C A 204 decided by Kotwal and Abhyankar, JJ., on 15 February, 1962 (unreported)], the question was whether the worker in a ginning and oil factory at Khamgaon could be dismissed when no standing orders required by S. 30 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, were settled and it was held that by refusing to make standing orders as required by law an employer is not relieved of the obligation to hold an enquiry before taking the action of dismissal. To the same effect is the decision of this Court in Dattatraya Mahadeo Ranade v. Babarao Gulabrao Bhagwat (1960) S C A 230 decided by Tambe and Abhyankar, JJ., on 18 October, 1960 (unreported)]. In that case even though there were no standing orders the employer purported to hold an enquiry but the enquiry was directed to be held at a place where the employee was not employed and he had no means of access to the place because of very insufficient intimation. Under the circumstances it was held that the enquiry which resulted in the dismissal of the employee was violative of the well-recognized principles of natural justice and must be quashed. We, therefore, hold that the action taken by the petitioner in dismissing respondent 3 will still have to satisfy the condition of a fair and impartial enquiry in which adequate opportunity has been given to the employee concerned before the action of dismissal or termination of his services for misconduct is taken and if that condition is not satisfied, then it cannot be said that the action taken is still within the Act to which no challenge can be made by respondent 3 under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act.

38. The petitioner has also disputed that the principles of natural justice as found by the two authorities below were not violated or at any rate they are substantially complied with. The complaint in this regard by respondent 3 was that he was not given a copy of the report made by the enquiry officer before action of dismissal was taken against him and that he was not allowed an opportunity to examine the witnesses. It is urged with reference to this complaint that respondent 3 himself admitted before the Assistant Commissioner of Labour that he had no witnesses of his own to examine; that he did not put any questions in cross-examination to Sri Kanade; that he was offered inspection of documents produced at the enquiry; that the enquiry officer had asked him to take notes and not to make copies of the documents; that he did not take notes; that he had not himself submitted a list of documents to be submitted or produced at the enquiry. In view of these admissions at p. 147 of the paper book it is urged that the complaint made in Para. 9 of the application before the Assistant Commissioner of Labour was really unfounded.

39. It is not seriously disputed now that a copy of the enquiry officer's findings was not furnished to respondent 3, though it was suggested in the written statement before the Assistant Commissioner of Labour that such a copy was supplied. We have, therefore, to see whether the petitioner has established that it had sufficiently complied with the principles of natural justice in the conduct of the enquiry and in taking action of dismissal against respondent 3. The gravamen of the charge against respondent 3 was, firstly, that he had disobeyed the lawful order given by Sri Kothekar on 1 July, 1959, to take some dictation or type some documents, secondly, that he refused to work and neglected his duty between 1 July, 1959 and 10 July, 1959, though he attended the office, and thirdly, that his deliberate marking of the attendance register was with a view to claim salary for those days though he did not work and this was in effect an attempt to cheat the petitioner-company. The defence of respondent 3 was that he had no doubt told Sri Kothekar that he could not work or take dictation unless the officer of the company had asked him, because he was told by the junior partner as far back as 22 June, 1959, that his services were no longer required. Respondent 3 has categorically stated that nobody asked him to work after 1 July, 1959. The defence regarding the third charge is that, far from having any idea of claiming wages without work and, therefore, attempting to cheat the company, the sole purpose with which he had marked the attendance register was that his presence should be noticed, so that if his claims were to be settled, the authority may know that he was present in office and that he was not claiming anything by way of salary or wages for that period. We should have thought, as was rightly observed by the Assistant Commissioner of Labour, that the complainant in the case in respect of the first charge was Sri Kothekar. Similarly, the best person to refuse the statement of respondent 3, that he had reasonable ground to feel that his services were terminated by the talk between Sri Sunderlal and himself on 22 June, 1959, would be Sri Sunderlal himself. By a curious process of reasoning the petitioner-company rest content with having Sri Kanade, personnel officer, make a statement or dictate a statement and answered some queries by the enquiry officer to prove the allegations in the charges issued to respondent 3. When respondent 3 was disputing that he had disobeyed his order and was contenting that he was given to understand that his services were dispensed with effect from 1 July, 1959, it is difficult to see how the company expected to establish the charge without examining Sri Kothekar or Sri Sunderlal, junior partner. Apart from this lacuna in substantiating the charge on the principal count, respondent 3 had expressly stated in his written statement, dated 19 July, 1959, that he wanted certain witnesses whose names were given in the list to be cross-examined. It is undoubtedly true that all these persons were either employers or their employees and none of them could be produced by respondent 3. Yet the enquiry officer took the view that there was no question of summoning any witnesses and he has justified this action on his view that the manner in which the list was headed as the list of witnesses given under protest made the whole prayer ridiculous. It would appear to be the view of the enquiry officer that such procedure was unknown and, therefore, respondent 3 was not entitled to have anybody produced for cross-examination. Here again we fail to see how the least that could be done to ensure fairness in the enquiry by the enquiry officer, namely, by producing before him Sri Kothekar or the junior partner, for being questioned by respondent 3 to elicit answers, was not appreciated by the enquiry officer. Respondent 3 has been denied this opportunity which he could avail to show that he had never any intention of disobeying Sri Kothekar, that if he declined to work it was under the bona fide impression that his services were terminated and also to show that his talk with Sri Sunderlal was such as to lead to an inference that respondent 3's services were no longer required after 1 July, 1959. Such admissions as have been made by Sri Kanade in reply to the questions themselves show that a talk did take place between the junior partner and respondent 3 and if that talk related to respondent 3's voluntary resigning subject of course to some compensation which was accepted by respondent 3, it is not possible to hold that respondent 3 was labouring under any hallucination that his services were terminated with effect from 1 July, 1959. In this connexion it is contended that in his application before the State industrial court respondent 3 had stated that his services were terminated from 22 June, 1959. It is not possible to read this meaning in the statement. In that application respondent 3 has nowhere stated that he considered that his services were terminated with effect from 22 June, 1959. In fact his conduct in continuing in service and doing the work till 30 June, 1959, must necessarily show that the impression which respondent 3 carried was that his services were to be terminated from 1 July, 1959, as a result of the talk with the junior partner on 22 June, 1959. We have not been shown any statement of respondent 3 anywhere that he considered that his services were terminated with effect from 22 June, 1959. Similarly, with respect to the second charge, there is no evidence whatever to show that respondent 3 was in fact given any work and that he refused to do that work, and yet the enquiry officer came to the conclusion that respondent 3 was guilty of that charge also. Similarly, with respect to the third charge, it is difficult to see how respondent 3 could be charged with any criminal intent to deceive the company merely because respondent 3 made entries about his presence in the attendance register. It seems to us that the petitioner-company was persuaded to take this view of the act of respondent 3 in marking his presence because of certain impressions of the personnel officer. The personnel officer has stated that in his opinion under the provisions of the Shops and Establishments Act the moment the employees make entries in the register the employer is compelled under the law to pay their wages. We asked the learned counsel to show any provision of the Act or any other law which creates such a legal obligation to pay an employee even though no work is down merely because he has made his signature in the attendance register. In this aspect of the matter, in our opinion, the finding of the two authorities below, that far from there being any criminal intent on the part of respondent 3 to claim wages and cheat the company, the object of respondent 3 may only be to show that he was physically present in the office so that if the employer intended to square up the matter regarding compensation which he expected may be settled, cannot be challenged. In this connexion reference may also be usefully made to the statements which respondent 3 submitted on 30 June, 1959, to the junior partner and another on 10 July, 1959, to the managing director claiming certain amount of compensation payable to him. In making such a claim he has not claimed anything after 1 July, 1959 and he has calculated the wages paid up to 30 June, 1959. It is also established on record that respondent 3 was working in the office till 30 June, 1959. In view of these circumstance and facts patent on record, it is difficult to see how the enquiry officer could have come to the conclusion that respondent 3 was entertaining criminal intent to cheat the company in making entries about his presence in the attendance register. We, therefore, hold agreeing with the two authorities below that the manner in which the enquiry was conducted has clearly violated the well-understood and by now universally recognized principles of natural justice. We fail to see why respondent 3 should not have been given a copy of the findings of the enquiry officer before the drastic action of dismissal was taken by the employer in this case. We may also mention that the enquiry officer was persuaded to accept on record the statements alleged to be prepared one by Sri Kothekar and another by Sri Joshi. Copies of these statements were not made available to respondent 3 as they mere filed on the last date of the enquiry, i.e., on 23 July, 1959. Use has been made of these statements by the enquiry officer in coming to the conclusion that Sri Kothekar did issue a lawful order which was disobeyed by respondent 3.

40. Respondent 3 has pointed out certain discrepancies in the statement attributed to Sri Kothekar, but in the absence of a copy of the statement of Sri Kothekar before the Court it would be impossible to accept the statement of Sri Kothekar or of Sri Joshi and to act upon them to the prejudice of respondent 3. This initial lack in the material on which the charges could be substantiated and the failure of the enquiry officer to allow respondent 3 to put questions to the witnesses whose list was given by respondent 3 must result in vitiation of the whole enquiry held by the domestic tribunal.

41. The next contention, therefore, is that in view of the alleged defects in the enquiry the petitioner placed all available material before the tribunal and the tribunal could not have, therefore, come to the conclusion that the action was not justified. Now, once the petitioner takes the position that there may be defects in the enquiry and leaves it to the tribunal to adjudge the validity of its action, the jurisdiction of the industrial tribunal at once enlarges and the tribunal also constitutes itself into a tribunal to adjudge, as a tribunal of fact, whether there was enough material and justification for the action taken against a particular employee. That there is such power in the industrial tribunal is now authoritatively decided by the pronouncement of the Supreme Court to which reference may be made. In Phulbari Tea Estate v. Its workmen : (1959)IILLJ663SC their Lordships observed as follows :

'.......... We had occasion to point out that even where the employer did not hold an enquiry before applying under S. 33 of the Act for permission to dismiss an employee, he could make good the defect by producing all relevant evidence which would have been examined at the enquiry, before the tribunal, in which case the tribunal would consider the evidence and decide whether permission should be granted or not. The same principle would apply in case of adjudication under S. 15 of the Act, and if there was defect in the enquiry by the employer he could make good that defect by producing necessary evidence before the tribunal.'

42. We may also refer to another decision of their lordships of the Supreme Court in Anglo-American Direct Tea Trading Company, Ltd. v. Workmen of Nahortoli Tea Estate 1961 II L.L.J. 625 and the observations which are to the following effect :

'There is no doubt that the principles laid down in Indian Iron and Steel Company v. Their workmen : (1958)ILLJ260SC had not been followed by the tribunals in this case. But we are of opinion that on the facts of this case, those principles have no application. The incident out of which the present proceedings have arisen took place on 13 December. It seems that some kind of preliminary inquiry was made by the management with which Dhaneswar had nothing to do. Thereafter he was suspended on 15 December and a chargesheet was given to him and his explanation was called for. A second chargesheet was given to him on 17 December, and the managerial inquiry was fixed for 18 December, in the presence of Dhaneswar. All that happened at the inquiry was that Daneshwar's statement was taken before even any evidence was led on behalf of the management. It seems that some disputes took place between Dhaneswar and the management at the time his statement was being taken and Dhaneswar refused to sign his statement on the ground that it was not correctly taken down. Be that as it may, it does not appear that any evidence was recorded in the managerial inquiry either before that statement was taken down or afterwards to prove the charge against Dhaneswar. Further, there is nothing to show that Dhaneswar had refused to take part in the managerial inquiry after the dispute as to his refusal to sign the statement. In these circumstance, there is in fact no managerial inquiry worth the name in this case. This is what the Appellate Tribunal has also pointed out, and we think rightly. This is also borne out by the fact that before the industrial tribunal the appellant examined a number of witnesses which would have been unnecessary if there had been a proper managerial inquiry. It seems from this fact that it was practically accepted before the industrial tribunal that there was no proper managerial inquiry and it was left to the industrial tribunal to decide for itself whether the dismissal of Dhaneswar was justified. In these circumstances, there was no scope for the application of the principles laid down in Indian Iron and Steel Company v. Their workmen : (1958)ILLJ260SC (vide supra) which applies only where a proper managerial inquiry has been held. This contention must therefore be negatived.'

43. Reference in the above case to the decision of Indian Iron and Steel Company case : (1958)ILLJ260SC (vide supra) is also opposite in the instant case. At pp. 269-270 [Indian Iron and Steel Company v. Their workmen] the circumstances in which the action taken by the management in dismissing can be challenged and the test or the conditions which justified interference are laid down in the following words :

'....... Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, industrial tribunals have been given the power to see whether the termination of service of a workmen is justified and to give appropriate relief. In cases of dismissal on misconduct, the tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere.

(i) when there is a want of good faith,

(ii) when there is victimization or unfair labour practice,

(iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and

(iv) when on the materials, the finding is completely baseless or perverse.'

44. In the instant case, therefore, the jurisdiction of the industrial authorities could not be seriously disputed in view of their finding that the domestic enquiry was vitiated by violation of the principles of natural justice and a further finding of the Assistant Commissioner of Labour that the circumstances in which the show-cause notice came to be issued was not a bona fide action on the part of the petitioner. If the industrial tribunals have come to this decision, we have no reason to feel that the decision regarding violation of the principles of natural justice is in any way erroneous. The ambit of enquiry is certainly then extended. It is then that the petitioner invited the tribunal to adjudicate on the validity or otherwise of the action actually taken by the employer. If the action is then judged on merits and the industrial tribunal came to the conclusions that the action was not justified, in our opinion, the jurisdiction of the industrial tribunal to come to such a conclusion cannot be challenged in view of the pronouncement of the Supreme Court already quoted. Now, in the instant case it has been found that there was no occasion for issuance of a lawful order and respondent 3 disobeying it because respondent 3 was genuinely under the impression that his services were terminated as a result of the talk with the junior partner on 22 June, 1959. There was no occasion for disobeying the order after 1 July, 1959 till 10 July, 1959, because nobody gave him work. A stenographer cannot work unless work is entrusted to him such as dictation or typing. The third charge levelled, i.e., an attempt to cheat the company which, as we have shown above, could not possibly be levelled when respondent 3 had disclaimed and right to wages or salary for the period from 1 July, 1959 to 10 July, 1959, when he had marked his attendance. Marking of attendance also showed that respondent 3 wanted to attend the office and be present in case the employers decided to settle the matter regarding compensation. The fact that he had applied for leave of absence for sickness or for some other work does not negative his contention that he considered himself as no longer on duty because of the talk between him and the junior partner. Even assuming that the impression was erroneous, it is insufficient to charge responded 3 with any criminal intent or with deliberate act of violation of his duty or disobeying of a lawful order. We, therefore, do not see how the findings of the tribunal on merits also can be challenged by the petitioner in the instant case. They are findings of fact and if the tribunals have come to those findings in legitimate exercise of powers, the jurisdiction of this Court cannot be invoked in challenging those findings because a different view may possibly be taken. Even assuming that there is scope for a difference of opening as to the view to be taken about the action taken, this is not the forum in which the petitioner can agitate the findings of the two industrial tribunals. We, therefore, hold that the industrial courts below cannot be said to have exceeded their jurisdiction in coming to the conclusion that there was no justification for the petitioner to pass the order dated 31 July, 1939, dismissing respondent 3 from service for the alleged misconduct attributed to him.

45. In view of these conclusions there is no scope for interference with the orders of the two authorities below. The Assistant Commissioner of Labour, instead of ordering reinstatement, has only directed compensation to be paid to respondent 3. No arguments were addressed as to the quantum of compensation or the basis on which it was to be paid.

46. The result is that the petition fails and is dismissed with costs.


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