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A.G. Pathak Vs. S.L. Prasad - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2744 of 1970
Judge
Reported in(1972)74BOMLR136; 1972MhLJ346
AppellantA.G. Pathak
RespondentS.L. Prasad
Excerpt:
.....such termination of service.;having regard to the language of item 3 in second schedule to the industrial disputes act, 1947, read with section 10 of the act, the labour court is empowered, even in a case in which it finds that the workman was involved in certain misconduct, to hold that for such misconduct the punishment of discharge or dismissal was excessive and to order reinstatement of the workman.;the termination of services of an employee in accordance with section 66 of the bombay shops and establishments act, 1948, is not sufficient to deprive the labour court of its jurisdiction to consider the matter of the same termination on a reference made to it under section 10 of the industrial disputes act, 1947, and to order reinstatement of the employee under item 3 of the second..........defined inter alia to include causing damage to the property of an employer.2. section 10 of the industrial disputes act, 1947 provides for reference of industrial disputes inter alia to a labour court in the following language:10. (1) where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-(a) ...(b) ...(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, if it relates to any matter specified in the second schedule, to a labour court for adjudication;the second schedule mentions six items which are matters within the jurisdiction of labour courts and item 3 runs as follows:3. discharge or dismissal of workman including reinstatement of, or grant of relief to,.....
Judgment:

K.K. Desai, J.

1. His Lordship after stating the facts, proceeded. Now, in connection with the contentions made by Mr. Sawant, it is convenient to notice the relevant contents of Section 66 of the Shops and Establishments Act and of Section 10 and Schedule 2 of the Industrial Disputes Act. Section 66 makes provision for preventing an employer from dispensing with services of employees in his continuous employment without giving notice of termination and runs as follows:

60. No employer shall dispense with the services of an employee who has been in his continuous employment-

(a) for not less than a year, without giving such person at least thirty days' notice in writing, or wages in lieu of such notice;

(b) for less than a year but more than three months, without giving such person at least fourteen days' notice in writing, or wages in lieu of such notice:

Provided that such notice shall not be necessary where the services of such employee are dispensed with for misconduct.

By the explanation misconduct is defined inter alia to include causing damage to the property of an employer.

2. Section 10 of the Industrial Disputes Act, 1947 provides for reference of industrial disputes inter alia to a Labour Court in the following language:

10. (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-

(a) ...

(b) ...

(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication;

The Second Schedule mentions six items which are matters within the jurisdiction of Labour Courts and item 3 runs as follows:

3. Discharge or dismissal of workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed;

3. Now, the first contention made by Mr. Sawant prima facie appears to be entirely misconceived having regard to this language of item 3 in Second Schedule read with Section 10, Sub-clause (c) of the Industrial Disputes Act. Apparently the industrial dispute, which might be under this item 3 referred to the Labour Court, would be in respect of discharge or dismissal of workman where having regard to his rightful case that the punishment of discharge or dismissal was excessive, the workman claims relief of reinstatement. The dispute might include also cases where a workman claims that his dismissal and discharge was wrongful and he was bound to be reinstated. The language in item 3 clearly indicates that the Legislature empowered the Labour Court to consider all and every question of discharge or dismissal of workman when in connection with the same, a dispute was raised by the workman. Power of reinstatement has been specifically conferred on the Labour Court. The language indicates that reinstatement can be granted by the Labour Court even in cases in which it finds that the termination of service and/or dismissal of workman was excessive punishment and disproportionate to the facts involved in the case. The Labour Court is empowered to make order of reinstatement even in cases in which it finds that the workman was involved in certain misconduct. The Labour Court would be entitled to hold that for such misconduct, the punishment of discharge or dismissal was excessive. The submission made by Mr. Sawant that where an employer decides to discharge and dismiss the workman and inflicts that punishment, the Labour Court would not have jurisdiction to substitute its own judgment regarding the disproportionate nature of punishment is, having regard to the language in item 3 of Second Schedule, entirely unwarranted and unjustified. As already discussed, the item 3 indicates that the jurisdiction of the Labour Court in that connection is extremely wide and unlimited. The first contention, therefore, fails.

4. The above discussion and the contents of the provisions of Section 66 of the Shops and Establishments Act and Section 10 and Second Schedule of the Industrial Disputes Act clearly go to show that the second contention made by Mr. Sawant is also contrary to the relevant legislative provitions. Section 66 relates to what was well established right of an employer in the law of contract at common law. It was well established before the enactment of labour laws that services of all employees could always be terminated by employers. If in that connection appropriate notice was not served by an employer, there was no right of reinstatement in employee. The total rights of a wrongfully dismissed employee were to claim damages for wrongful dismissal. This absolute right of employer was taken away by the provisions in Clauses (a) and (b) of Section 66. Where, however, an employee was guilty of misconduct, by the contents of proviso, the effect of the provisions in Clauses (a) and (b) was nullified. The matter of continuing a dismissed and discharged employee in service was not intended to be finalized by any action of the employer. For this reason by the provisions contained in item 3 of the Second Schedule and Sub-clause (c) of Section 10 of the Industrial Disputes Act, the Labour Court was empowered to direct reinstatement. It is not necessary to discuss this matter any further than to state that all questions of discharge or dismissal of workman including his reinstatement are liable to be adjudicated upon by Labour Court on a reference made to it. The termination of services of an employee in accordance with Section 66 of the Shops and Establishments Act was not sufficient to deprive the Labour Court of its jurisdiction to consider the matter of the same termination on a reference made to it under Section 10 of the Industrial Disputes Act. Mr. Sawant attempted to rely upon a decision where it was held that by an award made under the Industrial Disputes Act, an Industrial Tribunal could not alter the scheme of the Shops and Establishments Act as regards the period of leave to which a workman was entitled. Now, there can be no dispute that the conditions of services of employees as finally fixed by statutory provisions cannot be modified by any awards made under the Industrial Disputes Act or even by consent of parties. The above decision has no bearing on the question of the Labour Court's jurisdiction to substitute its own judgment and to reinstate an employee when he has been previously discharged or dismissed in accordance with the provisions in Section 66 of the Shops and Establishments Act. The second contention accordingly fails.

5. The rest of the judgment is not material to this report.


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