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MuniruddIn (C.) Vs. Peirce Leslie and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 488 of 1963
Judge
Reported inILR1965KAR1049; (1966)ILLJ271Kant; (1965)2MysLJ179
ActsMadras Shops and Establishments Act, 1947 - Sections 41(1), 41(2) and 41(3); Constitution of India - Articles 226 and 227; Madras Shops and Establishments Rules - Rule 9(2); Sales Tax Appellate Tribunal Regulations, 1957 - Regulation 8(2); Mysore Sales Tax Act - Sections 22(4); Bombay Tenancy and Agricultural Lands Act, 1948
AppellantMuniruddIn (C.)
RespondentPeirce Leslie and Co. and ors.
Excerpt:
- karnataka state minorities commission act, 1994 sections 4(3), (4) & 18(2)(b) & karnataka state minorities commission rules, 2000, rule 4: [p.d. dinakaran, c.j. & v.g. sabhahit, j] member nominated to minorities commission omission to make provisions by framing rule, for payment of salary held, when the act provides for payment of salary to person nominated as member, he cannot be denied salary merely because there is no rule providing for it. state is under obligation to frame rules for payment of salary to member. - further an administrative tribunal like respondent 2 has no inherent powers. that appeal was posted for hearing on 4 september, 1963 and on that date the appellant as well as his counsel ware absent and the tribunal dismissed the appeal for default......under the act provides : '(2) the procedure to be followed by the commissioner of labour when hearing appeals preferred to him under sub-section (2) of s. 41 shall be summary. he shall record briefly the evidence adduced before him and then pass orders giving his reasons therefor. the result of the appeal shall be communicated to the parties as soon as possible ...' 8. neither s. 41(2) nor rule 9 (2) confers power on the appellate authority to dismiss an appeal for default. the power to dismiss an appeal once entertained is not an inherent power. it must be statutorily conferred. further an administrative tribunal like respondent 2 has no inherent powers. it is a creature of the statute. its powers are those conferred by the statute. further, from the above provisions it can be.....
Judgment:
ORDER

Honniah, J.

1. The petitioner in this writ petition was working as a storekeeper under respondent 1 from 1952. Respondent 1 took disciplinary proceedings against the petitioner for certain alleged misconduct and dismissed him as a result of the enquiry held on 20 August, 1962. The petitioner thereupon presented an appeal under S. 41 (2) of the Madras Shops and Establishments Act, 1947 (Madras Act 36 of 1947), hereinafter referred to as the Act to respondent 2, who was the prescribed appellate authority under that sub-section. Respondent 2 by his order dated 24 November, 1962 dismissed that appeal of the petitioner. This writ petition is filed under Arts. 226 and 227 of the Constitution against the said order of respondent 2 to quash the same by issuing a writ of certiorari or such other writ, direction or order as the Court deems fit.

2. The material facts are these. On 6 April, 1962 respondent 1 received a complaint against the petitioner that he was insubordinate and was negligent in his duties. On being called upon to explain his conduct, the petitioner refused to offer any explanation and thereupon disciplinary proceedings ware initiated. The following charges ware framed against the petitioners :

(1) Wilful insubordination and disobedience to the order of the superior.

(2) Neglect and negligence of duty.

(3) Acts subversive of discipline.

3. Respondent 1 appointed an enquiry officer to enquire into the above charges. The enquiry officer after due enquiry submitted his report to respondent 1. On the basis of that report, respondent 1 came to the conclusion that the charges levelled against the petitioner had been established and so he discharged the petitioner from service with effect from 21 August, 1962. Against this order, the petitioner preferred an appeal (S. & E.A.C. No. 34 of 1962) to respondent 2 challenging the correctness of the decision of respondent 1 on various grounds. The appeal came up for hearing on 16 October, 1962 and on that date the pleader for respondent 1 requested for an adjournment on the ground that the counter had not been signed by his party and so the Court adjourned the case to 5 November, 1962. On 5 November, 1962 at the request of the pleader for the petitioner, the case was adjourned to 24 November, 1962. On that day the case was called. Sri B. A. Somayaji, the pleader for the petitioner, filed a memo praying for an adjournment on the ground that the petitioner had to attend the Munsif's Court at Buntwal as he had been bound over by that Court. Respondent 2 refused his request and made the following order :

'The pleader was informed during the last occasion that the case will be heard today finally and no further adjournments could be granted. This petition is given for adjournment just to delay the proceedings. Hence adjournment cannot be granted. The petition is dismissed. The pleader is requested to proceed with the case today.'

Then Sri Somayaji sent for Sri Tukaram S. Pai, another advocate, who was also appearing along with him. Sri Pai also filed a memo praying for an adjournment. Respondent 2 refused the prayer made in the memo, whereupon Sri Somayaji retired from the case for want of instructions. Then respondent 2 passed the following order on the memo :

'Pleader for the petitioner reports no instructions. Petitioner called and is absent. Petition is dismissed for default.'

4. Thereafter Sri Somayaji again renewed his request to adjourn the case. Respondent 2 turned down his prayer and proceeded to pass the following order :

'This case was finally posted for enquiry today. The pleader for respondent is ready for enquiry. But the pleader for the petitioner asks for an adjournment. A number of adjournments were granted previously and the petitioner represents that he is not ready. The petition for adjournment is dismissed. The pleader for the petitioner reports no instructions. The petition is dismissed for default.'

5. Sri K. R. D. Karanth, the learned counsel for the petitioner, contended that the order of respondent 2 dated 24 November 1962 is liable to be quashed inasmuch as the petitioner was not given reasonable opportunity to prosecute his appeal and that in any event respondent 2 was not empowered under the Act to dismiss the appeal for default. The services of the petitioner were dispensed with by respondent 1 from 20 August 1962 after holding an enquiry as contemplated under S. 41 (1) of the Act. Against this decision, the petitioner preferred an appeal to respondent 2 under S. 41 (2). After the appeal was registered, at the instance of the petitioner, the case was adjourned from 5 to 24 November 1962. This could be gathered from the order sheet maintained by respondent 2. On 24 November, 1962 the petitioner could not appear before the Munsif-Magistrate at Buntwal in pursuance of the direction given by that Court. The two advocates that were appearing for the petitioner requested respondent 2 to adjourn the case on that ground but respondent 2 refused to adjourn the case and dismissed the appeal for default. The observation of respondent 2 in his order that the petitioner had been given a number of adjournments and that the case had been fixed finally for hearing appears to be factually incorrect. As the petitioner was expected to appear before the Munsif-Magistrate at Buntwal on the date this appeal was fixed for hearing, the representation had to be made on his behalf by his advocates for grant of adjournment. Respondent 2 was in great haste in dismissing the appeal for default. In those circumstances, respondent 2 was not justified in refusing the prayer for an adjournment. Justice requires that in such a case an opportunity should have been given to the petitioner to prosecute his appeal.

6. The important point that arises for consideration in this case is whether respondent 2 was empowered to dismiss the appeal for default. Section 41(1) of the Act provides :

'(1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such person at least one month's notice or wages in lieu of such notice : provided however that such notice shall not be necessary, where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose.'

It will be seen that this sub-section contemplates two modes by which the services of an employee can be terminated, viz., termination of services for a reasonable cause with one month's notice or wages in lieu of such notice and termination on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for that purpose. Against the decision of the employer. The employee has a right of appeal under Sub-section (2) of S. 41. That sub-section reads :

'(2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.'

This sub-section enumerates the different grounds which can be taken in an appeal under S. 41(2). Under this sub-section, the petitioner has a statutory right to prefer an appeal against the order of dismissal. The petitioner exercised that right and invoked the jurisdiction of the appellate authority by preferring the appeal.

Sub-section (3) is as follows :

'(3) The decision of the appellate authority shall be final and binding on both the employer and the person employed.'

Under this sub-section the appellate authority has to decide the appeal preferred. To decide the appeal means to go into the merits of the appeal and pronounce on the same. The dictionary meaning of the word 'decide' in the context is to give judgment. It should be remembered that what sub-section 41 (2) confers is an appellate jurisdiction and not a revisional jurisdiction.

7. Rule 9 (2) of the rules framed under the Act provides :

'(2) The procedure to be followed by the commissioner of labour when hearing appeals preferred to him under sub-section (2) of S. 41 shall be summary. He shall record briefly the evidence adduced before him and then pass orders giving his reasons therefor. The result of the appeal shall be communicated to the parties as soon as possible ...'

8. Neither S. 41(2) nor rule 9 (2) confers power on the appellate authority to dismiss an appeal for default. The power to dismiss an appeal once entertained is not an inherent power. It must be statutorily conferred. Further an administrative tribunal like respondent 2 has no inherent powers. It is a creature of the statute. Its powers are those conferred by the statute. Further, from the above provisions it can be gathered that the legislature intended that the appeal preferred by an employee under Sub-section (2) to the appellate authority should be disposed of on merits. To repeat, in the Act there is no provision empowering the appellate authority to dismiss any appeal for default. The appellate authority cannot take on itself the power which is not conferred by the Act and proceed to dismiss the appeal for default. All that the appellate authority can exercise is the power conferred by the Act. Whenever powers are conferred on statutory bodies, they must, to the extent to which specific provision has been made in the statute conferring the powers, be exercised by that authority in the manner specified in the statute and in strict conformity with the provisions thereof.

9. Sri Karanth, in support of his contention that the tribunal had no power to dismiss the appeal for default, relied on a decision of this court in Abdul Subhan Sahib & Sons v. Mysore Sales Tax Appellate Tribunal [(1964) 2 Mys. L.J. 274]. The facts of that case ware that the petitioner in that case aggrieved by the order of the assistant commissioner of commercial Taxes, Belgaum Division, Belgaum, went up in appeal to the Mysore Sales Tax Appellate Tribunal, Bangalore. That appeal was posted for hearing on 4 September, 1963 and on that date the appellant as well as his counsel ware absent and the tribunal dismissed the appeal for default. The petitioner's application for restoration of the appeal was also dismissed. The said order was challenged by way of writ in this Court. It was contended therein that Regn. 8 (2) of the Sales Tax Appellate Tribunal Regulations, 1957, was ultra vires of S. 22(4) of the Mysore Sales Tax Act and the dismissal of the appeal for default was liable to be quashed. It was held that Regn. 8 (2) to the extent it empowers the tribunal to dismiss the appeal before it for default of appearance of the appellant or his advocate is ultra vires of S. 22(4) of the Mysore Sales Tax Act. It was further held that in the Mysore Sales Tax Act, there is no provision empowering the tribunal to dismiss any appeal for default. Section 22(4) of the Mysore Sales Tax Act, requires that the tribunal should dispose of the appeal after considering the subject-matter of the appeal and that precludes the appellate tribunal from dismissing the appeal for default. The order of dismissal for default cannot be said to be an order passed on the subject-matter of the appeal.

10. Sri Karanth also relied on a decision of the Bombay High Court in Pitambar Bhandhu v. Bhagchand [58 Bom. L.R. 797]. The facts of that case were that one Bhagchand applied to the Mamlatdar of Amalner under the Bombay Tenancy and Agricultural Lands Act, 1948, for possession of his lands from one Pitambar alleging that he was his tenant, that he did not pay the rent within the prescribed time from 1945-46 on wards and that he had committed default for three years or more and that he was served with a notice terminating tenancy as required by Law. The Mamlatdar found in favour of Bhagchand and he passed an order rejecting the contention of Pitambar and gave possession of the land to Bhagchand. Pitambar appealed but his appeal was summarily rejected by the District Deputy Collector without giving a hearing to Pitambar or his advocate. Pitambar applied in revision to the Bombay Revenue Tribunal contending inter alia that the District Deputy Collector should have given a hearing before summarily dismissing the appeal. The tribunal held that the Collector was not bound to give a hearing before summarily dismissing the appeal and rejected the application. In that case the High Court of Bombay held that under the Bombay Tenancy and Agricultural Lands Act, the Collector in hearing appeals against the decision of the Mamlatdar must follow the ordinary rule of procedure followed by the civil Courts and that if any party is given the right to make an application or appeal to a Court, he is entitled to be given an opportunity to support the same by oral argument. The jurisdiction which is conferred upon the Collector as an appellate authority under the Bombay Tenancy and Agriculture Lands Act is a jurisdiction to adjudicate finally upon disputes which are essentially of a civil nature, and even if on consideration of expediency the legislature has entrusted that jurisdiction to the Collector, thereby the nature of the proceeding in which the dispute is litigated is not so fundamentally altered that even the bare right of a litigant to be heard in support of the appeal before his appeal is disposed of, should be regarded as excluded. It further held that S. 209 of the Bombay Land Revenue Code, 1879, does not provide that an appeal may be dismissed summarily without hearing the party who has preferred the appeal.

11. The ratio of these two decisions is that if any statute does not provide specifically for dismissal of an appeal for default, the appellate authority cannot dismiss the same and it is bound to go into the merits of the case and dispose of the same whether or not the party supports his case by oral argument. The right of appeal to the appellate authority against the decision of a domestic tribunal in a dispute between an employer and an employee is conferred by the act and the contents of that right are set out in the Act. The jurisdiction which is conferred on the appellate authority under the Act is a jurisdiction to adjudicate finally upon the disputes between the employer and the employee and there is nothing in the Act to show that the appellate authority can refuse to do its duty merely because the appellant or his counsel or both are absent on the date the appeal is fixed for hearing.

12. For these reasons, we hold that the appellate authority was not justified in dismissing the appeal for default. In the result, we quash the order of respondent 2 dated 24 November 1962 and remit back to that authority the case with a direction that it should dispose of the appeal in accordance with law. No costs.


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