Skip to content


Atherton West and Co. Ltd., Kanpur Vs. the Regional Conciliation Officer, Kanpur and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2870 of 1956
Judge
Reported inAIR1959All406
ActsIndustrial Disputes Act, 1947 - Sections 12; Constitution of India - Article 226
AppellantAtherton West and Co. Ltd., Kanpur
RespondentThe Regional Conciliation Officer, Kanpur and ors.
Appellant AdvocateR.S. Pathak, Adv.
Respondent AdvocateStanding Counsel and ;S.C. Khare, Adv.
DispositionPetition allowed
Excerpt:
labour and industrial - dismissal of the employee - section 12 of industrial disputes act, 1947 - application made to conciliation officer for dismissal of an employee - employer made a prima facie case against the employee - conciliation officer will have to grant the application - if conciliation officer refuse to grant the application it amounts to failure to exercise the jurisdiction. - - over both matters the conciliation officer has failed to exercise a jurisdiction which he should have. the charge-sheet, as also the dismissal application made to the conciliation officer, clearly mentioned the facts of the misconduct alleged and kadhey shyam was fully aware of these facts and gave his explanation accordingly;.....j.1. the petitioner (hereinafter referred to as the employer) is a textile mill in kanpur. one radhey shyam bajpai was in its employ as records clerk. on the 8th august, 1955 he was appointed as attendance clerk, and as such his duty was to mark the attendance of workmen. during the fortnight ending on the 20th august, 1955 he made wrong entries in the case of five workmen. thereupon the employer made a preliminary enquiry and as a result charged him on the 2nd september, 1955 with an act of misconduct, viz., making wrong entries of attendance in the case of five workmen referred to above.2. the petitioner alleges that radhey shyam was asked to appear on the 14th september to explain why he should not be punished under the provisions of the standing orders. it was also pointed out to.....
Judgment:
ORDER

B.R. James, J.

1. The petitioner (hereinafter referred to as the employer) is a textile mill in Kanpur. One Radhey Shyam Bajpai was in its employ as Records Clerk. On the 8th August, 1955 he was appointed as Attendance Clerk, and as such his duty was to mark the attendance of workmen. During the fortnight ending on the 20th August, 1955 he made wrong entries in the case of five workmen. Thereupon the employer made a preliminary enquiry and as a result charged him on the 2nd September, 1955 with an act of misconduct, viz., making wrong entries of attendance in the case of five workmen referred to above.

2. The petitioner alleges that Radhey Shyam was asked to appear on the 14th September to explain why he should not be punished under the provisions of the Standing Orders. It was also pointed out to him that he had already received three notices of warning. But for some time he evaded service of the charge-sheet. Then on the 12th September he was orally directed by his immediate superior to report at the Mill Labour Office and take delivery of the charge-sheet.

A written direction to the same effect was given to him by the Mill Manager. He however disobeyed the order. The charge-sheet was served on him on the 13th September. On the 14th a fresh charge was framed to the effect that he had wilfully disobeyed the orders of his superiors. On the 15th he submitted an explanation. An enquiry into the charges was started, and on the 28th he was required to give his statement. But this he refused to do and indulged in insulting language towards the Assistant Labour Officer who was presiding over the enquiry.

The same day the employer sent him a letter informing him that a further opportunity would be given to him for taking part in the enquiry, but he threw away the peon-book and refused to take delivery of the letter. The following day he was requested by a clerk of the Record Office to give his local address so that communications may be sent to him there, but this request he turned down. On the 30th a further charge in respect of the incidents of the 28th and 29th was framed against him, and he was directed to appear on the 1st October to show cause why he should not be punished.

He was suspended for four days pending the enquiry. He submitted an explanation substantially denying the various charges. His period of suspension was extended by another four days. The Labour Officer of the employer conducted an enquiry into the various charges on the 6th October, The next day he submitted a report stating that Radhey Shyam was guilty of the misconduct with which he had been charged.

Thereupon the employer on 18th November, as required by Clause 29 of the Notification No. U-464 (LL)/XXXVI-B-257(LL)--1954 dated 14-7-1954, sent an application to the Regional Conciliation Officer of Kanpur, mentioning the various acts of misconduct committed by him and asking for permission in writing to dismiss him. He was kept under suspension pending the orders of the Conciliation Officer.

That officer passed an order dated 9-6-1956 refusing permission to dismiss him. The State Government on 26-6-1956, in the exercise of its powers under Sections 3, 4 and 8 of the U. P. Industrial Disputes Act, referred to the Additional Regional Conciliation Officer the dispute regarding Radhey Shyam's suspension and wages for the period of suspension.

3. The employer has now come up to this Court under Article 226 of the Constitution and prays that the Conciliation Officer's order of the 9th June 1956 be quashed inasmuch as it was passed without jurisdiction, and that the State Government be commanded to withdraw its order of reference of 26-6-1956.

4. Subsequent to the filing of this petition the State Government withdrew the order of reference in question, hence arguments before me have been confined to the validity of the Conciliation Officer's order of 9-6-1956.

5. The order in question is what is generally known as a 'speaking order', i. e., it mentions the reasons on which the various findings are based. These findings are that Radhey Shyam's mistake in marking the attendance of five workmen was a bona fide mistake due to his being new to the work, that on the merits the punishment of dismissal was not warranted, and that much importance to the subsequent charge-sheets could not be given inasmuch as they were merely subsidiary to the original charge. It is for these reasons that the request for dismissal was turned down.

6. In contending that the order was passed without jurisdiction the learned counsel for the employer-petitioner relies on the judgments in Atherton West and Co. v. Suti Mill Mazdoor Union, AIR 1953 SC 241; Lakshmi Devi Sugar Mills v. Pt. Ram Sarup, (S) AIR 1957 SC 82, and Martin Burn Ltd. v. R. N. Banerjee, AIR 1958 SC 79. In the first case the Supreme Court have held that the Conciliation Officer's duty in dealing with a matter under Clause 29 is:

'The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman.' Learned counsel points out that the impugned order nowhere states that the employer was actuated by improper motives against Radhey Shyam or had made his dismissal application mala fide. He further cites the following passage at page 94 of the report of the second case;

'If on the materials before it the Tribunal came to the conclusion that a fair enquiry was held by the management in the circumstances of the case and it had bona fide come to the conclusion that the workman was guilty of misconduct with which he had been charged a prima facie case would be made out by the employer and the Tribunal would in these circumstances be bound to give the requisite permission to the employer to deal out the punishment to the workman. If the punishment was harsh or excessive or was not such as should be dealt out by the employer having regard to all the circumstances of the case, dealing out of such punishment by the employer to the workman after such permission was granted would be the subject-matter of an industrial dispute to be raised by the workman and to be dealt with as aforesaid.' The Conciliation Officer's own order shows that he had agreed that the misconduct with which Radhey Shyam had been charged was in fact made out; all that he considered was that the circumstances did not merit the punishment of dismissal. But this is obviously contrary to the view of the Supreme Court.

A prima facie case, be it noted, does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed; also while determining whether a prima facie case had been made out the relevant consideration is whether on the evidence it was possible to arrive at the conclusion in question and not whether that was the only conclusion, which could be arrived at on that evidence: See Martin Burn Ltd. v. R. N. Banerjee (Supra). The Conciliation Officer having found a prima facie case made out by the petitioner, it follows from these decisions of their Lordships of the Supreme Court, that that Officer could not enter into the question of the quantum of punishment and had no option but to grant the dismissal application, and further that if Radhey Shyam has any grievance against the order of his dismissal it is for him to raise an industrial dispute to be dealt With in the normal course.

7. Two subsidiary matters call for comment. First, the Conciliation Officer thought that Radhey Shyam's mistake in marking the attendance of five workmen was a bona fide one due to his being new to the work. I can conceive of one, or even two or three, mistakes being committed bona fide due to inexperience, but when I find no less than five committed in the course of a fortnight negligence on the part of the maker becomes apparent. Besides, the marking of attendance is not a matter requiring arty skill, so that newness to a post can scarcely be deemed to be a reasonable excuse. Second, the Conciliation Officer held that much importance could not be assigned to the subsequent charge-sheets since they were merely subsidiary to the original charge.

I must express surprise at this finding. The narrative in the second paragraph of this judgment exposes on the part of Radhey Shyam a series of acts of insubordination and wilful disobedience to lawful orders. To hold that 'much importance' cannot be given to such conduct is to overlook grave lapses on the part of the workmen--imagine the case of a man charged with theft who kicks the policeman who is sent to arrest him and abuses the Magistrate before whom he is placed for trial; it would be absurd to confine his punishment to his theft and to slur over his assault and insult. Over both matters the Conciliation Officer has failed to exercise a jurisdiction which he should have.

8. On behalf of Radhey Shyam it has been strongly urged that whatever the Conciliation Officer did in this case was within his jurisdiction, hence certiorari cannot be issued against his order. But in the face of the decisions of the Supreme Court cited above this plea must be overruled. An attempt has also been made to show that the employer's action was mala fide inasmuch as he charged Radhey Shyam, under Clause 23 (j) of the Standing Orders whereas the correct charge should have been under Clause 23 (1), and further that he had made several representations with regard to his promotion, which fact had incurred the displeasure of the employer. Both these pleas are feeble and without force.

The charge-sheet, as also the dismissal application made to the Conciliation Officer, clearly mentioned the facts of the misconduct alleged and Kadhey Shyam was fully aware of these facts and gave his explanation accordingly; the substitution of 'j' for ' 1' in Clause 23 of the Standing Orders, mentioned in the chargesheet, was a mere clerical error and did not prejudice his defence in the slightest. With regard to the second plea it is sufficient to observe that there was no material before the Conciliation Officer to suggest that the employer's application at all stemmed from Radhey Shyam's representations with regard to his promotion.

In these circumstances I am constrained tohold that the Regional Conciliation Officer's orderof 9-6-1956 suffers from serious errors of jurisdiction, and that in the circumstances he was boundto grant the employer's dismissal application.Consequently this petition is allowed, that Officer'sorder quashed and he commanded to grant thepermission which is sought. In the circumstancesof the case I direct the parties to bear their owncosts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //