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Radha Raman Bajpai and ors. Vs. Labour Appellate Tribunal of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1957)IILLJ15All
AppellantRadha Raman Bajpai and ors.
RespondentLabour Appellate Tribunal of India and ors.
Excerpt:
- - he recorded evidence of some witnesses in support of the charges and being satisfied from the evidence that the charges were proved dismissed the applicants from service on the same day. the applicants as well as opposite party 3 appealed from the tribunal to the labour appellate tribunal of india, third bench, lucknow. the case of sri mehra is that none of them appeared before him and he was obliged to hold the inquiry ex parte against them while the case of the applicants is that they appeared before him at the appointed time and that he refused to receive their explanations and that they consequently sent the explanations by post and they reached opposite party 3 on 14 september 1953. the tribunal was satisfied from the evidence that there was no truth in the case set up by the.....m.c. desai, j.1. this is an application under article 226 of the constitution for writs of certiorari quashing orders of the state industrial tribunal, uttar pradesh and the labour appellate tribunal of india, third bench, lucknow, and a writ of mandamus directing the state industrial tribunal to re-hear the reference. the applicants are workmen of the sun publishers and, advertisers limited, opposite party 3, which has its registered office at kanpur. on 10 september 1953, sri s.p. mehra, the managing director of opposite party 3, framed charges against some workmen including the applicants to the effect that on 9 september 1953, at 1.30 p.m. they under the leadership of r.k. tewari, applicant 2, staged an illegal strike without giving previous notice and at 4 p.m. took forcible.....
Judgment:

M.C. Desai, J.

1. This is an application under Article 226 of the Constitution for writs of certiorari quashing orders of the State industrial tribunal, Uttar Pradesh and the Labour Appellate Tribunal of India, Third Bench, Lucknow, and a writ of mandamus directing the State industrial tribunal to re-hear the reference. The applicants are workmen of the Sun Publishers and, advertisers limited, opposite party 3, which has its registered office at Kanpur. on 10 September 1953, Sri S.P. Mehra, the managing director of opposite party 3, framed charges against some workmen including the applicants to the effect that on 9 September 1953, at 1.30 p.m. they under the leadership of R.K. Tewari, applicant 2, Staged an illegal strike without giving previous notice and at 4 p.m. took forcible possession of the press, and called upon them to submit their explanations on 12 September 1953, by 10.30 a.m. The charges were heard by the managing director of opposite party 3 on 12 September 1953. but none of the applicants appeared before him and none of them submitted any explanation. He recorded evidence of some witnesses in support of the charges and being satisfied from the evidence that the charges were proved dismissed the applicants from service on the same day. The applicants and three other workmen who were dismissed with them moved the conciliation board for conciliation of their dispute with the opposite party on 12 September 1953. On 14 September 1953, the managing director received written explanations of the applicants, but was not persuaded to alter the order of dismissal passed against them. The conciliation proceedings started by the applicants proved abortive and the State Government, Uttar Pradesh through its notification, dated 23 December 1953 referred to the State Industrial Tribunal Uttar Pradesh for adjudication the issues whether the employers have wrongfully and/or unjustifiably dismissed their thirteen workmen, given in the Annexure', and 'if so, to what relief are the workmen entitled.' The dispute was referred for adjudication in exercise of the powers conferred under Sections 3, 4 and 8 of the Uttar Pradesh Industrial Disputes Act (XXVIII of 1947) and in pursuance of the provisions of Clause 10 of G.O. No. 671, dated 15 March 1951. The thirteen workmen named in the annexure included all the applicants. The tribunal proceeded to adjudicate the issue ; the applicants and opposite party 3 produced evidence before it. Through its order, dated 27 February 1954, it maintained the dismissal of Radha Raman and R.K. Tewari, applicants 1 and 2, on the ground that it was neither wrongful nor unjustifiable, held that Kamla Kant, applicant 7, had not been dismissed at all and upheld the grounds of dismissal of the remaining ten workmen but held that the punishment awarded exceeded the gravity of the offence committed by them and ordered them to be reinstated with immediate effect. It found as a matter of fact that the workmen had staged an illegal strike and that their conduct was unruly. The applicants as well as opposite party 3 appealed from the tribunal to the Labour Appellate Tribunal of India, Third Bench, Lucknow. The Appellate Tribunal on 8 December 1954 dismissed the appeal of the applicants and allowed that of opposite party 3 and restored the dismissal of the remaining ten workmen also.

2. One of the grounds on which the applicants challenged the dismissal before the industrial tribunal was that conciliation proceedings were pending on 12 September 1953, on which date the order of dismissal was passed by opposite party 3, and that opposite party 3 had obtained no permission from the conciliation officer for dismissing them. Admittedly the opposite party did not obtain permission of the conciliation officer for dismissing the workmen, but the allegation that conciliation proceedings were pending on 12 September 1953 was seriously challenged on behalf of the opposite party. The conciliation proceedings were started on an application which does not bear any signature, A witness of the applicants deposed that it was presented before the conciliation officer on 12 September 1953, but the notice issued to the opposite party by the conciliation officer mentioned that the application had been received on 14 September 1953. The industrial tribunal after considering all the evidence concluded that the application for conciliation proceedings was not presented on 12 September 1953 and that no conciliation proceedings were pending on that date. There is no right of appeal from a decision of an industrial tribunal except on a substantive question of law. The finding of the industrial tribunal was essentially one of fact which could not be challenged through appeal. It cannot be challenged before me also in an application for a writ of certiorari which cannot be issued to quash a finding of fact.

3. There was a controversy before the industrial tribunal whether the workmen appeared before Sri S.P. Mehra on 12 September 1953 at 10.30 a.m. with their explanations and whether he refused to receive the explanations. The case of Sri Mehra is that none of them appeared before him and he was obliged to hold the inquiry ex parte against them while the case of the applicants is that they appeared before him at the appointed time and that he refused to receive their explanations and that they consequently sent the explanations by post and they reached opposite party 3 on 14 September 1953. The tribunal was satisfied from the evidence that there was no truth in the case set up by the applicants and that they did appear before Sri Mehra during the inquiry. This again is a finding of fact which cannot be disturbed by me. It was open to Sri Mehra to proceed with the enquiry notwithstanding the absence of the workmen; they were at liberty to keep themselves away from the inquiry or not to submit any explanation and Sri Mehra was at liberty to enquire into. the charges without waiting for their presence or explanations. He examined some witnesses and took into account reports made against the workmen. The evidence was sufficient to prove the charges framed against the workmen. The industrial tribunal observed that it was not a court of appeal but a supervisory body and had no jurisdiction to substitute its own finding in place of that of the managing director and consequently refused to consider the evidence in respect of the charges produced before it by the workmen. In other words, the industrial tribunal held that it had no jurisdiction to hold a fresh inquiry into the charges framed against the workmen by the opposite party. The Appellate Tribunal upheld the view of the industrial tribunal. It was pressed upon me that both the tribunals acted illegally in refusing to consider the evidence of the applicants in defence of the charges.

4. Under Section 3 of the Uttar Pradesh Industrial Disputes Act, 1947, the State Government may by general or special order make provision for referring any industrial dispute for conciliation or adjudication in the manner provided in the order. When an industrial dispute has been referred for adjudication, the tribunal after completing its inquiry has to submit its award to the State Government and the State Government may either enforce or remit it for reconsideration. In exercise of the power conferred by Section 3 the State Government issued a general order No. 615 dated 15 March 1951, providing for conciliation boards and industrial tribunals. Under Para. 10 of the general order the State Government was authorized to refer any industrial dispute to the industrial tribunal for adjudication. The tribunal is authorized to frame its own rules and accordingly on 17 July 1951 the tribunal framed rules; but they deal with procedure only. Neither the Uttar Pradesh Industrial Disputes Act nor the order No. 615 lays down how the tribunal is to adjudicate an industrial dispute referred to it and by what substantive law it is governed. An industrial dispute may involve a dispute about facts and a dispute about the rights and liabilities arising out of the facts admitted or proved. The tribunal can adopt any method for ascertaining the facts when there is a dispute about them, there is no difficulty on this score. But when the facts are ascertained and the tribunal has to decide what are the rights and liabilities of the parties to the dispute, the question arises how it is to determine the rights and liabilities. The rights and liabilities are a matter of rules of law and the question is what rules of law is to be applied by the tribunal to the facts. There is the statutory law of contract which ordinarily governs the relations, between master and servants The Industrial Disputes Act and the general order No. 615 of 15 March 1951 contain some law but not all the law, affecting the relations between master and servant. To the extent they affect the relations, their provisions must be applied but otherwise there is no law that may be applied barring that contained in the Contract Act. The Industrial Disputes Act and the general order override or repeal the Contract Act in so far as their provisions are repugnant to those of the Contract Act, but the other provisions of the Contract Act remain fully operative and must be given effect to when applicable. An Act cannot be assumed to be repealed by another Act and the Industrial Disputes Act does not expressly repeal the Contract Act. To the extent that Industrial Disputes Act overrides the Contract Act, the latter can be implied to be repealed by the former, but otherwise it cannot be said to be repealed. Therefore, the law contained in the Industrial Disputes Act and the general order, and failing them, the law contained in the Contract Act, is all the law that the tribunal must apply to the admitted or proved facts to determine the parties rights and liabilities. The tribunal has been only given the power to adjudicate; it is only a substitute for a court of law. Just as a court of law would apply the law of contract (so far as it is not repealed by the Industrial Disputes Act) to a dispute taken to it for settlement, so also would the tribunal. There is nothing in the Industrial Disputes Act or the general order to suggest that the tribunal has not to apply the law of contract or that it has to adjudicate an industrial dispute without any regard to the provisions of the law of contract. Surely the tribunal could not have been authorized to act arbitrarily or regardless of all laws. When the Act and the general order do not say what law it should consider in adjudicating a dispute, it means that it has to consider the law that is in force and that a court of law has to consider. The State Industrial Disputes Act as also the Indian Industrial Disputes Act has been enacted to provide for settlement of industrial disputes. There are the ordinary courts of law settle any dispute about civil rights and liabilities arising between parties, but the Acts have been enacted to provide for settlement of disputes in a quicker, cheaper and leas formal manner. The object is served by constitution of tribunals with less rigid rules of procedure. It is not the object behind the Acts to provide for a different law of contract to govern the relations between industrial employers and employees. A machinery better suited to the settlement of industrial disputes is the object and not any change of substantive law. Therefore, it was not the object behind the Acts themselves to make any change in the substantive law of contract. In D.N. Banerji v. P.R. Mukherjee 1953 S.C.R. 302 : 1953 I L.L.J. 195 196, Chandrasekhara Ayyar, J., observed at p. 308 : 198:

the limited concept of what an industry meant in early times must now yield place to an enormously wider concept so as to take in various and varied forms of industry, so that disputes arising1 in connexion with them might be settled quickly without much dislocation and disorganization of the needs of society and in a manner more adapted to a conciliation and settlement than a determination of the respective rights and liabilities according to strict legal procedure and principles. The conflicts between capital and labour have now to be determined more from the standpoint of status than of contract.

The observation that the object behind the Industrial Disputes Act is to provide for conciliation and settlement gather than determination of the respective rights and liabilities according to the strict legal principles and that the disputes are to be settled more from standpoint of 'status than of contract was made only to justify why a wider meaning should be given to the word 'industry' The learned Judge had in mind the provisions of the Industrial Disputes Act be far as they altered or repealed the provisions of the Contract Act. The learned Judge did not purport to decide what law should be applied by conciliation officers and industrial tribunals when disposing of industrial disputes and certainly did not mean to lay down that they were not governed by the law of contract so far as it has not been altered by the Industrial Disputes Act. Patanjali sastri, C.J., abserved in State of Madras v. C.P. Sarathy 1953 S.C.R. 334 : 1953 I L.L.J. 174 at p. 343 179:

The adjudication by the tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has to do in determining ordinary civil disputes according to the legal rights of the parties.

The observation was made in the course of an inquiry whether the Government's decision that an industrial dispute exists is justifiable or not. In Western India Automobile Association v. Industrial Tribunal, Bombay it was observed by Mahajan, J.:

Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law but the tribunal is not fettered in any way by these limitations.

The question that cropped up in that case was whether it was open to a tribunal to order reinstatement of an employee found to have been wrongfully dismissed. An ordinary court of law will not reinstate the dismissed employee, but adjudication was held to be not governed by the same strict law of master and servant. Once it is found that dismissal of an employee is wrongful, the relief that a tribunal can grant may differ from the relief that can be granted by a court of law, but it does not follow that the law that a court of law would apply, when deciding whether the dismissal of an employee is wrongful or not, need not be applied by a tribunal when deciding the question. Subba Rao, J., stated in Ranganathan v. Madras Electric Tramways (1904), Ltd. : (1952)ILLJ772Mad that a tribunal is not confined within the bounds of legal rights as a civil court is and can shape its decisions to meet exigencies of varying situations, works in the realm of arbitration rather than in that of law, is not bound by contractual terms and can adjust the rights between the parties on an equitable plane. The learned Judge has not explained the basis for his observation why an industrial tribunal is not bound by the law of contract; ho has not referred to any provisions of the Industrial Disputes Acts or of any rules framed thereunder by the Government, and has not considered whether the law of contract is completely abrogated by the Acts, and if not, such provisions of it as are not repugnant to the Industrial Disputes Acts should not be enforced by a tribunal. According to Sinha, J., in Bank of India Ltd. v. Chairman and Members of the Labour Appellate Tribunal : (1955)IILLJ214Cal , though according to the law of contract an employer is entitled to dismiss an employee upon giving a reasonable notice, an industrial tribunal is justified in dealing with the question 'from the point of view of unfair labour practice and industrial peace.' Again there is no authority cited in support of the observation and it has not been disclosed how an industrial tribunal is invested with the power to disregard the existing law of contract (so far as it is not repealed or altered by the Industrial Disputes Act) and to be governed by principles subversive of the law of contract.

5. I receive considerable support for my view from Rex. v. the National Arbitration Tribunal Ex parte Horatio Growther & Co. Ltd. (1948) 1 K.B. 424. An industrial dispute was referred for adjudication to the National Arbitration Tribunal established under the Defence Regulations. The dispute included a claim by some dismissed workmen for reinstatement. The tribunal reinstated the workmen and the King's Bench issued a certiorari to quash the order of reinstatement. Lord Goddard, C.J., pointed out at pp. 430-431:

There are no express words either in the regulation or in the order which in terms give the tribunal any power to reinstate; but it is said that as they have power to deal with any question relating to employment or non-employment, it follows that it must have the power to make an award of reinstatement. It seems to me it is a strong thing to say, looking at this regulation which alone gives force to the order, that a power is thereby impliedly given to the tribunal to grant a remedy which no court of law or equity has ever considered it had power to grant. If an employer breaks his contract of service with his employees, either by not giving notice to which the latter are entitled, or by discharging them summarily for a reason which cannot be justified, the workmen's remedy is for damages only.

On p. 431 his lordship observed:

Supposing that the employers lout of deference to the award took the man back into their employment, I cannot find anything in the order or regulation which would disentitle them from giving notice, the next day or next week in accordance with the terms of the contract to any individual workman or to all of them. It is true that this tribunal can do what no court can, namely, add to, or alter the terms or conditions of the contract of service; express power so to do is given by the regulation, while there are no words conferring a power to reinstate or revive a contract lawfully determined.

It is clear from these observations that so far as the ordinary law of contract is not repealed or altered in relation to industrial disputes, it must be applied by an industrial tribunal while adjudicating an industrial dispute. If an industrial tribunal can disregard the ordinary law of contract, it is only by virtue of a power expressly conferred upon it by the Industrial Disputes Act. It cannot exercise any power not conferred upon it by the Industrial Disputes Act. This case was discussed by Mahajan, J., in the case of Western India Automobile Association (supra) but was not dissented from. In the Automobile Products of India Ltd. v. Rukmaji Bala : (1955)ILLJ346SC , Das, J., observed at p. 1256 353 that during the pendency of proceedings under the Industrial Disputes Act 'A ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment' to dismiss an employee. It follows that but for the ban imposed by the Industrial Disputes Act an employer would have his ordinary right to dismiss an employee, in other words that the law of master and servant would apply so far as it is not expressly altered by the Industrial Disputes Act.

6. Under the Industrial Employment (Standing Orders) Act, 1946, standing orders consisting of the conditions of employment have to be prepared by all industrial establishments. Some of the matters to be provided for in the standing orders are 'termination of employment, and the notice thereof to be given by employer and workmen,' 'bus-pension or dismissal for misconduct, and acts of omissions which constitute misconduct and 'means of redress for workman against unfair treatment or wrongful exactions by the employer.' Under Rule 19 of the standing orders a permanent workman's services may be terminated on a month's notice and pay for a month may be given in lieu of the notice. If the workman is not monthly rated only two weeks' notice or pay for two weeks in lieu of notice may be given for terminating his employment. Rule 22 defines 'misconduct' which includes wilful insubordination, striking work, riotous or disorderly behaviour, etc. Under Rule 23 any workman, who is adjudged by the employer on examination. of the workman, if present, and of the facts to be guilty of misconduct is liable to be dismissed summarily without notice or compensation in lieu of notice. No order of dismissal for misconduct can be made unless the workman, if present, is informed in writing of the misconduct alleged against him and is given an opportunity to explain circumstances alleged against him. In awarding any punishment the employer is required to take into account the previous record of the workman. The standing orders are in the nature of a contract between the employer and the employees. The opposite party framed charges and gave the applicants an opportunity to be heard in answer to them. It recorded evidence and on its basis came to the finding that they were guilty of misconduct and dismissed them from service. No infringement of the standing orders of the law of contract was committed by the opposite party. It was for the opposite party to pass the order of dismissal and order of dismissal had to be passed on its satisfaction that they were guilty of misconduct. The question that was referred by the Government to the tribunal was whether their dismissal was wrongful or unjustified. This Involved three questions:

(1) whether they were found by the opposite party to be guilty of misconduct,

(2) whether the correct procedure was followed by the opposite party in arriving at the finding, and

(3) whether the misconduct could be visited with dismissal.

7. The answer to the first question depended upon the evidence in possession of the opposite party. Naturally the opposite party could act only on the basis of the evidence in its possession and not on the basis of evidence that might be produced subsequently before a higher authority or in a fresh inquiry. Therefore, the tribunal had to see whether the evidence in the opposite party's possession justified its finding of their being guilty of misconduct; it was not required to enter into another inquiry into the allegation of misconduct. It had no power to make an inquiry into the allegation itself and on the basis of evidence received by it to decide whether the finding of misconduct of the opposite party was correct or not. Since there might not be any connexion between the opposite party's finding of misconduct and the evidence received subsequently by the tribunal, one could not be justified on the basis of the other. The tribunal's duty being simply to ascertain whether the opposite party's finding was correct or not, it had to place itself in the position in which the opposite party was and then redecide the matter. It could hold that the evidence in the opposite party's possession did not justify the finding of misconduct, but it could not make an enquiry of its own into the allegation and on its result hold that misconduct was not proved. It, therefore, very rightly refused to consider the evidence it had itself recorded about the allegation of misconduct.

8. If it be true that the tribunal's powers were vast, it means that it had the power not to go into a matter that might, and ought to, have been raised before the opposite party. It certainly had the discretion to ignore the evidence produced before it by the workmen who ought to have produced it before the opposite party during the inquiry and it cannot be said to have acted illegally or refused to exercise jurisdiction by discarding all the evidence received by it.

9. The opposite party did not commit any. procedural mistake in the inquiry.

10. Once the opposite party decided that the workmen were guilty of misconduct, it was within its right to dismiss them. What punishment should be inflicted for the misconduct was within its discretion and the exercise of the discretion by it could, not be interfered with by the tribunal. I am not prepared to say that, it was not reasonable on the opposite party's part to dismiss the workmen who had been guilty of rowdyism and going on illegal strike. It could not tolerate such insubordination as was committed by them. In order to enforce discipline it was justified in adopting the most stringent measures. The tribunal did not act as an appellate authority and no power has been given to it to set aside its order which was not against any provisions of the Contract Act. It had no powers to substitute its own discretion in place of that of the opposite party and to reduce the punishment on the ground that it was excessive. Even a criminal appellate court should not interfere with a sentence inflicted by a trial court in its discretion unless the discretion has been exercised arbitrarily or illegally. The punishment of dismissal for the misconduct was in accordance with the standing orders and the tribunal could not hold that it was unjustified or wrongful.

11. I was referred to Batuk K. Vyas v. Surat Borough Municipality : AIR1953Bom133 in which Chagla, C.J., held that a tribunal is concerned with the question whether on merits the employer was justified in discharging the workmen and had jurisdiction to go into the merits' of the dispute between the two. The learned Chief Justice did not mean that the tribunal had power to hold a fresh inquiry and then decide the dispute between the parties. It had power to decide the dispute but the decision was to be made on the basis of the inquiry held by the employer. None of these cases is an authority for the proposition that a tribunal can interfere with an order of an employer made in accordance with the standing orders and not in contravention of the Industrial Disputes Act or the law of contract. Therefore, the tribunal acted without jurisdiction in setting aside the dismissal of the ten workmen.

12. Under Section 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950, an appeal lies to the Appellate Tribunal from a decision of an industrial tribunal if the appeal involves any substantial question of law. It was contended that the Appellate Tribunal could not entertain any appeal by the opposite party from the industrial tribunal's decision reinstating the ten workmen. The Appellate Tribunal did not discuss the question whether any substantial question of law was raised by the opposite party in the appeal before it, presumably because the applicants did not contend before it that the appeal was, incompetent on account of there being no substantial question of law. The Appellate Tribunal allowed the appeal on its being satisfied 'that the tribunal below was not justified in interfering with the decision of the management to dismiss these employees.' Though it has not expressly held that the appeal raised a substantial question of law, but since it entertained it and even allowed it, I would be justified in presuming that in its opinion a substantial question of law had been raised. This opinion is not binding on me and if I find that it did not raise any substantial question of law, I would have to hold that it had no jurisdiction to entertain the appeal. Its jurisdiction was conditional; it depended upon the existence of a substantial question of law. If there did not exist such a question, it could not usurp a jurisdiction by pretending that it existed. I am supported by Ranganathan v. the Madras Electri Tramways referred to above. A substantial question of law means a question having some substance in it. If a question hag already been authoritatively decided, or if there is no substance in it, it cannot be said to be a substantial question. Further the decision of a case must depend upon the answer to the question; if the decision would be one way, regardless of the answer to the question, it cannot be said to be a substantial question. In the case before the Appellate Tribunal the question was not merely of punishment but of jurisdiction of the industrial tribunal to interfere with the punishment inflicted upon the workmen without infringment of any law. It was an important question, because the decision of the appeal depended upon its answer. The contention raised by the opposite party had considerable force in it. A question of jurisdiction that is not raised in a light-hearted manner must be held to be a substantial question of law. In Kanpur Mazdur Congress v. K Spinning and Weaving Mills Co. Ltd. : (1953)IILLJ743All Malik, C.J., and V. Bhargava, J., laid down that whether an industrial court is entitled to interfere with the punishment inflicted by an employer in accordance with the standing orders on proof of a charge of misconduct is substantial question of law. The facts in that case were similar to those in the instant case and the Labour Appellate Tribunal was held to have jurisdiction, to hear the appeal. Since the Appellate Tribunal passed the order within its jurisdiction and since there is nothing illegal in it, it cannot be quashed by a certiorari.

13. The copy of the charge handed over to the workmen by the opposite party was not signed. This irregularity was of no consequence.

14. Kamla Kant Shukul, applicant, has not pressed his application because he has not been dismissed.

15. No case is made out for the issue of a writ of certiorari or a mandamus. The application is dismissed. Opposite parties 1 and 2 were not present, Opposite party 3 will get its costs of this petition from the applicants.


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