P.K. Tare, J.
1. This petition under Article 226 of the Constitution of India has been filed by the employer forquashing the order dated 8-4-1957 passed by the Labour Commissioner, Madhya Pradesh, Indore incase No. 8 of 1957 and confirmed by Shri K. B. Kher, Presiding Officer of the State Industrial Court on 1-4-1958 in revision application No. 19 of 1957.
2. The third non-applicant, who was a jobber, in the applicant mills and is a worker of the Rashtriya Mill Mazdoor Sangh, Burhanpur, was served with a charge sheet dated 21-9-1956 (annexure A). The said charge sheet stated that on 21-9-1956 at about 7-30 in the morning when the workers in the weaving department were on duty, the said Sulemankhan (present respondent 3) instigated the workers to stop work, thereby causing an illegal strike in the mills.
3. The proceedings about the enquiry held by the manager on the said charge have not been filed in the present case, but during the course of the arguments, the detailed findings, as also the evidence recorded were made available for our perusal. If necessary the said proceedings relating to the enquiry shall be referred to later on.
4. The only order filed in this Court along with the writ petition was of 19-12-1956 (annexure B), which stated that Sulemankhan had been summarily dismissed without notice and without compensation in lieu of notice for misconduct under Standing Order No. 25(b) of the Standing Orders framed by the mill as per charge-sheet No. 289.
5. Sulemankhan, filed an application dated 17-1-1957 (annexure C), before the Labour Commissioner, under Section 16 of the C. P. and Berar Industrial Disputes Settlement Act, 1947, challenging the order of dismissal passed against him. It would be necessary to reproduce the relevant allegations made by him in the said application. They are as follows :
'Para 3. That the allegations are entirely baseless and no proper enquiry was made to bring home the charge against the applicant.
Para. 4. That the applicant was not given proper notice nor was he given the opportunity to explain the charge and to adduce evidence in favour of himself.
Para 5. That in the absence of proper enquiry, the dismissal is arbitrary and illegal.'
6. In reply, the employer filed a written statement (annexure D), denying that no proper enquiry was made. It was alleged that the employee was given full opportunity to lead evidence and also to cross-examine the witnesses examined in the enquiry. It was asserted that the employee examined 3 witnesses in support of his case. On 28-11-1956, the employee had specifically given in writing that hedid not want to examine any further witnesses. It was also averred that a proper charge-sheet was drawn up and it was duly served on the employee.
7. It is also necessary to mention the finding arrived at by the said Tribunals. The Labour Commissioner was of the view that the conclusion of the manager about the proof of the charge against the employee was not justified by the evidence on record and that the order of dismissal was, therefore, bad in law and mala fide. The Labour Commissioner was also of the opinion that the employee was being victimised in contravention of Section 42(1)(g) of the C. P. and Berar Industrial Disputes Settlement Act, 1947.
Further the Labour Commissioner was of the view that the manager, while inflicting the punishment of dismissal had not complied with Sub-clause (4) of the Clause 26 of the Standing Orders, inasmuch as the gravity of the misconduct, the previous record and any extenuating or aggravating circumstances had not been taken into consideration by the mills. The Labour Commissioner, therefore, ordered the re-instatement of Sulemankhan by directing full wages to be paid for the period from the date of dismissal to the date of re-instatement.
8. It must first be stated that the Labour Commissioner was under a misapprehension regarding the charge-sheet served on the employee. The State Industrial Court also acted under the same misapprehension. The Presiding Officer of the State Industrial Court was also of the view that the employee was victimised in contravention of Section 42(1)(g) of the C. P. and Berar Industrial Disputes Settlement Act, 1947. As regards the conclusion of the manager regarding the guilt of the employee, the State Industrial Court was of the view that the charge was not substantiated by the evidence on record. The State Industrial Court was further of the view that, while awarding the punishment, the manager had not complied with Clause 26, Sub-clause (4) of the Standing Orders.
9. The learned counsel for the petitioner firstly urged that there was an error of law apparent on the face of the record so as to attract the jurisdiction of this Court for a writ of certiorari under Article 226 of the Constitution of India. The learned counsel next urged that it was not open to the Tribunals to sift the evidence recorded in the enquiry and to come to their own conclusions of fact. The learned counsel submitted that the findings of the manager ought to have been taken as the basis, while proceeding with the enquiry under Section 16 of the C. P. and Berar Industrial Disputes Settlement Act, 1947.
10. The learned counsel for the respondents urged that the orders of the Tribunals were justified on facts and that it was a case of victimisation in contravention of Section 42 (1) (g) of the Act.
11. The present case raises an important question about the scope of the enquiry under Section 16 of the Act and the jurisdiction of the Tribunals to come to their own conclusions on facts about the commis-sion of the offending misconduct.
12. It is clear that the Labour Commissioner, as also the State Industrial Court acted under a mis-apprehension regarding the charge-sheet served on the employee. The observations made by the said Tribunals do indicate that they never read the last four lines of the charge-sheet dated 21-9-1956 (annexure A). It was on that mis-apprehension that the Tribunals opined that the charge-sheet was defective. Had the Tribunals not ignored the last four lines of the said charge-sheet, they would not have committed the error. At least on this aspect, the conclusion of the Tribunals about the charge-sheet being defective cannot be sustained.
13. The important question for consideration raised by the learned counsel for the petitioner is whether the facts found by the manager, in the enquiry held by him are open to challenge before the Tribunals. It is clear that the Tribunals completely ignored Clause 29 of the Standing Orders. This was also ignored in the arguments of counsel. They merely referred to Clauses 25 and 26 of the Standing Orders and examined the evidence recorded in the enquiry in order to assess its worth acting as an appellate Court. Clause 29 of the Standing Orders is as follows :
'The decision of the Manager upon any question arising out of, in connection with or incidental to these Standing Orders shall be final subject to an appeal to the Agents/Proprietors which shall be , presented within one month of such decision.'
An appeal lies to the Agents or to the Proprietors against the finding, and subject to the result of the appeal, the decision of the manager is final. It is, therefore, clear that the conclusion of the enquiry and the findings arrived at therein are not open to challenge before the Labour Commissioner and the State Industrial Tribunal, except to the extent permitted by Section 16 of the C. P. and Berar Industrial Disputes Settlement Act, 1947, which is as follows : '16. Reference of disputes to Labour Commissioner :
(1) Where the State Government by notification so directs, the Labour Commissioner shall have power to decide an industrial dispute touching the dismissal, discharge, removal or suspension of an employee working in any industry in general or in any local area as may be specified in the notification.
(2) Any employee, working in an industry to which the notification under Sub-section (1) applies, may, within six months from the date of such dismissal, discharge, removal or suspension, apply to the Labour Commissioner for reinstatement and payment of compensation for loss of wages.
(3) On receipt of such application, if the Labour Commissioner, after such enquiry as may be prescribed finds that the dismissal, discharge, removal or suspension was in contravention of any of the provisions of this Act or in contravention of a Standing Order made or sanctioned under this Act or war, for a fault or misconduct committed by the employee more than six months prior to the date of such dismissal, discharge, removal or suspension, he may direct:
(j) either that the employee shall be reinstated forthwith or by a specified date and paid for the whole period from the date of dismissal, discharge, removal or suspension, as the case may be, to the date of the order of the Labour Commissioner; or
(ii) that the employee shall, in addition to the wages from the date of dismissal, discharge, removal or suspension to the date of the order of the Labour Commissioner, be paid by the employer such sum: not exceeding rupees two thousand five hundred by way of compensation having regard to the loss of employment and the possibility of getting suitable employment thereafter.'
Sub-section (3) of Section 16 mentions an enquiry to be held by the Labour Commissioner as may be prescribed. Rule 18 of the C. P. and Berar Industrial Disputes Settlement Rules 1949 is as follows :
'18. (1) The enquiry by the Labour Commissioner under Section 16 (2) shall be held in camera unless both parties desire to have an open enquiry. The enquiry may follow the procedure of judicial enquiry and cover spot inspection, examination of documents, witnesses, and other evidences produced by the parties.
(2) If an employer fails to pay the compensation as provided in Section 16 (3), it shall be recovered from him as arrears of land revenue.
(3) An application for revision under Sub-section (5) of Section 16 shall be made within thirty days after the date on which the order complained against was announced, the time required for obtaining a copy of the order being excluded in the computation of this period of thirty days.'
14. The scope of the enquiry mentioned by Section 16 (3) and prescribed by Rule 18 (1) is to find out whether the dismissal, discharge, removal or suspension was in contravention of any of the provision of the Act or in contravention of the Standing Orders made or sanctioned under the Act or was for a fault or misconduct committed by the employee more than 6 months prior to the date of such dismissal, discharge, removal or suspension. The enquiry can-not be held for any other purpose except for the objects mentioned in the said sub-section. The finding given by the manager under Clause 29 of the Standing Orders are subject to the appellate findings of the Agents or Proprietors and are not open to challenge in the enquiry before the Labour Commissioner, unless there has been a contravention of the Act or the Standing Orders.
Neither the Labour Commissioner nor the State Industrial Court have been conferred a jurisdiction to examine the findings as an appellate authority and to come to a contrary conclusion on the same evidence. The only jurisdiction that the Tribunals can exercise under Section 16 of the Act, is to examine the findings incidentally for the collateral purpose of deciding whether the dismissal, discharge, removal or suspension was in contravention of the Act or the Standing Orders or was for a fault or misconduct before the period of 6 months. In the present case the Tribunals acted in exercise of jurisdiction in purporting to examine the correctness of the findings of the enquiry held by the management as an appellate authority. They have found no breach of the Act or the Standing Orders.
15. As regards the interpretation of Section 42 of the Act, the Tribunals may have the power to examine cases covered by the said section in an enquiry held under Section 16 of the Act. We do not accept the contention of the learned counsel for the petitioner that an examination of the question of contravention of Section 42 of the Act is necessarily beyond the scope of an enquiry under Section 16 of the Act. In such enquiry allegations relating to the contravention of the Act or contravention of the Standing Orders must be enquired into by the Labour Commissioner.
16. The learned counsel for the petitioner further urged that the State Industrial Court and the District Industrial Court, are the only Tribunals to decide the question of illegality of a strike as per Section 41 of the Act, As such, he urged that the Labour Commissioner had no jurisdiction to decide the question relating to an illegal strike. It is true that the District Industrial Court and the State Industrial Court have the power to decide the question whether a strike is legal or not upon a reference made by the State Government or on an application by an employer or employee- or a representative of the employees or the Labour Officer.
The Labour Commissioner may not have the jurisdiction to decide the question of illegality of a strike, but if in an enquiry under Section 16 of the Act, a question is raised that the dismissal was wrongful as there was no incitement of an illegal strike under Section 25 (b) of the Standing Orders, the Labour Commissioner may decide the question incidentally for the purposes mentioned in Section 16 of theAct. That aspect of the matter need not be considered because the strike instigated here was not held to be a legal strike.
17. The learned counsel for the petitioner urged that the State Industrial Court had exceededthe revisional powers as conferred by Sub-section (5) of Section 16. In the present case, it is not necessary to define the scope of the revisional powers.
18. The Labour Commissioner, as also the State Industrial Court acted under a mis-apprehension about the charge-sheet, as also regarding the scope of the enquiry to be held under Section 16 (3) of the Act. The orders of the Tribunals cannot be sustained. They are accordingly quashed. As regards costs, we direct that under the circumstances, the parties shall bear their own costs. The security deposited by the petitioner shall be refunded.