A.P. Sen, J.
1. This is a petition by Shantilal Oswal under Article 226 of the Constitution challenging the validity of an award of the Labour Court dated 2nd May, 1975.
2. A Departmental Enquiry under Regulation 26 of the Khadi and Village Industries Commission Employees (Conduct, Discipline and Appeal) Regulations, 1961 was held against the petitioner who is an officiating Stenon-grapher Gr. II in the Khadi and Village Industries Commission, Jaipur, into two charges of gross indiscipline insubordination and mis behaviour. The Enquiry Officer in his report dated 18-6-1971 held that charge No, 2 viz., assaulting the State Director, i.e., his superior officer had been conclusively proved The Disciplinary Authority i.e., the Dy. Chief Executive Officer agreed with the findings of the Enquiry Officer and served the petitioner with a show cause notice dated 7 9 1971 under Regulation 26(10). The Chief Executive Officer by his order dated 8-3-1972 considered the representation submitted by the petitioner, and taking a lenient view of the matter, directed the he be reinstated in service and that his two future increments should be withheld with cumulative effect, as a measure of punishment. On appeal by the petitioner under Regulation 35, the Chairman of the Commission allowed the appeal and reduced the punishment to withholding the increment for one month only with cumulative effect and made a direction in terms of F Rules 64 that the period of suspension shall be treated as a period of non-duty for the purpose of additional pay or allowances, etc., but shall not be treated as a break in service.
3. The Labour Court on a reference of the dispute by the State Government under Section 10 of the Industry Disputes Act, 1947, has found that the procedure prescribed in the Regulations had been complied with by the Disciplinary Authority, in inflicting the punishment of withholding the grade increment of the petitioner for one month with cumulative effect, and that there was sufficient evidence in the Domestic Enquiry to sustain charge No. 2 pertaining to gross mis conduct on the part of the petitioner.
4. The High Court under Article 226 of the Constitution would only interfere with the order of the Labour Court if it is without jurisdiction, or if in the exercise of its jurisdiction 'he Tribunal has committed any manifest error of law. There is no such infirmity attaching to the order of the Labour Court in the instant case.
5. The main contention raised before me as well as before the Labour Court was that, there was non consideration of the appeal preferred by the petitioner under Regulation 35. The contention is wholly devoid of substance. The Chief Executive Officer's Memo, dated 2-9-1972. Ex. 10, itself shows that the appeal was rejected The accompanying order of the Commission dated 31-7-1972, Ex. 11, shows that the Chairman was pleased to reduce the punishment from withholding of two increments with cumulative effect to withholding of the increment for one month only with cumulative effect Tue other contention raised before the Labour Court have not been pressed before me.
6. Various other points have, however, been raised in assailing the order of the Labour Court. These questions were not raised before the Labour Court and they cannot be taken for the first time in these proceedings under Article 226 of the Constitution : see, Hindustan Steel Limited v. The Presiding Officer, Labour Court, Orissa : (1977)ILLJ1SC .
7. Even otherwise, the points now sought to be taken can be of no avail to the petitioner. The contention that the Appellate Authority i.e. the Chairman could not have ID appeal reviewed the order under Regulation 47 and made a direction in terms of FR 54, without serving the petitioner with a show cause notice before making such direction, can hardly be accepted. The decision of their Lordships in M.G.K Naidu v. State of Madhya Pradesh AlR 1968 SC 242, on which reliance is placed is distinguishable. There the delinquent servant was exonerated of the charges framed against him in a Departmental Enquiry but nonetheless a direction was made in terms of FR 54(6). Their Lordships, therefore, observed in those circumstances, that there was a duty on the part of the Government to act in accordance with the basic concept of justice and fair play, and a reasonable opportunity should have been afforded to the servant concerned to show cause why Clauses (3) and (6) should not be applied. That not having been dose, their Lordships held that the order under FR 54(5) was invalid. The question whether a given case tails under Clause (2) or Clause (5) of FR 54 must depend on the examination by the authority of the facts and circumstances of each case. Here, the petitioner was found guilty of gross mis- conduct end insubordination. The case, therefore, clearly falls within Clause (3) and the Appellate Authority consequently had the right to remove a defect in the order passed by the Disciplinary Authority i.e., making a consequential direction upon reinstatement in terms of FR 54(5).
8. The next contention that the order passed by the Appellate Authority was cote speaking order cannot also be accepted. No doubt, their Lordships in Siemens Engineering & . v. The Union of India and Anr. : AIR1976SC1785 , have laid down that a quasi-judicial authority must pass a speaking order There can be no dispute with the proposition. In the present c se the document, Ex. 10, trough styled as an order is, in fact only a communication by the Chief Executive Officer of the order passed by the Chairman. This contention must, there-tore, also fail.
9. The next contention that the order of suspension cannot be said to have been passed in terms of Regulation 23, rather the order was beyond its scope or that the order was clearly penal in nature and was bad having been passed without affording any opportunity to the petitioner, can hardly be accepted. Under Regulation 23, the Disciplinary Authority bad the right to suspend the petitioner on the spot when he was guilty of a gross mis-conduct her, catching hold of the cellar of the Director. There was no question of affording any opportunity to the petitioner before passing the order of suspension.
10. the last contention that the order of suspension would disclose that the Director who wait himself a party to the alleged incident giving rise the charge of mis-conduct against the petitioner, had come to a positive, definite and final conclusion as to his guilt and therefore the Enquiry Officer being subordinate to him was actuated with a bias, is wholly devoid of substance. No such grievance was made before the Labour Court and the petitioner cannot be heard to say that he did not have a fair play in the Departmental Enquiry.
11. Locking to the seriousness of the charge, the petitioner has been dealt with rather leniently by the inflicting of minor punishment of withholding of one grade increment with cumulative effect. This is not a fit case where discretionary power of the High Court under Article 226 of the Constitutions should be invoked. The petitioner was guilty of grots mis-conduct and be has escaped wish a minor punishment.
12. The writ petition, therefore, tails and is dismissed summarily.