Full Judgment Text
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PETITIONER:
ASSOCIATED CEMENT COMPANIES LTD. ETC.
Vs.
RESPONDENT:
T.C.SHRIVASTAVA & ORS.
DATE OF JUDGMENT29/03/1984
BENCH:
TULZAPURKAR, V.D.
BENCH:
TULZAPURKAR, V.D.
PATHAK, R.S.
CITATION:
1984 AIR 1227 1984 SCR (3) 361
1984 SCALE (1)596
CITATOR INFO :
F 1985 SC1416 (68,96)
RF 1986 SC 555 (6)
ACT:
Industrial Employment(Standing Orders) Act, 1946-
Standing Orders-Certified Standing Order No.17-Providing
that all dismissal orders shall be passed by the Manager or
Acting Manager who shall do so after giving the accused an
opportunity to offer any explanation-Interpretation of-
Whether contemplates second opportunity to workman after
conclusion of enquiry and before inflicting punishment of
dismissal-Whether enquiry gets vitiated in absence of such
opportunity.
HEADNOTE:
Four workmen of the appellant company in Civil Appeal
No. 209/73 were charged for mis-conduct as defined in
Standing order No. 16. The enquiry officer found them guilty
of the charges. On the basis of the Enquiry officer’s report
and after looking into the previous record of the workmen,
the General Manager dismissed them. On a dispute having been
raised it was referred to the arbitrator, first respondent,
under section 10A of the Industrial Disputes Act 1947. The
arbitrator held that the enquiry which was otherwise fair
and valid was vitiated because no second opportunity was
given to the workmen before dismissing them as required by
the Standing order No. 17. The Arbitrator set aside the
dismissal of two workmen and confirmed that of the other
two. The management and the workman challenged the award in
the High Court by two writ petitions. The High Court
confirmed the award and dismissed both the writ petitions.
Hence these appeals by management and the workmen.
Allowing the appeal of the management and dismissing
that of the workmen.
^
HELD: Under Standing order No. 17 no second opportunity
of showing cause on the question of punishment is
contemplated. [367D]
Neither under the ordinary law of the land nor under
industrial law a second opportunity to show cause against
the proposed punishment is necessary. This of course, does
not mean that the standing order may not provide for it but
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unless the Standing order provide for it either expressly or
by necessary implication, no enquiry which is otherwise fair
and valid will be vitiated by non-affording of such
opportunity. [369B-D]
Standing Order No. 17 provides that a worker may be
suspended, fined or dismissed if found guilty of mis-conduct
as defined in Standing Order No. 16. Para 3 of Standing
Order No. 17 says that "all dismissal orders shall be passed
by the Manager or Acting Manager who shall do so after
giving the accused an opportunity to offer any explanation."
The question is whether para 3 provides for such second
opportunity being given to the delinquent ? The words "all
dis-
362
missal orders shall be passed by the Manager after giving,
the accused an opportunity to any offer explanation" in para
3 of Standing Order No. 17 are wholly inappropriate to
convey the idea of a second hearing or opportunity on the
question of punishment but appropriate in the context of
seeking an explanation’ in regard to the alleged mis-conduct
charged against him. An ’explanation’ is to be called from
the ’accused’ which suggests that the same is to be called
for prior to the recording of a finding that the delinquent
is guilty of mis-conduct; it is the alleged mis-conduct that
is to be explained by him and not the proposed punishment.
On a plain reading of the relevant words no second
opportunity of showing cause against the proposed punishment
is contemplated either expressly or by necessary
implication. In other word, it is clear that the opportunity
spoken of by para 3 of Standing Order No. 17 is the
opportunity to be given to the delinquent to meet the
charges framed against him. Further, since the instant
Standing Order was certified prior to the enunciation of the
law by Courts regarding the observance of the principles of
natural justice such as issuance of a charge-sheet, holding
of an inquiry, opportunity to lead evidence, etc. It merely
contains a bald provision for ’giving the accrued an
opportunity to offer any explanation’. In other words.
different stages in domestic inquiry were never in the
contemplation of the framers of the Standing Order. That
being the position it would be difficult to attribute any
intention to the framers thereof to provide for a second
opportunity being given to the delinquent of showing cause
against the proposed punishment. [368A-E; 369C-H; 370A-B]
The view of the Arbitrator as also the view of the High
Court proceed on an assumption the Standing Order No. 17
deals with two different stages concerning disciplinary
proceedings against a delinquent, first holding of a
departmental inquiry into the charges where principles of
natural justice must be implied and second the infliction of
graver punishment before awarding which opportunity to show
cause has been provided for; but the plain reading of the
Standing Order read as a whole does not warrant any such
assumption and, therefore, the construction placed on
Standing order No. 17 by the Arbitrator or the High Court is
not possible much less reasonably possible. [373H; 371A-B]
In the instant case, admittedly, opportunity to offer
explanation in regard to the alleged mis-conduct was not
only afforded but was availed of by the concerned foul
workers by submitting their written explanations to the
Manager whereafter the departmental inquiry was held. In
other words Standing Order No. 17 was fully complied with
and what is more the Arbitrator has held that the inquiry
was otherwise fair and valid. [371D]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 209 of
1973.
(Appeal by Special leave from the Judgment and Order
dated the 27th July 1972 of the Madhya Pradesh High Court in
Misc. Petition No. 129 of 1970)
AND
Civil Appeal No. 1140 of 1974
(From the Judgment and order dated the 27th July, 1972
of the Madhya Pradesh High Court in Misc. Case No. 365 of
1970.)
363
F.N. Kaku and D.N. Misra for the Appellants in CA. No.
209 of 1973 & For the Respondent No.2 in CA. 1140/74.
M.K. Ramamurthy, Vineet Kumar and Naresh K. Sharma, for
the Respondent Nos.2 & 4 in CA.209/73 & for the Appellant in
CA. No.1140 of 1974.
The Judgment of the Court was delivered by
TULZAPURKAR, J. The principal question raised for our
determination in these appeals is: Whether on its proper
construction the certified Standing Order 17 provides for
second opportunity being given to a workman after conclusion
of the inquiry into his misconduct and before inflicting on
him the punishment of dismissal and if so whether the
enquiry gets vitiated by not affording him such opportunity?
Facts giving rise to the question may be stated. The
Associated Cement Companies Limited (hereinafter called ’the
Appellant’) has quarries worked by its department called
Kymore & Bamangaon Lime-stone Mines at Kymore, District
Jabalpur, M.P. Workers employed in the said quarries have a
union called Kymore Quarry Karamchari Sangh and the four
concerned workmen Rama Shanker, Barmapradhan, Emmanual and
Mohd. Rauf (hereinafter called the Respondents’) were at the
material time the office bearers in the union.
In connection with the implementation of the
Recommendations of Second Central Wage Board for the cement
industry, after serving a strike notice on the management of
the Appellant on 13th September, 1968, the Karamchari Sangh
and all its Members went on a strike for 24 hours commencing
from the mid-night of 19th September, 1968 which was
accompanied by acts of intimidation, threats, ghearoes and
unlawful obstruction. According to the management before the
commencement of the strike two meetings were organized by
the Respondents, one at 4 P.M. and the other at 11 P.M. on
19th September at which fiery speeches were made by them
wherein they not only instigated the quarry workers to
resort to strike but intimidated and prevented the willing
workers from
364
going to their work and threatened the supervisory staff and
officers with dire consequences if they tried to work the
quarries and what is more from the mid-night of 19th
September till 4.30 A.M. on 20th September the quarry
Manager and the supervisory staff were ghearoed and at 4.30
A.M. the Agent’s car stopped at the gate and he was
unlawfully obstructed from visiting the querry premises.
Since resorting to a strike without giving 14 days’ prior
notice as also the aforesaid acts on the part of the
Respondents amounted to serious mis-conduct under the
certified Standing Orders applicable to the quarries the
Management served Charge-sheets dated 3rd of October. 1968
on the Respondents in which four common charges were
levelled against all of them; in addition a fifth charge was
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levelled against two of them Emmanual and Mohd. Rauf; and
yet another 6th charge was levelled against Mohd. Rauf. The
common charges were (a) themselves going on strike without
14 days’ prior notice, (b) inciting and instigating other
workers to go on strike, (c) gheraoing the Quarry Manager
and other supervisory staff between mid-night and 4.30 A.M.
on 20th September and inciting others to gherao the said
staff and (d) forcibly and unauthorisedly occupying the area
near the quarry canteen between 4 P.M. on 19th Sept. and 1
A.M. on 20th Sept. and installing and using loud-speakers
for inciting the workers. Shri Emmanual and Shri Rauf were
further charged with threatening the gheraoed staff with
dire consequences, if they moved out; and Mohd. Rauf was
charged in addition for having restrained the Quarry Agent
from entering the quarry premises. The respondents were
called upon to submit their explanation in respect of the
charges to the General Manager which they did; in their
Explanations they by and large denied the charges levelled
against them. A departmental enquiry was held against them
by Shri H.S. Mathur during the course of which at one stage
the Respondents withdrew from the enquiry on 24th October,
1968 on the plea that the Quarry Agent should be examined
first which was not being done, whereafter the enquiry
proceeded ex-parte and on a consideration of the entire
evidence led before him the Enquiry Officer came to the
conclusion that the first three charges were fully proved
and the fourth charge was partly proved against all the
respondents while the additional charges against Emmanual
and Mohd. Rauf were also proved. The Enquiry Report was
forwarded to the General Manager who after considering the
same and after taking into account the previous service
record of the Respondents by his order dated 31st December,
1968 dismissed the Respondents from service. That order was
served on the Respondents on 30th January, 1969.
365
A dispute having been raised with regard to their
dismissal, by common consent, the same was referred to the
arbitration of Shri T.C. Shrivastava, a retired Judge of
M.P. High Court, under sec. 10-A of the Industrial Disputes
Act, 1947 on 14th ’April, 1969. The Arbitrator gave his
Award on 9th February, 1970 whereby he came to the
conclusion that the enquiry which was otherwise fair and
valid was vitiated because no second opportunity was given
to the Respondents of showing cause against the proposed
punishment before the issuance of their dismissal order as
required by the Standing Order No. 17; he further held that
though before him the Management had by leading evidence
proved their mis-conduct by establishing the first three
charges against all, the fifth charge against Emmanual and
Mohd. Rauf (fourth charge being held not to have been
proved) the punishment of dismissal in respect of Emmanual
and Mohd. Rauf could be confirmed but set aside the
dismissal in respect of Rama Shanker and Barmapradhan on the
ground that while fomenting the strike the conduct of
Emmanual and Mohd. Rauf was graver than that of Rama Shanker
and Barmapradhan and instead ordered their reinstatement but
without back wages. The Appellant challenged the Award in
the High Court by means of a Writ Petition (Misc. Petition
No. 129 of 1970) contending that the Arbitrator had
misconstrued Standing Order No. 17 and that no second
opportunity was required to be given to the Respondents and
that in the alternative the interference with the punishment
of dismissal in respect of Rama Shanker and Barmapradhan was
erroneous while another writ petition (Misc. Petition No.
365 of 1970) was filed by the Respondents against the
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punishments that were awarded to each one of them the High
Court by its judgment dated 27th July, 1972 confirmed the
Award of the Arbitrator by dismissing both the writ
petitions.
The Appellant has come up in appeal (being Civil Appeal
No. 209/73) by special leave challenging the interference
with the dismissal of Rama Shanker and Burma Pradhan while
the Respondents have preferred their appeal (being Civil
Appeal No. 1140 of 1974) on a Certificate granted by the
High Court challenging the punishments operating against
each one of them. At this stage it may be stated that as
regards Emmanual and Mohd. Rauf the matter has been
compromised between the parties which has already been
recorded by this Court with the result that Civil Appeal No.
1140 of 1974 in so far as their dismissal is concerned no
longer survives and the same needs to be dealt with by us
only as regards back wages that have been denied to Rama
Shanker and Burmapradhan.
366
In support of civil Appeal No. 209 of 1973 Counsel for
the Appellant raised three contentions before us. In the
first place, he contended that the learned Arbitrator as
well as the High Court have erroneously construed the
certified Standing order No. 17 as requiring a second
opportunity being given to a workman at the conclusion of
the enquiry into his mis-conduct and before inflicting upon
him the punishment of dismissal; he urged that the concept
of second opportunity being given to a delinquent which
obtained under sec. 240(3) of the Government of India Act,
1935 or Art. 311 of the Constitution prior to the insertion
of the Proviso to Article 311 (2) could not be invoked or
applied to the instant case nor was such second opportunity
any requirement of the ordinary law of the land or of
Industrial law and in this behalf reliance was placed on
two decisions of this Court in Hamdard Dawakhana case and in
Saharanpur Light Rly, case. Counsel urged that on proper
construction of the Standing order it should have been held
that no second opportunity was contemplated thereunder and
therefore the finding that the enquiry was vitiated
deserved to be set aside and according to him if the enquiry
was valid and was not vitiated the punishment of dismissal
imposed on Rama Shanker and Barmapradhan could not be
interfered with. In the alternative counsel contended that
assuming that the enquiry was vitiated for the reason
mentioned by the Arbitrator even than once serious mis-
conduct was proved by leading evidence before the learned
Arbitrator it was not open to him to interfere with the
punishment of dismissal unless the punishment was so harsh
as to smack of victimisation. In the further alternative
counsel contended that assuming that the Arbitrator had
power to interfere with the punishment in the instant case
having to the facts and circumstances he was not justified
in setting aside the dismissal of Rama Shanker and
Barmapradhan especially on the ground on which he did so
namely, that the conduct of Shri Emmanual and Mohd. Rauf was
more grave than that of Rama Shanker and Barmapradhan while
fomenting the strike; counsel urged that passively taking
part in the strike was distinguishable from the more serious
mis-conduct of fomenting or inciting the strike and all the
respondents were found guilty by the learned Arbitrator of
such serious mis-conduct and as such no distinction on the
distinction on the basis indicated between the two sets of
workmen should have been made in the matter of punishment,
on the other hand coun-
367
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sel for the Respondents urged that Standing order No.
17 had been properly construed by the Arbitrator and the
High Court and that construction should be upheld and in any
case if two constructions were reasonably possible no
interference by this Court was called for and counsel in
that behalf relied upon the decision Agani (W.M.) v. Badri
Das and ors. Counsel further urged that once the enquiry
got vitiated the entire field of determining the mis-conduct
as also the punishment therefor became open and the
Arbitrator had jurisdiction and power to consider both the
aspects and that the Arbitrator in the facts and
circumstances of the case had justifiably interfered with
the dismissal of Rama Shanker and Barmapradhan and had
directed their reinstatement.
From the rival contentions summarised above it will
appear clear that the real question that arises in these
appeals is, does the certified Standing order No. 17 provide
for second opportunity being given to a workman to show
cause against the proposed punishment of dismissal, for, it
was not disputed before us that if no such second
opportunity is contemplated by it then the only ground on
which the inquiry has been held to be invalid by the learned
Arbitrator and the High Court would disappear and the
Arbitrator could not have entered into merits of the case or
interfered with the punishment of dismissal inflicted upon
Rama Shanker and Barmapradhan. The question obviously
depends upon the proper construction to be placed on said
S.O. 17. It may be stated that the certified S.O. 16 enlists
several acts or omissions that constitute ’mis-conduct’ and
striking work either singly or with other workers without
giving 14 days previous notice, inciting whilst on the
premises and worker to strike work and indulging in a
Gherao, which would amount to an ’act subversive of
discipline or efficiency’ are obviously included therein.
S.O. 17 which deals with punishments and procedure therefor
runs thus:
"17. A worker may be suspended for a period not
exceeding 4 days or fined in accordance with the
Payment of Wages Act or dismissed without notice or any
compensation in lieu of notice it found guilty of
misconduct defined in Standing order No. 16.
368
All orders of suspension and fines shall be in
writing setting out the misconduct for which the
punishment is awarded. No officer below the rank of the
Head of Department shall award the above punishment
All dismissal order shall be passed by the Manager
or Acting , ’Manager who shall do so after giving
accuse an opportunity to offer any explanation. Due
consideration to the gravity of the misconduct and the
previous record of the worker shall be given in
awarding the maximum punishment.
In the event of a discharge of dismissal, the worker
shall be paid off within the second working day
following the discharge or dismissal."
The question is whether when paragraph 3 of the S.O.
says: "all dismissal orders shall be passed by the Manager
or Acting Manager who shall do so after giving the accused
an opportunity to offer any explanation", it contemplates
giving of a second opportunity to the delinquent to show
cause against the proposed punishment of dismissal after he
has been found guilty or the opportunity spoken of is the
opportunity to meet the charges in the domestic inquiry ?
At the outset the legal position as has been clarified
by this Court in the Saharanpur Light Railway Co.’s case
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(supra) may be stated. In the context of certain
modification sought to be introduced in a Standing order
requiring a second show cause notice this Court has observed
thus: ’
"As regards the modification requiring a second
show cause notice, neither the ordinary law of the land
nor the industrial law requires an employer to give
such a notice. In none of the decisions given by the
Courts or the Tribunals , such a second show cause
notice in the case of removal has ever been demand or
considered necessary. The only class of cases where
such a notice has been held to be necessary are those
arising under Art. 311. Even that has now been removed
by the recent amendment of that Article. To import such
a retirement from Art. 311 in industrial matters does
not appear to be either necessary or proper and. would
be equating industrial employees with civil servants.
In our view, there is no justification or any principle
for such equation.
369
Besides, such a requirement would unnecessarily prolong
disciplinary enquiries which in the interest of
industrial peace should be disposed of in short time as
possible. In our view it is not possible to consider
this modification as justifiable either on the ground
of reasonableness of fairness and should therefore be
set aside."
It is thus clear neither under the ordinary law of the
land nor under industrial law a second opportunity to show
cause against the proposed punishment is necessary. This, of
course, does not mean that a Standing order may not provide
for it but unless the Standing order provides for it. either
expressly or by necessary implication no inquiry which is
otherwise fair and valid will be vitiated by non-affording
of such second opportunity. The question is whether para 3
of the Standing order No. 17 provides for such second
opportunity being given to the delinquent ? The relevant
words are " all dismissal order shall be passed by the
Manager alter giving the accused an opportunity to offer any
explanation". The underlined words are wholly inappropriate
to convey the idea of a second hearing on opportunity on the
question of punishment but appropriate in the context of
seeking an explanation in regard to the alleged misconduct
charged against him. An explanation’ is to be called from
the ’accused’ which suggests that the same is to be called
for prior to the recording of finding that the delinquent is
guilty of misconduct: it is the alleged misconduct that is
to be explained by him and not the proposed punishment. On a
plain reading of the relevant words no second opportunity of
showing cause against the proposed punishment is
contemplated either expressly or by necessary implication.
In other words, it is clear to us that the opportunity
spoken of by para 3 OE S.O. 17 is the opportunity to be
given to the delinquent to meet the charge framed against
him. In this connection it will be pertinent to mention that
the concerned S.O. was framed and came into force on March
1, 1946 and was duly certified on October 16, 1954 under the
Industrial employment (Standing orders) Act, 1946 i.e. prior
to the enunciation of the law by Courts regarding the
observance of the principles of natural justice such as
issuance of a charge-sheet, holding of an inquiry,
opportunity to lead evidence, etc. and it is well-known that
after the enunciation of these principles model standing
orders have been framed to provide for the detailed steps
required to be undertaken during a domestic inquiry. Since
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the Instant Standing order was certified prior to the
formulation of the above principles it merely
370
contains a bald provision for ‘giving the accused an
opportunity to offer any explanation’. In other words,
different stages in domestic inquiry were never in the
contemplation of the framers of the S.O. That being the
position it would be difficult to attribute any intention to
the framers thereof to provide for a second opportunity
being given to the delinquent of showing cause against the
proposed punishment. The latter part of para 3 merely casts
a unilateral obligation on concerned authority or the
officer to give due consideration to the gravity of the
misconduct and the previous record of the delinquent in
awarding the maximum punishment.
It is true that the Arbitrator has undoubtedly taken
the view that the opportunity spoken of by para 3 does not
refer to the opportunity to meet the charges but refers to
the further opportunity being given to the delinquent to
show cause against the graver punishment of dismissal that
may be proposed to be inflicted on him. But for reaching
such a conclusion he has resorted to some involved reasoning
which is not warranted by the Standing order if read as a
whole. According to him in the earlier paragraph which
speaks of awarding lighter punishment there is no reference
to any opportunity being given to meet the charges but no
punishment not even lighter punishment can be inflicted
without inquiry being held according to the principles of
natural justice and if such an inquiry as implicit in cases
of lighter punishments it would be so in cases of graver
punishment like dismissal and since specific mention of
opportunity as made in cases of graver punishment in the
relevant sentence para 3 it must have a meaning and the
words cannot be considered a surpulsage and, therefore, the
opportunity mentioned in the relevant sentence of para 3
refers to the second opportunity being given to the
delinquent at the stage of inflicting the punishment of
dismissal. The High Court has confirmed the view of the
basis that the first part of the Standing order deals with
several punishments and requires finding of guilt in respect
of each one of them and this procedure is, therefore,
different from that which has been contemplated in the last
part of the Standing order and that last part deals only
with the punishment of dismissal and for that punishment
alone makes a special provision that no order awarding that
punishment will be passed unless the Manager gives an
opportunity to a workman to offer his explanation. In our
opinion, the view of the Arbitrator as also the view of the
High Court proceed on an assumption that the Standing Order
No. 17 deals with two different stages concerning
disciplinary proceedings against a delinquent, first holding
of a
371
departmental inquiry into the charges where principles of
natural justice must be implied and second the infliction of
graver punishment before awarding which opportunity to show
cause has been provided for; but the plain reading of the
Standing Order read as a whole does not warrant any such
assumption and, therefore, we do not feel that the
construction placed on Standing Order No. 17 by the
Arbitrator or the High Court is possible much less
reasonably possible. The ratio of this Court’s decision in
Agnani (W.M.) v. Badri Das & Ors. (supra) is, therefore, not
attracted.
In view of the construction which we are placing on
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S.O. No. 17, it will be clear that the only ground on which
inquiry was held to be invalid by the Arbitrator and by the
High Court must disappear. Admittedly, opportunity to offer
explanation in regard to the alleged misconduct was not only
afforded but was availed of by the concerned four workers
(including Rama Shankar and Burma) Pradhan) by submitting
their written explanations to the Manager whereafter the
departmental inquiry was held by H.S. Mathur. In other words
S.O. 17 was fully complied with and what is more the
Arbitrator has held that the inquiry was otherwise fair and
valid. The solitary ground on which the inquiry was held to
be invalid having disappeared it must follow that the
Arbitrator had no Jurisdiction to enter into the merits of
the case or interfere with the punishment of dismissal
inflicted upon Rama Shankar and Burma Pradhan. That part of
the Arbitrator’s award which has been confirmed by the High
Court is, therefore, set aside. The alternative contentions
raised by counsel for the Management in these appeals do not
survive. C.A. No. 209 of 1973 (filed by the Management) is
allowed and C.A. No. 1140 of 1974 (filed by the two workmen
Rama Shankar and Burma pradhan) is dismissed. There will be
no order as to costs.
H.S.K. C.A. 209/72 allowed
and CA. 1140/74 dismissed.
372