Full Judgment Text
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PETITIONER:
MANAGEMENT OF MONGHYR FACTORY OF ITC LTD.,MONGHYR,BIHAR
Vs.
RESPONDENT:
THE PRESIDING OFFICER, LABOUR COURT PATNA (BIHAR)& 3 ORS.
DATE OF JUDGMENT24/07/1978
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
SINGH, JASWANT
PATHAK, R.S.
CITATION:
1978 AIR 1428 1978 SCR (3)1044
1978 SCC (3) 504
ACT:
Supreme Court Rules 1966 Order XV-Rules 1, 5, 5A with
Articles 131, 132, 135 of Constitution of India-Scope of-
Whether the leave of the Supreme Court is necessary to urge
in appeal other grounds when certificate granted by a High
Court is restricted to a particular ground-Considerations
required to be looked into by the High Court while granting
the certificate.
Industrial Disputes Act, (14 of 1947), 1947, S. 10(1)(c)-
Whether a reference for adjudication of a labour dispute by
the Labour Court which is in the prescribed proforma without
striking off the appropriate words amounts to non-
application of the mind and therefore the reference void.
Standing Order No. 20 clause (i) and (ii) and Standing Order
21(A) as certified under s. 5 of the Industrial Employment
(Standing Orders) Act, (Act 20) 1946-Difference between
"habitual" and neglect of work" explained-Relief which
should be granted to the workmen whose dismissal has been
found to be wrongful, mala fide or illegal, explained.
HEADNOTE:
A chargesheet to the effect viz., "Neglect of work in-that
on 21-5-66 you packed approximately 130M, Embassy packets
with Scissors slides whilst operating M/C No. 14 resulting
in loss of 200 (two hundred man hours approximately for
opening up the packets and changing the slides, and loss of
material valued at Rs. 126/- approximately." was served upon
respondent no. 3 for his misconduct which was followed up by
a domestic enquiry which found him guilty. Accepting the
report his services were terminated.
On the raising of an industrial dispute it was referred for
adjudication by the Government of Bihar to the Labour Court,
Patna, respondent no. 1 by a Notification dated the
6th/17th February, 1968. The Labour Court noticed "(1) from
the documents of record it is abundantly clear that the
management and Shri Ram Krishan Pathak are not on happy
terms for several years" (2) "the service card indicates
that the service records of Shri Pathak are not neat and
clean". In view of its finding that the order of discharge
was mala fide and unreasonable in the sense that the workman
was guilty of the charge of fault only and not of misconduct
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the Labour Court made an award on November 23, 1970 ordering
reinstatement of Respondent No. 3 with all his back wages
from the date of dismissal till the date of reinstatement.
The Appellant challenged the award by filing a writ petition
in the High Court which was dismissed on July 23, 1973. At
the instance of the Management a certificate of fitness was
granted by the High Court on February 22, 1974. In the
order granting the certificate the High Court mentioned that
out of three points urged by the appellant only one point
justified the ground of certificate as that point involved a
substantial question of law of general importance needing
the decision by the Supreme Court. Pursuant to the grant of
the certificate, a petition of appeal was filed in this
Court, followed in the usual course by a statement of the
case. Various other points which have been argued on behalf
of the management before the labour court as also in the
High Court were taken in the petition of appeal and the
statement of the case. However no separate petition was
lodged by the appellant along with the petition of appeal in
accordance with Rule 5 of Order XV of the Supreme Court
Rules 1966. The appellant restricted his arguments only to
the three following points out of the several argued before
the High Court, viz. (a) That the reference is invalid on
the very face of it, that it was-mechanically made by the
Government without the application of mind. (b) That the
workman was guilty of misconduct within the meaning of
1045
clause (ii) of Standing Order 20 applicable to the appellant
and both the Courts below have committed errors of law on
the face of the record in taking a contrary view. (c) That
in any view of the matter on the facts and in the
circumstances of the case it was not expedient, fit or
proper to order reinstatement of the concerned workman and
in lieu thereof only compensation should have been allowed.
A preliminary objection was raised on behalf of respondent
no. 3 to the effect that the appellant, having not complied
with the requirement of Rule 5 of Order XV of the Supreme
Court Rules 1966, could urge only one point on the basis on
which the certificate was granted by the High Court and not
other.
Allowing the appeal in part the Court
HELD : (1) (a) Rule 5 of Order XV of the Supreme Court
Rules, was not applicable and compliance thereof was not
necessary to enable the appellant to urge and reiterate any
of the points taken by it in the High Court; (b) Rule 5-A of
Order XV suggests that the High Court ’is required to record
the reasons or the grounds for granting the certificate. In
this case the High Court in its order gave the reasons and
finding that atleast one of the points was such that could
justify the granting of the certificate under Art. 133(1)
and granted the certificate to appeal to the Supreme Court;
and (c) The certificate granted is an open one enabling the
appellant to urge all the points arising in the appeal in
this Court. There is nothing either in any provision of the
Constitution or the rules to indicate the points other than
the one which enabled the High Court to grant the
certificate could not be raised in this Court without its
leave. [1049BE]
(2) For the purpose of granting the certificate all that the
High Court is the groundmentioned in the constitutional
provision. Even if a single such question oflaw is
found to arise in the case, a certificate must be granted.
Once the certificate is granted and the appeal is lodged in
the Supreme Court it is open to the appellant to raise all
grounds which properly arise in the appeal. The
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circumstance, that there are grounds which were not found
sufficient for the grant of a certificate does not preclude
the Supreme Court from entertaining them as grounds arising
in the appeal. The stage at which the High Court considers
the grant of a certificate under Art. 133(1) and the stage
at which the Supreme Court hears the appeal are two distinct
stages and different jurisdictions are exercised with
respect to each stage. Considerations pertinent to the
grant of a certificate are not identical with considerations
which govern the hearing of the appeal. Accordingly even if
some of the points raised by the appellant in the High Court
in support of the petition for a certificate are found
insufficient for that purpose, they can still be considered
as grounds during the hearing of the appeal. The amendment
brought about in Art. 133(1) makes no difference in the
matter of the applicability of the principle to the point at
issue. In the instant case it is clear that the leave of
this Court was not necessary to enable the appellant to urge
in appeal the other grounds of attack in relation to the
award as affirmed by the High Court.[1049 F-H, 1050 A. D]
Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr.,
[1964] 2 SCR 933 followed. ,
(3)Order XV of the Rules is not confined to a certificate
granted by a High Court under clause (1) of Art. 133 only.
But it relates to a certificate granted under clause (1) of
Art. 132 also. Order XV of the Rules will be clearly
attracted to such a situation stated in Art. 132(3). When a
certificate is granted under Art. 133(1) only, then the
party appealing to the Supreme Court can urge as one of the
grounds in appeal filed pursuant to such certificate that a
substantial question of law as to the interpretation of the
Constitution has been wrongly decided. An express provision
to this effect was, perhaps, thought necessary to remove any
doubt for the raising of such a new point even without the
leave of the Court. That being so, it will be highly
unreasonable to hold that in an appeal filed in accordance
with Art. 133(1) of the Constitution the appellant cannot
urge any new grounds and must be confined to the grounds
which enable the High Court to grant the certificate. [1050
E, F, H, 1051A]
1046
(4)The reference, in the instant case, was not bad for the
alleged non-application of the mind by the Government though
care should always be taken to avoid the mere copying of the
words from the Statute while making an order of reference.
[1051 F-G]
(a)To keep an order of reference free from the pale of
attack on the groundthat the Government did not apply
its mind to the fact whether the disputeis only
apprehended on whether a specific dispute existed. the
Government must specify one or the other in their order of
reference. The Government should clarify the position in
such cases and remove the ambiguity by filing a counter when
the reference order is challenged on this ground. [1051
H,1052-A]
In the instant case, neither the one nor the other was done
although the State was made a party respondent to this writ
petition, and (b) on the facts and in the circumstances the
industrial dispute existed when it was referred to by the
Government to the Labour Court for adjudication and the
Government made the reference on being satisfied that it was
so. There was no question of dispute being apprehended.
The mention of the words "or is apprehended" in the order of
reference is a mere surplus age and does not in this case,
necessarily lead to the conclusion that the reference was
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made in a cavalier manner without any application of mind;
and (c) The observation in M/s. Hindustan General
Electrical Corporation Ltd. Karampura v. State of Bihar &
Ors. AIR 1967 Pat. 284 indicating that even if no definite
opinion was formed as to the existence or apprehension of a
dispute, the reference could be made are not quite correct.
(d) In Kurji Holy Family Hospital case, 1970 labour and
Industrial Cases, 105, while making the reference an
identically defective phraseology was used without
specifying whether the industrial dispute existed or was
apprehended. The view expressed by the Patna High Court
therein viz. "merely because in the notification the words
"or is apprehended" are also there, it cannot be said that
the Government were not satisfied as to the existence of a
dispute was not quite accurate either though it can be
sustained on a slightly different basis. [1052 A, C-D, F,
1053 C, E]
Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr.,
[1964] 2 S.C.R. 933, Hindustan General Electrical Corp. Ltd.
Karampura v. State of Bihar & Ors., AIR 1967 Pat. 285; India
Paper Pulp Co. Ltd. v. India Paper Pulp Workers’ Union &
Anr., [1949-50] FCR 348; State of Madras v. C.P. Sarathy &
Anr., [1953] SCR 334; Swadeshi Cotton Mills Co. Ltd. v.
State of U.P. & Ors., [1962] 1 SCR 422; Management of
Express Newspapers Ltd. v. Workers & Staff employed under
it and Ors. [1963] 3 SCR 540 discussed and explained.
(5)The argument that even neglect of work simpliciter can be
a misconduct within the meaning of sub-clause (i) of clause
(ii) of Standing Order 20 apart from its being a fault
within the meaning of sub-clause (b) of clause (i) of the
said Standing Order, as the word ’habitual’ in the former
merely qualifies the word ’negligence’ and not the
expression ’neglect of work’ is not correct. [1056A]
Mere neglect of work cannot be both. If it is so it is a
fault. If it is habitual, that is, if it is repeated
several times then only it is misconduct. It may well be
that fault of one kind or the other as enumerated in sub-
clause (a) to (g) of Standing Order 20(i) if repeated more
than once may be habitual within the meaning of Standing
Order 20(ii)(i) and especially in the light of the fourth
fault being a misconduct within the meaning of Standing
Order 20(a). But on the facts of this case there being no
charge against respondent no. 3 that he was guilty of
habitual neglect of work, the Labour Court found that the
negligence of the workman was not of a serious kind. Some
others in the factory also contributed to it. [1056 B-C]
(6)While considering the proper relief to be granted to the
workman whose dismissal has been found to be wrongful, mala
fide or illegal, though no hard and fast rule could be laid
down the Tribunal has to consider each case on its merits.
The past record of the employee, the nature of his alleged
present lapse and the ground on which the order of the
management is set aside are also relevant factors for
consideration. The High Court has the authority to
1047
interfere with the discretion of the Tribunal where
reinstatement was ordered without proper, adequate and
justifiable factors in support of the alternative relief of
compensation. [1056D, 1057A, E]
Punjab National Bank Lid. v. Workmen, [1960] 1 SCR 806;
Buckingham & Carnatic Mills Ltd. v. Workmen, 1951 11 L.L.J.
314; quoted again with approval; Ruby General Insurance Co.
Ltd. v. Chopra (P.P.) 1970 1 LLJ 63; Hindustan Steels Ltd.
Rourkela v. A. K. Roy & Ors. [1970] 3 SCR 343 followed.
Western India Automobile v. Industrial Tribunal Bombay &
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Ors. (1949-50) SCR 321 referred to.
In the present case; (a) the Labour Court without applying
its mind, in spite of its noticing the unsatisfactory record
of respondent no. 3, as to whether it was a fit case where
reinstatement should be ordered or compensation should be
awarded, followed the former course which was affirmed by
the High Court. (b ) every case has to be adjudged on its
special facts and in the instant case, the service record of
the employee showed that he had committed several faults in
the past, was sometimes warned, sometimes suspended and
sometimes reprimanded for all those omissions and
commissions. In the incident in question he was clearly
guilty of neglect of duty in putting wrong slides, although
they were wrongly supplied to him, while packing the
cigarettes on the packing machine. Even shortly before the
incident in question according to his own showing he was
once warned for absence from proper place of work without
permission and was suspended for three days for an act
subversive of discipline before he was dismissed in June
1966. Therefore it was not a fit case where the High Court
ought to have sustained the order of reinstatement as passed
by the Labour Court [1057 F-H, 1058 B, C, E]
[The Court directed payment of a sum of Rs. 30,000/- to
respondent no. 3 within a month’s time by way of
compensation in addition to the gratuity and provident fund
admissible to him less any amount paid already.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 864 of 1974.
From the Judgment and Order dated 23-7-73 of the Patna High
Court in C.W.J.C. No. 31 of 1971.
G. B. Pai, O. C. Mathur and K. J. John for the Appellant.
Santokh Singh for Respondent No,. 3.
R. C. Prasad and U. P. Singh for Respondent Nos. 1 and 4.
The Judgment of the Court was delivered by
UNTWALIA J. This appeal on certificate granted by the Patna
High Court under Article 133 (1) of the Constitution of
India as it stands after the 30th Constitution Amendment Act
is by the Management of the Monghyr Factory of India Tobacco
Company Limited impleading the Labour Union as respondent
no. 2 and the concerned workman as respondent no. 3. The
State of Bihar is respondent no. 4.
Respondent no. 3 was working as an operator on a packing
machine in the appellant’s factory at Monghyr on May 21,
1966 when he is said to have committed certain acts of
misconduct. A chargesheet was served on him by the
Management on May 24. At the domestic inquiry held by the
Management, he was found guilty and eventually dismissed
from service on June 9, 1966. On the raising of an
industrial dispute, it was referred for adjudication by the
Government of Bihar to the Labour Court, Patna’, respondent
no. 1 by a
10 48
notification dated the 6th/17th February, 1968. The Labour
Court made an award on November 23, 1970 ordering
reinstatement of the workman Shri Ram Krishan Pathak,
respondent no. 3, with III his back wages from the date of
dismissal till the date of reinstatement. The appellant
challenged the award by filing a Writ Petition in the High
Court, which was dismissed on July 23, 1973.
At the instance of the Management, a certificate of fitness
was granted by the High Court on February 22, 1974. Since
by that time Art. 133(1) had been amended by the 30th
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Constitution Amendment Act, the certificate was granted in
accordance with it. In the order granting the certificate
it is mentioned that three points were urged by the
appellant but the High Court thought that two of them were
such as would not justify the grant of the certificate, but
one of the points involved in the case was a substantial
question of law of general importance and the said question
needed to be decided by the Supreme Court. Pursuant to the
grant of the certificate a petition of appeal was filed in
this Court followed in the usual course by a statement of
the case. Various other points which have been argued on
behalf of the Management before the Labour Court as also in
the High Court were taken in the petition of appeal and the
statement of the case.
Mr. G. B. Pai appearing in support of the appeal urged only
the three following points out of the several argued before
the High Court :--
(1) That the reference is invalid as on its
very face it indicates that it was
mechanically made by the Government without
application of mind.
(2) That the workman was guilty of
misconduct within the meaning of clause (ii)
of Standing Order 20 applicable to the
appellant and both the Courts below have
committed errors of law on the face of the
record in taking a contrary view.
(3) That in any view of the matter on the
facts and in the circumstances of this case it
was not expedient, fit or proper to order
reinstatement of the concerned workman and in
lieu thereof, only compensation ought to have
been allowed.
Mr. Santokh Singh, appearing for the Union and
representing the workman raised a preliminary
objection and submitted that the appellant
having not complied with the requirement of
Rule 5 of Order XV of the Supreme Court Rules,
1966, hereinafter to be called the Rules.
could urge only one point on the basis of
which the certificate was granted by the High
Court and no other. Aft. Ram Chandra Prasad
appearing for the State of Bihar refuted the
first submission made on behalf of the
appellant while Mr. Santokh Singh combated the
other two.
1049
We shall first deal with the preliminary
objection of Mr. Singh. Order XV, Rule 5 of
the Rules reads as follows:-
"where a party desires to appeal on grounds
which can be raised only with the leave of the
Court, it shall lodge along with the petition
of appeal a separate petition stating the
grounds so proposed to be raised and praying
for leave to appeal on those grounds."
It is true that no separate petition was lodged by the
appellant along with the petition of appeal in accordance
with Rule 5. But in our opinion the said Rule was not
applicable and compliance thereof was not necessary to
enable the appellant to urge and reiterate any of the points
taken by it in the High. Court. Rule 5-A(d) of Order XV of the Rule
s enjoins that "an appeal on a certificate
granted by a High Court under Articles 132(1) and/or
133(1)(c) of the Constitution or under any other provision,
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of law if the High Court has not recorded the reasons or the
grounds for granting the certificate" shall be put up for
hearing ex parte before this Court. Article 133(1)(c) men-
tioned in the above extracted words has got to be read now
(and it would ’be advisable to correct it by an amendment of
the Rule, if not already done) as Article 133(1). The said
Rule suggests that the High Court is required to record the
reasons or the grounds for granting the certificate. In
this case, the High Court in its order gave the reasons and
finding that at least one of the points was such that could
justify the granting of the Certificate under Article 133(1)
granted the certificate to appeal to the Supreme Court. But
it did not limit it to that extent alone, even assuming it
could do so. The certificate granted, as is commonly known,
is an open one enabling the appellant to urge all the points
arising in the appeal in this Court. Nothing was brought to
our notice by Mr. Singh either from any provision of the
Constitution or the Rules to indicate that the points other
than the one which enabled the High Court to grant the
certificate could not be raised in this Court without its
leave.
For the purpose of granting the certificate, in that the
High Court is required to consider is whether the case
raise‘s a substantial question of of the kind mentioned in
the constitutional provision, Even if a single such question
of law is found to arise in the case, a certificate must be
granted. Once the certificate is ,ranted and the appeal is
lodged in the Supreme Court, it is open to the appellant to
raise all grounds which properly arise in the appeal. The
circumstances that there are grounds which were, not found
sufficient for the grant of a certificate does not preclude
the Supreme Court from entertaining them as grounds arising
in the appeal. The stage at which the High Court considers
the grant of a certificate under Article 133(1) and the
stage at which the Supreme Court bears the appeal are two
distinct stages, and different jurisdictions are exercised
with respect to each stage. Considerations pertinent to the
grant of a certificate are not identical with considerations
which govern the hearing of the
16-329 SCI/78
10 50
appeal. Accordingly, even if some of the points raised by
the appellant in the High Court in support of the petition
for a certificate are found insufficient for that purpose,
they can still be considered as grounds during the hearing
of the appeal.
The view which we have expressed above is amply supported by
the decision of this Court in Addagada Raghavamma and Anr.
v. Addagada Chenchamma and Anr.(1), wherein at page 945 it
was said with reference to Article 133 of the Constitution,
as it stood before the 30th Amendment Act:-
"Under Art. 133 of the Constitution the
certificate issued by the High Court in the
manner prescribed therein is a precondition
for the maintainability of an appeal to the
Supreme Court. But the terms of the
certificate do not circumscribe the scope of
the appeal, that is to say, once a proper
certificate is granted, the Supreme Court has
undoubtedly the power, as a court of appeal,
to consider the correctness of the decision
appealed against from every standpoint,
whether on questions of fact or law."
The amendment brought about in Article 133(1) makes no
difference in the matter of the applicability of the
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principle to the point at issue. Thus it is clear that the
leave of this Court was not necessary to enable the
appellant to urge in appeal the other grounds of attack in
relation to the award as affirmed by the High Court.
Order XV of the Rules is not confined to a certificate
granted by a High Court under clause (1) of Art. 133 only.
But itrelates to a certificate granted under clause
(1) of Art. 132 also Clause (3) of Art. 132 says :-
"Where such a certificate is given, or such
leave is granted, any party in the case may
appeal to theSupreme Court on the ground
that any such question as aforesaid has been
wrongly decided and, with the leave of the
Supreme Court, on any other ground."
Order XV Rule 5 of the, Rules will be clearly
attracted to such a situation. In contrast,
we may quote clause (2) of Art. 133 which says
:-
"Notwithstanding anything in article 132, any
party appealing to the Supreme Court under
clause (1) may urge as one of the grounds in
such appeal that a substantial question of law
as to the interpretation of this Constitution
has been wrongly decided."
It is interesting to notice that when a certificate is
granted under Art. 133(1) only, then the party appealing to
the Supreme Court can urge as one of the grounds in appeal
filed pursuant to such certificate 1 that a substantial
question of law as to the interpretation of the Constitution
has been wrongly decided. An express provision to this
(1) [1964] 2S.C.R.933.
1051
effect was, perhaps, thought necessary to remove any doubt
for the raising of such a new point even without the leave
of the Court. That being so, it will be highly unreasonable
to hold that in an appeal filed in accordance with Art.
133(1) of the Constitution the appellant cannot urge any new
grounds and must be confined to the grounds which enabled
the High Court to grant the certificate. We, therefore,
reject the preliminary objection raised by Mr. Santokh
Singh.
We now proceed to deal with the three submissions made on
behalf of the appellant.
POINT NO. 1.
The relevant words to be extracted from the order of
reference for deciding this point are the following :-
"Whereas the Governor of Bihar is of opinion
that an Industrial dispute exists or is
apprehended between the management of the
Imperial Tobacco Company of India
Limited.......... and their workmen
represented by Tobacco Manufacturing Workers’
Union............ Now, therefore, in exercise
of the powers conferred by clause (c) of sub-
section (1) of Section 10 of the Industrial
Disputes Act, 1947 (14 of 1947) the Governor
of Bihar is pleased to refer the said dispute
for adjudication to the Labour Court,
Patna ........"
The dispute referred was in the following
terms:-
"Whether the dismissal of Shri Ram Kishan
Pathak is proper and justified ? If not,
whether he is entitled to reinstatement and/or
any other relief ?
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Mr. Pai’s contention is that on the facts of the case either
an industrial dispute existed or it could be apprehended.
It could not be both. It was necessary for the Governor to
be satisfied about the one or the other, namely, whether the
dispute "exists or is apprehended". The use of both the
phrases in the order of reference demonstrates that there
was no application of mind of the authorities concerned
before making an order of reference. The point is not free
from difficulty. The High Court repelled it relying upon
its two earlier decisions. On a close scrutiny, however, on
the facts of this case we do not feel persuaded to hold that
the reference was bad for the alleged non application of the
mind of the Government. We would, however, like to observe
that care should always be taken to avoid,, a mere copying
of the words from the Statute while making an order of
reference. Ordinarily and generally in a large number of
cases, a reference is made when the Government finds that an
industrial dispute exists. There are cases where a dispute
is only apprehended or even there may be some where some
disputes exist and some are apprehended. To keep an order
of reference free from the pale of attack on such a ground,
the Government will be well-advised to specify one or the
other in their order of reference. As observed in some of
the cases of this Court, to be alluded ’to hereinafter, the
Government should clarify the position and remove the
ambiguity by filing a counter when
1052
the reference order is challenged on this ground. We are
unhappy to note that neither the one nor the other was done
in this case although the State was made a party respondent
in the Writ Petition.
Out of the cases cited at the Bar on the first point., we
shall refer only to a few which are very near it, there
being no direct decision of this Court on it. The Labour
Court repelled the contention of the Management apropos the
alleged invalidity of the reference, by stating in paragraph
9 of its order-"The fact that a dispute existed cannot be
denied." In that Court the next attack on the, competency of
the reference was on the ground that the concerned workman
was not a member of the Union on the date when the cause
giving rise to, the dispute arose, and, therefore, the Union
could not have espoused his cause to make it an industrial
dispute. While repellency this argument, the Labour Court
said in the 10th paragraph :-In my opinion there appears no
merit in the contention made on behalf of the management and
it is held that in reality an industrial dispute existed
when the appropriate Government was approached to refer the
matter to this Court for adjudication.’ On the facts and in
the circumstances of this case, therefore, we have no doubt
in our mind that the industrial dispute existed when it was
referred by the Government to the Labour Court for
adjudication, and the Government made the reference on being
satisfied that it was so. There was no question of the
dispute being apprehended. The mention of the words "or is
apprehended" in the order of reference is a mere surplusage
and does not, in this case, necessarily lead to the
conclusion that the reference was made in a cavalier manner
without any application of mind.
We may first briefly deal with the two Patna decisions which
were relied upon by the High Court in repelling the first
point of the appellant. They are-(1) Mls. Hindustan
General Electrical Corporation Ltd., Karampura v. State of
Bihar and others(1) and (2) Kurji Holy Family Hospital v.
State of Bihar and others(2). In the case of Hindustan
General Electrical Corporation (supra) although the relevant
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phraseology in the order of reference was in identical
terms, the argument advanced was somewhat different. In
that case it was urged on behalf of the petitioner
management that there was no industrial dispute before the
Labour Court. It was a simple dispute between an individual
workman and the management and hence the Court had no
jurisdiction to decide it. The High Court, while rejecting
this argument, observed at page 285 column 2
"Moreover, it is well known that even an
individual dispute between a workman and an
employer might have the potentiality of
becoming an industrial dispute, and if there
is an apprehension that such an industrial
dispute might exist, the Government have
jurisdiction to make a reference under Sec.
10(1). In the order of reference, which I
have already quoted, the Government had made
it clear that in their opinion therem was in
existence an
(1) A.I.R. 1967, Patna, 284.
(2) [1970] Labour and Industrial Cases, 105.
1053
industrial dispute or else, there was an
apprehension of the existence of such a
dispute. In the circumstances of this case,
this opinion of the Government must be held to
be not liable to challenge in this
application."
It would thus be seen that neither in argument nor in the
judgment attention was focussed whether the reference could
be bad when the order of reference did not indicate
precisely as to the existence of an industrial dispute or
whether it was apprehended. The observations, extracted
above, indicating that even if no definite opinion was
formed as to the existence or apprehension of a dispute, the
reference could be made, are not quite correct. In Kurji
Holy Family Hospital case (supra) the dispute raised related
to the action taken by the management against two of its
employees. While making the reference an identically
defective phraseology was used without specifying whether
the industrial dispute existed or was apprehended. The
validity of the reference in this. case was directly
attacked on the ground-"the Government were not definite
while making the reference whether a dispute was existing or
was apprehended and were not able to form any opinion in the
matter." This argument was repelled by the Bench of the High
Court relying upon its earlier decision in the case of
Hindustan General Electrical Corporation (supra) and three
decisions of this Court and a decision of the Federal Court
which will be shortly adverted to. Finally it was said at
page 111 column 1 :-"In the circumstances, there can be no
doubt that a dispute was existing on the date of the
reference. Merely because in the notification the words "or
is apprehended" are also there, it cannot be said that the
Government were not ’.satisfied as to the existence of a
dispute." The view so expressed by the Patna High Court is
not quite accurate. But it can be sustained on a slightly
different basis as discussed by us above.
In the case of The India Paper Pulp Co. Ltd. v. The India
Paper Pulp Workers’ Union and another(’,) the attack on the
order of reference, as could appear from page 355, was not
identical to the one with which we are concerned in this
case. But the lacunae pointed: out were that the order of
the Government did not mention any industrial dispute and
secondly, the order, as worded, was only an order of
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appointment and there were no words of reference to the
Tribunal. The attack was repelled by Kania C.J. on the same
page in these words :-
"It is sufficient if the existence of a
dispute and the fact that the dispute is
referred to the Tribunal are clear from the
order. To that extent the order does not
appear to be defective. Section 10 of the Act
however requires a reference of the dispute to
the Tribunal. The Court has to read the order
as a whole and determine whether in effect the
order makes a reference."
(1) [1949-50] Federal Court Reports 348.
17-329 SCI/78
1054
The Court found on reading the order as a whole ’that the
order could be reasonably construed to constitute a
reference to the Industrial Tribunal. In State of Madras v.
C. P. Sarathy and another(1) it was contended at page 345
that "the reference was not competent as it was too vague
and, general in its terms containing no specification of the
disputes or of the parties between whom the disputes arose."
This argument was repelled by Patanjali Sastri C.J., with
reference to the decision of the Federal Court in the case
of The India Paper Pulp Company (supra). The learned Chief
Justice added at page 346 :-
"This is, however, not to say that the
Government will be justified in making a
reference under section 10(1) without
satisfying itself on the facts and
circumstances brought to its notice that an
industrial dispute exists or is apprehended in
relation to an establishment or a definite
group of establishments engaged in a
particular industry, and it is also desirable
that the Government should, wherever possible,
indicate the nature of the dispute in the
order of reference."
Even in this case the attack to the validity of the
reference was not on the ground exactly as has been done in
the present case. In The Swadeshi Cotton Mills Co. Limited
v. The State of U.P. and others(2) the, reference was
assailed on somewhat different grounds. The argument was
not accepted by Wanchoo J., as he then was, by saying at
page 432, :-
"This opinion is naturally formed before the
order is made. If therefore such an opinion
was formed and an order was passed thereafter,
the subsequent order would be a valid exercise
of the power conferred by the section. The
fact that in the notification which is made
thereafter to publish the order, the formation
of the opinion is not recited will not take
away the power to make the order which bad
already arisen and led to the making of the
order."
Says the learned Judge further at page 434
"We are equally not impressed by Shri Pathak’s
argument that if the recital is not there, the
public or courts and tribunals will not know
that the order was validly passed and
therefore it is necessary that there must be a
recital on the face of the order in such a
case before it can be held to be legal. The
presumption as to the regularity of public
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acts would apply in such a case; but as soon
as the order is challenged and it is said that
it was passed without the conditions precedent
being satisfied the burden would be on the
authority to satisfy by other means (in the
absence of recital in the order itself) that
the conditions precedent had been complied
with"
(1) [1953] S.C.R. 334.
(2) [1962] 1 S.C.R. 422.
10 5 5
In the case of The Management of Express Newspapers Ltd. v.
Workers & Staff employed under it and others(1) the point
canvassed and decided was a different one. The attack was
on the wordings of issue no. 2 referred to the Industrial
Tribunal for adjudication. The argument was that this issue
had in fact been determined by the Government and nothing
was left to the Tribunal to consider or decide. It
wouldappear from pages 555 and 556 that this argument
was not accepted. In our opinion, reliance on this case by
the appellant before us or bythe High Court in the case of
Kurji Holy Family Hospital (supra) is not quite apposite.
For the reasons stated above, on the facts of this case, we
do hot feel persuaded to accept the first contention of the
appellant as correct.
POINT NO. 2
To substantiate this point Mr. Pai relied upon the relevant
words of clauses (i) and (ii) of Standing Order 20 and
Standing Order 21 (a). Standing Order 20(i) says :-
"The following acts or omissions shall be
treated as faults
(a) Careless work.
(b) Laziness or neglect of work
Standing Order 20(ii) provides:-
"The following acts or omissions shall be
treated as misconduct:-
............
(1) Habitual negligence or neglect of work."
Standing Order 21(a) provides for different kinds of
punishment in cases of first, second and third faults
committed within the meaning of Standing Order 20(i).
Lastly it is provided in the Standing Order 21(a) that-"In
the case of a fourth fault by the same worker such worker
shall be reported to the Factory Manager by the head of the
department as a worker regarded guilty of misconduct as
defined in Order No. 20(ii)." Mr. Pai submitted with
reference to the service card of respondent no. 3 which was
an exhibit before the Labour Court that his service record
was bad, he bad committed several faults in the past and the
fault in question even if it was a fault was a fourth one
which could be treated as a misconduct under Standing Order
21 (a) entailing dismissal of the workman. This argument,
as presented before us. is not well-founded and must be
rejected. No such stand was taken in either of the Courts
below. Nor was the charge framed on this line. The charge
served on respondent no. 3 is as follows:-
"Neglect of work in-that on 21-5-66 you packed
approximately 130 M. Embassy packets with
Scissors slides whilst operating M/C. No. 14,
resulting in loss of 200 (two hundred) man
hours approximately for opening up the packets
and changing the slides, and loss of material
valued at Rs. 126/- approximately."
(1) (1963) 3 S.C.R.
1056
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Mr. Pai submitted that even neglect of work simpliciter can
be a misconduct within the meaning of ’sub-clause (1) of
clause (ii) of Standing Order 20 apart from its being a
fault within the meaning- of subclause (b) of clause (i) of
the said Standing Order as the word ’habitual’ in the
former merely qualifies the word ’negligence’ and not the
expression ’neglect of work’. This argument has to be
stated merely to be rejected. Mere neglect of work cannot
be both. If it is so, it is a fault. If it is’habitual
that is, if it is repeated several times then only it is
misconduct. It may well be that fault of one kind or the
other as enumerated in sub-clauses (a) to (g) of Standing
Order 20(i) if repeated more than once may be, habitual
within the meaning of Standing Order 20(ii) (1), and
especially in the light of the fourth fault being a
misconduct within the meaning of Standing Order 20(a), but
,on the facts of this case, there was no charge against
respondent no. 3 that he was guilty of habitual neglect of
work. Moreover the Labour Court found that the negligence
of the workman was not of a serious kind. Some others in
the factory also contributed to it. We, therefore, reject
point no. 2.
POINT NO. 3
The law as to the proper relief, which should be ranted to
the workman whose dismissal has been found to be wrongful,
mala fide or illegal has gradually been developed by the
Federal Court and this Court. In Western India Automobile
Association v. Industrial Tribunal, Bombay, and others() the
argument on behalf of the employer that reinstatement could
not be ordered in an industrial adjudication as no contract
of service would be specifically enforced, was rejected. In
some cases the view taken was that there should be a general
rule of reinstatement except in very exceptional cases.
Later on. it was ruled that no hard and fast rule could be
laid down and the Tribunal would have to consider each case
on its merits.
In The Punjab National Bank, Ltd. v. Its Workmen(2)
Gajendragadkar J., as he then was, speaking for himself and
other learned Judge has ’said at page 833:-
"It is obvious that no hard and fast rule can
be laid down in dealing with this problem.
Each case must be considered on its own
merits, and, in reaching the final decision an
attempt must be made to reconcile the
conflicting claims made by the employee and
the employer. The employee is entitled to
security of service and should be protected
against wrongful dismissals, and so the normal
rule would be reinstatement in such cases.
Nevertheless in unusual or exceptional cases
the tribunal may have to consider whether, in
the interest of the industry itself, it would
be desirable or expedient not to direct
reinstatement. As in many other matters
arising before the industrial courts for their
decision this question also has to be decided
after balancing the relevant factors and
without adopting any legalistic or doctrinaire
approach."
(1) [1949-50] S.C.R. 321.
(2) [1960] 1 S.C.R. 806.
1057
At the same page the learned Judge approvingly quoted from
the well-known decision of the Full Bench of the Labour
Appellate Tribunal in the case of Buckingham & Carnatic
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Mills Ltd. v. Their Workmen (1). A sentence from that
quotation will be of use in deciding this case also. It
runs thus :-"The past record of the employee the nature of
his alleged present lapse and. the ground on which the order
of the management is ’set aside are also relevant factors
for consideration." Shelat J. speaking for this Court in the
case of Ruby General Insurance Company, Ltd. v. Chopra
(p.p.) (2) considered some other reported and unreported
decisions and concluded at page 66, column 2 thus:-
"These decisions clearly show that though
industrial adjudication may not regard a
wrongful dismissal as amounting to termination
of service resulting only in a right to
damages as under the law of master and servant
and would ordinarily order reinstatement, it
can refuse to order such reinstatement where
such a course, in the circumstances of the
case, is not fair or proper. The tribunal has
to examine, therefore, the circumstances of
each case to see whether reinstatement of the
dismissed employee is not inexpedient or
improper."
The same learned Judge reiterated the principles in
Hindustan Ltd., Rourkela v. A. K. Roy & Ors.(3) and pointed
out at page 348 :-"As exceptions to the general rule of
reinstatement, there have been cases where reinstatement has
not been considered as either desirable or expedient." On a
consideration of the entire facts and circumstances of the
case. this Court took the view in Hindustan Steel’s case
that High Court had the authority to interfere with the
discretion of the Tribunal where reinstatement was ordered
without proper, adequate and justifiable factors in support
of the grant of the alternative relief of compensation.
Finally a compensation for a period of about two years was
determined payable by the management to the workman
concerned in lieu of the order of reinstatement.
In the present case the Labour Court found that the order of
discharge was mala fide and unreasonable in the sense that
the workman was guilty of the charge of fault only and not
of misconduct. Domestic inquiry was found to be fair and
proper from its procedural aspect. The Labour Court also
noticed the following facts :-
1. "From the documents on record it is
abundantly clear that the management and Shri
Ram Kishan Pathak are not on happy terms for
several years."
2. "The service card indicates that the
service record of Shri Pathak are not neat and
clean."
Yet without applying its mind further as to whether it was a
fit case where reinstatement should be ordered or
compensation should be awarded, it followed the former
course.
(1) [1951] II L.L.J., 314.
(2) [1970] 1 LLJ 63.
(3) [1970] 3 S.C.R. 343
1058
The High Court while affirming the order of the Labour Court
in this regard did refer to some of the relevant decisions
of this Court and correctly enunciated the principles. But
it seems to us that it felt fettered in treating the facts
referred to in those cases as if they were exhaustive
examples of the circumstances under which reinstatement
could be ordered. In that view of the matter the High
Court, on comparison of the facts of the present case did
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not feel persuaded to travel outside the limits of those
facts. But it ’should be remembered, as observed in the
Punjab National Bank case (supra), that every case has to be
judged on its special facts. In the present case the
service card of the employee shows that he bad committed
’several faults in the past and was sometimes warned,
sometimes suspended and sometimes reprimanded for all those
omissions and commissions. In the incident in question, he
was clearly guilty of neglect of duty in putting wrong
slides, although they were wrongly supplied to him, while
packing the cigarettes on the packing machine. Even shortly
before the incident in question, as pointed out to the High
Court on behalf of respondent no. 3 himself, he was once
warned for absence from proper place of work without
permission and was suspended for three days for an act
subversive of discipline before be was dismissed in June,
1966. We were also informed by the management that
respondent no. 3 has superannuated, according to them in
December, 1972. The fact that he has superannuated was not
disputed by Mr. Santokh Singh. What was, however, asserted
on his behalf was that he bad superannuated not in December,
1972, but about two years later. At the time of the hearing
of the appeal, the management offered to pay a very
reasonable amount of compensation and all sums of money due
to the workman on account of gratuity and provident fund.
We think on the facts and in the circumstances of this case
it is not a fit case where the High Court ought to have
sustained the order of reinstatement as passed by the Labour
Court. We, accordingly, direct that in lieu of
reinstatement, respondent no. 3 will be entitled to get a
compensation of Rs. 30,000/which will, roughly speaking.
include almost all sums of money payable to the workman such
as basic pay, dearness allowance etc. etc. for a period of
about five years. Out of the said sum of Rs. 30,000/- total
amount, of Rs. 14,250/- are said. to have been paid by the
appellant to respondent no. 3 in pursuance of the interim
orders made by the High Court and this Court. The balance
of Rs. 15,750/- on account of compensation is to be paid.
Adding to that the sums of gratuity Rs. 8.852/- and
provident fund--Rs. 2,451 /- the total amount payable comes
to Rs. 27,053/-. The management has also agreed to make
anmanagement to the workman concerned comes to Rs. 30,000/-
over and above the sum of Rs. 14.250/- already paid. We
direct the appellant (and at the time of the hearing of the
appeal it has agreed to do go to pay the said sum of Rs.
30,000/- to respondent No. 3 with a month from today.
The appeal is accordingly allowed to the extent and in the
manner indicated above. There, will be no order as to
costs.
S.R. Appeal
allowed.
1059