Full Judgment Text
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PETITIONER:
THE NAGPUR ELECTRIC LIGHT AND POWERCO., LTD. & OTHERS
Vs.
RESPONDENT:
K. SHREEPATHIRAO
DATE OF JUDGMENT:
11/04/1958
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
BOSE, VIVIAN
DAS, SUDHI RANJAN (CJ)
AIYYAR, T.L. VENKATARAMA
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 658 1959 SCR 463
ACT:
Termination of Service-Company Employee-Standing Orders
-Construction-Employees and workmen-Distinction.
HEADNOTE:
The services of the respondent, an employee of the appellant
company, were terminated in accordance with the Standing
Orders of the company, approved by the appropriate
authorities under the provisions of the Industrial
Employment (Standing Orders) Act, 1946, and the Central
Provinces and Berar Industrial Disputes Settlement Act,
1947. Standing Order NO. 2(a) defined " employees " as "
all persons ... employed in the Office or Mains Department
or Stores or Power House or Receiving Station of the
Company ... whose names and ticket numbers are included in
the departmental musters ". The Standing Orders also defined
the term " workman " and provided that every workman should
have a ticket. No ticket had been issued to the respondent
by the company, and consequently his ticket number was not
included in the departmental muster. The respondent
challenged the validity of the order terminating his
services by an application made before the High Court under
Art. 226 of the Constitution on the grounds, inter alia,
that the Standing Orders in question were confined to those
employees only to whom tickets were issued, and that as no
ticket was issued to him he was not an employee within the
meaning of the Standing Orders which did not therefore apply
to him and, consequently, the termination of his services
under Standing Order No. 16(1) was illegal:
Held, (1) that the words " whose names and ticket numbers
are included in the departmental musters " occurring in
Standing Order NO. 2 (a) should be read as " whose names and
ticket numbers, if any, are included in the departmental
musters ";
Cortis v. The Kent Water Works Company (1827) 7 B. & C. 314;
108 E. R. 741 and Perumal Goundan v. The Thirumalarayapuram
jananukoola Dhanasekhara Sangha Nidhi, (1918) I.L.R. 4I Mad.
624, applied.
(2)that under the Standing Orders, in which a distinction is
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made between ’employees’ and ’workmen’, while every workman
must have a ticket, there may be employees who may have no
tickets the possession of which is not an essential
characteristic of an employee; and,
(3)that the Standing Orders apply to all employees for
whose benefit they have been made.
464
Accordingly, the Standing Orders were applicable to the
respondent and the termination of his service in accordance
with Standing Order No. 16(1) was valid and, therefore, the
application made by him to the High Court must fail.
JUDGMENT:
CIA, IL APPELLATE JURISDICTION: Civil Appeal No.5 of 1958.
Appeal by special leave from the judgment and order dated
September 26, 1956, of the former Nagpur High Court in
Letters Patent Appeal No. 66 of 1956, arising out of the
judgment and order dated April 14, 1956, of the said High
Court in Misc. Petition No. 6 of 1956.
M. C. Setalvad, Attorney-General of India, B. Sen, D. B.
Padhya and I. N. Shroff, for the appellants.
R. V. S. Mani, for the respondent.
1958. April II. The Judgment of the Court was delivered by
S.K. DAS J.-This is an appeal by special leave. The
appellants before us are the Nagpur Electric Light and Power
Co. Ltd. (hereinafter referred to as the Company), a public
limited company having its registered office at Nagpur in
Madhya Pradesh, its Manager, and Assistant Manager. The
respondent, Shreepathi Rao, joined the service of the
Company as a typist on a salary of Rs. 30 per month in July,
1936. He rose in rank from time to time and was appointed
Deputy Head Clerk in 1947 in the grade of Rs. 120-10-225.
Since 1952 he has been receiving a basic salary of Rs. 245
per month. On November 28, 1955, an explanation was called
for from him with regard to the issue of certain bills to
consumers of electricity called ".high tension consumers ",
without having certain " notes for the information of
consumers " printed at the back of the bills. The
respondent submitted his explanation on the next day,
marking a copy thereof to one of the directors of the
Company. On December 2,1955, he was again asked to explain
why he marked a copy of his explanation to one of the
directors. The respondent submitted an explanation in
respect of this matter also. On the same date, he
was again asked to explain as to how and why certain "
double adjustments " had been made in the accounts of 1954
relating to the consumers’ department of the Company, the
allegation being that a sum of Rs. 1,05,894-7-7 which
represented the amount of bills of the Central Railway had
been deducted twice in the accounts. The respondent
submitted an explanation on December 3, 1955, in which he
said that the charge was vague and that, after 1949, he was
not in any way concerned with the preparation of summaries
and annual statements of accounts of the consumers
department. On December 5, 1955, an order of suspension was
made against the respondent which stated that the order was
to take immediate effect and to remain in force until
further orders, pending some investigation against the
respondent. Two days later, on December 7, 1955, a
memorandum was served on the respondent terminating his
services with effect from January 31,1956. The memorandum,
so far as it is relevant for our purpose, read-
We hereby give you notice under Standing Order 16(1) that
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your services will stand terminated as from 31st January,
1956.
The Company’s Managing Director is satisfied that it is not
in the interests of the business of the Company to disclose
reasons’ for terminating your services."
On December 19, 1955, a notice was served on the Company on
behalf of the respondent wherein it was stated that the
order of suspension dated December 5, 1955, and the order of
termination dated December 7, 1955, were illegal and ultra
vires and a request was made to withdraw the said orders and
reinstate the respondent within 24 hours, failing which the
respondent said that he would take legal action in the
matter. On December 26, 1955, the Company sent a reply to
the notice denying the allegations, and the company further
stated that it had no desire to enter into a discussion with
the respondent as to the propriety of the orders passed.
On January 2, 1956, the respondent filed a petition under
Art. 226 of the Constitution in the High Court
466
at Nagpur in which he prayed for the issue of appropriate
writs or directions quashing the orders of suspension and
termination dated December 5, 1955, and December 7, 1955,
respectively and asking for certain other reliefs. This
petition was heard by a learned single Judge on certain
preliminary objections raised by the present appellants,
and, by an order dated April 14, 1956, he upheld the
preliminary objections and dismissed the petition. The
preliminary objections taken were these: it was urged that
the service of the respondent was terminated in accordance
with the Standing Orders of the Company, approved by the
relevant authorities under the provisions of the Industrial
Employment (Standing Orders) Act, 1946 (XX of 1946),
hereinafter referred to as the central Act, and also under
the provisions of the Central Provinces and Berar Industrial
Disputes Settlement Act, 1947 (C. P. and Berar Act XXlll of
1947), hereinafter called the local Act; and if the
respondent had any grievance against the said Standing
Orders, his only remedy was to get the Standing Orders
amended as provided for in the relevant Act, but he had no
right to move the High Court under Art. 226 of the
Constitution for quashing the orders passed against him or
for reinstatement, etc. Alternatively, it was urged that if
the Standing Orders did not apply in the case of the
respondent as was the respondent’s case, then the Ordinary
law of master and servant applied, and the only remedy of
the respondent was to sue the Company in damages for
wrongful dismissal. On these preliminary objections the
learned Judge held (1) that the respondent was not an
employee within the meaning of the Standing Orders and
therefore his case was not governed by the Standing Orders;
(2) that the relationship between the appellants and the
respondent was contractual and not statutory and the remedy
of the respondent was to sue the Company in damages for
wrongful dismissal; and (3) as for amendment of the Standing
Orders so as to include the respondent and persons in his
category, the only remedy open to the respondent was to take
action under the relevant Act by approaching a recognised
union to move in the matter.
467
On the dismissal of his petition, the respondent preferred
an appeal under el. 10 of the Letters Patent. This appeal
was heard and allowed by a Division Bench on September 26,
1956, on the findings that (1) the Standing Orders did not
apply to the respondent, though he was an employee within
the meaning of that expression in s. 2 (1) of the local Act
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; (2) the conditions of the respondent’s service were
governed by the provisions of the local Act and on a breach
thereof, the respondent had a right to move the High Court
for appropriate orders under Art. 226 of the Constitution;
and (3) as the termination of the service of the respondent
was without statutory authority, it must be vacated. The
Division Bench accordingly allowed the appeal, quashed the
orders of suspension and termination of service and declared
that the respondent continued to bean employee of the
Company on terms which were applicable to him on the date of
his suspension, namely, December 5, 1955. There was also a
direction to the Company to pay back wages to the
respondent.
The appellants herein then moved this Court and obtained
special leave to appeal from the order of the Division
Bench, dated September 26, 1956. The present appeal has
been brought in pursuance of the order granting special
leave to the appellants.
The first and foremost question which arises for decision in
this appeal is whether the Standing Orders of the Company
apply to the respondent. We have already stated-and it is
not in dispute--that the Standing Orders were approved by
the certifying officer under the provisions of the central
Act and by the Labour Commissioner under s. 30 of the local
Act. It is necessary to explain here the general scheme of
the provisions of the two Acts under which the Standing
Orders were approved. Under the central Act, the expression
" Standing Orders " means rules relating to matters set out
in the Schedule, and s. 3 requires that within six months
from the date on which the central Act becomes applicable to
an industrial establishment the employer shall submit to the
certifying officer five copies of the draft Standing Orders
proposed by him
468
for adoption in his industrial establishment. Sub-section
(2) of s. 3 lays down that provision shall be made in such
draft for every matter set out in the Schedule which may be
applicable to the industrial establishment and where model
Standing Orders have been prescribed, the draft shall so
far as practicable, in conformity with such model. The
Schedule refers to the matters which are to he provided by
Standing Orders, and item 8 of the Schedule relates to "
termination of employment, and the notice thereof to be
given by employer and workman We may state here that the
central Act contains a definition of " workman " which, at
the material time in this case, meant any person employed in
any industrial establishment to do any skilled or unskilled,
manual or clerical, labour for hire or reward, but did not
include any member of the armed forces. Sections 4 to 10 of
the central Act deal with (a) conditions for certification
of Standing Orders, (b) certification of Standing Orders,
(e) appeals, (d) date of operation of Standing Orders, (e)
register of Standing Orders, (f) posting of Standing Orders
and (g) duration and modification of Standing Orders. There
are similar provisions in the local Act,Chapter IV of which
deals with Standing Orders.Sub-section (1) of s. 30 of the
local Act lays down--
Every employer, in respect of any industry to which this Act
has been made applicable under subsection (3) of section 1,
shall, within two months of the (late of such notification,
submit to the Labour Commissioner for approval, in such
manner as may be prescribed, a copy of the Standing Orders
concerning the relations between him and his employees with
regard to all industrial matters mentioned in Schedule 1. "
Item 8 of Schedule I of the local Act is again " termination
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of employment, notice to be given by employer and employee
". The other sub-sections of s. 30 lay down the procedure to
be followed for the approval of Standing Orders by the
Labour Commissioner, appeal by an aggrieved person, etc.
Sections 31 and 32 lay down the procedure for an amendment
of the Standing Orders either at the instance of the
employer or at the
469
instance of a representative of employees. It is worthy of
note that sub-s. (1) of s. 30 requires every employer to
submit to the Labour Commissioner a copy of the Standing
Orders concerning the relations between him and his
employees with regard to all industrial matters mentioned in
Schedule 1. The local Act defines the expression " employee
" and, at the relevant time, it meant any person employed by
an employer to do any skilled or unskilled, manual or
clerical work for contract or hire or reward in any
industry. It is worthy of note that the definition of "
employee " in the local Act corresponds more or less to the
definition of " workman " under the central Act. There are
some minor differences in the definition of the two expres-
sions in the two Acts, but with those differences we are not
concerned in the present case.
The Standing Orders with which we are concerned in the
present case came into force on November 14, 1951, and it is
convenient at this stage to refer to the relevant Standing
Orders. Standing Order no. 2 defines certain expressions
used in the Standing Orders. It states-
In these Orders, unless there is anything repugnant in the
subject or context
(a) " employees " means all persons, male or female,
employed in the Office or Mains Department or Stores or
Power House or Receiving Station of the Company, either at
Nagpur or at Wardha whose names and ticket numbers are
included in the departmental musters.
(b) " The Manager " means the person appointed as such and
includes the Assistant Manager and in relation to Wardha
establishment " the Resident Engineer ".
(c) " Ticket " includes a Card, pass or token.
(d) " Workman " means such categories of employees as may
from time to time be declared to be " Workman " by the
Management ".
Standing Order no. 3 classifies employees into certain
categories and Standing Order no. 4 deals with tickets. In
substance, it says that every workman, permanent
6
470
or temporary, shall have a ticket or card, and an apprentice
shall have an apprentice card; the tickets or cards issued
shall be surrendered when the workman is discharged or
ceases to belong to the class of employment for which the
card or ticket is issued. It is to be noticed that under
the definition clause " workman " means such categories of
employees as may from time to time be declared, to be
workmen by the management and Standing Order no. 4 makes it
clear that every workman, permanent or temporary, will have
a ticket. Standing Order no. 16 deals with termination of
employment, and cl. (1) thereof, relevant for our purpose,
must be quoted in full-
" For terminating the employment of a permanent employee, a
notice in writing shall be given either by the employer or
the employee, giving one calendar month’s notice. The
reasons for the termination of the services will be
communicated to the employee in writing, if he so desires at
the time of discharge, unless such a communication, in the
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opinion of the Management, may directly or indirectly lay
the company and the Management or the person signing the
communication open to criminal or civil proceedings at the
instance of the employee, or the Company’s Managing Director
is satisfied that it is not in the interests of the business
of the Company to disclose the reasons and so orders in
writing. "
Now, it is not in dispute that the respondent is a ’workman’
within the meaning of the Central Act and an ’employee’ as
defined in the local Act. The. controversy before us is as
to whether he is an employee’ within the meaning of the
Standing Orders. Admittedly, no ticket has been issued to
the respondent by the Company; his ticket number cannot,
therefore, be included in the departmental muster. The
learned Judges of the High Court held that the inclusion of
the name and ticket number in the departmental muster was an
essential characteristic of an ’ employee’ as defined for
the purpose of the Standing Orders, and the mere fact of
employment in the Office, Mains Department, Stores, Power
House or Receiving Station of the Company was not enough to
make a,
471
person so employed an ’employee’ within the meaning of the
Standing Orders, and as the respondent did not fulfil the
necessary condition of having his name and ticket number
included in the departmental’ muster, he was not an
’employee’ as defined for the Standing Orders, which did not
therefore apply to him. On behalf of the appellants, it is
contended that regard being had to the context and the
entire body of the Standing Orders, the aforesaid view of
the High Court is not correct, and on a proper construction,
inclusion of the name and ticket number in the departmental
muster is not an essential characteristic of an ’employee’
as defined for the Standing Orders. It is rightly pointed
out that if the possession of a ticket and a ticket number
is taken as an essential characteristic of an ’ employee’,
then there is hardly any difference between an ’employee’
and a ’workman’ as defined in the Standing Orders; because a
’workmen’ means such categories of employees as may from
time to time be declared to be workmen, and under Standing
Order no. 4 all workmen must have tickets. If a person em-
ployed by the company must have a ticket before he can be an
employee, and if workmen are such categories of employees as
have tickets, the distinction between the two disappears
and. it is difficult to understand why two definitions were
necessary.
On a consideration, however, of’ the subject or context of
the Standing Orders, read in their entirety and in harmony
with one another, it becomes at once clear why two
definitions are necessary and what is the distinction
between the two classes-, employees ’ and ’ workmen’-in the
landing Orders. The expression ’ employee’ denotes a larger
group-namely, all persons, male or females who are employed
in the Office, Mains Department, Stores, Power House, or
Receiving Station of the Company, either at Nagpur or
Wardha. ’Workmen’ denotes a smaller group, viz., such
categories of employees as have been declared to be workmen,
and who must have a ticket. Such a distinction is clearly
intelligible in an industrial establishment, where for
security and other reasons a system of tickets or passes is
necessary for those who
472
work in the Power House or Mains Department or other places
where essential machinery is installed while others, such as
the clerical staff, may work in an office building where
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security demands are either nonexistent or much less
insistent. This distinction means that all ’workmen’ are
’employees’, but all ‘ employees’ are not ’workmen’ for the
purpose of the Standing Orders, and the inclusion of ticket
numbers in the departmental musters will be applicable to
those employees only to whom tickets have been issued; but
such inclusion is not an essential characteristic of an
employee.
Let us now see if such a distinction is consistent with the
Standing Orders as a whole. Standing Order no. 3, which
classifies employees, defines a probationer in cl. (c) and
says that a probationer means an employee who is appointed
in a clear vacancy on probation for a period not exceeding
twelve months, etc. Standing Order no. 4 does not require
the issue of a ticket to a probationer; yet a probationer is
an employee. It is thus obvious that the Standing Orders do
make a distinction between ‘employees’ and ‘ workmen’, and
there may also be employees who have no tickets. Some of
the Standing Orders apply to workmen only, e. g., Standing
Orders 12, 13, 14 and 15. Other Standing Orders apply to
all employees, whether they are workmen or not. Standing
Order no. 16 falls in the latter category ; it applies to
all employees.
Standing Order no. 8 (b), we think, makes the position still
more clear. It says-
" Any employee, who after marking his attendance or
presenting his ticket, card, or token, as the case may be,
is found absent from his proper place of work during working
hours without permission or without any sufficient reason,
shall be liable to be treated as absent for the period of
his absence."
If every employee has to have a ticket, it is difficult to
understand why this Standing Order should make a distinction
between an employee who marks his attendance and another who
presents his ticket, card or token. Such a distinction is
easily understandable when some employees do not possess a
ticket, card or token,
473
so that they merely mark their attendance; while those who
possess a ticket, card or token present it.
It has been suggested that Standing Order no. 4 is not
exhaustive in the matter of issue of tickets; it talks of an
issue of a ticket to every permanent workman, a card to
every badli workman, a temporary ticket to every temporary
workman, and an apprentice card to every apprentice. It
does not prescribe the issue of a pass or token, though the
definition of a ’ticket’ includes a pass or token. The
suggestion further is that Standing Order no. 2 (a) itself
authorises the issue of tickets to other employees, so that
there may be one kind of tickets issued to workmen under
standing Order no. 4 and another kind of tickets to other
employees under Standing Order no. 2 (a). On this view, it,
is suggested that the alternatives mentioned in Standing
Order no. 8 (b) really amount to an option given to an
employee either to mark his attendance or present his
ticket. It is, however, difficult to understand the
necessity of an option of this kind when every employee must
have a ticket, particularly when the exercise of such an
option is likely to defeat the very purpose for which
tickets are issued in an industrial establishment. We do
not, however, think that the case of the respondent is in
any way strengthened by holding that Standing Order no. 2
(a) itself authorises the issue of tickets to employees
other than workmen. Even on that construction, the failure
of the Company to issue tickets under Standing Order no. 2
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(a) will not deprive the employees of their real status as
employees and of the benefit of the Standing Orders. The
direction for the issue of tickets will, in that view of the
Standing Order, be an enabling provision only and not an
essential characteristic of an employee. Further, Standing
Order no. 4 provides for the surrender of tickets issued
thereunder but Standing Order no. 2 (a), if it is construed
as enabling the Company to issue tickets, makes no provision
for the surrender of tickets when the employee ceases to be
an employee. This absence of any provision for surrender
applicable to such tickets
474
clearly implies that issue of tickets is not contemplated by
the Standing Order no. 2 (a) itself.
On behalf of the respondent, however, the main argument has
been of a different character. It has been argued that
there need not be one set of Standing Orders for all
employees, and the Standing Orders in question being
confined to those employees to whom tickets had been issued,
the respondent who had no ticket was outside their purview,
and the result was that the Company had committed a breach
of the statutory provision in s. 30 of the local Act in the
sense that no Standing Orders had been made in respect of
the respondent and employees like him to whom tickets had
not been issued. It hag been argued that, therefore, no
action could be taken against the respondent either under
the Standing Orders or even under the ordinary law of master
and servant. We are unable to accept this argument as
correct. We have pointed out that the Standing Orders
themselves make a distinction between ’employees’ and ‘work-
men’, and there may also be employees who have no tickets.
To hold that the Standing Orders apply to those employees
only to whom tickets have been issued will make employees
synonymous with workmen-a result negatived by two separate
definitions given in Standing Order no. 2. The central Act
as well as the local Act contemplate the making of Standing
Orders for all employees in respect of matters which are
required to be dealt with by Standing Orders. The Standing
Orders in question were not objected to as being defective
or incomplete by workmen, and they have been approved by the
appropriate authority and they must be construed with
reference to their subject or context. In the absence of
compelling reasons to the contrary, it should be held that
they apply to all employees for whose benefit they have been
made. We see no compelling reasons for holding that the
Standing Orders do not apply to the respondent. In our
view, and having regard to the subject or context of the
Standing Orders, the words whose names and ticket numbers
are included in the departmental musters " in Standing Order
no. 2 (a) do
475
not lay down any essential characteristic of employee and
are applicable only in cases where tickets have been issued
to an employee. The essential content of the definition of
an employee is employment in the Office, Mains Department,
eta., of the Company either at Nagpur or Wardha, and that of
a workman the necessary declaration by the Company which
would entitle him to a ticket under Standing Order no. 4.
There is also another relevant consideration which must be
borne in mind in construing the Standing Orders in question.
Section 30 of the local Act imposes a statutory obligation
on the employer to make, Standing Orders in respect of all
his employees and a breach of the statutory obligation
involves a criminal liability. That being so, the court
would be justified, if it can reasonably do so, to construe
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the Standing Orders so as to make them consistent with the
compliance of the said statutory obligation.
We are not unmindful of the principle that in construing a
statutory provision or rule, every word occurring therein
must be given its proper meaning and weight. The necessity
of such an interpretation is all the more important in a
definition clause. But even a definition clause must derive
its meaning from the context or subject. In Courts v. The
Kent Waterworks Company (1), the question for consideration
was the interpretation of the appeal clause in an Act for
Paving, Cleansing, Lighting, etc., of the Town and Parish of
Woolwich (47 Geo. III, Sess. 2, cap. CXI). By the 16th
section of the statute, " the commissioners are to make
rates upon all and every the person or persons who do or
shall hold, occupy, possess, etc., any land within the
parish ". The statute also gave a right of appeal to any
person or persons aggrieved by any rate., but the appeal
clause required the person or persons appealing against a
rate to enter into a recognisance; the question was if this
requirement was intended to exclude corporations from the
purview of the ap. peal clause, as corporations, it was
urged, cannot enter, into a recognisance. In interpreting
the appeal clause, Bayley J. observed-
(1) (1827) 7 B. & C. 314; 108 E. R, 741.
476
"But assuming that they cannot enter into a recognizance,
yet if they ire persons capable of being aggrieved by and
appealing against a rate, I should say that that part of the
clause which gives the appeal applies to all persons capable
of appealing, and that the other part of the clause which
requires a recognizance to be entered into applies only to
those persons who are capable of entering into a
recognizance, but is inapplicable to those who are not."
The same principle of interpretation was applied in Perumal
Goundan v. The Thirumalarayapuram Jananukoola Dhanasekhara
Sangha Nidhi (1), in construing the Explanation to O.
XXXIII, r. 1, of the Code of Civil Procedure, which says
inter alia that " a person is a pauper............ when he
is not entitled to property worth one hundred rupees other
than his necessary wearing apparel and the subject matter of
the suit ". The question was if the aforesaid provision
applied to companies. It was held that it would be wrong to
construe the provision to mean that only persons who possess
wearing apparel can sue as paupers. We are of the view that
the same rule of construction should apply in the present
case, and the words " whose names and ticket numbers are
included in the depart. mental musters " occurring in
Standing Order no. 2(a) should be read as " whose names and
ticket numbers, if any, are included in the departmental
musters " and should apply in the case of those employees
only who possess tickets and whose ticket numbers are
capable of being entered in departmental musters; they are
not intended to exclude employees who do not possess tickets
or to whom tickets have not been issued and consequently
whose names only are so entered.
The learned Judges of the High Court were influenced by the
circumstance that in an earlier- case D. C. Dungore v. S. S.
Dandige Miscellaneous Petition No. 134 of 1954 decided by
the same High Court on September 23, 1955) the Company took
tip the stand that the Standing Orders applied to employees
to Whom tickets had been issued-a stand different from and
inconsistent with that taken in the present case,
(1) (1917) I.L.R. 41 Mad. 624.
477
It may be pointed out, however, that 1). C. Dungore of the
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earlier case was not an employee within the meaning of the
relevant Act, and there could be no Standing Orders in
respect of his conditions of service. Moreover, in the
matter of construction of a statutory provision no question
of estoppel arises, and the learned Judges had pointed out
that the respondent himself thought that the Standing Orders
applied to all employees. We have rested our decision as to
the applicability of the Standing Orders not on what the
appellants or the respondent thought at one time or another,
but on a true construction of the Standing Orders
themselves, including the definition clause in Standing
Order no. 2(a).
We take the view that the Standing Orders apply to the
respondent. This is really decisive of the appeal, because
if the Standing Orders apply to the respondent and his
service has been terminated in accordance with Standing
Order no. 16(1), the writ application which the respondent
made to the High Court must fail.
The learned Attorney-General appearing for the appellants
addressed us on the scope and ambit of Art. 226 of the
Constitution, and he contended that even if the respondent
had been wrongfully dismissed by his private employer, the
proper remedy was by mean,,; of a suit and not by invoking
the special writ jurisdiction of the High Court. These
contentions raise important questions, but we do not think
that we are called upon to decide them in this case.
Lastly, it has been urged oil behalf of the respondent that
even if we hold that the Standing Orders apply to the
respondent, we should remand the case to the High Court for
a decision on merits of other points raised by the
respondent, because the question whether the Standing Orders
apply or not was treated as a preliminary issue by the High
Court and no decision was given on other points. We asked
learned Advocate for the respondent what other points remain
for decision oil his writ application, once it is held that
the Standing Orders apply to the respondent and
6
478
his service has been terminated in accordance with Standing
Order no. 16(1). Learned Advocate then referred us to
Standing Order no. 18, which provides for penalties for
misconduct, and submitted that the provisions thereof have
not been complied with by the appellants. He particularly
referred to cl. (e) of Standing Order no. 18 and submitted
that the order of suspension passed against the respondent
was in violation of the safeguards mentioned therein. The
short answer to this argument is that no penalty for mis-
conduct has been imposed on the respondent under Standing
Order no. 18. The Company paid his salary to the respondent
from the date of suspension to January 31, 1956, which also
showed that no order was passed by way of punishment for
misconduct. The Company chose to terminate the service of
the respondent in accordance with Standing Order no. 16, and
did not think fit to proceed against the respondent for any
alleged misconduct, and it was open to the Company to do so.
So far as Standing Order no 16. is concerned, all the
requirements thereof have been complied with. That being
the position, no other point remains for decision in the
present case.
The result, therefore, is that the appeal succeeds and is
allowed. The judgment and order of the High Court dated
September 26, 1956, are set aside and the writ petition of
the respondent is dismissed. In view of the stand which the
appellants had taken in the earlier case with regard to the
Standing Orders, we think it proper to say in this case that
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the parties must bear their own costs throughout.
Appeal allowed.
479