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PETITIONER: HECKETT ENGINEERING CO.

       Vs.

RESPONDENT: WORKMEN

DATE OF JUDGMENT11/10/1977

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT UNTWALIA, N.L.

CITATION:  1977 AIR 2257            1978 SCR  (1) 693  1977 SCC  (4) 377

ACT: Industrial  Disputes  Act, 1947-Section  10-General  Clauses Act,  1897-Section 16-Dismissal by a person lower  than  the appointing authority-Standing Orders-Construction of.

HEADNOTE: The  respondent workman was appointed a permanent driver  by the  appellant employer.  The respondent while  driving  the truck  of the appellant-company met with an  accident.   The appellant  called  upon  the respondent to  show  cause  why disciplinary action should not be taken against him for  the following acts of misconduct : (1)  Due to rash and negligent driving of the truck, it  was involved in a serious accident. (2)  The  respondent picked up 4 unauthorised passengers  to travel in the truck. (3)  The   respondent  allowed  one  of   the   unauthorised passengers to drive the truck. (4)  Respondent  suppressed  true  facts in  his  report  of accident  submitted  to  the  appellant  and  gave  a  false statement. The respondent submitted his explanation which was found  to be  unsatisfactory.   Thereafter the  domestic  enquiry  was held.   In the domestic enquiry it was found that all the  4 charges were established against the workman.  On receipt of report  of the domestic enquiry the Plant Manager passed  an order  ,dismissing the respondent.  After  the  conciliation failed  the Government of West Bengal referred the  question "whether the dismissal was justified ?", under s. 10 of  the Industrial  Disputes Act.  The Tribunal on consideration  of the ,evidence came to the conclusion that the appellant had been  able to establish charges No. 2 and 3. The  Tribunal, however,  set  aside the order of dismissal ,on  the  ground that  it  had  not  been passed  by  the  authorised  person observing  that  the  appointment order  of  the  respondent showed   that  the  General  Manager was  the   appointing authority and that it was signed by the Plant Manager acting ,on behalf of the General Manager. Allowing the appeal by special leave, HELD  :  (1)  The finding of the  Tribunal  that  the  Plant Manager  of  the  ,Company  had no  authority  to  pass  the impugned  order  cannot be sustained.   Under  the  standing

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orders  appointment  of permanent workmen  could  have  been ’Made  by  the Plant Manager, it was the Plant  Manager  who actually  passed the appointment order.  Although,  in  the printed appointment order where General Manager is mentioned the  word  ’General’  was  not  deleted,  a  glance  at  the appointment order shows that the Plant Manager did not  sign on  behalf of the General Manager.  There is nothing on  the record  to  indicate that on the relevant date  the  General Manager  of the company was away on leave or was otherwise absent and the Plant Manager was deputed to officiate or act for or ,on behalf of the General Manager.  The Plant Manager has categorically affirmed thathe  has been holding  the office of the Plant Manager for 10 years. [697 F-H, 698 A-B] (2)The standing order 32 which is declaratory of the over- all  power  of the company does not put any  fetter  on  the power  of  the Plant Manager to dismiss  the  workman  whose appointment made by him if he is guilty of a misconduct.                                          [699 A-B] (3)Whether  or not section 16 of the General  Clauses  Act 1897, in terms appliesto  standing  order No. 32  of  the company which is certified under s. 5(3) of theIndustrial Employment Standing Orders Act 1946 is a moot point but  the general  doctrine  underlying the said sec. 16 can  well  be made applicable 694 to a ease of the present nature, for the power to  terminate service is necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power. In  the  present  case appointment was  made  by  the  Plant Manager  and  the power of appointment implies  and  carries with  it  the power of dismissal.  The, order  of  dismissal does not suffer from any infirmity. [699 D--G] Lekhraj  Satramdas Lalvani v  Deputy  Custodian-cum-Managing Officer  &  Ors.  [1968]  1  SCR  120  and  Kutoor  Vengayil Ravarappan  Nayanar v. Kutoor, Vengyil Madhavi Ammaa &  Ors. [1949] FCR 667, relied on.  Hindustan Brown Boveri Ltd. v. Their Workmen & Anr.  [1968] (1) LLJ 571 distinguished. [The  court  left  open to the workman, if  so  advised,  to approach  the  company  for substitution  of  the  order  of discharge  with  benefits of past service for  the  impugned order of dismissal.]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1346  of 1977. Appeal by Special Leave from the Award dated 26-3-77 of  the 9th  Industrial Tribunal, West Bengal, Durgapur in Case  No. X-39   published  under  the  Notification   No.   1624-I.R. I.R./IDL-84/77 dated the 29th April 1977. Lal  Narain  Sinha, D. P. Ghosh and Sukumar  Ghose  for  the appellant. P. K. Chatterjee and Rathin Das for the respondent. The Judgment of the Court was delivered by JASWANT  SINGH, J. This appeal by special leave is  directed against  art  award  dated  March  26,  1977  of  the  Ninth Industrial Tribunal, Durgapur, made in case No. X-39/75  and published  vide Notification No. 1624-I.R., dated April  29, 1977  issued by the Labour Department of the  Government  of West Bengal. The  appellant,  M/s  Heckett  Engineering  Company   (India Branch)  Burnpur (West Bengal) (hereinafter referred  to  as ’the  Company’)  is, a division or branch in India  of   M/s

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Harsco,    Corporation,   a   limited   liability    company incorporated  and  registered in U.S.A. It  carries  on  the business  of recovery of iron and steel scrap from slags  at its plant located within the Steel works of the Indian  Iron and Steel Company Limited, Burnpur.  The workmen employed by the  company are represented by Heckett Engineering  Company (India   Branch)   Employees’   Union,   Puranhut,    Bumpur (hereinafter referred to as the Union’) which is  recognised by the Company. It  appears  that Mihar Majhi (hereinafter  referred  to  as ’the,  workman’) who was employed as a permanent  driver  by the  Company was deputed on October 9, 1974, to  carry  some materials in Fargo Truck No. NGGH 6891 from its Bumpur plant to its Jamshedpur plant and to bring certain other materials from  Jamshedpur plant to Burnpur plant in the same,  truck. One Shankar Kumar Gupta, an employee of a contractor working for  the Company, was asked by the Company to accompany  the workman on the aforesaid mission as a 695 helper.   After loading the truck with the  materials  which had to be brought over from Jamshedpur plant of the Company, the  workman accompanied by Shankar Kumar Gupta set off  for Burnpur  on October 12, 1974.  While the truck was  thus  on its way back to Burnpur, the workman stopped the truck  near a  tyre repairing shop at Chandil to have a  punctured  tube repaired.   While leaving the said shop, the workman  picked up  four  strangers  in  the truck  in  contravention  of  a circular  of  the  Company forbidding the  carriage  of  any unauthorised  person in any of its vehicles and resumed  his backward  journey to Burnpur.  At about 7.00 P.M.  when  the aforesaid  truck  driven  by the workman was  going  down  a slope, it dashed violently against a wall of a culvert at  a place about two to-three kilometres from Chandil check  post within  the jurisdiction of Nimdih police station  resulting in extensive damage to the truck.  Instead of reporting  the matter  to the police, the workman went to the residence  of Mr. Bhattacharya, Chief Accountant of the Company’s plant at Jamshedpur,  and  told  him that  the  differential  of  the aforesaid  truck in which he was carrying magnet  and  other material belonging to the Company and which was being driven by him broke down on the road at about 7.00 P.M. a few miles after Chandil due to overloading whereupon Mr.  Bhattacharya advised  the workman to go and see the Works Manager of  the plant  at Jamshedpur.  The workman did not pay any  heed  to this advice and left for Burnpur where he verbally  informed Mr.  V. K. Balan, the Plant Manager of the Company at  about 6.00  P.M.  on October 13. 1974, that  the  aforesaid  truck which  was loaded beyond its carrying capacity had met  with an  accident at a place two miles before Chandil Check  Post in consequence of his losing control thereof due to  failure of  the brakes because of which the truck dashed  against  a wall  of a culvert.  The Plant Manager directed the  workman to  submit  a  report of the accident  in  writing  at,  the office.   Accordingly, the workman made the  report  Exhibit ’S’  (PH)  on the following morning after getting  the  same written  by an office assistant named B.  K.  Guhathakurata. Thereupon  the  Plant  Manager accompanied  by  the  workman visited  the  place  of accident  for  verification  of  the incident and assessment of the damage.  On October 17, 1974, the  Plant Manager vide his communication No.  HB/CS/23/1974 called  upon  the  workman to show  cause  why  disciplinary action  should  not be taken against him for  the  following acts  of  misconduct which fall within the purview  of  sub- clauses  (o), (m) and (v) of Clause 31 (11) of the  Standing Orders of the Company which are certified under section 5(3)

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of  the Industrial Employment Standing Orders Act, 1946  and as held in- Agra Electric Supply Co. Ltd. v. Sri Alladin and Ors.(1) bind the Company as well as all its employees :-               "1. Due to rash and negligent driving of Fargo               Truck No. WGH 6891 (PT-518-D) on 12th October,               1974  on your way back to Burnpur,  the  truck               was involved in a serious accident.               2.    You  have  picked up from  Chandil  four               unauthorised  passengers  to travel  into  the               said truck. (1) [1970] 1 S.C.R. 808. 696               3.    You   have  also  allowed  one  of   the               unauthorised  passenger  to  drive  the   said               truck.               4.    You  have suppressed the true  facts  in               your  report submitted on 14th  October,  1974               and  given  a false  statement  regarding  the               accident." Not ’satisfied with the explanation tendered by the workman, the  Plant Manager deputed Mr. M. M. Das, the then  Personal Officer of the Company, to hold a domestic inquiry into  the above  mentioned charges.  Accordingly, Mr. Das conducted  a regular  inquiry  and  found all the charges  to  have  been established  against  the workman.  On the  receipt  of  the report  submitted  by Mr. Das, the Plant Manager  passed  an order  on  November 6/7, 1974 dismissing the  workman.   On, being  apprised of the order of his dismissal,  the  workman approached  the  Union which raised  an  industrial  dispute whereupon  the  matter was referred for  settlement  to  the Conciliation   Officer,   Asansol.   As   the   conciliation proceedings  proved abortive, the Government of West  Bengal referred  the  following issues under section 10  read  with section,  2-A of the Industrial Disputes Act, 1947,  to  the Ninth Industrial Tribunal, Durgapur for adjudication. "1.  Whether  dismissal  of Shri  Mihir  Majhi,  driver,  is justified?, 2. What relief, if any, is he entitled to?" On  a consideration of the material adduced before  it,  the Tribunal  while  finding that the Company had been  able  to establish  charges  Nos.. 2 and 3 against the  workman  held that the aforesaid order of dismissal could not be upheld as it was not made by an authorised person. relevant portion of the order of the Tribunal is extracted below ready reference               "Ext.   1 is the appointment card.   It  shows               that Shri Balan signed the appointment card on               behalf  of  the General Manager.  It  goes  to               show.   that  the  General  Manager  was   the               appointing authority and Mr. Balan only  acted               on  his behalf.  Therefore, it cannot be  said                             that Mr. Balan was the appointing authority.               Be  that as it may, let me see  whether  under               the  Standing Orders Shri V. Balan, the  Plant               Manager was competent to dismiss an  employee.               Ext.  0  is the copy of the  Standing  Orders.               Para  32 of the Standing Orders  contains  the               provision  regarding the disciplinary  action.               This para enjoins that the Manager may appoint               an  officer to hold the enquiry.  It does  not               expressly  set  out as to who is  to  pass  an               order  of dismissal.  But in this para it  has               been  enjoined that the company may,  however,               at  his discretion award the other  punishment               mentioned   in   this   para   in   lieu    of               dismissal......  Under  clause  4(b)  of   the

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             Standing Orders, a Manager includes the  Plant               Manager.  But it does not include or mean  the               company because the definition of the  company               is  given  in  clause  4(a)  of  the  Standing               Orders.  The definition of               697               the  company  does  not  include  either   the               General Manager or the Plant Manager, who  has               dismissed  the workman in question.  There  is               not  (sic)  scrap of paper to  show  that  Mr.               Balan was authorised by the company to pass an               order  of  dismissal.  On the other  hand,  in               para  32  of the Standing Orders it  has  been               clearly  laid down that the company  only  has               that right.  I am, therefore, of opinion  that               the  order  of dismissal was not passed  by  a               person  authorised  by  the  Standing  Orders.               Consequently the order of dismissal cannot  be               upheld   and  the  workman  is   entitled   to               reinstatement." Aggrieved  by this order, the Company has come up in  appeal to this Court as stated above. Appearing  on behalf of the appellant, Mr. Lalnarayan  Sinha has urged that the Industrial Tribunal has erred in  holding that charges Nos.  1 and 4 had not been brought home to  the workman.   He has further urged that the appointment of  the workman having been made by Mr. V. K. Balan, the Manager  of the  Company’s  plant  at  Burnpur,  the  latter  was  fully competent  to  dismiss the former and  that  the  Industrial Tribunal was not right in holding that the impugned order of dismissal ,was passed by an unauthorised person. Mr.  Chatterji  has, on the other hand, submitted  that  the findings  of fact arrived at by the Industrial  Tribunal  in respect of charges Nos. 2 and 3 are wholly unjustified.   He has  further contended that the order of appointment of  the workman  having  been  made  by  the  General  Manager,  the dismissal in question could not be effected by an  authority other  than the General Manager.  Mr. Chatterji  has  lastly submitted that the misconduct attributed to workman did  not warrant the major penalty of dismissal. We  have gone through the entire record and have  given  our earnest  consideration  to the submission  made  by  learned counsel  for  the parties.  While we are of  the  view  that there  is  no warrant for interfering with the  findings  of fact  arrived  at  by  the  Tribunal  with  regard  to   the establishment or otherwise of any of the charges against the workman which are based upon the evidence on the record,  we think that the other finding arrived at by it viz. that  Mr. V. K. Balan, Plant Manager of the Company, had no  authority to pass the impugned order of dismissal cannot be sustained. It  would, in this connection, be profitable to find out  in the  first  instance  as to who  would  make  the  permanent appointment  of the workman.  A plain reading of-  clause  5 (b) read with clause 7(d) of the Standing Orders shows  that it was the Plant Manager of the Company who was competent to make the appointment of the workman.  That it was Mr. V.  K. Balan who, actually made the appointment in question  cannot also  admit  of any doubt.  This is crystal clear  from  the appointment card, Exhibit 1(MH) which is signed both by  Mr. V. K. Balan as well as the workman. Let us now see whether Mr. V. K. Balan, Plant Manager, acted for or on behalf of General Manager of the Company in making or signing the appointment card of the workman.  A glance at the appointment card, Exhibit 1 (MH) is enough to show  that Mr. V. K. Balan did not

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698 sign the said card for or on behalf of the General  Manager. It  is  true  that  the prefix  "General"  before  the  word "Manager"  on the printed card on which Mr. V. K. Balan  put his signatures does no appear to have been struck off at the time  of  the issue of the card but that by  itself  is  not enough  to show that the appointment was made by Mr. V.  ’K. Balan acting for or on behalf of the General Manager of  the Company.   There is nothing on the, record to indicate  that on the relevant date, the General Manager of the Company was away  on leave or was otherwise absent and Mr. V.  K.  Balan had been deputed to officiate or act for or on behalf of the General  Manager.   On the contrary, in the  course  of  his statement as O.P. witness, Mr. V. K. Balan has categorically affirmed  that he has been holding the office of  the  Plant Manager of the Company for the last ten years.  Thus neither the  Standing  Orders  nor  the  appointment  card  nor  the statement  of Mr. V. K. Balan nor any other material on  the record  supports the observation of the Industrial  Tribunal that  "the General Manager was the appointing authority  and Mr. V. K. Balan only acted on his behalf. The submission made on behalf of the workman that in signing his  appointment  card,  Mr. V. K. Balan acted  for  and  on behalf of the General Manager cannot be accepted for another reason  also.   If  Mr.  Balan was  competent  to  make  the appointment  of the workman as we have, by reference to  the Standing  Orders,  shown  that be was,  there  could  be  no question of his acting for or on behalf of the General Mana- ger  in  signing  the  appointment  card.   The   contention advanced  in  this  respect on behalf  of  the  workman  is, therefore, repelled. Having  settled  that  Mr. V. K. Balan, who  was  the  Plant Manager  on  the  relevant date was competent  to  make  the appointment  of the workman and it was he who actually  made the crucial appointment in that capacity, let us now  advert to the question whether Mr. Balan was competent to pass  the impugned order of dismissal. Mr. Chatterji has, by reference to Standing Order No. 32  of the aforesaid Standing Orders, stressed that it was only the Company which       was  competent  to  pass  the  order  of dismissal  of  the  workman.  The relevant  portion  of  the Standing Order on which reliance is place runs thus :-               "   32.......    A workman shall be liable  to               be  summarily dismissed without notice or  pay               or  wages  in lieu of notice if  he  is  found               guilty  of any misconduct amounting  to  major               misdemeanor.    A   workman   dismissed    for               misconduct  will not be entitled to  any  past               benefits or privileges of service provided  by               the  Company.  The Company may however at  its               discretion  give  the  workman  concerned  the               following punishments in lieu of dismissal :               (i)   Discharge   from   Service   with   past               benefits of service.               (ii)  Suspension  without  pay  not  exceeding               fifteen days.               (iii)Censure or warning.               (iv)  Withholding increment for one year.               (v)   Fine." 699   The Standing Order extracted above is not helpful to  the. workman.   It  does not put any fetter on the power  of  the Plant Manager to dismiss a workman whose appointment is made by him if he is guilty of a misconduct.  It only confers, in our  opinion, an overall power on the Company to  substitute

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the penalty of discharge from service with past benefits  of service  or any other lighter penalty specified therein  for the penalty of dismissal awarded to a workman and can by  no means be interpreted to imply that the penalty of  dismissal can  be inflicted only by the Company and not by  the  Plant Manager.  It is a well settled rule of constructionthat the  language  of  a  provision or  a  rule  should  not  be construed ina  manner  which  would do  violence  to  the phraseology used therein. It is rather strange that  the Industrial  Tribunal  has despite its observation  that  the above quoted Standing Order does not expressly set out as to who is to pass an order of dismissal held that the  impugned order was not passed by a person authorised by the  Standing Orders.  It may also be mentioned at this stage that appear- ing  as  a  witness for the Company, Mr.  V.  K.  Balan  has unequivocally stated that he was entitled to pass the  order of  dismissal  against  the  concerned  workman  under   the Standing  Orders and that he did not need any delegation  of powers  for  passing  such  order.   We  may  also  in  this connection  recall  the  provisions of  section  16  of  the General  Clauses Act, 1897, Whether or not the  ’section  in terms  applies  to  the aforesaid  Standing  Orders  of  the Company  which  are  certified under  section  5(3)  of  the Industrial Employment Standing Order Act, 1946 may be a moot point  but the general doctrine underlying the  section  can well be made applicable to a case of the present nature  for it  is  now firmly established that the power  to  terminate service  is a necessary adjunct of the power of  appointment and  is exercised as an incident to or consequence  of  that power    (See   Lekhraj   Satramdas   Lalvani   v.    Deputy Custodian-cum-Managing Officer & Ors.(1) and Kutoor Vengayil Rayarappan  Nayanar  v. Kutoor Vengayil Madhavi Amma  &  Ors (2).  In  Kutoor  Vengayil  Rayarappan  Nayanar  v.   Kutoor Vengayil  Valia Madhavi Amma & Ors. (supra) Mahajan, J.  (as he  then  was) speaking for the Federal Court  approved  the statement  of Woodroffe On Receivers, Fourth  Edition,  that the  power to terminate flows naturally and as  a  necessary sequence from the power to create.  In other words, it is  a necessary  adjunct  of  the  power  of  appointment  and  is exercised  as an incident to, or consequence of that  power; the  authority to call such officer into  being  necessarily implies the authority to terminate his functions. As  in the instant case, the appointment of the workman  was made by Mr. V. K. Balan as a Plant Manager and not for or on behalf   of  the  General  Manager  and  as  the  power   of appointment  implies  and  carries  with  it  the  power  of dismissal, we are of the opinion that the order of dismissal did  not suffer from the infirmity of want of competence  or of authority to pass the order. The decision of this Court in Hindustan Brown Boveri Ltd. v. Their  Workmen  & Anr.(3) relied upon by  Mr.  Chatterji  in support of (1)  [1966] 1 S.C.R. 120. (2)  [1949] F.C.R. 667. (3)  [1968] 1 L.L.J. 571. 8-951SCI/77 700 his  contention that the Plant Manager was not competent  to pass   the   impugned   order  of   dismissal   is   clearly distinguishable.   In  that case, despite the  issue  raised before  the Labour Court as to whether the demotion  of  one workman  and the termination of service of the other was  in order,  the  Company did not at the proper stage  inform  or contend  before the Labour Court that the Works Manager  was empowered  to recruit and dismiss the workman by  virtue  of

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the power of attorney executed in his favour by the Company. The judgment in that case also does not show that the  Works Manager  was  competent  to appoint the  workman  under  the standing orders of the Company. In  conclusion,  we  would like to make  it  clear  that  as charges  Nos.  2  and 3 have been  held  by  the  Industrial Tribunal  to have been established against the  workman  and they  constitute  major  misdemeanours  falling  within  the purview  of  sub-clauses  (a), and (m)  of  clause  (ii)  of Standing Order 31 of the aforesaid Standing Orders, we think that  the order of dismissal could have been passed  by  the punishing  authority which in this case, as already  stated, was  the Plant Manager.  We may also observe that it is  not open  to  us  to  substitute the  order  of  discharge  with benefits   of  past  service  for  the  impugned  order   of dismissal.   The  workman may, if so advised,  approach  the Company in this behalf. For the foregoing reasons, we allow the appeal and set aside the  aforesaid  award  of  the  Ninth  Industrial  Tribunal. However,  in view of the order of this Court dated  June  1, 1977, the appellant shall pay the costs of the appeal to the respondents. P.H.P.                     Appeal allowed.. 701