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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