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PETITIONER: NIRMAL SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT09/08/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J)

CITATION:  1984 AIR 1619            1985 SCR  (1) 316  1984 SCALE  (2)115  CITATOR INFO :  F          1987 SC 695  (9)  F          1989 SC1565  (16)

ACT:      Industrial Disputes  Act, 1947,  sec. 12  (5)-Order  of Labour  Commissioner   refusing   to   refer   dispute   for adjudication to Labour Court on the ground that the employee is not  a "workman"  but  without  giving  reasons  for  his finding-Validity of.

HEADNOTE:      The appellant  was dismissed  from the  post of "Branch Manager"  by  respondent  No.  3,  Bank,  after  an  inquiry relating to  fraudulent encasement  of a  draft by  one Labh singh. His  demand in  regard to his dismissal, was referred by the  Govt. of  Punjab to  the Conciliation  Officer,  who recommended that  the appellant’s  case should  be forwarded for adjudication  on the question whether his dismissal from service was  justified. The  Labour Commissioner, exercising the powers  of the  State Government,  declined to refer the dispute to  the Labour  Court for  adjudication but  without giving any reasons for his conclusion that the appellant was not a  "workman". The  appellant challenged  before the High Court the  decision  of  the  Labour  Commissioner  in  writ petition which was dismissed summarily. Hence this appeal.      The grievance  of the  appellant  is  that  the  Labour Commissioner ought  to have  given reasons in support of his decision.      Allowing the appeal, ^      HELD: 1. All that the Labour Commissioner has stated in the order  is that  the post  held by  the appellant did not fall within  the category  of "workman"  but no  reasons are given to  justify that  conclusion. He  ought to  have given reasons why  he came to the conclusion that the appellant is not a  "workman" within  the meaning  of section 2(s) of the Industrial Disputes Act, 1947. [319 D-E]      2. In  the instant case, the Court keeping in view that remanding the  matter to  the Labour Commissioner for giving his  reasons   will  entail   delay,  directed   the  Labour Commissioner, Chandigarh  to make  a reference either to the Labour Court or to the Industrial Tribunal u/s. 12(5) of the

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Industrial 318 Disputes Act  1947 for  adjudication of  the question  as to whether the  dismissal of  the appellant from the service of the Bank is legal and justified. [319 E-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1746 of 1980.      Appeal by  Special leave  from the  Judgment and  Order dated the 4th September, 1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2780 of 1979.      N.D.  Garg,   S.K.  Bisaria   and  T.L.  Garg  for  the appellant.      Girish Chandra for Respondent No. 3.      The Judgment of the Court was delivered by      CHANDRACHUD, C.  J. In  April 1962,  the appellant  was appointed as  a clerk in the Hoshiarpur Central Co-operative Bank Ltd.,  which is  respondent 3 to this appeal. On August 10, 1976  he was  transferred as  ’Branch  Manager’  of  the Dholbaha branch  of the  Bank. On  October 22, 1977 one Labh Singh s/o  Harnam Singh  opened an  account in  the Dholbaha Branch under  an introduction given by one Bahram Singh. Two days later,  Labh Singh deposited in that account a draft in the sum  of Rs.  5,000 issued by the Royal Bank of Canada on the Chartered  Bank, New  Delhi. The amount due on the draft was credited by the Bank in Labh Singh’s account on November 14. On that very day, Labh Singh withdrew a sum of Rs. 2,500 from  his   account.  Three  days  later,  he  withdrew  the remaining amount  of Rs.  2,500. Soon  thereafter  a  person claiming to be the real Labh Singh in whose favour the draft was issued  by the  Royal Bank  of Canada, complained to the Chartered Bank,  New Delhi,  that the  draft was  stolen and that the money due thereon was fraudulently collected by the person in  whose name  an account was opened in the Dholbaha branch. On  November 10,  1978, the  Executive Committee  of respondent 3-Bank  resolved that  an  enquiry  be  held  for fixing  responsibility  in  the  matter  of  the  fraudulent encashment of  the draft.  The enquiry was held by the Chief Executive officer,  Satish Chander Dutt, who was of the rank of the  Assistant Registrar  in the Co-operative department. As a  result of  the report  submitted by him, the appellant was dismissed from service on December 30, 1978.      The demand  raised by  the appellant  in regard  to his dismissal was  referred by  the Government  of Punjab to the Conciliation 319 officer, who recommended that the appellant’s case should be forwarded for  adjudication  on  the  question  whether  his dismissal   from   service   was   justified.   The   Labour Commissioner of  Punjab, exercising  the powers of the State Government, declined  to refer  the dispute for adjudication on the  ground that  the appellant  was not  a workman.  The appellant filed  a Writ Petition in the High Court of Punjab and  Haryana,   challenging  the   decision  of  the  Labour Commissioner,  but   that  Writ   Petition   was   dismissed summarily. The  appellant has  filed this  appeal by special leave, challenging the decision of the High Court and of the Labour Commissioner.  The State  of Punjab  and  the  Labour Commissioner are respondents 1 and 2 to this appeal.      The grievance  made by  Shri N. D. Garg, who appears on behalf of  the appellant, that the Labour Commissioner ought to have  given  reasons  in  support  of  his  decision,  is

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justified. All  that the  Labour Commissioner  has stated in the order  is that  the post  held by  the appellant did not fall "within  the category of workman". This, really, is the conclusion to  which the  Labour Commissioner  came  but  no reasons are  given to justify that conclusion. We are of the opinion that  the Labour  Commissioner ought  to have  given reasons why  he came to the conclusion that the appellant is not a  "workman" within  the meaning of section 2 (s) of the Industrial Disputes Act, 1947.      We  could  have  remanded  the  matter  to  the  Labour Commissioner  asking  him  to  state  his  reasons  why  the appellant is  not a  workman but,  that will  entail  delay. Instead, it  is advisable from the point of view of not only the appellant  but the  Bank also  that a  deference is made either to  the Labour  Court or  to the  Industrial Tribunal under section  12 (5)  of the Industrial Disputes Act, 1947, for adjudication of the question as to whether the dismissal of the  appellant from the services of the Bank is legal and justified. Accordingly,  we direct  that the 2nd respondent, the Laboure  Commissioner, Chandigarh,  to  whom  the  State Government has  delegated its powers under section 12 of the Act shall  make a reference to either of the two authorities as he considers proper.      At one  stage, we  wanted to  decide for  ourselves the question as  to whether  the appellant is workman within the meaning of  section 2(s)  of the  Industrial  Disputes  Act. Considering the time that has gone by, we wish that we could have decided  that question  but, on the material before us, we find  it difficult to do so. The case of the appellant is that he is a mere matriculate who now possesses a some- 320 what  exalted   and  misleading  designation  of  a  ’Branch Manager.’ According  to him,  there are  58 Branches  of the Bank in the District of Hoshiarpur, in 29 out of which there are only  two officers,  one of  whom is  called the  Branch Manager and  the other  the Cashier.  He contends  that  the Branch Manager has no administrative or discretionary powers to exercise  and is  not employed in a supervisory capacity. His case  is that  he  is  a  clerk  mis-called  the  Branch Manager.      The contention of respondent 3-Bank, on the other hand, is that  not only was the appellant’s remuneration in excess of Rs.  500 per  mensem but, being employed in a supervisory capacity, he  exercised functions  mainly  of  a  managerial nature. It  is alleged  that he was vested with the power of superintending  the   working  of  the  office,  maintaining registers, sanctioning  loans, receiving deposits, borrowing within the  limits sanctioned  by the  Registrar,  incurring contingent expenditure,  attending meetings  of the Board of Directors, the  Executive  Committee  and  other  Committees constituted under  the bye-laws  and  certifying  copies  of entries in the banker’s books.      The grievance of the appellant is that the Bank did not raise any  contention before the Labour Commissioner that he was not  a workman  within the  meaning of  the Act with the result that,  he had  no opportunity  to meet that case. The parties have  included in  the  paper-book  before  us  some material  bearing   on  that   question  but   it  will   be unsatisfactory  to   decide  that  question  without  proper evidence.  After   all,  the  question  as  to  whether  the appellant is  a ’workman’  is basically  a question of fact. That is  why, on  the basis of the stray material before us, we do not consider it advisable to decide that question.      When this  appeal was  argued before  us, a prosecution was pending in the Court of the learned Judicial Magistrate,

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Hoshiarpur,  in   which  three   persons  were  charged  for impersonation and cheating in connection with the fraudulent encashment of  the draft  which led  to the dismissal of the appellant. The  appellant was  not only  not included in the array of the accused in that prosecution but the judgment of the learned  Magistrate dated  August 19,  1981  shows  that during the  course of  investigation, it  was found that the appellant was  not responsible  for the  fraud. In fact, the appellant was  examined as prosecution witness No. 4 in that case. Two  out of  the three  accused were discharged by the learned Magistrate  while  accused  No.  1,  Sham  Lal,  was convicted under sections 419 and 420 of the 321 Penal  Code   and  was   sentenced   to   undergo   rigorous imprisonment for two years and to pay a fine of Rs. 500.      At the instance of the Bank, a reference was made to an Arbitrator under  section  55  of  the  Punjab  Co-operative Societies Act,  1961, for  deciding the question whether the appellant is  liable to repay the amount of Rs. 5,000 to the Bank, which  was fraudulently withdrawn by Labh Singh. By an Award dated  November 23,  1982 the Arbitrator dismissed the reference, holding  that the  appellant was  not responsible for the  fraudulent encashment  of the draft. The Arbitrator observed that  the Bank  could recover  the amount from Sham Lal, who  was convicted in the criminal proceedings, but not from the appellant.      We have  referred to these two matters, the prosecution and the  arbitration proceedings, in order that the Bank may examine whether  it is  not possible to drop the proceedings against the  appellant and  take him  back in employment. If the Bank  finds that  the appellant  was merely negligent in the discharge  of his  duties as  a Branch  Manager, it  may consider whether  the  appellant  could  be  taken  back  in employment without the payment of full back wages.      For these  reasons, we  allow  the  appeal  and  direct respondent No.  2, the  Labour Commissioner,  Chandigarh, to make a Reference under section 12 of the Industrial Disputes Act, 1947,  as directed  by us.  The reference shall be make forthwith and  it shall  be disposed  of within  two  months after its receipt.      There will be no order as to costs. M.L.A.    Appeal allowed. 322