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PETITIONER: THE PROVINCIAL TRANSPORT SERVICE

       Vs.

RESPONDENT: STATE INDUSTRIAL COURT

DATE OF JUDGMENT: 21/08/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.

CITATION:  1963 AIR  114            1963 SCR  (3) 650  CITATOR INFO :  RF         1963 SC1626  (7)  RF         1973 SC1461  (1185)  RF         1980 SC1896  (135)

ACT: Industrial  Dispute- Dismissal of employee -Finding that  no enquiry   held  by  employer  before  dismissing  -  Finding perverse  - Appeal Court confirming finding - Writ  Petition before High Court  Interference by High Court  C. P. & Berar Industrial Disputes Settlement Act, 1947(C.  P. 23 of 1947), s. 16.

HEADNOTE: The  appellant employed as a temporary motor driver  On  the express  condition that until such time as he was  confirmed his services were liable to be terminated without notice  or compensation  and  without assigning any  reason.   Sometime afterwards,  the appellant served a charge sheet upon K  and after   holding  an  enquiry  dismissed  him.   K  made   an application before the Labour Commissioner under s. 16 C. P. JUDGMENT: for reinstatement alleging that the dismissal was illegal as it was not preceded by an enquiry.  The Labour  Commissioner was  doubtful whether any enquiry was held by the  appellant but on the basis of evidence adduced before him he held  the charges  proved and accordingly dismissed  the  application. On  appeal,  the  Industrial  Court  held  that  the  Labour Commissioner  had  no jurisdiction to hold the  enquiry  and made an order directing reinstatement of K with 651 back wages.  Thereupon, the appellant filed a writ  petition before  the High Court for quashing the order of the  Indus- trial  Court but the High Court dismissed  the  application. The appellant contended (i) that in view of the terms of em- ployment  the appellant could dismiss K without  holding  an enquiry, (ii) that the Labour Commissioner had  jurisdiction to’ hold the equiry and (iii) that the finding of the Labour Commissioner that no enquiry had been held by the  appellant was perverse and the High Court should have intervened, Held, that the finding that no enquiry had been held by  the appellant before dismissing K was perverse and the appellant was entitled to a writ quashing the order of the  Industrial

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Court  and restoring that of the-Labour  Commissioner.   The appellant  had produced before the Labour  Commissioner  the evidence  recorded  at the enquiry which  consisted  of  the statement  of K himself signed by him and the statements  of two conductors.  The explanation of K that he had been  made to  sign on a blank paper was unacceptable.  The finding  of the  Labour Commissioner amounted to a clear error  of  law, the industrial Court erred in thinking that it was bound  by this  finding and this error on its part was so apparent  on the face of the record that it was proper and reasonable for the High Court to correct the error. Semble,  Inspite  of the terms of employment  the  appellant could not dismiss k without holding an enquiry and that even if the appellant had failed to hold the enquiry it was  open to the Labour Commissioner to hold one.

& CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 504 of 1961. Appeal  by special leave from the judgment and  order  dated October  17,  1959, of the Bombay High Court  at  Nagpur  in Special Civil Application No, 59 of 1959. M.   C. Setalvad, Attorney-General for India, F.  J. Mohrir, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for  the appellant, B.   A.  Masodkar  Bishambar  Lal and Ganpat  Rai,  for  the respondent No. 3. 652 1962.   August 21.  The Judgment of the Court was  delivered by DAS  GUPTA,  J.-This appeal by special leave  is.against  an order  of  the High Court of Bombay at Nagpur  rejecting  an application  made by this appellant under Arts. 226 and  227 of the Constitution for quashing an order made by the  State Industrial Court, Nagpur, in the matter of dismissal by  the appellant of its employee, Kundlik Tulsiram Bhosle.   Kundik Tulairam Bhosle, who is the third respondent before us,  was engaged  as a temporary Motor driver in the service  of  the appellant.   He was appointed on December 22, 1954,  and  it was  expressly mentioned in the letter of  appointment  that until  such time as he was confirmed by an order in  writing his  services  were  liable to be  terminated  at  any  time without  notice  or compensation and without  assigning  any reason.   It  was  also  stated  that  his  case  would   be considered  for  confirmation  one year after  the  date  of appointment, ’provided a suitable permanent post fell vacant and  his  work was found satisfactory.  By  an  order  dated December  19,  1955,  he was  dismissed  from  service  from December  20,  1955.  It appears that before this  step  was taken  by  the management, Kundlik had been  served  with  a charge sheet that on November 14, when he was in charge of a Bus as a driver he allowed Conductor Vyankati to carry  five passengers  without ticket and also allowed an  unauthorized driver Sheikh Akbar to drive the Bus.  The charge sheet  was served  on  Kundlik  on November 9,and on  November  19,  he submitted  an explantion.  ’According to the  management  an enquiry  was  thereafter held by the Depot Manager  and  the charges   were  found  established.   Accordingly  he   was- dismissed.  Kundlik, the employee made an application  under s,16  of  the C. P. & Berar Industrial  Disputes  Settlement Act,  1947, before the Labour Commissioner, Madhya  Pradesh, Nagpur, alleging that his dismissal had not  653 been  preceded  by an enquiry, that he  had  been  illegally

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dismissed and - praying for reinstatement- The  appellant  pleaded  in its written  statement  that  an enquiry  had  been  properly held and  that  ,the  order  of dismissal   was   legally  made.    The   Assistant   Labour Commissioner, who has the powers of the Labour Commissioner, under  s.16, dealt with the application.  He was of  opinion that  there  were "sufficient grounds to  doubt  whether  an enquiry was really made by the Non.;applicant Management and if at all one was held, whether the applicant as an  accused person, had the chance to put questions to the witnesses who deposed  against him." On the basis of the evidence  adduced before  him  the Assistant Labour Commissioner came  to  the conclusion  that the employee could, not be held  guilty  of the  charge of allowing an unauthorised person to drive  the vehicle  as Sheikh Akbar was a fully licensed driver of  the Company  but  that  his guilt on the other  charge  that  he carried   five   passengers  without   tickets   was   fully established.  Accordingly he dismissed the applications. Against this order the -employee moved the State  Industrial Court,  Nagpur.   That  Court  felt that  it  would  not  be justified  in  interfering with the findings of  the  Labour Commissioner that no enquiry had been held by the Management and  that  the Assistant Labour Commissioner had  no  juris- diction  to  hold an enquiry.  In this view. the  Court  set aside the order of the Labour Commissioner and made an order directing reinstatement of the employee with back wages. It  was against this order that the employer moved the  High Court  of  Bombay on the ground that  the  Assistant  Labour Commissioner  and  the State Industrial Court had  erred  in thinking that no enquiry had been held by the management and 654 that  the said Industrial Court was also wrong  in  thinking that  the Assistant Labour Commissioner had no  jurisdiction to hold an enquiry himself. The High Court was of opinion that it could not exercise its powers  under  Arts.  226. and 227 of  the  Constitution  to interfere   with  the  finding  of  the   Assistant   Labour Commissioner  and the Revisional Court that no  enquiry  had been  held.   Proceeding on that basis the High  Court  also agreed  with the Industrial Court that the Assistant  Labour Commissioner  had no jurisdiction to hold the  enquiry  him- self.   The High Court concluded that there was no error  in the  decision  of the Industrial Court and  so  refused  the application. Three  points  have been urged on behalf of  the  appellant. The  first  is that it was not necessary in law to  hold  an enquiry before dismissing the employee in view of the  terms of his employment and so in exercising jurisdiction under s- 16 of the C. P. & Berar Industrial Disputes Settlement  Act, the  Industrial Court was not justified in interfering  with the order of dismissal.  Secondly, it was urged that in  any case,  if it be held that an enquiry by the  management  was necessary  in  law  it should be proper  to  hold  that  the Assistant  Labour  Commissioner  had  jurisdiction  to  hold enquiry himself.  Thirdly, it was urged that the view  taken by  the  Assistant Labour Commissioner that no  enquiry  had been held was perverse and the High Court ought to have  set aside  that finding and given relief -on the basis  that  an enquiry had been properly held. For a proper understanding of the first contention raised it is  necessary  to  remember  briefly  the  scheme  of,   the jurisdiction conferred by s.16. Section 16(1) authorises the State  Government  to  make  a  reference  to  the’   Labour Commissioner in 655

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disputes touching, inter alia, the dismissal of an employee. Section  16  (2) provides that if  the  Labour  Commissioner finds  "after  such enquiry as may be prescribed"  that  the dismissal was "in contravention of any of the provisions  of this Act or in contravention of the Standing orders made  or sanctioned  under the Act," he may give certain  reliefs  to the  employee.   According  to the  employee  the  order  of dismissal was in contravention of the provisions of s.31  of the  Act.   That  section provides inter alia  that  if  any employer intends to effect a change in respect of any indus- trial matter mentioned in Schedule 2 he shall, give 14 days’ notice  of  such  intention in the prescribed  form  to  the representative  of  the  employees.   Among  the  industrial matters  mentioned in Schedule 2 is included  ’dismissal  of any  employee except in accordance with law or  ad  provided for in the Standing Orders settled under s.30 of this  Act." Admittedly,  the appellant concern had no standing order  on the  matter  of  dismissal.  The  question  is  whether  the dismissal  of  the  employee  without  an  enquiry  was  "in accordance with law".  If it is not, the Labour Commissioner would  have jurisdiction.  If the dismissal without such  an enquiry  be in accordance with law the  Labour  Commissioner would  have no jurisdiction to interfere with the  order  of dismissal  made  by the management.  The  learned  Attorney- General argues that a dismissal made in accordance with  the ordinary law of contract as between Master and Servant  must be held to be "in accordance with law" within the meaning of this  Schedule,  and  the fact that any  industrial  law  as evolved  by the courts in industrial adjudication under  the Industrial Disputes Act should not colour our  consideration of the matter.  As at present advised, we are unable to  see why  the word ,law" in this phrase "in accordance with  law" as used in Schedule 2 should be given a 656 restricted connotation so as to leave out industrial law  as evolved by the courts. In  dealing  with industrial disputes under  the  Industrial Disputes  Act  and  other  similar  legislation,  Industrial Tribunals,  Labour Courts, Appellate Tribunals  and  finally this  Court have by a series of decisions laid down the  law that  even  though under contract law, pure and  simple,  an employee may by liable to dismissal, without anything  more, industrial  adjudication  would  set  aside  the  order   of dismissal  and  direct reinstatement of  the  workman  where dismissal  was made without proper and fair enquiry  by  the management  or where even if such enquiry had been held  the decision  on  of the Enquring Officer Was  perverse  or  the action of the management was mala fide or amounted to unfair labour practice or victimisation, subject to this that  even where  no enquiry had been held or the enquiry had not  been properly  held  the employer would have  an  opportunity  of establishing  its case for the dismissal of the  workman  by adducing  evidence before an Industrial Tribunal.  It  seems to us reasonable to think that all this body of law was well known to those who were responsible for enacting the C. P. & Berar  Industrial  Disputes Settlement Act, 1947,  and  that when they used the word "in accordance with law" in cl.3  of Schedule 2 of the Act they did not intend to exclude the law as  settled  by  the Industrial Courts  and  this  Court  as regards   where   a  dismissal  would  be  set   aside   and reinstatement of the dismissed workman ordered.  If the word "law" in Sch.2 include not only enacted or statutory law but also  common  law it is difficult to see why  it  would  not include industrial law as it has been evolved by  industrial decisions.  We are therefore primafacie indeed to think that

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the first contention raised by the learned  Attorney-General that it was not necessary in law to hold an enquiry before dismissing  this  employee-in  view  of  the  terms  of  his employment,  cannot  be accepted.  At the same time  we  are inclined  to think that there is considerable force  in  the second contention that even though a proper enquiry was  not held   by  the  management  the  Labour   Commissioner   had jurisdiction  to hold an enquiry himself.  This would  prima facie  be sufficient ground for holding that the  Industrial Court  was wrong in interfering with the order made  by  the Assistant  Labour Commissioner and the High Court  ought  to have  issued an appropriate writ to quash the order made  by the Industrial Court.  We are aware of the view taken by the Bombay  High  Court in Prov.  Transp.  Services  v.  Assist. Lab.   Commr.  (1) and Maroti v.  Member,  State  Industrial Court  (2)  that the ’,’Law" in the phrase  "in  accordance. with  law"  in Schedule 2 does not include  Industrial  law. For  the reasons mentioned above, we are inclined to  think, with  respect, that this view is not correct.  We  think  it unnecessary  however to discuss this matter more closely  or record our definite and final conclusion on these  questions as for the reasons to be presently stated we are of  opinion that  in any case the third ground raised on behalf  of  the appellant should succeed. As  has already been stated the employee’s case was that  no enquiry had been held by the management.  This was denied by the  management and it was alleged that an enquiry had  been held.   The management produced before the Assistant  Labour Commissioner papers showing the evidence that was claimed to have’ been recorded during such enquiry.  According to  this record,  three persons were examined during the  enquiry-the employee  Kundalik  himself, one Conductor Surewar  and  the Conductor Vyankati.  At the bottom of (1)  IX Bombay Law Reporter. 72. (2)  IX Bombay Law Reporter, 1422. 658 this,   paper  there  is  Kundalik’s  signature   and   also Vyankati’s  signature.   The employee’s case  was  that  his signature  had  been  obtained  on a  blank  paper  and  the document  was  then  written  up.  In  the  absence  of  any evidence, it is impossible however for any reasonable  judge of  facts  to  persuade himself that  the  management  would descend  to this step of forgery for the purpose of  getting rid  of  an  employee  in the  position  of  Kundalik.   The Assistant  Labour Commissioner himself has not said that  he believes the explanation of the employee that his  signature had  been  obtained  on  a  blank  paper.   He  was  however impressed  by  the  fact  that  signature  of  Kandalik  and Vyankati  only  were obtained and  the  Enquiring  Officer’s signature  doei  not  appear on the  paper  While  it  would certainly  have  been better if the  Enquiring  Officer  had also,  put  his  signature  on  the  paper  containing   the statements,  that omission cannot possibly be a  ground  for thinking  that he did not hold the enquiry.  The  conclusion of  the  Assistant  Labour  Commissioner  that  "there   are sufficient  ground  to doubt whether an enquiry  was  really made"  must therefore be held to be perverse.  It has  often been  pointed out by eminent judges that when it appears  to an appellate court that no person properly instructed in law and  acting  judicially could have  reached  the  particular decision  the Court may proceed on the assumption that  mis- conception  of  law  has  been  responsible  for  the  wrong decision.  The decision of the Assistant Labour Commissioner that  no  enquiry had been, held by the  management  amounts therefore,  in  our opinion, to a clear error in  law.   The

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Industrial Court erred in thinking that it was bound by this decision  of the Labour Commissioner and this error  on  its part  was, in our opinion, an error so apparent on the  face of  the record that was proper and reasonable for  the  High Court to correct that error.  659 On behalf of the respondent it was sought to be  argued,that even if an enquiry had been held it has not been shown  that the   employee  bad  an  opportunity   of   cross-examining. witnesses  or adducing evidence of his own.  It is not  open however  for  the learned Counsel to raise the  question  in view  of  the fact that the employee did not ever  make  any such case himself.  His case, as already statated, was  that no  enquiry had been held at all.  No alternative case  that the  enquiry  held  was improper because  he  had  not  been allowed to crossexamine witnesses or to adduce evidence  was made  by  him.   It  does not appear  that  in  the  present proceedings  the employee stated clearly that he  wanted  to lead evidence and was not allowed to do so or that he wanted to crosts-examine witnesses and was denied an opportunity to do  so.   It  is not open to him  therefore  to  raise  this question for the first time before us. We  have  accordingly come to the conclusion that  the  High Court  ought  to have held that there was a  proper  enquiry held against this employee and the management dismissed  him on finding on that enquiry that the two charges against  him had been fully proved, and that there was no reason to think that  the  management acted mala fide.   The  appellant  was therefore  entitled to an order for setting aside the  order of the Industrial Court. Accordingly, we allow the appeal, set aside the order of the High Court and order that the appellant’s application  under Arts.  226  and 227 of the Constitution be allowed  and  the order  of  the State Industrial Court be set aside  and  the order  of the Assistant Labour Commissioner  dismission  the employee’s application be restored.  There will be no  order as to costs. Appeal allowed. 660