Patna High Court
Indian Tube Company Ltd. vs Pratap Mishra on 27 November, 1968
Equivalent citations: (1970)ILLJ322PAT
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. This civil revision under Section 115 of the Code of Civil Procedure as also the writ application under Articles 226 and 227 of the Constitution are directed from the same order dated 3 May 1967 of Sri T. P. Choudhuri, presiding officer, labour court, Ranchi, in B.S. Case No 32 of 1965. As sometimes a doubt is entertained an to whether the labour court acting as an authority under Section 26 of the Bihar Shops and Establishments Act, 1953-Bihar Act 8 of 1954 (hereinafter called the Act), is a Court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure, as a matter of abundant precaution the writ application has also been filed. A similar doubt arose in the case of the Calcutta Chemical Company, Ltd. v. D.K. Barman Civil Revision No. 371 of 1965 heard with Civil Revision No. 320 of 1937 and Civil Writ Jurisdiction Case No. 509 of 1967, disposed of on 29 October 1968. In that case we said that we ware inclined to take the view that the labour court is a Court subordinate to the High Court and even assuming it to be not so, since all the cases were placed before and heard by a Division Bench, it made no difference whether the application were treated under Section 115 of the Code of Civil Procedure or Article 227 of the Constitution, The same view was expressed in another Bench decision of this Court in Imperial Tobacco Company of India, Ltd. v. Assistant Labour Commissioner, Patna, and Ors. 1967-I L.L J. 384
2. In support of the rule, Sri K.D. Chatterji has pressed two points for our consideration, (1) that the order of the employer dispensing with the services of the employee concerned in this case was justified and legal, the labour court has committed an error of jurisdiction in holding it otherwise; and (2) that in any view of the matter, the labour court was wrong in law in thinking that merely because the order dispensing with the services of the opposite party was bad, he was entitled to the relief of the reinstatement;
the Court below under that wrong impression of law has exercised jurisdiction with material illegality in ordering reinstatement in this case.
3. The facts of the case may be stated in a short; compass. The employee was employed as a driver under the Indian Tube Company, Ltd., the petitioner in this case, sometime in the year 1957. On account of Illness he was absent from duty for a few days In the last week of April and in the first week of May 1964. Leave had been granted up to 4 May 1964. From 5 May, however, the employee remained absent without any leave application or justifiable cause. The employer thereafter proceeded to frame a chargesheet against the employee on 20 May 1964 and terminated his services without holding an enquiry and without giving one month's notice or one month's wages in lieu of notice. The services were terminated with effect from 3 June 1964.
4. It further appears from the order of the Court below that there was a communal riot in the colony in which the opposite party had been allotted a quarter by the company, and was residing there, in cannexion with that riot; employee surrendered and was arrested on 27 May 1934. He was put in Jamshedpur sub-jail wherefrom he was released on bail on 23 October 1964, The order dated 3 June 1964 was communicated to the, employee is the letter of that Gate which is Ex. K. The said letter was sent to the Superintendent;, Jail, along with a covering letter dated 3 June 1964 (Ex. N). It was served on the employee on 16 June 1964. It may be stated here that according to the employee's case, he had sent two or three application in the meantime for extension of the leave, bat the labour court has recorded a finding against the employee in this regard. It may also be mentioned here that apart from the fact that the employee, in connexion with the communal riot at which offences of mu,vder, arson and loot are said to have been committed, was arrested and later on released, there is nothing in the records of the case that he was ever chargesheeted by the police or put on trial in connexion with any of the alleged offences.
5. On 28 October 1964, the employee went to join his duty, only five days after he was released from jail, but he was not allowed to do be by the company. It appears, thinking that it can be an industrial dispute even at the instance of one worker, he approached the Assistant Labour Commissioner on 7 November 1964 for conciliation. The said Labour Commissioner eventually on 21 May 1965 asked him to apply to the authority under the Act under Section 26, Accordingly, an application was filed in the labour court on 1 June 1965 under Section 26(2) of the Act.
6. The labour court has condoned the delay in the filing of the application flatting, in accordance with Section 26(4) of the Act, that sufficient cause was, there for not filing the application within the prescribed period of thirty days. I ought to have stated that the finding of the labour court in this regard was also vehemently attacked on behalf of the petitioner, but having considered all aspects of the matter, I am definitely of the view that the labour court has committed no error, much less an error of jurisdiction, in recording a finding of sufficient cause and condoning the delay in the filing of the application. It is difficult to accept the argument that even an application could be and, therefore, should necessarily have been filed from jail. It was difficult for the man in the position of the opposite party to arrange to file an application under Section 26(2) of the Act from jail. After coming out from jail, under a bona fide belief that he could get the relief by approaching the Assistant Labour Commissioner, he approached him. It was only when after a lapse of about six months the Assistant Labour Commissioner directed him to approach the labour court, he did bo. I see absolutely no reason to interfere with the order of the Court below on the point of limitation.
7. It is undisputed in this case that one month's notice or one month's wages in lieu of such notice was not given by the employer to the employee at the time of his discharge. It is also no longer in dispute, after the finding has been recorded by the Court, that no enquiry was held by the employer and no finding was recorded upon any evidence holding employee guilty of any misconduct prescribed by Rule 20 of the Bihar Shops and Establishments Rules, 1955. Under the standing orders of the company, if a proper enquiry would have been held, it may have been possible to find the employee guilty under Para. 24 (x) of the standing orders. Perhaps, the employee could have been held guilty of the charge of such misconduct as has been prescribed under Rule 20 at the rules aforesaid. But no such course was adopted by the employer. After having perused the language of the relevant letters and reports (Exs. K and J), it is clear that the services of the employee were dispensed with by way of punishment. This was also the stand taken by the employer in the court below. That being bo, it was incumbent upon the employer to dismiss or discharge the employee either by giving one month's notice or one month's wages in lieu of such notice or by complying with the requirement of the proviso to Sub-section (1) of Section 26 of the Act. It is manifest, neither of the two was done. I am, therefore, of the view that the order of dismissed or discharge, as dearly the order was, within the meaning of Section 26(1) of the Act was bad in law. It is difficult to accept the argument put forward on behalf of the employer that it was a case of termination of contract; of service at the instance of the employer or a case of abandonment of service by the employee concerned as envisaged under Para. 41 of the standing orders. The period of continued absence of the employee for fourteen days expired on 19 May 1964. The services were not treated an abandoned by the employer on and from 20 May 1964 in accordance with Para. 41 of the standing orders, instead, the company proceeded to frame a chargeeheet and then record an order of dismissal or discharge. As I have said above, it was not a case of termination of contract of service pure and simple as was contended on behalf of the employer. It was clearly a case of dismissal or discharge of the employee concerned within the meaning of Section 20(1) of the Act. That being so, in either view of the matter, that is, for failure to give one month's notice or one month's wages in lieu of such notice, or for failure to hold an enquiry and record a finding of guilty against the employee, the order is bad and has rightly been held to be so by the labour court.
8. In the unreported decision of this Bench, referred to above. it was said that in appropriate cases, relief of reinstatement may be given, in some oases relief of money compensation only may be given and in some oases both reliefs may be awarded. The power is not to be exercised whimsically or arbitrarily. It is not quite correct to say that whenever an order of dismissal or discharge is found to be bad, the employee concerned is entitled to the relief of reinstatement. The relief of reinstatement has got to follow keeping in view certain principles of law decided by the Supreme Court in cases in relation to the industrial disputes cases which hava been referred in our unreported decision. Once the order of dismissal or discharge is found to be bad, the relief of reinstatement is not ordinarily to be refused. It has to be refused on certain justifiable and good grounds. In this particular case, our attention was drawn to some passages in the judgment of the Court below to persuade as to strike out the relief of reinstatement awarded by the said Court to the employee concerned. In my opinion, the labour court took too legalistic and technical a view of the matter while making those observations. It ought to have taken a broad picture of the facts in which this particular employee was placed. He was involved in a serious criminal case. In the absence of there being anything in the records of this case to show that he was so involved rightly, it has to be assumed that be was wrongly involved. If in such a situation be was not able to join his duty or file any application for extension of leave, to deny him the relief of reinstatement will not be proper and just after once the order of dismissal or discharge has been held to be bad. As I have said above, it was possible for the employer to terminate the contract of employment or to dismiss or discharge the employee by fulfilling the requirements of Section 26(1) of the Act, but that is a different matter. Once it is found that the legal course was not adopted for dispensing with the services of the employee, to deny him the relief of reinstatement, it appears to me, on the facts and in the circumstances of the case, would be quite unjust. It is not uncommon to find that sometimes innocent persons are wrongly named and involved in rioting and specially communal riots cases, and once they are so named or involved, they try to escape arrest by one method or the other. I am, therefore, of the view that although the case of the employee that he was ill for the rest of the days in May, when he was absent from duty before he was arrested, has not been accepted by the labour court, and perhaps rightly not accepted, it is difficult to upset the relief of reinstatement granted to the employee merely because of that finding. Taking a broad and realistic view of the picture which emerges from the facts of this case, I have unhesitatingly come to the conclusion that the relief of reinstatement has been properly granted in this case. I may also add that the labonr court has rightly, and for good reasons, not awarded any compensation to the employees concerned.
9. In the result, both the applications fall and are dismissed but I shall make no order as to costs in either of them.
S. Wasiuddin, J.
10. I agree.