A.G. PATHAK Vs. S.L. PRASAD

JUDGEMENT

(1.) HIS Lordship after stating the facts, proceeded. Now, in connection with the contentions made by Mr. Sawant, it is convenient to notice the relevant contents of Section 66 of the Shops and Establishments Act and of Section 10 and Schedule 2 of the Industrial Disputes Act. Section 66 makes provision for preventing an employer from dispensing with services of employees in his continuous employment without giving notice of termination and runs as follows:

(2.) SECTION 10 of the Industrial Disputes Act, 1947 provides for reference of industrial disputes inter alia to a Labour Court in the following language:

(3.) THE above discussion and the contents of the provisions of Section 66 of the Shops and Establishments Act and Section 10 and Second Schedule of the Industrial Disputes Act clearly go to show that the second contention made by Mr. Sawant is also contrary to the relevant legislative provitions. Section 66 relates to what was well established right of an employer in the law of contract at common law. It was well established before the enactment of labour laws that services of all employees could always be terminated by employers. If in that connection appropriate notice was not served by an employer, there was no right of reinstatement in employee. The total rights of a wrongfully dismissed employee were to claim damages for wrongful dismissal. This absolute right of employer was taken away by the provisions in Clauses (a) and (b) of Section 66. Where, however, an employee was guilty of misconduct, by the contents of proviso, the effect of the provisions in Clauses (a) and (b) was nullified. The matter of continuing a dismissed and discharged employee in service was not intended to be finalized by any action of the employer. For this reason by the provisions contained in item 3 of the Second Schedule and Sub -clause (c) of Section 10 of the Industrial Disputes Act, the Labour Court was empowered to direct reinstatement. It is not necessary to discuss this matter any further than to state that all questions of discharge or dismissal of workman including his reinstatement are liable to be adjudicated upon by Labour Court on a reference made to it. The termination of services of an employee in accordance with Section 66 of the Shops and Establishments Act was not sufficient to deprive the Labour Court of its jurisdiction to consider the matter of the same termination on a reference made to it under Section 10 of the Industrial Disputes Act. Mr. Sawant attempted to rely upon a decision where it was held that by an award made under the Industrial Disputes Act, an Industrial Tribunal could not alter the scheme of the Shops and Establishments Act as regards the period of leave to which a workman was entitled. Now, there can be no dispute that the conditions of services of employees as finally fixed by statutory provisions cannot be modified by any awards made under the Industrial Disputes Act or even by consent of parties. The above decision has no bearing on the question of the Labour Court's jurisdiction to substitute its own judgment and to reinstate an employee when he has been previously discharged or dismissed in accordance with the provisions in Section 66 of the Shops and Establishments Act. The second contention accordingly fails.