VITHOBA MARUTI CHAVAN Vs. S TAKI BILGRAMI

JUDGEMENT

(1.) A rather interesting question relating to the scope and ambit of the powers of the Labour Court under Section 78 of the Bombay Industrial Relations Act, 1946, arises in this petition. The petitioner was employed as a head jobber in the respondent No. 2 Mills and had put in about 20 years of continuous service. He was charge-sheeted by the respondent No. 2 Mills on the allegation that he had slapped one Shivappa Hombal on the 24th of April 1960. On account of this alleged behaviour of the petitioner it was contended by the Mills that this conduct amounted to misconduct under the standing orders which were applicable and which were determinative of the relations between the Mills and their employees. It is common ground that the standing orders were settled by the Commissioner of Labour under S. 35 (2) of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the Bombay Act' ). Standing order 23 enumerates "acts of omissions constituting misconduct". Clause (1) of standing order 23 contemplates "the commission of any act, subversive of discipline or good behaviour on the premises of the undertaking. " It was alleged by the Mills that the petitioner was guilty of the commission of the act, viz. , that of slapping Shivappa Hombal, which was subversive of discipline or good behaviour on the premises of the undertaking. An enquiry was held on this charge-sheet under the standing orders. The petitioner denied that he had committed any misconduct of that he had been guilty of any set subversive of discipline or good behaviour on the premises of the undertaking. Before the Labour Court the petitioner had also stated that the enquiry was held by one Shri Joshi, who was a provident fund clerk in the Mills and who was not superior to him. The petitioner also said that the enquiry alleged to have been held by the respondent No. 2 Mills was not an enquiry as contemplated by the standing orders. He had not been present at the time of the so-called enquiry and he was not given an opportunity to lead evidence in his defence, nor was he allowed to cross-examine the witness examined in support of the charges leveled against him. The substance of the defence of the petitioner was that the enquiry was vitiated by failure on the part of the respondent No. 2 Mills to observe the principles of natural justice. In the alternative, he also said that the evidence brought on the record did not establish his guilt and the finding that he was guilty was perverse and baseless. It is not necessary to state elaborately the various contentions raised by the petitioner challenging the validity of this enquiry. As a result of the finding made by the manager, who held the enquiry, the petitioner was dismissed from service. It was this order of dismissal that was challenged by the petitioner before the Labour Court.

(2.) SECTION 42 of the Bombay Act provides for a notice of change to be given either by an employer or an employee in respect of certain changes. Sub s. (4) of S. 42 provides that any employee or a representative union desiring a change in respect of (I) any order passed by the employer under the standing orders, or (ii) any industrial matter specified in Schedule III, shall make an application to the Labour Court. This right to make an application to the Labour Court given to an employee desiring a change in respect of any of the matters specified in that sub-section. That proviso requires that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period. It was not disputed before us that the petitioner in this case had approached the employer in the prescribed manner before making the application to the Labour Court. Section 78 of the Bombay Act prescribes the power of the Labour Court. Section 78 to the extent to which it is material, is as follows:

(3.) AGGRIEVED by this direction made by the Labour Court, respondent, No. 2 Mills preferred an appeal to the Industrial Court, Maharashtra, Bombay. On the question as to whether the enquiry was a proper enquiry the Industrial Court thought that the said question did not arise and was of no importance because the petitioner himself had admitted at the time of the enquiry that he had slapped the storekeeper. The Industrial Court also held that on the evidence which was brought before the Labour Court no prejudice was caused to the petitioner as a result of the enquiry being improper. We may point out that even before us, Mr. Nargolkar, who appeared for the petitioner, did not contend that the order of dismissal should be set aside on the ground that the enquiry was vitiated because of the failure on the part of respondent No. 2 Mills to observe the principles of natural justice nor was it contended before us that the finding that the petitioner was guilty of misconduct was based on no evidence or that it was perverse. Even before the Industrial Court substantial reliance seems to have been placed on behalf of the petitioner on the question of punishment meted out to the petitioner. The anxiety of the petitioner before the Industrial Court was to support the Labour Court in the view which it took relating to punishment. The respondent No. 2 Mills, however, contended that once the Labour Court came to the conclusion that the misconduct was the result of a proper enquiry, the Labour Court had no jurisdiction to interfere with the order of punishment made by the employer under the standing orders. The contention of respondent No. 2 company was that the adequacy or inadequacy of punishment was a matter entirely within the scope of managerial functions and it was for the employer to determine what punishment would be adequate in the interest of discipline in the Mills. This argument prevailed with the Industrial Court. The learned Member of the Industrial court observed as follows.