MANAGING DIRECTOR INDIAN OIL Vs. C D SINGH

JUDGEMENT

(1.) THE petitioners have filed this writ application under Articles 226 and 227 of the Constitution of India, praying that the orders of the Presiding Officer, Labour Court, Ranchi (respondent No. 2), dated the 2nd March, 1970, 30th March, 1970 and 11th June, 1970, contained in Annexures 9, 11 and 13 respectively, passed in B.S. Case No. 23 of 1969, be quashed by a writ of certiorari. THE petitioners have also prayed that CD. Singh (respondent No. 1) or the other respondents may be prohibited by a writ of mandamus from enforcing any of the rights conferred by Annexure 13. According to the learned Counsel for the petitioners, he is praying for a writ of prohibition also, questioning the jurisdiction of the Labour Court, in view of an additional ground added to paragraph 18 of the writ application by a petition filed on the 7th August, 1970.

(2.) THE relevant facts are as follows: It is stated that respondent No. 1 was a Sales Officer under the Indian Oil Corporation Limited, working at Ranchi, until he was dismissed from service by the Corporation by a letter dated the 3rd September, 1969. THE said respondent had been charge-sheeted for various acts of misconduct in January, 1969 and he was given seven days' time to submit his written explanation to the charges levelled against him. Respondent No. 1 has submitted his reply to the charge-sheet in February, 1969. THE explanation not having been found satisfactory, an inquiry committee, consisting of three persons, was formed. THE committee had met in March and April, 1969, and had held an inquiry in presence of respondent No. 1 and found him guilty of certain charges levelled against him and submitted its report to that effect. THEreupon, the branch manager of the Corporation (petitioner No. 2) considered the report and. the connected paper and dismissed respondent No. 1 on 3rd September, 1969, as stated above. According to the writ application, respondent No. 1 made an application under the Industrial Disputes Act, 1947, before the Assistant Labour Commissioner; Patna, claiming cancellation of the dismissal order and reinstatement. A copy of this application has been given as Annexure 4. THEreafter, the Government of Bihar, in the Department of Labour and Employment, by a letter dated the 11th October, 1969, asked the Corporation authorities to appear before the Joint Commissioner of Labour, Bihar, on 3rd November, 1969, for a conciliation proceeding. A copy of this letter has been marked as Annexure 5. It is stated that pursuant to this notice given, the representatives of the Corporation attended the conciliation proceedings before the Joint Labour Commissioner, Bihar and submitted a written explanation also. It is stated that the conciliation failed and thereafter the Government of Bihar, by a notification dated the 31st March, 1970, referred the following dispute for adjudication to the Industrial Tribunal, Bihar, Patna:

(3.) RESPONDENT No. 1 has filed a counter-affidavit to the following effect. It is contended therein that the charges framed against this respondent, culminating in his dismissal, were baseless. According to the respondent, the inquiry held against him was not conducted properly, as he had not been afforded proper opportunity of defence. The order of dismissal had been passed by an authority who was not the appointing authority and, as such, the order was invalid. Referring to Annexure 4 sent to the Assistant Labour Commissioner, Patna, it has been stated that there is no provision in the Industrial Disputes Act for making an application to the Assistant Commissioner of Labour and so this application was not a statutory application under that Act. Referring to the complaint filed under Section 26 of the Bihar Shops & Establishments Act, it is stated that the complaint was not made during the pendency of a conciliation proceeding, as the conciliation proceeding had concluded on 10th November, 1969. According to this respondent, the delay in filing the complaint before the Labour Court, Ranchi, had been rightly condoned by Annexure 9 and without prejudice to the right of the management to challenge this matter at the time of the hearing of the complaint petition. The two proceedings, one before the Industrial Tribunal, and the other before the Labour Court, Ranchi, are supported as valid proceedings under appropriate law. Doctrine of election is said to be inapplicable in the present case. It is contended that, when this respondent had filed his complaint under the Bihar Act in December, 1969, no proceeding was pending before the Industrial Tribunal, which is clear from the fact that the reference made to it by the Government of Bihar was made in March, 1970. It is contended that the insertion of Section 2-A in the Industrial Disputes Act, 1947, has not rendered inoperative Sections 25 and 26 of the Bihar Shops and Establishments Act and there is no conflict in the two provisions of law. The last point taken in this counter-affidavit is that the writ petitioners are trying to defeat the reference under the Industrial Disputes Act as not maintainable and that, at the same time, trying to get the case under the Bihar Shops & Establishments Act dismissed on the ground of pendency of the reference, (The last point has been clarified on behalf of respondent No. 1 by a petition filed during the hearing of the case, quoting a paragraph filed by the employer-company in the reference, stating that present respondent No. 1 was not "a workman" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The grounds on which the employer-company had taken this point have been quoted in this supplementary petition, the substance of which was that present respondent No. 1 was occupying a position of managerial/supervisory character in the Corporation drawing, at the relevant time, a salary in the scale of Rs. 400-950, his last basic salary in that scale being Rs. 460, in addition to which he was drawing Rs. 164 per month as dearness allowance and getting house rent allowance of Rs. 69 per month. Thus, his total salary was Rs. 693).