ASSOCIATED CEMENT COMPANIES LTD. ETC. . ¥, _T.C. SHRIVASTAVA & ORS. “March 29, 1984
[V.D. TULZAPURKAR AND R.S. PaTHaK, JJ.]
Industrial Employment (Standing Orders) Act, 1946 —Standing Orders—Certified Standing Order. No. 11--Providing that all dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation—Irterpreation of —Whether contemplates second opportunity to workman after conclusion of eiquiry and before inflicting punishment of dismissal—Whether enquiry gets vitiated in absence af such opportunity.
- Four workmen of the appellant company in Civil Appeal No. 209173 were charged for mis-conduct as defined ‘in Standing Order No. 16. The enquiry Officer found them guilty of the charges. «On the basis of the Enquiry Officer’s report and after looking into the previous record of the workmen, the General Manager dismissed them. Ona dispute having been raised it was referred to the arbitrator, first respondent, under section 10A of the Industrial Disputes - Act 1947. The arbjtrator held that the enquiry which was otherwise fair and —
. valid was vitiated because no second opportunity was given to the workmen be- fore dismissing them as required by the Standing Order No, 17. The Arbitrator set aside the dismissal of two workmen and confirmed that ofthe other two. The managem:nt and the workmen challenged the award in the High Court by’ two writ petitions. “The High Court confirmed the. award and dismissed both the writ petitions. Hence these appeals by management and the workmen.
Allowing the appeal of the management and dismissing that of the workmen, tlt; ‘
HELD : Under Standing Order No. 17 no second opportunity of showing cause on the question of punishment is contemplated. [367D]
Neither, under the ordinary Jaw of the Jand nor under industrial law a second. ‘opportunity to show cause against the proposed punishment is necessary. This of course, does not mean that the standing ordér may not provide for it but unless the Standing order provide for it either expressly or by necessary implication, no enquiry which is otherwise fair and valid will be vitiated ‘by non-affording of such opportunity. ]1369B-D} ,
Standing Order No. 17 providés that a worker may be suspended, fined or ‘dismissed if found guilty of mis-conduct as defined in Standing Order No. 16, Para 3 of Standing Order No. 17 says that “all dismissal orders shall be passed by the Manager or Acting Manager who shall do so after "giving the accused an opportunity to offer any explanation.” The question is whether para 3 provides for such second opportunity being given to the delinquent ¢ The words “all dis-
A ‘Missal orders shall be passed by the Manager dfter giving the accused an opportunity to any offer explanation’’ in para 3 of Standing Order No. 17 are wholly inappro- Priate to convey the idea of a second hearing or opportunity on the question of punishment but appropriate in th2 context of seeking an oxplanation in regard to the alleged mis-conduct charged against him. An ‘explanation’ is to be called from the ‘accused’ which suggests that the same is to be called for prior to the recording of a finding that the, delinquent is guilty of mis-conduct ; ¢ is the alleged mis-conduct that is to be explained by him and not the propased punishment. Ona plain reading of thé relevant words no sccond opportunity of show-
. ing cause against the proposed punishment is contemplated either expressly or _ by necessary implication. In other words, it is.clear that the opportunity spoken ~ of by para 3 of Standing Order No. 17 is the opportunity to be given to the Gelinguent to meet the charges framed against him. Further, since the instant Standing Order was certified prior ‘tO the enunciation of the law by. Courts regarding the observance of the principles of natural justice such as issuance of a charge-sheet, ‘holding of an inquiry, opportunity to lead evidence, etc. It merely contains a bald proyision for ‘giving the accused an opportunity to offer any explanation’. In other wards, diffzrent stages in domestic inquiry were never in the contemplation of the framers «of the Standing Order. That being the position it would be difficult to attritbute any intension to the framers thereof to provide for a sécond opportunity being given to the delinquent of showing cause against the‘proposed punishment. [368A-E ; 369C-H ; 370A-B}
The view of the Arbitrator as also the view of the High Court proceed on an assumption the Standing Order No 17 deals with two different stages. concerning disciplinary proceedings against | a delinquent, first holding of a departmental inquiry into the charges where principles of natural justice must be implied and second the infliction of graver punishment before awarding which opportus nity to show cause has been provided for ; but the plain reading of the Standing Order read as a whole does not warrant any such assumption and, therefore, the coustruction placed on Standing Order No. 17 by the Arbitrator or the
High Court is not possible much less reasonably possible. 73H ; 371A Bj
In the i instant case, admittedly, opportunity to offer explanation in regard to the alieged mis-conduct was not only afforded but was availed of by the’concerned four workers by submitting their written explanations to the Manager whereafter the departmental inquiry was held. In other words Standing Oider . No. 17 was fully complied with and what is more the Arbitrator has held that the inquiry was otherwise fair and vabid. [371D]
Civil, APPELLATE JURISDICTION : Civil Appeal No. 209 of
1373. (Appeal by Special leave from the Judgment and Order dated
- the 27th. July 1972 of the Madhya Pradesh High Court in Mise.
Petition | No. 129 of 1970) AND © Civil] Appeal No. 1140 of 1974
~
(From the Judgment and order dated the 27th July, 1972 of the Madhya Pradesh High Court in Misc. Case No. 365 of 1970.)
362 7 SUPREME COURT REPORTS ss“ tss—«*L BAT 3 SLRS
|
ASSOCIATED CEMENT Y. T.C, SHRIVASTAVA (Tulzupurkar, J.) 363.
F.N. Kaka and D.N. Misra for the Appellants in CA. No. 209 of 1973 & For the Respondent No.2 in CA. 1140/74.
o
MLK, ‘Ramamurthy, Vineet Kumar and Naresh -K, Sharma, for ‘the Respondent Nos.2 & 4 in CA, 209/73 & & for the Appellant in
CA. No. 1140 of 1974.
The Judgment of the Court was delivered by
TULZAPURKAR, J. The principal question raised for our
~ determination in these appeals is: Whether on its proper construction
‘the certified Standing Order 17 provides for second opportunity being given to a workman after conclusion of the inquiry into his mis- ‘conduct and before inflicting on him the punishment of dismissal and if so whether the enquiry gets vitiated by not affording ‘him such “Opportunity?
Facts giving.rise to the question may be stated. The Associated Cement Companies Limited (hereinafter called ‘the Appellant’) has quarries worked by its department called Kymore & Bamangaon ‘Lime-stone Mines at _Kymore, District Jabalpur, M.P. Workers employed in the said quarries have a unioa called Kymore Quarry. Karamchari Sangh and the four concerned workmen Rama Shanker, Barmapradhan, Emmanual and Mohd. Rauf (hereinafter called “the Respondents’) were at the materia! time the office bearers in the anion.
In connection with the implementation of the Recommenda- “tions of Second Central Wage Board for the cement industry, after
, serving a strike notice on the management of the Appellant on 13th
Septem er, 1968, the Karamnchari Sangh and all its Members went ona strike for 24 hours commencing from,the mid-night of 19th September, 1968 which was accompanied by acts of intimidation, threats, ghearoes and unlawful obstruction. According to the ‘management before the commencement of the strike two meetings ‘were organized by the Respondents, one‘at 4 P.M, and the other at . 11 P.M. on 19th September at which fiery speeches were made by them wherein they not only instigated the quarry workers to resort to strike.but intimidated and prevented the willing workers from
Oo i]
(364 > SUPREME COURT REPORTS - . + [1984] 3: s.c.R-- going to their work and threatened the supervisory staff and officers more from the mid-night of 19th September till 4.30 A.M. on 20th September the quatry Manager and the supervisory staff were ghearoed and at 4.30 A.M. the Agent’s car stopped at the gate ‘and he
‘ was unlawfully obstructed from visiting the "querry premises. Since
~ Tesorting to a strike without giving 14 days’ prior notice as also the aforesaid acts on the part/of the Respondents amounted to serious -mis-conduct under the certified Standing Orders applicable to the quarries the Management served Charge-sheets dated 3rd of October,
1968 on the Respondents in which four common charges were levelled against all of them; in addition a fifth charge was. levelled against two of them Emmanual and Mohd. Rauf; and yet another 6th .
charge was levelled against Mohd. Rauf. The common charges. were (a) themselves going on strike without 14 days’ prior notice, (b)
inciting and instigating other workers to go on strike, (c) gheraoing the Quarry’Manager and other supervisory’ staff between mid-night and 4.30-A"M. on 20th September and inciting others to gherao the
' with dire consequences if they tried to work thejquarries and what is .
said staff and (d)- forcibly and unauthorisedly occupying the area .
near the quarry canteen between 4 P.M. on 19th Sept.-and | A. M. on 20th Sept. and installing and using loud- -speakers for inciting the
-. workers. ‘ Shri Emmanual and Shri Rauf were further charged with threatening the gheraoed staff with dire consequences, if they moved out; and Mohd. Rauf was charged in addition for having Testrained - the Quarry Agent from entering the quarry premises. The respon-
: dents were called upon to submit their explanation . in respect of the charges to the General Manager which they did; in their Explanations they by and large denied the charges levelled against them. A
-departmental enquiry was held against them by Shri H.S. Mathur during the course of which at one’ stage the Respondents withdrew. from: the enquiry on 24th October, 1968 on the plea that the Quarry. Agent should be examined first which was not being done, whereafter™ the enquiry proceeded ex-parte and ona consideration of the entire evidence Jéd before him the Enquiry Officer came to the conclusion. . - that the first three charges were fully proved and the fourth charge was partly proved against all-the respondents while the additionat charges against Emmanual and Mohd. Rauf were also proved. The Enquiry Report was forwarded to the General. ‘Manager who after considering the same and after taking into dccount the previous service record of the Respondents by his order dated 31st December, 1968 dismissed the Respondents from service. That order was servek on the Respondents on 30th January, 1969. ° a
-%
=>
\
, ; ASSOCIATED CEMENT ¥, T.C. SHRIVASTAVA (Zulzapurkar, J.) 365
A dispute having beén raised with regard to their dismissal, by common consent, the same was referred to the arbitration of Shri T.C. Shrivastava, a retired Judge of M.P. High Court, under sec. '10-A of the Industrial Disputes Act, 1947 gon 14th’ *April, 1969. The Arbitrator gave his. Award on 9th February, 1970 whereby he came to the conclusion that the enquiry which was otherwise fair and valid
" was vitiated because no second opportunity was given to the Respon- dents of showing cause against the proposed punishment before the issuance of their dismissal order as required by the Standing Order - No.17; he further held that though before him the Management had by leading evidence proved their mis-conduct by’ establishing the first . three charges against all, the fiifth charge against Emmanual and Mohd. Rauf (fourth charge being held not to have been proved) the.
_ punishment of dismissal in respect of Emmanual and Mohd. Rauf - .could be confirmed but set aside the dismissal in respect of Rama , Shanker and Barmapradhan on the ground that while fomenting the strike the conduct of Emmanual and Mohd. Rauf was graver than that of Rama Shanker and Barmapradhan and instead ordered their reinstatement but without back wages. The Appellant challenged the Award in the High Court by means of a Writ Petition (Mise.
Petition No. 129 of 1970) contending that the Arbitrator had miscon-
. Strued Standing Order'No. 17 and that no second opportunity was required to be given to the Respondents and that in the alternative the interference with the punishment of dismissal in respect of Rama Shanker and Barmapradhan was erroneous while another writ petition (Misc. Petition No.365 of 1970) was filed: by the Respondents against the punishments that were awarded to each one of them- The High Court by its judgment dated 27th July, 1972 confirmed the. Award of the Arbitrator by dismissing both the writ petitions.
The Appellant. has come up in appeal‘ (beiag Civil Appeal No.. _-209/ 73) by special leave challenging the interference with the dismissal of Rama Shanker and Burma Pradhan while the Respondents have preferred their appeal (being Civil Appeal No.i!40 of 1974) on a Certificate granted by the High Court challenging the punishments operating against each one of them, At this stage it] may be stated that as regards Emmanual and Mohd. Rauf the matter has been compromised between the- -parties which has already {been recorded’ by this Court with the result that Civil Appeal’ No.1140 of 1974 in so far as their dismissal is concerned no longer survives and the same needs to be dealt with by us only as regards back wages that have been denied to Rama Shanker and Burmapradhan.
366 . SUPREME COURT REPORTS - [1984] 3 s.cr. ‘In support of civil Appeal No. 209 of 1973, Counsel for the Appellant raised three contentions be fore us. In the first place, he contended that the learned Arbitrator as well as the High Court have erroneously construed the certified-Standing Order No. :17 as requiring a second opportunity being given to a workman at the conclusion of the enquiry into his mis-conduct and before inflicting upon him the punishment of dismissal ; he urged*that the concept _of second opportunity being given toa delinquent which obtained. under sec. 240(3) of the Government of India Act, 1935 or Art. 311 _ of the Constitution prior to the insertion of the Proviso to Article ‘311 (2) could not be invoked or applied to the instant case nor was ‘such second opportunity any requirement of the ordinary law of the ‘Jand or of Industrial law and in this. behalf reliance was placed on two decisions of this Court in Hamdard Dawakhana®) case and in
Saharnpur Light Rly,©) case. Counsel urged that on proper construc”
tion of the Standing Order it should have been held that no second opportunity was contemplated thereunder ahd therefore the finding:
that the enqniry was vitiated deserved to be set aside and according to him if the enquiry was valid and was not vitiated the punishment of dismissal imposed on Rama Shanker and Barmapradhan could not be interfered with. In. the alternative counsel contended that -
‘assuming that the enquiry was vitiated for the reason mentioned by the Arbitrator even than once serious mis-conduct was proved by ':
leading evidence before the learned Arbitrator it was not open to him to interfere with the punishment of dismissal unless the punish- ‘ment was so harsh as to smack of victimisation. In the further alternative counsel contended that assuming that the Arbitrator had power to interfere with the punishment in the instant case having to the facts and.circumstances he was not justified in setting aside the dismissal of Rama Shanker and -Bafmapradhan especially on the ground on .
which he did so namely, that the conduct of Shri Emmanual and
Mohd. Rauf was more grave than that of Rama Shanker and ©
Barmapradhan while fomenting the strike; counsel urged that passively taking part in the strike was distinguishable from the more serious mis-conduct, of fomenting or inciting the strike and all the zetpondents werg found guilty by the learned Arbitrator of such
" serious mis-conduct-and as such -no distinction on the distinction ~ on the basis indicated between the two sets of workmen should .
‘have been made in the matter of punishment, On the.other hand coun- f
~ (1) [1962] 2 LL. 772. (2) [1969] 2 LLI. 734,
. as
° ASSOCIATED CEMENT y. T.C. SHRIVASTAVA (Tudzapurkar, J.) 367
- gel for the Respondenis urged that Standing Order No. 17 had been . properly construed by the Arbitrator and the High Court and that construction should be upheld and‘in any case if twoconstructions were reasonably possible no interference by this Court was called for and counsel in that behalf relied upon the decision Agnani (W.M.) v. Badri Das and Ors.) Counsel further urged that once the enquiry got vitiated the entire field of determining the mis-conduct as also the' punishment therefor became,open and the Arbitrator: had jurisdiction and power to consider both the aspects and . that the’ Arbitrator in the facts-and circumstances of the case: had justifiably interfered with the dismissal of Rama Shanker and Barmaprathan and had directed their reinstatement.
From the rival contentions summarised above it will appear clear that the rea{ question that arises in these-appzals is, does the certified Standing Order No. 17 provide for second opporiinity being given to a workman to show cause against the proposed punishment of dismissal, for, it was not disputed before us that if no such second opportunity is contemplated by it then the only ground on which: the inquiry has been held to be invalid by the learned Arbitrator and the High Court would disappear and the Arbitrator could not have entered into merits of the case or interfered with the punishment of dismissal inflicted upon Ramashanker and Barmapradhan. The question obviously depends upon the proper construction to be placed on said S.O. 17. It may be stated that the certified S.0.16 enlists several acts or omissions that constitute
‘mis-conduct’ and striking work either singly or with other workers without giving 14 days previous notice, inciting ‘whilst on the - premises and. worker to strike work and indulging in a Gherao, which would amount to an ‘act subversive of discipline or efficiency’ are obviously included therein. 8.0.17 which deals with punishments and procedure therefor runs thus :-
“17, A worker may be suspended for a period not exceeding 4 days or fined in accordance with the Payment of Wages Act or dismissed without notice or any compensation in lieu of notice it found guilty of misconduct defined i in Standing Order No. 16.
(1) [1963] 1 LLJ. 684, ..
*
368 |’ ~~ SUPREME COURT REPORTS [1984] 3 s.c.r.
All Orders of suspension and fines shall be in writing:
setting out the misconduct for which the punishment is award-- : -
“ed. No officer below the rank of the Head of Department shall award the above Punishment,
Al dismissal order shall be passed by the Manager or Acting Manager who shall do so after giving accused an’ opportunity to offer any explanation. Due consideration to the gravity of the misconduct and the previous record of the worker shall be given in awarding the maximum punishment.
In the event of a discharge of dismissal, the worker shall be ‘ paid off within the second working day following the dis- . charge or dismissal. ” a
Thequestion is whether when paragraph 3 of the S.O. says : “all ‘dismissal ,orders shall be passed by the Manager or Acting
Manager who shail do so after giving the accused ah opportunity> to offer any explanation” , it contemplates giving of a second opportunity to the delinquent to show cause “against the proposed punish- _ ment of dismissal after he has been found guilty or the opportunity spoken of is the opportunity to meet the charges in the domestic inquiry ?
At the outset the legel position as has been clarified: by this Court in the Safaranpur Light Railway Co.’s case (supra) may be stated: In the context of certain modification sought to be introdu- ‘ced in a Standing Order requiring a second show couse notice this Court has observed thus : ;
“As regards the modification requiring a second show. cause notice, neither the ordinary law of the land nor the industrial Jaw requires an employer to give such a notice. In none of.the decisions given by the Courts or the Tribunals such a second show cause notice in the oase of removal has ever been demand or considered: necessary. The only class of cases where such anotice has been held to be necessary are those arising under Art.3il. Even that has now been removed by the recent amendment of that Article. To importsuch a retirement from Art. 311 in industrial matters does not
. appear to be either necessary, or proper and would be equating industrial employees with civil servants. In our view, there is no justification or any principle for such equation.
ay
ASSOCIATED CEMENT ¥. T.C. SHRIVASTAVA (Tulzapurkar, J.)° 369
Besides, such a requirement would unnecessarily prolong disciplinary enquiries which in the interest of industrial peace _ should be disposed of in short time as possible. In our view it is not possible to consider this modification as justifiable either on the groulid of reasonableness of fairness and should therefore beset aside.” - .
Itis thus clear neither under the ordinary Jaw of the land nor ander industrial law a second opportunity to show cause against the proposed punishment is necessary. This, of course, does not mean that a Standing Order may not provide for it . but unless the Stand-
~ ing Order provides for it either expressly or by necessary implication
No inquiry which is otherwise fair and valid will be vitiated by nop- affording of such second opportunity. The question is whether para
3 of the Standing Order No. 17 provides for such Second opportunity being given to the delinquent? The relevant words are ‘“‘all dismissal order shall be passed by the Manager......... after giving the accused an opportunity to offer any explanation’. The underlined words are wholly inappropriate to convey the idea of a second hear-
‘ing on opportunity on the question of punishment but appropriate ‘in the context of seeking an explanation in regard to the alleged misconduct charged against him. An ‘explanation’ is to be called “from the ‘accused’ which suggests that,the same is to be called for prior to the recording of finding that the delinquent is guilty of misconduct : itis the alleged misconduct that is to be explained by him and not the proposed punishment. On a plain reading of the relevant words no second opportunity of showing cause against the proposed punishment is contemplated either expressly or by necessary implication. In other words, it is clear clear to us that the opportunity spoken of by para 3 of S.0.17 is the opportunity to be given .
to the delinquent-to meet the charge framed against him. ,In.this connection it will be pertinent to mention. that the concerned S.O. was framed and ¢ame into force on March 1, 1946 and was duly certified on October 16, 1954 under the Industrial Employment (Standing Orders) Act, 1946 i.e. prior to the enunciation of the law by Courts regarding the observance of the Principles of natural justice such as issuance of a charge-sheet, holding of an inquiry,
‘opportunity to lead evidence, etc, and it is well-known that after the enunciation of these principles model standing orders have been framed to provide for the detailed steps required to be undertaken during a domestic inquiry. Since the instant Standing Order was certified prior to the formulation of the above principles it merely cd
Cc .
A’
D -
370 * ‘SUPREME COURT REPORTS [1984] 3 .G.Re contains a bald provision for ‘giving the accused an opportunity to. offer any explanation’. In other words, different stages in domestic: inquiry were never in the contemplation of the framers. of the S.O.
: That being the position: it would be difficult to attribute any inten- tion to the framers thereof to provide for a second opportunity be- - ing given to the delinquent of showing cause against the proposed punishment. The latter part of para 3 merely casts a unilateral:
obligation on concerned authority of the officer to give due conside- . tation to the gravity of the misconduct and the previous record of -
_the delinquent in awarding the maximum punishment.
‘Ti is true that the Arbitrator . has undoubtedly taken the view that the opportunity spoken af by para 3 does not refer to the opportunity to meet the charges but refers to the further opportunity being ,given to -the delinquent to. show cause against the graver punishment of dismissal that may be proposed to be inflicted on -him. But for. reaching such a conclusion he has resorted to some
. involved reasoning which is not warranted by the Standing Order if réad as a whole. According to him in the earlier paragraph which speaks of awarding lighter punishment there is no reference to any opportunity being given to meet the charges but no punishment-not even lighter punishment-can be inflicted without inquiry being held
_ according to the principles of natural justice and if such an inquiry
1S implicit i in cases of lighter punishments it would be so in cases of graver. punishment like dismissal and since specific mention of opportunity is made in cases of graver punishment in the relevant sentence of para 3 it must have a meaning and the words cannot be,considered a surpulsage and, therefore, the opportunity mentioned in the relevant — sentence of para 3 refers to the second opportunity being given to the delinquent at the stage of inflicting the punishment 6f dismissal. The’
High Court has confirmed the view of the basis that the first part
‘of the Standing Order deals with sevéral punishments and requires finding of guilt in respect of each one of them and this procedure is, therefore, different from that which has been contemplated in the: last part of the ‘Standing. Order and that last part.deals only with the punishment of dismissal and for that punishment alone makes a
’ special provision that no order: awarding that punishment will‘be passed unless the” Manager gives an opportunity to a-workman to offer his explanation. In our opinion, the.view-of the Arbitrator as. also the view of the High Court proceed on an assumption that the Standing Order No, 17.deals with two different stages concerning disciplinery proceedings’ against a delinquent, first holding of a oan ae
Badri Das & Ors. (supra) is, therefore, not attracted.
There will ben no order as to costs.
ASSOCIATED CEMENT y. T.C, SHRIVASTAVA (Tulzapurkar, J.) ° 1371, departmental inquiry into the ‘charges where principles of natural :
‘ justice must be implied and second the infliction of graver punishment before awarding which opportunity to show causé has been provid-
_&d for ; but the plain reading of the Standing Order read as a whole- - does not warrant any such assumption and, therefore, we do not feel that the construction placed on Standing Order No. 17 by the Arbitrator or the High Court is possible much less reasonably possible. The ratio of this €ourt’s - decision in Agnani (W. M.) v.
In view of the construction which we are- placing on 8.0. No. 17, it will be clear that the only” ground on which inquiry was held to be invalid by the Arbitrator and by the ‘High Court must dis-
_appear. Admittedly, opportunity to offer explanation in regard to the alleged misconduct vas not only afforded*but was availed. of by the concerned four workers (including Rama Shankar and Burma) Pradhan) by submitting their written explanations to the’ Manager whereafter the departmental i inquiry was held by H.S. Mathur. In .
‘other words S.O. 17 was fully complied with and what is more the .
Arbitrator has held that the inquiry was otherwise fair and valid. The solitary ground on which the inquiry was held to be invalid having disappeared it must follow that the Arbitrator had no Jurisdiction to enter into the merits of the case or interfere with the punishment. of dismissal inflicted upon Rama Shankar and Burma
_ Pradhan. That part of the Arbitrator’s award which has been confirmed by.the High Court is, therefore, set aside. The alter- native contentions raised by counsel for thé Management in these appeals do not survive. C.A. No.*209 of 1973 (filed by the
_ Management) is allowed and C.A; No. 1140 of 1974 (filed by the two workmen Rama Shankar and, Burma - ~ pradhan) is dismissed.
é
AS.K. — C.A. 209/72 allowed and CA. 114074 dismissed.