Civil Appeal No 209 of 1973
Appeal by Special leave from the Judgment and Order dated the 27th July 1972 of the Madhya Pradesh High Court in Misc
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 363 FN Kaku and DN Misra for the Appellants in CA
No 209 of 1973  For the Respondent No2 in CA
114074
MK Ramamurthy Vineet Kumar and Naresh K Sharma for the Respondent Nos2  4 in CA20973  for the Appellant in CA
No1140 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 misconduct 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 MP Workers employed in the said quarries have a union called Kymore Quarry Karamchari Sangh and the four concerned workmen Rama Shanker Barmapradhan Emmanual and Mohd Rauf hereinafter called the Respondents  were at the material time the office bearers in the union
In connection with the implementation of the Recommendations of Second Central Wage Board for the cement industry after serving a strike notice on the management of the Appellant on 13th September 1968 the Karamchari Sangh and all its Members went on a 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 PM and the other at 11 PM 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 364 going to their work and threatened the supervisory staff and officers with dire consequences if they tried to work the quarries and what is more from the mid night of 19th September till 430 AM on 20th September the quarry Manager and the supervisory staff were ghearoed and at 430 AM the Agent s car stopped at the gate and he was unlawfully obstructed from visiting the querry premises
Since resorting 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 430 AM on 20th September and inciting others to gherao the said staff and d forcibly and unauthorisedly occupying the area near the quarry canteen between 4 PM on 19th Sept and 1 AM 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 restrained the Quarry Agent from entering the quarry premises
The respondents 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 HS 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 on a consideration of the entire evidence led 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 additional 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 account the previous service record of the Respondents by his order dated 31st December 1968 dismissed the Respondents from service
That order was served on the Respondents on 30th January 1969
365 A dispute having been raised with regard to their dismissal by common consent the same was referred to the arbitration of Shri TC Shrivastava a retired Judge of MP High Court under sec
10 A of the on 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 Respondents 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 fifth 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 Misc
Petition No 129 of 1970 contending that the Arbitrator had misconstrued 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 being Civil Appeal No 20973 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 1140 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 In support of civil Appeal No 209 of 1973 Counsel for the Appellant raised three contentions before 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 to a delinquent which obtained under sec
2403 of the Government of India Act 1935 or article 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 land or of Industrial law and in this behalf reliance was placed on two decisions of this Court in Hamdard Dawakhana case and in Saharanpur Light Rly case
Counsel urged that on proper construction of the Standing order it should have been held that no second opportunity was contemplated thereunder and therefore the finding that the enquiry 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 punishment 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 Barmapradhan 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 respondents were 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 367 sel for the Respondents 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 two constructions were reasonably possible no interference by this Court was called for and counsel in that behalf relied upon the decision Agani WM vs 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 Barmapradhan and had directed their reinstatement
From the rival contentions summarised above it will appear clear that the real question that arises in these appeals is does the certified Standing order No 17 provide for second opportunity 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 Rama Shanker and Barmapradhan
The question obviously depends upon the proper construction to be placed on said SO 17
It may be stated that the certified SO 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
SO 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 in Standing order No 16
368 All orders of suspension and fines shall be in writing setting out the misconduct for which the punishment is awarded
No officer below the rank of the Head of Department shall award the above punishment All dismissal order shall be passed by the Manager or Acting  Manager who shall do so after giving accuse 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 discharge or dismissal
 The question is whether when paragraph 3 of the SO says 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 it contemplates giving of a second opportunity to the delinquent to show cause against the proposed punishment 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 legal position as has been clarified by this Court in the Saharanpur Light Railway Co s case supra may be stated
In the context of certain modification sought to be introduced in a Standing order requiring a second show cause 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 law 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 case of removal has ever been demand or considered necessary
The only class of cases where such a notice has been held to be necessary are those arising under article 311
Even that has now been removed by the recent amendment of that Article
To import such a retirement from article 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
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 ground of reasonableness of fairness and should therefore be set aside
 It is thus clear neither under the ordinary law of the land nor under 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 Standing order provides for it
either expressly or by necessary implication no inquiry which is otherwise fair and valid will be vitiated by non 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 alter giving the accused an opportunity to offer any explanation
The underlined words are wholly inappropriate to convey the idea of a second hearing 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 it is 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 to us that the opportunity spoken of by para 3 OE SO 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 SO was framed and came into force on March 1 1946 and was duly certified on October 16 1954 under the Industrial employment Standing orders Act 1946 ie 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 370 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 SO
That being the position it would be difficult to attribute any intention to the framers thereof to provide for a second opportunity being 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 or the officer to give due consideration to the gravity of the misconduct and the previous record of the delinquent in awarding the maximum punishment
It is true that the Arbitrator has undoubtedly taken the view that the opportunity spoken of 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 read 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 as implicit in cases of lighter punishments it would be so in cases of graver punishment like dismissal and since specific mention of opportunity as made in cases of graver punishment in the relevant sentence 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 of dismissal
The High Court has confirmed the view of the basis that the first part of the Standing order deals with several 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 disciplinary proceedings against a delinquent first holding of a 371 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 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 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 Court s decision in Agnani WM vs Badri Das  Ors
supra is therefore not attracted
In view of the construction which we are placing on SO 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 disappear
Admittedly opportunity to offer explanation in regard to the alleged misconduct was 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 inquiry was held by HS Mathur
In other words SO 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 alternative contentions raised by counsel for the Management in these appeals do not survive
CA No 209 of 1973 filed by the Management is allowed and CA No 1140 of 1974 filed by the two workmen Rama Shankar and Burma pradhan is dismissed
There will be no order as to costs
HSK CA 20972 allowed and CA
114074 dismissed


Summary:
Four workmen of the appellant company in Civil Appeal No 20973 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
On a dispute having been raised it was referred to the arbitrator first respondent under section 10A of the 
The arbitrator held that the enquiry which was otherwise fair and valid was vitiated because no second opportunity was given to the workmen before dismissing them as required by the Standing order No 17
The Arbitrator set aside the dismissal of two workmen and confirmed that of the other two
The management and the workman 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
 HELD Under Standing order No 17 no second opportunity of showing cause on the question of punishment is contemplated
367D Neither under the ordinary law of the land 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 order 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
369B D Standing Order No 17 provides 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 362 missal orders shall be passed by the Manager after giving the accused an opportunity to any offer explanation in para 3 of Standing Order No 17 are wholly inappropriate to convey the idea of a second hearing or opportunity on the question of punishment but appropriate in the context of seeking an explanation  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 it is the alleged mis conduct 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 word it is clear that the opportunity spoken of by para 3 of Standing Order No 17 is the opportunity to be given to the delinquent 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 provision for giving the accrued an opportunity to offer any explanation 
In other words
different 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 attribute any intention to the framers thereof to provide for a second 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 opportunity 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 construction placed on Standing order No 17 by the Arbitrator or the High Court is not possible much less reasonably possible
373H 371A B In the instant case admittedly opportunity to offer explanation in regard to the alleged mis conduct was not only afforded but was availed of by the concerned foul workers by submitting their written explanations to the Manager whereafter the departmental inquiry was held
In other words Standing Order No 17 was fully complied with and what is more the Arbitrator has held that the inquiry was otherwise fair and valid
371D