Civil Appeal No 1746 of 1980
Appeal by Special leave from the Judgment and Order dated the 4th September 1979 of the Punjab and Haryana High Court in Civil Writ Petition No 2780 of 1979
ND Garg SK Bisaria and TL Garg for the appellant
Girish Chandra for Respondent No 3
The Judgment of the Court was delivered by CHANDRACHUD C J
In April 1962 the appellant was appointed as a clerk in the Hoshiarpur Central Co operative Bank Ltd which is respondent 3 to this appeal
On August 10 1976 he was transferred as Branch Manager  of the Dholbaha branch of the Bank
On October 22 1977 one Labh Singh so Harnam Singh opened an account in the Dholbaha Branch under an introduction given by one Bahram Singh
Two days later Labh Singh deposited in that account a draft in the sum of Rs 5000 issued by the Royal Bank of Canada on the Chartered Bank New Delhi
The amount due on the draft was credited by the Bank in Labh Singh s account on November 14
On that very day Labh Singh withdrew a sum of Rs 2500 from his account
Three days later he withdrew the remaining amount of Rs 2500
Soon thereafter a person claiming to be the real Labh Singh in whose favour the draft was issued by the Royal Bank of Canada complained to the Chartered Bank New Delhi that the draft was stolen and that the money due thereon was fraudulently collected by the person in whose name an account was opened in the Dholbaha branch
On November 10 1978 the Executive Committee of respondent 3 Bank resolved that an enquiry be held for fixing responsibility in the matter of the fraudulent encashment of the draft
The enquiry was held by the Chief Executive officer Satish Chander Dutt who was of the rank of the Assistant Registrar in the Co operative department
As a result of the report submitted by him the appellant was dismissed from service on December 30 1978
The demand raised by the appellant in regard to his dismissal was referred by the Government of Punjab to the Conciliation 319 officer who recommended that the appellant s case should be forwarded for adjudication on the question whether his dismissal from service was justified
The Labour Commissioner of Punjab exercising the powers of the State Government declined to refer the dispute for adjudication on the ground that the appellant was not a workman
The appellant filed a Writ Petition in the High Court of Punjab and Haryana challenging the decision of the Labour Commissioner but that Writ Petition was dismissed summarily
The appellant has filed this appeal by special leave challenging the decision of the High Court and of the Labour Commissioner
The State of Punjab and the Labour Commissioner are respondents 1 and 2 to this appeal
The grievance made by Shri N D Garg who appears on behalf of the appellant that the Labour Commissioner ought to have given reasons in support of his decision is justified
All that the Labour Commissioner has stated in the order is that the post held by the appellant did not fall within the category of workman
This really is the conclusion to which the Labour Commissioner came but no reasons are given to justify that conclusion
We are of the opinion that the Labour Commissioner ought to have given reasons why he came to the conclusion that the appellant is not a workman within the meaning of section 2 s of the 
We could have remanded the matter to the Labour Commissioner asking him to state his reasons why the appellant is not a workman but that will entail delay
Instead it is advisable from the point of view of not only the appellant but the Bank also that a deference is made either to the Labour Court or to the Industrial Tribunal under section 12 5 of the  for adjudication of the question as to whether the dismissal of the appellant from the services of the Bank is legal and justified
Accordingly we direct that the 2nd respondent the Laboure Commissioner Chandigarh to whom the State Government has delegated its powers under section 12 of the Act shall make a reference to either of the two authorities as he considers proper
At one stage we wanted to decide for ourselves the question as to whether the appellant is workman within the meaning of section 2s of the 
Considering the time that has gone by we wish that we could have decided that question but on the material before us we find it difficult to do so
The case of the appellant is that he is a mere matriculate who now possesses a some 320 what exalted and misleading designation of a Branch Manager  According to him there are 58 Branches of the Bank in the District of Hoshiarpur in 29 out of which there are only two officers one of whom is called the Branch Manager and the other the Cashier
He contends that the Branch Manager has no administrative or discretionary powers to exercise and is not employed in a supervisory capacity
His case is that he is a clerk mis called the Branch Manager
The contention of respondent 3 Bank on the other hand is that not only was the appellant s remuneration in excess of Rs 500 per mensem but being employed in a supervisory capacity he exercised functions mainly of a managerial nature
It is alleged that he was vested with the power of superintending the working of the office maintaining registers sanctioning loans receiving deposits borrowing within the limits sanctioned by the Registrar incurring contingent expenditure attending meetings of the Board of Directors the Executive Committee and other Committees constituted under the bye laws and certifying copies of entries in the banker s books
The grievance of the appellant is that the Bank did not raise any contention before the Labour Commissioner that he was not a workman within the meaning of the Act with the result that he had no opportunity to meet that case
The parties have included in the paper book before us some material bearing on that question but it will be unsatisfactory to decide that question without proper evidence
After all the question as to whether the appellant is a workman  is basically a question of fact
That is why on the basis of the stray material before us we do not consider it advisable to decide that question
When this appeal was argued before us a prosecution was pending in the Court of the learned Judicial Magistrate Hoshiarpur in which three persons were charged for impersonation and cheating in connection with the fraudulent encashment of the draft which led to the dismissal of the appellant
The appellant was not only not included in the array of the accused in that prosecution but the judgment of the learned Magistrate dated August 19 1981 shows that during the course of investigation it was found that the appellant was not responsible for the fraud
In fact the appellant was examined as prosecution witness No 4 in that case
Two out of the three accused were discharged by the learned Magistrate while accused No 1 Sham Lal was convicted under sections 419 and 420 of the 321 Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs 500
At the instance of the Bank a reference was made to an Arbitrator under section 55 of the Punjab Co operative Societies Act 1961 for deciding the question whether the appellant is liable to repay the amount of Rs 5000 to the Bank which was fraudulently withdrawn by Labh Singh
By an Award dated November 23 1982 the Arbitrator dismissed the reference holding that the appellant was not responsible for the fraudulent encashment of the draft
The Arbitrator observed that the Bank could recover the amount from Sham Lal who was convicted in the criminal proceedings but not from the appellant
We have referred to these two matters the prosecution and the arbitration proceedings in order that the Bank may examine whether it is not possible to drop the proceedings against the appellant and take him back in employment
If the Bank finds that the appellant was merely negligent in the discharge of his duties as a Branch Manager it may consider whether the appellant could be taken back in employment without the payment of full back wages
For these reasons we allow the appeal and direct respondent No 2 the Labour Commissioner Chandigarh to make a Reference under section 12 of the  as directed by us
The reference shall be make forthwith and it shall be disposed of within two months after its receipt
There will be no order as to costs
MLA Appeal allowed


Summary:
The appellant was dismissed from the post of Branch Manager by respondent No 3 Bank after an inquiry relating to fraudulent encasement of a draft by one Labh singh
His demand in regard to his dismissal was referred by the Govt
of Punjab to the Conciliation Officer who recommended that the appellant s case should be forwarded for adjudication on the question whether his dismissal from service was justified
The Labour Commissioner exercising the powers of the State Government declined to refer the dispute to the Labour Court for adjudication but without giving any reasons for his conclusion that the appellant was not a workman
The appellant challenged before the High Court the decision of the Labour Commissioner in writ petition which was dismissed summarily
Hence this appeal
The grievance of the appellant is that the Labour Commissioner ought to have given reasons in support of his decision
Allowing the appeal  HELD 1
All that the Labour Commissioner has stated in the order is that the post held by the appellant did not fall within the category of workman but no reasons are given to justify that conclusion
He ought to have given reasons why he came to the conclusion that the appellant is not a workman within the meaning of section 2s of the 
319 D E 2
In the instant case the Court keeping in view that remanding the matter to the Labour Commissioner for giving his reasons will entail delay directed the Labour Commissioner Chandigarh to make a reference either to the Labour Court or to the Industrial Tribunal section 125 of the Industrial 318 Disputes Act 1947 for adjudication of the question as to whether the dismissal of the appellant from the service of the Bank is legal and justified
319 E E