Case: Hindustan Brown Boveri, Limited Vs. Their Workmen and Another

draft. The section further provides that the certifying officer should decide after an opportunity of being heard is given to the employer and the trade union or such other representatives of the workmen as may be prescribed whether or not any modification of or addition to the draft is necessary and thereafter certify the standing orders with or without modification as the case may be. Under S. 13 if an employer acts in contravention of such certified standing orders, he is liable to a fine and in case of continuing offence with a higher fine. These provisions show that the purpose of the Act is to have for each industrial establishment standing orders laying down conditions of work for the employees therein and ensuring security of employment. Section 2(d) defines as "employer" as meaning the owner of an industrial establishment and includes in a factory any person named as manager and in any other industrial establishment any person responsible to the owner for supervision and control of such establishment. The definition in expressed in comprehensive terms to enforce the object of the Act, that is, to require all industrial establishment to submit and have certified standing orders defining the conditions of work. But the definition can be availed of for the purposes of the Act and in respect of questions arising thereunder or if it is otherwise made applicable. Where the standing orders themselves define a "company" for the purpose of distribution of duties and powers, it is that definition which is relevant when a question arises as to who is to exercise those powers and perform those duties. There can be no manner of doubt that the company as defined by standing order 2(a) is the company with reference to its activities at Faridabad but which has its need and registered office at Bombay. Therefore, as provided by standing orders 23 and 27, it is that company which is given the power to pass order of punishment in respect of both minor and major offences.The next question is whether we should permit Sri Gokhale to take the additional ground, viz., of the company having assigned its power of dismissal to the works manager. The application is in substance one for leading additional evidence to establish the power-of-attorney said to have been executed by the company in favour of its works manager though it is in the guise of raising an additional ground. We must therefore be guided by those well-settled principles under which only additional evidence is allowed to be adduced at the stage of the hearing of an appeal.6. In view of the decision in Jabalpur Electric Supply Company [1962 - II L.L.J. 216] the company to doubt could delegate its disciplinary powers unless such delegation is debarred by its articles of association which regulate the conduct of its business. Therefore, where such delegation is properly made, the delegate can validly discharge the duty and exercise the power delegated to him. However, it is undisputed that the company failed to produce the power-of-attorney and allowed the labour court as also the respondents to remain in ignorance of it. That is somewhat strange, for the reference was in very wide terms. It referred two questions for adjudication:"(i) Whether the demotion of Arjan Singh is justified and in order ? If not, to what relief he is entitled ?(ii) Whether the termination of service of Samunder Lal and Asa Singh is justified and in order ? If not, to what relief they are entitled" ?7. The company should have known that the words "in order" would include the competence of the works manager to pass the orders in question. These words should have put the company on guard. Even if the reference did not do so, the statement of claim filed by the respondent-workmen clearly raised the question whether "the person awarding the punishment had no jurisdiction to do so." Unfortunately, the labour court while framing the issues did not specifically raise the issue as to the works managers authority. The workmen also did not apply for raising such a separate issue. Nevertheless the question was expressly raised by the workmen at the stage of arguments and it is clear that it was on the basis of those arguments that the labour court held that the company and not the works manager had the power to pass the said orders. The company at that stage could have applied to the labour court either to disallow the workmen from raising the contention in view of there being no issue or to raise an additional issue in view of the wide terms of the reference and allow it to produce the power-of-attorney or to give some time for its production if it felt that the contention raised by the workmen had taken it by surprise. The company adopted none of these courses and allowed the matter to proceed on the record as it then was before the labour court. It did not even inform the labour court of the existence of the power-of-attorney. Even when the company filed its special leave petition it failed to urge therein that company had executed a power-of-attorney. As already stated, the point as to the existence of the power-of-attorney was raised for the first time in the application for leave to raise an additional plea filed after the special leave petition was lodged. Even at that stage it failed to annex along with that application the power-of-attorney and contented itself with producing some extracts from it.Now, the principles on which the appellate Court permits additional evidence are well-known. It is quite clear that this is not a case where the company can avail itself of any of those principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In view of the clear distinction drawn in these definitions it is not possible to say that the company includes its officers. Apart from this distinction, it appears from the scheme of the standing orders that wherever a certain duty or power is sought to be entrusted to the company of its officers the standing orders say so in express terms. Thus standing orders 3 empowers the manager or the general manager in his discretion to recruit persons in the companys service at Faridabad. Standing order 12(1) authorizes the general manager or the manager or a person authorized by him to great leave to a workman depending on the exigencies of work. The procedure for such leave is by way of an application to the general manager or manager or the person authorized byfollows that the powers to pass an order of dismissal and of the lesser punishment in lieu of dismissal are both vested in the company and not in any of its other authorities. Broadly stated, the scheme of the standing orders seems to be that matters ofroutine are entrusted to the manager or the general manager or a person authorized by him, in the present case to the works managers, in the absence of any officer designated as manager or general manager, while matters such as those involving change in the conditions of work which are likely to raise industrial disputes have been retained with the company. The company of course acts through its officers where it empowers any of them to do so. But in the absence of any such delegation it is the company and not its works manager who can exercise the power of punishment either under standing order 23 or standing order 27. The contention that the expression "company" in standing order 2(a) includes the works manager and therefore the works manager was competent to pass the aforesaid orders is not tenable.The Industrial Employment (Standing Orders) Act was passed for requiring employers in industrial establishments to define conditions of employment underprovisions show that the purpose of the Act is to have for each industrial establishment standing orders laying down conditions of work for the employees therein and ensuring security ofas provided by standing orders 23 and 27, it is that company which is given the power to pass order of punishment in respect of both minor and majorapplication is in substance one for leading additional evidence to establish thesaid to have been executed by the company in favour of its works manager though it is in the guise of raising an additional ground. We must therefore be guided by thoseprinciples under which only additional evidence is allowed to be adduced at the stage of the hearing of anwhere such delegation is properly made, the delegate can validly discharge the duty and exercise the power delegated to him. However, it is undisputed that the company failed to produce theand allowed the labour court as also the respondents to remain in ignorance ofalready stated, the point as to the existence of thewas raised for the first time in the application for leave to raise an additional plea filed after the special leave petition was lodged. Even at that stage it failed to annex along with that application theand contented itself with producing some extracts from it.Now, the principles on which the appellate Court permits additional evidence areIt is quite clear that this is not a case where the company can avail itself of any of those principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence.