Case: The Provincial Transport Service Vs. State Industrial Court

management was mala fide or amounted to unfair labour practice or victimisation subject to this that even where no enquiry had been held or the enquiry had not been properly held the employer would have an opportunity of establishing its case for the dismissal of the workman by adducing evidence before an Industrial Tribunal. It seems to us reasonable to think that all this body of law was well-known to those who were responsible for enacting the C. P. and Berar Industrial Disputes Settlement Act, 1947 and that when they used the words "in accordance with law" in Cl. 3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workmen ordered. If the word "law" in Sch. 2 includes not only enacted or statutory law but also common law, it is difficult law as it has been evolved by industrial law as it has been evolved by industrial decisions. We are therefore prima facie inclined to think that the first contention raised by the learned Attorney-General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted. At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself. This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court. We are aware of the view taken by the Bombay High Court in Provincial Transport Services v. Assistant Labour Commissioner, 60 Bom LR 72 and Maroti v. State Industrial Court, Nagpur, 60 Bom LR 1422: (AIR 1959 Bom 61 ) that the "law in the phrase" in accordance with law in Schedule 2 does not include Industrial law. For the reasons mentioned above, we are inclined to think, with respect that this view is not correct. We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed.9. As has already been stated the employees case was that no enquiry had been held by the management. This was denied by the management, and it was alleged that an enquiry had been held. The management produced before the Assistant labour Commissioner papers showing the evidence that was claimed to have been recorded during such enquiry. According to this record, three persons were examined during the enquiry - the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati. At the bottom of this paper there is Kundaliks signature and also Vyankatis signature. The employees case was that his signature had been obtained on a blank paper and the document was then written up. In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik. The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper. He was however impressed by the fact that signature of Kundalik and Vyankati only were obtained and the Enquiring Officers signature does not appear on the paper. While it would certainly have been better if the Enquiring Officer had also put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry. The conclusion of the Assistant Labour Commissioner that "there are sufficient grounds to doubt whether an enquiry was really made" must therefore be held to be perverse. It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in and acting judicially could have reached the particular decision the Court may proceed on the assumption that misconception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been held by the management amounts therefore, in our opinion, to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that it was proper and reasonable for the High Court to correct that error.10. On behalf of the respondent it was sought to be argued that even if an enquiry had been held it has not been shown that the employee had an opportunity of cross-examining witnesses or adducing evidence of his own. It is not open however for the learned Counsel to raise this question in view of the fact that the employee did not ever make any such case himself. His case, as already stated, was that no enquiry had been held at all. No alternative case that the enquiry held was improper because he had not been allowed to cross-examine witnesses or to adduce evidence was made by him. It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to cross examine witnesses and was denied an opportunity to do so. It is not open to him therefore to raise this question for the first time before us.

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

Explanation:
0[ds]It seems to us reasonable to think that all this body of law was well-known to those who were responsible for enacting the C. P. and Berar Industrial Disputes Settlement Act, 1947 and that when they used the words "in accordance with law" in Cl. 3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workmen ordered. If the word "law" in Sch. 2 includes not only enacted or statutory law but also common law, it is difficult law as it has been evolved by industrial law as it has been evolved by industrial decisions. We are therefore prima facie inclined to think that the first contention raised by the learned Attorney-General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted. At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself. This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court. We are aware of the view taken by the Bombay High Court in Provincial Transport Services v. Assistant Labour Commissioner, 60 Bom LR 72 and Maroti v. State Industrial Court, Nagpur, 60 Bom LR 1422: (AIR 1959 Bom 61  ) that the "law in the phrase" in accordance with law in Schedule 2 does not include Industrial law. For the reasons mentioned above, we are inclined to think, with respect that this view is not correct. We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed.9. As has already been stated the employees case was that no enquiry had been held by the management. This was denied by the management, and it was alleged that an enquiry had been held. The management produced before the Assistant labour Commissioner papers showing the evidence that was claimed to have been recorded during such enquiry. According to this record, three persons were examined during the enquiry - the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati. At the bottom of this paper there is Kundaliks signature and also Vyankatis signature. The employees case was that his signature had been obtained on a blank paper and the document was then written up. In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik. The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper. He was however impressed by the fact that signature of Kundalik and Vyankati only were obtained and the Enquiring Officers signature does not appear on the paper. While it would certainly have been better if the Enquiring Officer had also put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry. The conclusion of the Assistant Labour Commissioner that "there are sufficient grounds to doubt whether an enquiry was really made" must therefore be held to be perverse. It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in and acting judicially could have reached the particular decision the Court may proceed on the assumption that misconception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been held by the management amounts therefore, in our opinion, to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that it was proper and reasonable for the High Court to correct thatis not open however for the learned Counsel to raise this question in view of the fact that the employee did not ever make any such case himself. His case, as already stated, was that no enquiry had been held at all. No alternative case that the enquiry held was improper because he had not been allowed to cross-examine witnesses or to adduce evidence was made by him. It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to cross examine witnesses and was denied an opportunity to do so. It is not open to him therefore to raise this question for the first time before us.