Case: Heckett Engineering Co Vs. Workmen

make the appointment of the workman and it was he who actually made the crucial appointment in that capacity, let us now advert to the question whether Mr. Balan was competent to pass the impugned order of dismissal. 9. Mr. Chatterji has, by reference to Standing Order No. 32 of the aforesaid Standing Orders, stressed that it was only the Company which was competent to pass the order of dismissal of the workman. The relevant portion of the Standing Order on which reliance is place runs thus:-" 32....... A workman shall be liable to be summarily dismissed without notice or pay or wages in lieu of notice if he is found guilty of any misconduct amounting to major misdemeanor. A workman dismissed for misconduct will not be entitled to any past benefits or privilege s of service provided by the Company. The Company may however at its discretion give the workman concerned the following punishments in lieu of dismissal: (i) Discharge from Service with past benefits of service. (ii) Suspension without pay not exceeding fifteen days. (iii)Censure or warning. (iv) Withholding increment for one year. (v) Fine. " 10. The Standing Order extracted above is not helpful to the. workman. It does not put any fetter on the power of the Plant Manager to dismiss a workman whose appointment is made by him if he is guilty of a misconduct. It only confers, in our o pinion, an overall power on the Company to substitute the penalty of discharge from service with past benefits of service or any other lighter penalty specified therein for the penalty of dismissal awarded to a workman and can by no means be interpret ed to imply that the penalty of dismissal can be inflicted only by the Company and not by the Plant Manager. It is a well settled rule of construction that the language of a provision or a rule should not be construed in a manner which would do violence to the phraseology used therein. It is rather strange that the Industrial Tribunal has despite its observation that the above quoted Standing Order does not expressly set out as to who is to pass an order of dismissal held that the impugned order was not passed by a person authorised by the Standing Orders. It may also be mentioned at this stage that appearing as a witness for the Company, Mr. V. K. Balan has unequivocally stated that he was entitled to pass the order of dismissal against the concerned workman under the Standing Orders and that he did not need any delegation of powers for passing such order. We may also in this connection recall the provisions of section 16 of the General Clauses Act, 1897, Whether or not the section in terms applies to the aforesaid Standing Orders of the Company which are certified under section 5(3) of the Industrial Employment Standing Order Act, 1946 may be a moot point but the general doctrine underlying the section can well be made applicable to a case of the present nature for it is now firmly established that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or co nsequence of that power (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer & Ors.([1966] 1 S.C.R. 120.) and Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Madhavi Amma &Ors ([1949] F.C.R. 667.). In Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhavi Amma &Ors. (supra) Mahajan, J. (as he then was) speaking for the Federal Court approved the statement of Woodroffe On Receivers, Fourth Edition, that the power to terminate flows naturally and as a necessary sequence from the power to create. In other words, it is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of that power; the authority to call such officer into being necessarily implies the authority to terminate his functions.As in the instant case, the appointment of the workman was made by Mr. V. K. Balan as a Plant Manager and not for or on behalf of the General Manager and as the power of appointment implies and carries wit h it the power of dismissal, we are of the opinion that the order of dismissal did not suffer from the infirmity of want of competence or of authority to pass the order. 11. The decision of this Court in Hindustan Brown Boveri Ltd. v. Their Workmen &Anr. ([1968] 1 L.L.J. 571) relied upon by Mr. Chatterji in support of his contention that the Plant Manager was not competent to pass the impugned order of dismissal is clearly distinguishable. In that case, despite the issue raised before the Labour Court as to whether the demotion of one workman and the termination of service of the other was in order, the Company did not at the proper stage inform or contend before the Labour Court that the Works Manager was empowered to recruit and dismiss the workman by virtue of the power of attorney executed in his favour by the Company. The judgment in that case also does not show that the Works Manager was competent to appoint the workman under the standing orders of the Company. 12. In conclusion, we would like to make it clear that as charges Nos. 2 and 3 have been held by the Industrial Tribunal to have been established against the workman and they constitute major misdemeanours falling within the purview of sub-clauses (a) and (m) of clause (ii) of Standing Order 31 of the aforesaid Standing Orders, we think that the order of dismissal could have been passed by the punishing authority which in this case, as already stated, was the Plant Manager. We may also observe that it is not open to us to substitute the order of discharge with benefits of past service for the impugned order of dismissal. The workman may, if so advised, approach the Company in this behalf.

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

Explanation:
1[ds]We have gone through the entire record and have given our earnest consideration to the submission made by learned counsel for the parties. While we are of the view that there is no warrant for interfering with the findings of fact arrived at by the Tribunal with regard to the establishment or otherwise of any of the charges against the workman which are based upon the evidence on the record, we think that the other finding arrived at by it viz. that Mr. V. K. Balan, Plant Manager of the Company, had no authority to pass the impugned order of dismissal cannot be sustained. It would, in this connection, be profitable to find out in the first instance as to who would make the permanent appointment of the workman. A plain reading of clause 5 (b) read with clause 7(d) of the Standing Orders shows that it was the Plant Manager of the Company who was competent to make the appointment of the workman. That it was Mr. V. K. Balan who, actually made the appointment in question cannot also admit of any doubt. This is crystal clear from the appointment card, Exhibit 1(MH) which is signed both by Mr. V. K. Balan as well as the workman.Let u s now see whether Mr. V. K. Balan, Plant Manager, acted for or on behalf of General Manager of the Company in making or signing the appointment card of the workman. A glance at the appointment card, Exhibit 1 (MH) is enough to show that Mr. V. K. Balan d id not sign the said card for or on behalf of the General Manager. It is true that the prefix "General" before the word "Manager" on the printed card on which Mr. V. K. Balan put his signatures does no appear to have been struck off at the time of the issue of the card but that by itself is not enough to show that the appointment was made by Mr. V. K. Balan acting for or on behalf of the General Manager of the Company. There is nothing on the, record to indicate that on the relevant date, the General Manager of the Company was away on leave or was otherwise absent and Mr. V. K. Balan had been deputed to officiate or act for or on behalf of the General Manager. On the contrary, in the course of his statement as O.P. witness , Mr. V. K. Balan has categorically affirmed that he has been holding the office of the Plant Manager of the Company for the last ten years. Thus neither the Standing Orders nor the appointment card nor the statement of Mr. V. K. Balan nor any other material on the record supports the observation of the Industrial Tribunal that "the General Manager was the appointing authority and Mr. V. K. Balan only acted on his behalfThe submission made on behalf of the workman that in signing his appointment card, Mr. V. K. Balan acted for and on behalf of the General Manager cannot be accepted for another reason also. If Mr. Balan was competent to make the appointment of the workman as we have, by reference to the Standing Orders, shown that be was, there could be no question of his acting for or on behalf of the General Manager in signing the appointment card. The contention advanced in this respect on behalf of the workman is, therefore, repelled.Having settled that Mr. V. K. Balan, who was the Plant Manager on the relevant date was competent to make the appointment of the workman and it was he who actually made the crucial appointment in that capacity, let us now advert to the question whether Mr. Balan was competent to pass the impugned order of dismissalThe Standing Order extracted above is not helpful to the. workman. It does not put any fetter on the power of the Plant Manager to dismiss a workman whose appointment is made by him if he is guilty of a misconduct. It only confers, in our o pinion, an overall power on the Company to substitute the penalty of discharge from service with past benefits of service or any other lighter penalty specified therein for the penalty of dismissal awarded to a workman and can by no means be interpret ed to imply that the penalty of dismissal can be inflicted only by the Company and not by the Plant Manager. It is a well settled rule of construction that the language of a provision or a rule should not be construed in a manner which would do violence to the phraseology used therein. It is rather strange that the Industrial Tribunal has despite its observation that the above quoted Standing Order does not expressly set out as to who is to pass an order of dismissal held that the impugned order was not passed by a person authorised by the Standing Orders. It may also be mentioned at this stage that appearing as a witness for the Company, Mr. V. K. Balan has unequivocally stated that he was entitled to pass the order of dismissal against the concerned workman under the Standing Orders and that he did not need any delegation of powers for passing such order. We may also in this connection recall the provisions of section 16 ofthe General Clauses Act, 1897, Whether or not the section in terms applies to the aforesaid Standing Orders of the Company which are certified under section 5(3) of the Industrial Employment Standing Order Act, 1946 may be a moot point but the general doctrine underlying the section can well be made applicable to a case of the present nature for it is now firmly established that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or co nsequence of that powerAs in the instant case, the appointment of the workman was made by Mr. V. K. Balan as a Plant Manager and not for or on behalf of the General Manager and as the power of appointment implies and carries wit h it the power of dismissal, we are of the opinion that the order of dismissal did not suffer from the infirmity of want of competence or of authority to pass the orderThe decision of this Court in Hindustan Brown Boveri Ltd. v. Their Workmen &Anr. ([1968] 1 L.L.J. 571) relied upon by Mr. Chatterji in support of his contention that the Plant Manager was not competent to pass the impugned order of dismissal is clearly distinguishable. In that case, despite the issue raised before the Labour Court as to whether the demotion of one workman and the termination of service of the other was in order, the Company did not at the proper stage inform or contend before the Labour Court that the Works Manager was empowered to recruit and dismiss the workman by virtue of the power of attorney executed in his favour by the Company. The judgment in that case also does not show that the Works Manager was competent to appoint the workman under the standing orders of the CompanyIn conclusion, we would like to make it clear that as charges Nos. 2 and 3 have been held by the Industrial Tribunal to have been established against the workman and they constitute major misdemeanours falling within the purview of sub-clauses (a) and (m) of clause (ii) of Standing Order 31 of the aforesaid Standing Orders, we think that the order of dismissal could have been passed by the punishing authority which in this case, as already stated, was the Plant Manager. We may also observe that it is not open to us to substitute the order of discharge with benefits of past service for the impugned order of dismissal. The workman may, if so advised, approach the Company in this behalf.