Case: Management of Monghyr Factory of ITC Limited, Monghyr, Bihar Vs. Presiding Officer, Labour Court Patna (Bihar) and Others

. 3 was working as an operator on a packing machine in the appellants factory at Monghyr on May 21, 1966 when he is said to have committed certain acts of misconduct. A chargesheet was served on him by the Management on May 24. At the domestic inquiry held by the Management, he was found guilty and eventually dismissed from service on June 9, 1966. On the raising of an industrial dispute, it was referred for adjudication by the Government of Bihar to the Labour Court,. 1 by a notification dated the 6th/17th February, 1968. The Labour Court made an award on November 23, 1970 ordering reinstatement of the workman Shri Ram Krishan Pathak, respondenthis back wages from the date of dismissal till the date of reinstatement. The appellant challenged the award by filing a Writ Petition in the High Court, which was dismissed on July 23, 1973At the instance of the Management, a certificate of fitness was granted by the High Court on February 22, 1974. Since by that time133(1) had been amended by the 30th Constitution Amendment Act, the certificate was granted in accordance with it. In the order granting the certificate it is mentioned that three points were urged by the appellant but the High Court thought that two of them were such as would not justify the grant of the certificate, but one of the points involved in the case was a substantial question of law of general importance and the said question needed to be decided by the Supreme Court. Pursuant to the grant of the certificate a petition of appeal was filed in this Court followed in the usual course by a statement of the case. Various other points which have been argued on behalf of the Management before the Labour Court as also in the High Court were taken in the petition of appeal and the statement of the case.(1) That the reference is invalid as on its very face it indicates that it was mechanically made by the Government without application of mind(2) That the workman was guilty of misconduct within the meaning of(ii) of Standing Order 20 applicable to the appellant and both the Courts below have committed errors of law on the face of the record in taking a contrary view(3) That in any view of the matter on the facts and in the circumstances of this case it was not expedient, fit or proper to order reinstatement of the concerned workman and in lieu thereof, only compensation ought to have been allowed

Reasoning:
We shall first deal with the preliminary objection of Mr. SinghIt is true that no separate petition was lodged by the appellant along with the petition of appeal in accordance with Rule 5. But in our opinion the said Rule was not applicable and compliance thereof was not necessary to enable the appellant to urge and reiterate any of the points taken by it in theA(d) of Order XV of the Rules enjoins that an appeal on a certificate granted by a High Court under Articles 132(1) and/or 133(1)(c) of the Constitution or under any other provision, of law if the High Court has not recorded the reasons or the grounds for granting the certificate shall be put up for hearing ex parte before this Court. Article 133(1)(c) mentioned in the above extracted words has got to be read now (and it woulde advisable to correct it by an amendment of the Rule, if not already done) as Article 133(1). The said Rule suggests that the High Court is required to record the reasons or the grounds for granting the certificate. In this case, the High Court in its order gave the reasons and finding that at least one of the points was such that could justify the granting of the Certificate under Article 133(1) granted the certificate to appeal to the Supreme Court. But it did not limit it to that extent alone, even assuming it could do so. The certificate granted, as is commonly known, is an open one enabling the appellant to urge all the points arising in the appeal in this Court. Nothing was brought to our notice by Mr. Singh either from any provision of the Constitution or the Rules to indicate that the points other than the one which enabled the High Court to grant the certificate could not be raised in this Court without itsr the purpose of granting the certificate,that the High Court is required to consider is whether the cases a substantial question ofthe kind mentioned in the constitutionalEven if a single such question of law is found to arise in the case, a certificate must be granted. Once the certificate isranted and the appeal is lodged in the Supreme Court, it is open to the appellant to raise all grounds which properly arise in the appeal. The circumstances that there are grounds whichfound sufficient for the grant of a certificate does not preclude the Supreme Court from entertaining them as grounds arising in the appeal. The stage at which the High Court considers the grant of a certificate under Article 133(1) and the stage at which the Supreme Courts the appeal are two distinct stages, and different jurisdictions are exercised with respect to each stage. Considerations pertinent to the grant of a certificate are not identical with considerations which govern the hearing of the appeal. Accordingly, even if some of the points raised by the appellant in the High Court in support of the petition for a certificate are found insufficient for that purpose, they can still be considered as grounds during the hearing of the appealThe view which we have expressed above is amply supported by the decision of this Court in Addagada Raghavamma and Anr. v. Addagada Chenchamma and, wherein at page 945 it was said with reference to Article 133 of the Constitution, as it stood before the 30th Amendment Act:133 of the Constitution the certificate issuedby the High Court in the manner prescribed therein is a precondition for the maintainability of an appeal to the Supreme Court. But the terms of the certificate do not circumscribe the scope of the appeal, that is to say, once a proper certificate is granted, the Supreme Court has undoubtedly the power, as a court of appeal, to consider the correctness of the decision appealed against from every standpoint, whether on questions of fact or law.The amendment brought about in Article 133(1) makes no difference in the matter of the applicability of the principle to the point at issue. Thus it is clear that the leave of this Court was not necessary to enable the appellant to urge in appeal the other grounds of attack in relation to the award as affirmed by the High CourtIt is interesting to notice that when a certificate is granted under133(1) only, then the party appealing to the Supreme Court can urge as one of the grounds in appeal filed pursuant to such certificatethat a substantial question of law as to the interpretation of the Constitution has been wrongly decided. An express provision to this effect was, perhaps, thought necessary to remove any doubt for the raising of such a new point even without the leave of the Court. That being so, it will be highly unreasonable to hold that in an appeal filed in accordance with133(1) of the Constitution the appellant cannot urge any new grounds and must be confined to the grounds which enabled the High Court to grant the certificate. We, therefore, reject the preliminary objection raised by Mr. Santokhe now proceed to deal with the three submissions made on behalf of the appellantThe point is not free from difficulty. The High Court repelled it relying upon its two earlier decisions. On a close scrutiny, however, on the facts of this case we do not feel persuaded to hold that the reference was bad for the alleged nonapplication of the mind of the Government. We would, however, like to observe that care should always be taken tomere copying of the words from the Statute while making an order of reference. Ordinarily and generally in a large number of cases, a reference is made when the Government finds that an industrial dispute exists. There are cases where a dispute is only apprehended or even there may be some where some disputes exist and some are apprehended. To keep an order of reference free from the pale of attack on such a ground, the Government will bed to specify one or the other in their order of reference. As observed in some of the cases of this Court, to be alludedo hereinafter, the Government should clarify the position and remove the ambiguity by filing a counter when the reference order is challenged on this ground. We are unhappy to note that neither the one nor the other was done in this case although the State was made a party respondent in the Writhe cases cited at the Bar on the first, we shall refer only to a few which are very near it, there being no direct decision of this Court on it. The Labour Court repelled the contention of the Management apropos the alleged invalidity of the reference, by stating in paragraph 9 of its orderThe fact that a dispute existed cannot be denied. In that Court the next attack oncompetency of the reference was on the ground that the concerned workman was not a member of the Union on the date when the cause giving risetherefore, the Union could not have espoused his cause to make it an industrial dispute. Whilethis argument, the Labour Court said in the 10thn my opinion there appears no merit in the contention made on behalf of the management and it is held that in reality an industrial dispute existed when the appropriate Government was approached to refer the matter to this Court for adjudication. On the facts and in the circumstances of this case, therefore, we have no doubt in our mind that the industrial dispute existed when it was referred by the Government to the Labour Court for adjudication, and the Government made the reference on being satisfied that it was so. There was no question of the dispute being apprehended. The mention of the words or is apprehended in the order of reference is a mere surplusage and does not, in this case, necessarily lead to the conclusion that the reference was made in a cavalier manner without any application of mindThis argument, as presented befored and must be rejected. No such stand was taken in either of the Courts below. Nor was the charge framed on this line. The charge served on respondent6 you packed approximately 130 M. Embassy packets with Scissors slides whilst operating M/C. No. 14, resulting in loss of 200This argument has to be stated merely to be rejected. Mere neglect of work cannot be both. If it is so, it is a fault. If it is habitual that is, if it is repeated several times then only it is misconduct. It may well be that fault of one kind or the other as enumerated ins (a) to (g) of Standing Order 20(i) if repeated more than once mayhabitual within the meaning of Standing Order 20(ii)(1), and especially in the light of the fourth fault being a misconduct within the meaning of Standing Order 20(a), but, on the facts of this case,there was no charge against respondent. 3 that he was guilty of habitual neglect of work. Moreover the Labour Court found that the negligence of the workman was not of a serious kind. Some others in the factory also contributed to it. We, therefore, reject pointThe law as to the proper relief, which should beranted to the workman whose dismissal has been found to be wrongful, mala fide or illegal has gradually been developed by the Federal Court and this Court. In Western India Automobile Association v. Industrial Tribunal, Bombay, andargument on behalf of the employer that reinstatement could not be ordered in an industrial adjudication as no contract of service would be specifically enforced, was rejected. In someview taken was that there should be a general rule of reinstatement except in very exceptional cases. Later on. it was ruled that no hard and fast rule could be laid down and the Tribunal would have to consider each case on itsn The Punjab National Bank, Ltd. v. Its WorkmenGajendragadkar J., as he then was, speaking for himself and other learned Judge hasIt is obvious that no hard and fast rule can be laid down in dealing with this problem. Each case must be considered on its own merits, and, in reaching the final decision an attempt must be made to reconcile the conflicting claims made by the employee and the employer. The employee is entitled to security of service and should be protected against wrongful dismissals, and so the normal rule would be reinstatement in such cases. Nevertheless in unusual or exceptional cases the tribunal may have to consider whether, in the interest of the industry itself, it would be desirable or expedient not to direct reinstatement. As in many other matters arising before the industrial courts for their decision this question also has to be decided after balancing the relevant factors and without adopting any legalistic or doctrinaire approach.At the same page the learned Judge approvingly quoted from then decision of the Full Bench of the Labour Appellate Tribunal in the case of Buckinghamc Mills Ltd. v. Their WorkmenA sentence from that quotation will be of use in deciding this case also. It runse past record of the employeethe nature of his alleged present lapseground on which the order of the management ist aside are also relevant factors for consideration. Shelat J. speaking for this Court in the case of Ruby General InsuranceThese decisions clearly show that though industrial adjudication may not regard a wrongful dismissal as amounting to termination of service resulting only in a right to damages as under the law of master and servant and would ordinarily orderit can refuse to order such reinstatement where such a course, in the circumstances of the case, is not fair or proper. The tribunal has to examine, therefore, the circumstances of each case to see whether reinstatement of the dismissed employee is not inexpedient or improper.The same learned Judge reiterated the principles in HindustanLtd., Rourkela v. A. K. RoyAs exceptions to the general rule of reinstatement, there have been cases where reinstatement has not been considered as either desirable or expedientOn a consideration of the entire facts and circumstances of theIn the present case the Labour Court found that the order of discharge was mala fide and unreasonable in the sense that the workman was guilty of the charge of fault only and not of misconduct. Domestic inquiry was found to be fair and proper1. From the documents on record it is abundantly clear that the management and Shri Ram Kishan Pathak are not on happy terms for several years2. The service card indicates that the service record of Shri Pathak are not neat and cleanYet without applying its mind further as to whether it was a fit case where reinstatement should be ordered or compensation should be awarded, it followed the former courseThe High Court while affirming the order of the Labour Court in this regard did refer to some of the relevant decisions of this Court and correctly enunciated the principles. But it seems to us that it felt fettered in treating the facts referred to in those cases as if they were exhaustive examples of the circumstances under which reinstatement could be ordered. In that view of the matter the High Court, on comparison of the facts of the present case did not feel persuaded to travel outside the limits of those facts. But itd be remembered, as observed in the Punjab National Bank case (supra), that every case has to be judged on its special facts. In the present case the service card of the employee shows that hel faults in the past and was sometimes warned, sometimes suspended and sometimes reprimanded for all those omissions and commissions. In the incident in question, he was clearly guilty of neglect of duty in putting wrong slides, although they were wrongly supplied to him, while packing the cigarettes on the packing machine. Even shortly before the incident in question, as pointed out to the High Court on behalf of respondent. 3 himself, he was once warned for absence from proper place of work without permission and was suspended for three days for an act subversive of discipline beforewas dismissed in June, 1966. We were also informed by the management that respondent. 3 has superannuated, according to them in December, 1972. The fact that he has superannuated was not disputed by Mr. Santokh Singh. What was, however, asserted on his behalf was that hesuperannuated not in December, 1972, but about two years later. At the time of the hearing of the appeal, the management offered to pay a very reasonable amount of compensation and all sums of money due to the workman on account of gratuity and provident fund. We think on the facts and in the circumstances of this case it is not a fit case where the High Court ought to have sustained the order of reinstatement as passed by the Labour Court.