Case: Ballarpur Collieries Company Vs. State Industrial Court

(1) THE petitioner, the Ballarpur Collieries Company, is a registered partnership firm. It has its registered office at Bisesar House in Nagpur. The petitioner owns coal mines in chanda district in this region. The business of the company is to sell coal extracted from its mines. The head office of the petitioner is at Nagpur and that consists of office staff of 35 persons. It was stated by the petitioner that the head office at Nagpur carried on correspondence with lawful authorities, mines and customers and received amounts of the bills of coal supplied to the customers. The staff of the mines is transferable to the head office and viceRESPONDENT 3 was a stenographer. He had put in about 24 years service as such with the concern. The present petitioner has acquired interest in the coal business from the predecessor with whom respondent 3 was also working. He was drawing a salary of Rs. 317 per month including allowances, etc. , at the relevant time. It appears that the petitioner permitted respondent 3 to go on leave and join duties on return from leave on or about 19 June, 1959. On 22 June, 1959, respondent 3 had an interview with Seth Sunderlal, junior partner of theWhat happened at this interview is a matter of dispute between the parties.(3) RESPONDENT 3 worked as usual up to 30 June 1959 in the office. On that date, according to respondent 3 he had submitted the calculation of the amount that may be payable to him by way of provident fund, etc. , to Seth Sunderlal. This fact is not admitted by the petitioner. On 1 July, 1959, respondent 3 attended office but when he was told by Sri Kothekar, who was his immediate superior officer, to take some work for typing, respondent 3 declined on the ground that he was no longer in service. It does not appear from the record that any immediate complaint was made about this alleged refusal to obey the orders of Sri Kothekar by respondent 3. On 10 July, 1959, respondent 3 submitted another statement purporting to be the calculation of his claim for gratuity or compensation if for any reason he was to retire from service, or cease to be in service, to Seth Jamnadas, the managing director of theOn the next date, i. e. , 11 July, 1959, respondent 3 addressed a letter to Seth Jamnadas. It is to be found at pp.of the paper book. In this letter addressed to Seth Jamnadas he has made a grievance that he had approached the managing director to explain his case and that seems to have annoyed the managing director. Letter was therefore written to put on record what was his version of the circumstances in which he had approached the managing director. Either on the same date or on the previous date, thethrough its personnel officer issued a letter bearing no. 221, calling upon respondent 3, within 48 hours of the receipt of the letter, to show cause why disciplinary action should not be taken against him and why his services should not be dispensed with. That letter is at p.of the paper book. The charge imputed to respondent 3 in this letter is that he was not doing any typing work and whenever anyone called him or gave him work he refused to do the same on the pretext that he was unable to do it as he was on the verge of retirement, which was absolutely irrelevant in view of the fact that the terms of service expected him to work till he was in service or till he had submitted his resignation to the office. There is no reference in this letter to the alleged refusal to obey the orders issued by Sri kothekar on 1 July, 1959. This letter was received by respondent 3 some time later and possibly on 13 July, 1959. On 11 July, 1959, respondent 3 had sent a note in the office that he would be unable to attend office on that date and he may be treated as on casual leave. He had sent another note on 3 July, 1959 that he was ill and would be unable to attend office for three or four days. Respondent 3 sent a reply to thenotice received by him bearing No. 221 on 14 July, 1959. That reply is to be found at pp. 64 and 65 of the paper book, and is dated 14 July, 1959. He repudiated in this letter that he could be guilty of dereliction of duty. Respondent 3 in this letter in Para. 2 stated that in terms of the decision regarding termination of his services taken by the management and conveyed to him on 22 June, 1959, by Seth Sunderlalji in the presence of Sri kanade, personnel officer, he ceased to be a member of the staff with effect from 1 JulyON the next day, thesent another letter containing additional charges to respondent 3. That letter is dated 15 July, 1959, and is sent after respondent 3s letter dated 14 July, 1959. In this second chargesheet the petitioner stated that no one had conveyed to him (respondent 3) that his services would be terminated from 1 July, 1959. The letter charged him not only for not fulfilling the terms of contract of service but also for having signed the daily attendance register and refused to work from 1 July, 1959 till 10/11 July, 1959, which according to the petitioner amounted to shirking of duties of a stenographer besides being an attempt to cheat the petitioner. The charges, such as they were, are in general terms and not specific. This letter was received by respondent 3 on 18 July, 1959. As the letter intimated that an enquiry would be held by the Superintending Engineer of the company on 20 July, 1959, respondent 3 submitted a written statement in defence to the personnel officer. This written statement, dated 19 July, 1959, gives in detail the case of respondent 3. The statement is to be found at pp. 57 to 63 of the paper book. In Para. 3 of the statement respondent 3 disclaimed that he had ever made any claim for payment from 1 July, 1959 to 10 July, 1959, on which dates he had presented himself at the office and undoubtedly marked the attendance register. In Para. 4 he has again reiterated that the only person in the office who asked him to do some typing work was Sri kothekar. He explained to Sri Kothekar that the management through Seth Sunderlalji had terminated his services and that he had been attending office for receiving dues, that is, compensation, gratuity, etc. He further stated that he had told Sri Kothekar that considering his long service, he would not mind doing typing work to assist the staff without payment but he only asked Sri Kothekar first to take permission of some officer and find out whether the company intended to assign work to him even after termination of his services by Seth sunderlalji. The statement expressly asserts that after this incident of 1 July, 1959, even though respondent 3 attended office, nobody asked him to do any work, and that he was present from 11 a. m. to 5 p. m. up to 10 July, 1959. He also pointed out that his stand was that he was dismissed by the order of Seth Sunderlalji and that the only question that remained was regarding the calculation of compensation payable to him and, therefore, he could not be charged for any misconduct such as refusal to work, carelessness or neglect of duty or wilful disobedience to take dictation or refusal to carry out the work. In Para. 11 of the written statement, respondent 3 stated that he was prepared to continue in service in which case he would not claim any payment for the dates starting from 1 July, 1959, to the time he was ordered that he was at liberty to resume work in service. In Para. 17 he has stated that he had been most unjustly, illegally and wrongfully given a discharge without compensation and that the only dispute that remained was settlement of the compensation. He has styled his claim as claim for retrenchment compensation. At the end of this written statement there is a note that a list of witnesses is enclosed and such list of witnesses is to be found at p. 63 of the paper book. The list is headed "list of witnesses under protest in enquiry. " This list shows that the witnesses whom respondent 3 desired to question were (1) Personnel officer, Sri Kanade, (2) Sri Kothekar, (3) Seth Sunderlalji Daga, and (4) Seth Jamnadas Daga, the managing partner, the Ballarpur Collieries Company.(5) IN aadded as "n. B. " to this list respondent 3 stated that he should be allowed to be assisted by counsel for examining andthese witnesses. This request was made in view of the fact that particular circumstances of the case have made the matter very difficult and such assistance was very badly needed by him to bring out the truth onTHEREAFTER enquiry was taken up on 20 July 1959, by the Superintending Engineer of the company, Sri Kutumbe. What happened at the enquiry on that date is recorded by the enquiry officer at pp. 31 and 32 of the paper book. It appears that the company was represented by the personnel officer and respondent 3 was present in person. The enquiry officer ascertained whether the letters exchanged between the parties were duly received by them and was satisfied that each party had received the letters sent by the other. It is noted in the record of the enquiry proceedings for this date by the enquiry officer that a copy of letter dated 11 July, 1959, addressed by respondent 3 to the managing director Seth Jamnadas Daga, is admitted to have been received by the complainant. Some discussion seems to have taken place between the enquiry officer and the personnel officer as to the nature of the enquiry or the manner in which it is to be conducted and the enquiry officer has noted the submission made by the personnel officer that this being a domestic enquiry no strict legal provisions were followed and that this is more or less a question of natural justice meaning possibly that the principles of natural justice were required to be observed in the conduct of the enquiry. The enquiry was then postponed to 23 July, 1959, as adjournment was sought by the personnel officer on behalf of the petitioner because a written statement was required to be filed in reply to the written statement of respondent 3 which was submitted on 19 July, 1959. Adjournment was sought and given expressly on thisTHE enquiry was then resumed on 23 July 1959, and the procedure of the enquiry is to be found at pp.of the paper book. After the adjournment of the enquiry on 20 July, 1959, respondent 3 had addressed two communications to the enquiry officer. By his letter dated 20 July, 1959 respondent 3 complained that he had requested the enquiry officer to be supplied with a copy of the proceedings but he was told that there was no such practice of the company permitting grant of such copies and, therefore, the copies were not given to respondent 3. He also complained that his request for assistance of a lawyer was also not granted on objection raised at the instance of the company. Respondent 3 also alleged that he had heard that thewas trying to perpetrate what is called a farce of the enquiry. Thereafter he has mentioned that apprehending that justice would not be done to him in the enquiry proceedings he was intending to pursue other remedies under the Central Provinces and Berar industrial Disputes Settlement Act. By another letter dated 21 July, 1959, addressed to the enquiry officer, respondent 3 requested that he should be allowed to take notes and copies of such documents as he considered important and necessary for his defence and for that purpose inspection of the documents may be given. Respondent 3 personally presented this application so that necessary orders may be urgently passed allowing respondent 3 to take notes and copies of the documents. He again reiterated his request for being allowed assistance of counsel. In a postscript added to this application respondent 3 requested that he should be furnished with a list of witnesses who will depose on behalf of the employer and then stated that he had submitted his list of witnesses whom he would want forThis application is to be found at pp. 52 and 53 of the paperTHE enquiry officer first proceeded to dispose of these applications when the enquiry was resumed on 23 July, 1959. As regards the request of respondent 3 for being supplied with the copies of the proceedings or for permission to copy the proceedings, the enquiry officer directed that the enquiry not being before a civil Court it was not possible to accede to this request but respondent 3 may take notes while the enquiry is proceeding. As regards the copies asked for in the application dated 21 July, 1959, the enquiry officer observed that no papers had been filed by the complainant until then, that is, till the order dated 23 July, 1959 and the question of providing copies did not arise. As regards the list of witnesses to be intimated to respondent 3 the enquiry officer ruled that since in such enquiries no previous intimation of witnesses is required and since the witnesses are to be produced by the persons concerned the list of employers witnesses could not be given. Thereafter somewhat unusual procedure seems to have been followed by the enquiry officer. The enquiry officer proceeded to record the statement of the personnel officer sri Kanade. Now this statement was recorded in the form of Sri Kanade dictating the contents of the statement to a writer and the writer typing that statement. It does not appear that this statement is the oral testimony or oral statement of Sri Kanade. The statement is in the nature of a reply on behalf of theto the written statement of respondent 3 which he had filed on 19 July, 1959. After this statement was recorded as dictated by Sri Kanade; the enquiry officer put certain questions to respondent 3 regarding the charges in respect of which the enquiry was being held. With regard to the first charge as to whether he refused to work when he was asked to type certain letters by Sri Kothekar, respondent 3 replied as follows : "he wanted me to do some work, when I told him that you get permission from some officer when I can do it. "(9) IT does not appear that any question was put to respondent 3 by the enquiry officer regarding the alleged refusal or neglect of respondent 3 to do the work after 1 July, 1959 till 10 July, 1959, during which period respondent 3 had attended office though that was one of theof the charges for which the enquiry was held. Then as regards the alleged attempt to cheat the company by marking attendance in the attendance register, the enquiry officer asked respondent 3 as to why it was necessary for him to mark his attendance by signature when respondent 3 claimed that he had come to the office to claim his dues. The answer of respondent 3 was that the marking of the attendance register was just to establish that he was present in the office on those days. These are all the questions that seem to have been asked pertaining to the charges framed against respondent 3 for which the enquiry officer was making the enquiry. Then certain questions were asked by the enquiry officer to the personnel officer who represented the petitioner in the domestic enquiry. After ascertaining the rules or the provisions of law under which action is being taken or the relationship between respondent 3 and the petitioner is governed, the enquiry officer asked whether he was present at the time of the interview between respondent 3 and Seth Sunderlalji as alleged by respondent 3. The answer given by the personnel officer to this question was as follows : "on or about 22 June, Seth Sunderlalji sent for Sri Bapat and told him that there were reports that he was hard of hearing and was not capable of discharging his duties as a stenographer. He also asked him his age. Sri Bapat replied that at his age of 61 certainly he could not give work to the desired standard and admitted that defects creeping in due to age were there. Seth Sunderlalji put to him how about your voluntarily retiring by submitting your resignation and Seth Saheb paying him some money so that he may not have to face hardships immediately. "(10) THEREAFTER the personnel officer seems to have filed certain documents including two documents which purported to be statement one of Sri S. N. Kothekar dated 18 July, 1959, and another statement of Sri Kothekar, dated 22 July, 1959, and a third statement of Sri Joshi, sales accountant, dated 22 July, 1959. The list of the documents of which a copy is at p. 44 of the paper book shows that the documents were filed on 23 July, 1959, before the enquiry officer. It does not appear that the copies of the above three documents, at any time, were made available to respondent 3. Excepting putting questions to the personnel officer and respondent 3, the enquiry officer did not record statements from any other person and the enquiry was closed on 23 July, 1959. The enquiry officer submitted his report a week later on 30 July, 1959. That report is to be found at pp. 24 to 30 of the paper book. After giving a resume of the proceedings on the two dates the enquiry officer referred to the decision given by him regarding the request made by respondent 3 during enquiry either orally or in writing. In Para 3 of the report the enquiry officer has stated that respondent 3 wanted to see the copies of the documents filed by the company. He was informed that no documents except those admitted by him had been filed by the company till the day of the enquiry. There is no reference to the documents such as the statements of Sri kothekar and Sri Joshi filed by the company on the last day of the enquiry and whether any action was taken by the enquiry officer to supply respondent 3 with copies of those statements. The enquiry officer then noted the point for decision which arose as a result of the complaint and the chargesheets supplied. He has formulated the points thus :" (1) Whether it is a fact that Bapat has refused to obey the lawful and reasonable orders of his superior on 1 July 1959. (2) Whether it is a fact that Bapat has shown a callous disregard towards his duties and committed neglect of work. (3) Whether Bapat, in spite of having come to the office and having signed the attendance register, did not work and thus tried to cheat the company. "(11) HE has also put in issue the question whether the services of respondent 3 have been really terminated by Seth Sunderlalji and Seth Jamnadasji. The enquiry officer found respondent 3 guilty of all the three charges enumerated above. With regard to charge 1, namely, alleged refusal of respondent 3 to obey the orders of Sri Kothekar, the enquiry officer observed as follows :"bapat however contends that he acted that way because he gathered an impression that his services were no more required as per talk he had with Sri S. N. Daga. With all that impression I do not think that Bapat was justified in refusing to carry out the orders given by Sri Kothekar when there was no documentary evidence in the hands of Bapat to indicate that his services are not required by the company. "(12) SIMILARLY, with regard to charge 2, regarding disregard of duty while attending office, the enquiry officer held that it was the duty of respondent 3, to work in office till such documentary authority about his retirement was received by him. As regards charge 3, namely, the attempt to cheat by marking attendance on the attendance register, the enquiry officer took the view that the conduct of respondent 3 in applying for leave for one day or for sick leave for three days is inconsistent with the conduct of a man who was under the impression that he was retired or discharged from service. The enquiry officer has also observed that the provisions of the industrial Disputes Act, 1947, governed the relations between theand its employees like respondent 3, and that the Central Provinces and Berar Shops and Establishments act, 1947, is not the statute which governed the relations between the employer and the employee, like respondent 3, in the matter of holding enquiries for disciplinary action. He ultimately found respondent 3 guilty of gross negligence of work, callous disregard for his services and of having attempted to cheat the company and also of having made allegations against the company though this last accusation was not theof any charges. The enquiry officer however recommended that respondent 3 may be dismissed under S. 23 (1) of the central Provinces and Berar Shops and Establishments Act with effect from 1 AugustIT does not appear from the record that this report of the enquiry officer was communicated to or made available to respondent 3. Thethrough its managing director however passed an order on 31 July, 1959, dismissing respondent 3 under S. 23 (1) of the Shops and Establishments Act and that order is to be found at p. 70 of the paper book. It is stated in the order after referring to the chargesheet furnished as follows :". . . the charges levelled against you of refusal to obey the lawful and reasonable orders of the superior, gross neglect of work, callous disregard for services, attempt to cheat the company and making false allegations against the company are proved and the enquiry officer has recommended the punishment of dismissal to you. As a result, under S. 23 (1) of the Shops and establishments Act applicable to the company, you are dismissed from the service with effect from 1 August, 1959 with one months wages. "(14) IT is necessary to state here one event which took place during the pendency of the enquiry, namely, an application filed by respondent 3 before the Assistant Commissioner of Labour under s. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. A copy of this application is filed on record by the petitioner and is to be found at pp. 15 to 20 of the paper book. The application was registered as Industrial Application No. 146 of 1959. In Para. 3 of the application it is stated by respondent 3 that on 22 June, 1959, Seth Sunderlal Daga sent for the applicant and terminated his services on the ground that the applicant was aged 61. The applicant complained that the termination of services in this manner was contrary to law and the provisions of the Industrial Disputes Act, 1947, S. 25f, and also contrary to the provisions of the central Provinces and Berar Industrial Disputes Settlement Act, 1947. The relief claimed in this application was that respondent 3 should be paid compensation by way of retrenchment compensation and also compensation for illegal dismissal or removal. While this application was pending before the Assistant Commissioner of Labour, respondent 3 filed another application which is theof the present proceedings on 19 August, 1959. That application challenged the order of dismissal passed against respondent 3 on 31 July, 1959. It was registered as Industrial Application No. 168 of 1959 and for some time both these applications were simultaneously pending before respondent 2. The application filed on 22 July, 1959 (Application no. 146 of 1959) however was dismissed by respondent 2 on 3 October, 1959. While dismissing this application, respondent 2 observed that the enquiry which is necessary to be made on the basis of the second application (Industrial Application No. 168 of 1959) will certainly afford an opportunity to respondent 3 to state the full case taking also into consideration the earlier alleged oral dismissal and the effects thereof. As none of his rights under the act are likely to be curtailed in case the earlier application is dismissed, that application was ordered to be dismissed on the ground that it was not prosecuted. It is not disputed that no enquiry was held on that application. It appears, however, that the documents filed in the proceedings started on that application were treated as documents filed along with the other documents in the proceedings commenced on foot of subsequentTHE application which has given rise to the present petition is to be found at pp. 71 to 75 of the paper book challenging the order of dismissal on seven grounds enumerated in Para. 9 of the application. Among other grounds urged in support of the claim, respondent 3 complained that the witnesses required by him were not called to submit tothat he was not supplied with the findings of fact and was never given any real opportunity to defend himself, that he was not allowed the inspection of the documents on record, that he was not given sufficient time to copy the documents so as to enable him to take assistance of counsel to coach him forthe witnesses called by him forHe also made a specific complaint that the witnesses who could possibly depose to the truth of the allegations against him were never called by the enquiry officer. He, therefore, claimed that his dismissal from service was illegal within the meaning of S. 16 (3) of the Central Provinces and Berar industrial Disputes Settlement Act and claimed the relief of reinstatement and compensation payable under theny filed a detailed written statement opposing the application. It denied the allegations of fact stated in respondent 3s petition regarding the interview between Seth sunderlal and respondent 3 on 22 June, 1959, and what happened thereat. It reiterated that the findings of the enquiry officer were correct and that respondent 3 was found guilty by the domestic tribunal of all the charges levelled against him. It further contended that apart from adequate and reasonable opportunity being given to respondent 3, action taken against respondent 3 was also justified and offered to prove that the action was justified by leading evidence before the Assistant Commissioner of Labour. Besides these contentions based on facts, the petitioner raised two more legal contentions, viz. , that the application under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act was misconceived in as much as respondent 3 was not governed by the provisions of the Central Provinces and Berar industrial Disputes Settlement Act, because thewhich is merely a head office of mining undertaking was excluded from the application of the provisions of the Central provinces and Berar Industrial Disputes Settlement Act and that the head office being registered as a shop was a commercial establishment under the Central Provinces and Berar Shops and establishments Act, 1947, the relations between the petitioner and its employees were exclusively governed by he provisions of the Shops and Establishments act and the action taken against respondent 3 was fully within the powers under the Shops and Establishments Act and that there was no question of respondent 3 making any grievance against the order passed against him. As a branch of this argument, it also contended that thehaving been governed by the Shops and Establishments Act was by necessary implication excluded from the operation of either the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, or the Industrial Disputes Act, 1947, passed by the State or Dominion legislaturesny examined the personnel officer, the enquiry officer, two other of its employees and Seth Sunderlal, the junior partner of the company, before the Assistant commissioner of Labour. Respondent 3 also went into theon his own behalf. The assistant Commissioner of Labour has allowed the application filed by respondent 3 holding that the enquiry was not proper and was vitiated by violation of the principles of natural justice. He has also come to the conclusion that the enquiry was not bona fide and that the framing of the charges was merely a pretext availed of by theto avoid the liability for the payment of compensation if respondent 3 were to be discharged because of superannuation. He also held that the provisions of the Industrial Disputes Settlement Act, 1947, passed by the State legislature applied to the company and governed the relationship between the company and respondent 3 and respondent 3 was, therefore, entitled to file the application under S. 16 of the central Provinces and Berar Industrial Disputes Settlement Act for a relief under the Act. He negatived the contention of the petitioner that the provisions of the Shops and Establishments act applied and the action taken thereunder furnished any immunity to the company at the hands of respondent 3 even if his case was governed by the provisions of the State Industrial Disputes act. On these findings, the Assistant Commissioner of Labour granted compensation to respondent 3 but refused to order reinstatement inAGAINST this order, the petitioner filed a revision application under S. 16 (5) of the Central provinces and Berar Industrial Disputes Settlement Act before the State industrial court. The state industrial court has rejected the revision application substantially affirming the findings recorded by the Assistant Commissioner of Labour. The petitioner has now come up to this court invoking the jurisdiction of this Court under Arts. 226 and 227 of the Constitution of India.

Reasoning:
(20) WE propose to deal with each of the points in the same order. It is undoubtedly true that theat any rate, its head office at Nagpur, is registered under the provisions of the Central Provinces and Berar Shops and Establishments Act, 1947. Under that Act, either a commercial establishment or a shop is required to be registered as such. It was not clear during arguments whether the petitioners head office was registered as a commercial establishment or as a shop. A commercial establishment under the Shops and Establishments Act means an establishment which is not a shop but which carries on the business of advertising, commission agency, forwarding or commercial agency, or which is a clerical department of a factory or of any industrial or commercial undertaking, or which is an insurance company,company, bank brokers office, exchange, or such other class of establishment as the Provincial government may, by notification, declare to be a commercial establishment for the purpose of this Act. Shop, on the other hand, is defined as any premises where goods are sold either by retail or wholesale or both or where services are rendered to customers, and includes offices,godowns or warehouses, whether in the same premises or otherwise, used in connexion with such trade or business but does not include a restaurant, anor a commercial establishment, or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act. It does not appear that any goods are sold in the head office as such though orders may have been received for the supply of coal and in that sense the business of selling or supplying coal products from the mines owned by themay be carried on. Perhaps the business done by the head office is more consistent with its description as commercial agency or more appropriately a clerical department of any industrial or commercial undertaking. The petitioner has itself averred that it owned coal mines and that it did the business of raising, supplying and selling ofis not possible to accept this contention urged on behalf of the petitioner. That this is not the effect of the Shops and Establishments Act is clear while we compare the aim and object and the ambit of the legislation which is to regulate the conditions of work and employment in shops, commercial establishments, restaurants,theatres and other establishments. The Act purports to regulate relationship of employer and employee in what are called commercial employments. On the other hand, the provisions of the Industrial Disputes Act which was passed by Parliament or the Industrial Disputes Settlement Act which was passed by the State legislature covered altogether a different field and much wider area. They govern all the relations between the employer and employee in an industrial employment and in effect lay down conditions of service over and above what are determined by a contract of service between an employer and employee. Whereas the purpose of the Shops and Establishments Act is limited, the object with which the legislation such as the Industrial Disputes Act of 1947 is put on the statute book and amended from time to time clearly shows that it covers a wider field of industrial relations and is mainly for adjudication and determination of industrial and labour disputes. A perusal of the provisions of the Shops and Establishments Act shows that there is no means or machinery or forum before which a dispute by an employee who is dismissed under S. 23, even assuming that the dismissal was improper or wrong, can be taken under the Shops and Establishments Act. What S. 23 provides is a limited security against dismissal from service, except for misconduct, after one months notice or one months wages in lieu of notice. This safeguard which is provided in S. 23 is of a very limited character and no other provision of the Act can be pointed out to show that the general relations between the employer and employee and the rights and obligations of one partythe other are regulated or governed by any other provisions of this Act. On the other hand, the provisions of the State or the Central Industrial Disputes Act govern the totality of relationship between the employer and employee. When the employment is of an industrial character, it may well be that the employee who may be said to be governed by the Shops and Establishments Act also comes to be governed by the legislation regarding the industrial employment and the relationship between the employer and employee in the industrial field. Such overlapping of jurisdiction or field regarding relationship between the employer and employee when the employment partakes of both the characters, namely, commercial employment and industrial employment, is not excluded by any provisions of the Shops and establishments Act. We are, therefore, clear that the mere fact that the head office of theis registered under the Shops and Establishments Act, either as a commercial establishment or as a shop, will not exclude the application of the provisions of the Industrial disputes Act or the Central Provinces and Berar Industrial Disputes Settlement Act, if they are otherwise applicable to theWe, therefore, find it difficult to accept the contention urged on behalf of theis not disputed that the head office is a part of integrated activity of thewhich carries on the business of producing coal and its sale and supply to its various customers. The employees in the head office admittedly are liable to be sent for work at the mines, though in the office there, and vice versa, the activities of the employees in the head office are intimately connected with the activities of the company at the mines where coal is produced dressed and made marketable by some process there. The company has its own independent standing orders possibly under the Standing Orders Act, 1946, to govern the activities of its employees at the mines. It was not clear whether those standing orders have also been settled under the State Act. It is stated that those were settled under the Central Act, namely, Standing Orders Act,is thus clear that unless there is a notification by the Provincial government bringing into force all or any of the provisions of the central Provinces and Berar Industrial Disputes Settlement Act, 1947, in particular industry or in particular area, rest of the provisions will not apply to that industry. Such notification was issued by the Provincial Government of the Central Provinces and Berar on 20 November,is pointed out that whenever an objection is taken to the jurisdiction of a tribunal, it is advisable that that question should be decided by giving reasons and not merely pronounce its ruling without reasons. We find there is sufficient force in this complaint and the tribunals should be well advised to bear in mind that whenever any objection to the jurisdiction of the tribunal is raised by one party or the other and the tribunal decides that question as a preliminary issue, which is generally done, the finding as to the jurisdiction or want of it must be followed by reasons. If the tribunal finds it has that Jurisdiction, it will proceed with the matter. On the other hand, if it has no jurisdiction, it is always open to the party against whom the decision is given to challenge the finding by appropriate proceedings in higher tribunal. Even though the Assistant Commissioner of Labour ruled on 26 March, 1960, that he had jurisdiction under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement act, reasons were available only as an annexure to the final order passed by the Assistant commissioner of Labour on 16 August,the ambit of exclusion of an industry of mines does not include a mining industry as a whole, according to Sri Thakur, the distinction will be without any difference. If this contention is correct, then we have no doubt that the head office of thewhich is an integral part of the mining industry conducted by the company, and which according to the petitioner is excluded by the notification of the Provincial government from the provisions of the Central Provinces and Berar Industrial Disputes settlement act, would automatically be excluded from the operation of thisis meant is that the list does not describe as banking industry, cement industry, coal industry, etc. ; the item mentions only the product or the activity and yet all these are described as industries which are to be declared as public utilityTHE argument was that the words "industrial dispute" used in S. 2 (a) (i) necessarily take us to the definition of "industry" in S. (2) (j) and "industrial dispute" takes us to the definition of "workman" and the definition of "workman" brings us to the definition of "industry" in S. 2 (j). Therefore, in construing the clause "an industrial dispute concerning a mine" in S. 2 (a) (i) one cannot avoid bringing in the wide definition of "industry" in S. 2 (j) and in the light of the said definition, a mine means the industry of mining and that would include the head office which exercises general supervision over the mining operations of a company thought it may be situated far away from the place where the said operations areour opinion, the interpretation that is put on S. 2 (a) (i) of the Central act in the decision of the Supreme Court must guide the interpretation to be put on the item "mines" in the notification issued by the Provincial Government under S. 1 (3) of the Central provinces and Berar Industrial Disputes Settlement Act. It must, therefore, be held that what is excluded from the operation of the provisions of the Act are no doubt operations connected with an industry but those operations only which are connected with the industry of mining or operations in the mine or excavation in the mine and not other operations or activities which govern a much larger area if the item were "mining industry" as aWE are, therefore, asked by the learned counsel for the respondent to hold that, in view of the notification of the Provincial Government excluding not the mining industry but only the industry in mines; it is not possible to construe the notification as excluding the head office which is connected with the mining industry of theand, therefore, must be held as an employment in the industry governed by the Act. It has also to be observed that the notification applied to all the industries except four which are excluded in the items given in the notification. Thus all the activities in the mining industry of the petitioner including the head office, which is an integral part of the industry, are within the Act but the activities in the mine or actual mining operations are alone excluded from the provisions of the Act.It has been noticed in several decisions of this Court and other Courts that the word "industry", either in the State Act or in the Central Act, is very wide and it includes any business, trade, manufacturing or mining undertaking or calling of employers, or any calling, service employment, handicraft or industrial occupation or avocation of employees, and any branch of an industry or a group ofwould have been considerable force in this submission were it not for the fact that the head office is not an isolated office of theThe work done in the head office is an integral part of the business carried on by thewhich has undertaken mining as its business. Now, the undertaking, or the work of producing coal or winning coal, putting it in market for sale and supply to the customers is obviously an industry within the meaning of S. 2 (14) of the Central provinces and Berar Industrial Disputes Settlement Act. The work done by the employees, in the head office of such an undertaking, is a part and parcel of the industrial activity carried on by theIn fact, the petitioner has not disputed that the work done in the head office is intimately connected with its mining undertaking in as much as it books orders for supply of coal, distributes orders and sees that the orders are complied with by the despatch of goods from its coal mines. If that be the case and the nature of the activity carried on at the head office, it cannot be disputed that respondent 3 and other employees are engaged in an industry. We, therefore, hold that respondent 3 must be considered to be an employee engaged in an industry carried on by theand the mere fact that respondent 3 is employed in the head office will not avail the petitioner to contend that it is not governed by the provisions of the central Provinces and Berar Industrial Disputes Settlementlong, therefore, as the action taken against respondent 3 is not in contravention of the provisions of the Act or in contravention of the standing order framed under the Act, it cannot be said that S. 16 (3) is violated by the petitioner. It is an admitted position that there are no standing orders framed governing the employment of personnel in the head office of theTherefore, no question of violation of the standing orders or the action being contrary to the standing orders would arise. To that extent the observations of the Assistant labour Commissioner in Para. 20 of the order are not tenable in view of the decisions of theled that every termination of service is not retrenchment unless retrenchment is made because the employer considers the labour force to be surplus and the retrenchment is brought about to reduce the quantum of labourit is difficult to accept this contention. The Shops and establishments Act does not provide for the manner in which an order of dismissal may be brought about in respect of an employee whose conditions of service are governed by the industrial Disputes Act, 1947. Even though a dismissal may be justified, it has to be brought about by the process known to law or the conditions of service by which the parties are governed. It is not possible to accept the interpretation put on S. 23 of the Shops and establishments Act by the learned counsel for the petitioner if the contention is that there can be dismissal contrary to conditions of service provided only one months notice or one months wages in lieu thereof is given. The first condition that has to be satisfied is that the dismissal has to be according to law. For the dismissal to be according to law, the law to which reference need be made is the law by which the relations between the employer and the employee are governed in a given case and that law in this case is the Industrial Disputes Act, 1947. It is nowthat even if an employer is entitled to dismiss an employee for misconduct, it has to be preceded by a proper enquiry and the manner of conducting that enquiry must not disregard the accepted principles of natural justice. That this is a sine qua non of taking action of dismissal against an employee is nowand reference need only be made to a few decisions.Under the circumstances it was held that the enquiry which resulted in the dismissal of the employee was violative of theprinciples of natural justice and must be quashed. We, therefore, hold that the action taken by the petitioner in dismissing respondent 3 will still have to satisfy the condition of a fair and impartial enquiry in which adequate opportunity has been given to the employee concerned before the action of dismissal or termination of his services for misconduct is taken and if that condition is not satisfied, then it cannot be said that the action taken is still within the Act to which no challenge can be made by respondent 3 under S. 16 of the Central Provinces and Berar Industrial Disputes SettlementTHE petitioner has also disputed that the principles of natural justice as found by the two authorities below were not violated or at any rate they are substantially complied with. The complaint in this regard by respondent 3 was that he was not given a copy of the report made by the enquiry officer before action of dismissal was taken against him and that he was not allowed an opportunity to examine the witnesses. It is urged with reference to this complaint that respondent 3 himself admitted before the Assistant Commissioner of Labour that he had no witnesses of his own to examine; that he did not put any questions into Sri kanade; that he was offered inspection of documents produced at the enquiry; that the enquiry officer had asked him to take notes and not to make copies of the documents; that he did not take notes; that he had not himself submitted a list of documents to be submitted or produced at the enquiry. In view of these admissions at p. 147 of the paper book it is urged that the complaint made in Para. 9 of the application before the Assistant Commissioner of Labour was really unfounded.(39) IT is not seriously disputed now that a copy of the enquiry officers findings was not furnished to respondent 3, though it was suggested in the written statement before the Assistant commissioner of Labour that such a copy was supplied. We have, therefore, to see whether the petitioner has established that it had sufficiently complied with the principles of natural justice in the conduct of the enquiry and in taking action of dismissal against respondent 3. The gravamen of the charge against respondent 3 was, firstly, that he had disobeyed the lawful order given by sri Kothekar on 1 July, 1959, to take some dictation or type some documents, secondly, that he refused to work and neglected his duty between 1 July, 1959 and 10 July, 1959, though he attended the office, and thirdly, that his deliberate marking of the attendance register was with a view to claim salary for those days though he did not work and this was in effect an attempt to cheat theThe defence of respondent 3 was that he had no doubt told Sri kothekar that he could not work or take dictation unless the officer of the company had asked him, because he was told by the junior partner as far back as 22 June, 1959, that his services were no longer required. Respondent 3 has categorically stated that nobody asked him to work after 1 July, 1959. The defence regarding the third charge is that, far from having any idea of claiming wages without work and, therefore, attempting to cheat the company, the sole purpose with which he had marked the attendance register was that his presence should be noticed, so that if his claims were to be settled, the authority may know that he was present in office and that he was not claiming anything by way of salary or wages for that period. We should have thought, as was rightly observed by the Assistant Commissioner of Labour, that the complainant in the case in respect of the first charge was Sri Kothekar. Similarly, the best person to refuse the statement of respondent 3, that he had reasonable ground to feel that his services were terminated by the talk between Sri Sunderlal and himself on 22 June, 1959, would be Sri Sunderlal himself. By a curious process of reasoning therest content with having Sri Kanade, personnel officer, make a statement or dictate a statement and answered some queries by the enquiry officer to prove the allegations in the charges issued to respondent 3. When respondent 3 was disputing that he had disobeyed his order and was contenting that he was given to understand that his services were dispensed with effect from 1 July, 1959, it is difficult to see how the company expected to establish the charge without examining Sri Kothekar or Sri sunderlal, junior partner. Apart from this lacuna in substantiating the charge on the principal count, respondent 3 had expressly stated in his written statement, dated 19 July, 1959, that he wanted certain witnesses whose names were given in the list to beIt is undoubtedly true that all these persons were either employers or their employees and none of them could be produced by respondent 3. Yet the enquiry officer took the view that there was no question of summoning any witnesses and he has justified this action on his view that the manner in which the list was headed as the list of witnesses given under protest made the whole prayer ridiculous. It would appear to be the view of the enquiry officer that such procedure was unknown and, therefore, respondent 3 was not entitled to have anybody produced forHere again we fail to see how the least that could be done to ensure fairness in the enquiry by the enquiry officer, namely, by producing before him Sri Kothekar or the junior partner, for being questioned by respondent 3 to elicit answers, was not appreciated by the enquiry officer. Respondent 3 has been denied this opportunity which he could avail to show that he had never any intention of disobeying Sri Kothekar, that if he declined to work it was under the bona fide impression that his services were terminated and also to show that his talk with Sri sunderlal was such as to lead to an inference that respondent 3s services were no longer required after 1 July, 1959. Such admissions as have been made by Sri Kanade in reply to the questions themselves show that a talk did take place between the junior partner and respondent 3 and if that talk related to respondent 3s voluntary resigning subject of course to some compensation which was accepted by respondent 3, it is not possible to hold that respondent 3 was labouring under any hallucination that his services were terminated with effect from 1 July, 1959. In this connexion it is contended that in his application before the State industrial court respondent 3 had stated that his services were terminated from 22 June, 1959. It is not possible to read this meaning in the statement. In that application respondent 3 has nowhere stated that he considered that his services were terminated with effect from 22 June, 1959. In fact his conduct in continuing in service and doing the work till 30 June, 1959, must necessarily show that the impression which respondent 3 carried was that his services were to be terminated from 1 July, 1959, as a result of the talk with the junior partner on 22 June, 1959. We have not been shown any statement of respondent 3 anywhere that he considered that his services were terminated with effect from 22 June, 1959. Similarly, with respect to the second charge, there is no evidence whatever to show that respondent 3 was in fact given any work and that he refused to do that work, and yet the enquiry officer came to the conclusion that respondent 3 was guilty of that charge also. Similarly, with respect to the third charge, it is difficult to see how respondent 3 could be charged with any criminal intent to deceive the company merely because respondent 3 made entries about his presence in the attendance register. It seems to us that thewas persuaded to take this view of the act of respondent 3 in marking his presence because of certain impressions of the personnel officer. The personnel officer has stated that in his opinion under the provisions of the Shops and Establishments Act the moment the employees make entries in the register the employer is compelled under the law to pay their wages. We asked the learned counsel to show any provision of the Act or any other law which creates such a legal obligation to pay an employee even though no work is down merely because he has made his signature in the attendance register. In this aspect of the matter, in our opinion, the finding of the two authorities below, that far from there being any criminal intent on the part of respondent 3 to claim wages and cheat the company, the object of respondent 3 may only be to show that he was physically present in the office so that if the employer intended to square up the matter regarding compensation which he expected may be settled, cannot be challenged. In this connexion reference may also be usefully made to the statements which respondent 3 submitted on 30 June, 1959, to the junior partner and another on 10 July, 1959, to the managing director claiming certain amount of compensation payable to him. In making such a claim he has not claimed anything after 1 July, 1959 and he has calculated the wages paid up to 30 June, 1959. It is also established on record that respondent 3 was working in the office till 30 June, 1959. In view of these circumstance and facts patent on record, it is difficult to see how the enquiry officer could have come to the conclusion that respondent 3 was entertaining criminal intent to cheat the company in making entries about his presence in the attendance register. We, therefore, hold agreeing with the two authorities below that the manner in which the enquiry was conducted has clearly violated theand by now universally recognized principles of natural justice. We fail to see why respondent 3 should not have been given a copy of the findings of the enquiry officer before the drastic action of dismissal was taken by the employer in this case. We may also mention that the enquiry officer was persuaded to accept on record the statements alleged to be prepared one by Sri Kothekar and another by Sri Joshi. Copies of these statements were not made available to respondent 3 as they mere filed on the last date of the enquiry, i. e. , on 23 July, 1959. Use has been made of these statements by the enquiry officer in coming to the conclusion that Sri Kothekar did issue a lawful order which was disobeyed by respondentonce the petitioner takes the position that there may be defects in the enquiry and leaves it to the tribunal to adjudge the validity of its action, the jurisdiction of the industrial tribunal at once enlarges and the tribunal also constitutes itself into a tribunal to adjudge, as a tribunal of fact, whether there was enough material and justification for the action taken against a particular employee. That there is such power in the industrial tribunal is now authoritatively decided by the pronouncement of the supreme Court to which reference may beREFERENCE in the above case to the decision of Indian Iron and Steel Company case [1958I l. L. J. 260 (S. C.)] (vide supra) is also opposite in the instantIN the instant case, therefore, the jurisdiction of the industrial authorities could not be seriously disputed in view of their finding that the domestic enquiry was vitiated by violation of the principles of natural justice and a further finding of the Assistant Commissioner of Labour that the circumstances in which thenotice came to be issued was not a bona fide action on the part of the petitioner. If the industrial tribunals have come to this decision, we have no reason to feel that the decision regarding violation of the principles of natural justice is in any way erroneous. The ambit of enquiry is certainly then extended. It is then that the petitioner invited the tribunal to adjudicate on the validity or otherwise of the action actually taken by the employer. If the action is then judged on merits and the industrial tribunal came to the conclusions that the action was not justified, in our opinion, the jurisdiction of the industrial tribunal to come to such a conclusion cannot be challenged in view of the pronouncement of the supreme Court already quoted. Now, in the instant case it has been found that there was no occasion for issuance of a lawful order and respondent 3 disobeying it because respondent 3 was genuinely under the impression that his services were terminated as a result of the talk with the junior partner on 22 June, 1959. There was no occasion for disobeying the order after 1 July, 1959 till 10 July, 1959, because nobody gave him work. A stenographer cannot work unless work is entrusted to him such as dictation or typing. The third charge levelled, i. e. , an attempt to cheat the company which, as we have shown above, could not possibly be levelled when respondent 3 had disclaimed and right to wages or salary for the period from 1 July, 1959 to 10 July, 1959, when he had marked his attendance. Marking of attendance also showed that respondent 3 wanted to attend the office and be present in case the employers decided to settle the matter regarding compensation. The fact that he had applied for leave of absence for sickness or for some other work does not negative his contention that he considered himself as no longer on duty because of the talk between him and the junior partner. Even assuming that the impression was erroneous, it is insufficient to charge responded 3 with any criminal intent or with deliberate act of violation of his duty or disobeying of a lawful order. We, therefore, do not see how the findings of the tribunal on merits also can be challenged by the petitioner in the instant case. They are findings of fact and if the tribunals have come to those findings in legitimate exercise of powers, the jurisdiction of this Court cannot be invoked in challenging those findings because a different view may possibly be taken. Even assuming that there is scope for a difference of opening as to the view to be taken about the action taken, this is not the forum in which the petitioner can agitate the findings of the two industrial tribunals. We, therefore, hold that the industrial courts below cannot be said to have exceeded their jurisdiction in coming to the conclusion that there was no justification for the petitioner to pass the order dated 31 July, 1939, dismissing respondent 3 from service for the alleged misconduct attributed to him.(45) IN view of these conclusions there is no scope for interference with the orders of the two authorities below. The Assistant Commissioner of Labour, instead of ordering reinstatement, has only directed compensation to be paid to respondent 3. No arguments were addressed as to the quantum of compensation or the basis on which it was to be paid.