Judgment

DAS GUPTA. J. : Two main questions arise in this appeal. The first is whether S. 42 (1) (g) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, prohibits an employer from taking action agaist a workman for participation in an illegal strike before it is so declared under S. 41 of the Act. The second question is whether in an application made under S. 16 (3) of the Act the Labour Commissioner has jurisdiction to decide the legality or illegality of the strike.

2. On September 21, 1956 the first respondent in this appeal, the Burhanpur Tapti Mills Ltd., served a charge- sheet on one of its employees Sulemankhan Mullaji, who is the second respondent in the appeal alleging that he had instigated workers of the Weaving Department to go on an illegal strike earlier that day. After holding an enquiry into the matter the Manager came to the conclusion that the charge had been established being of opinion that this constituted misconduct under Cl. 25 (b) of the Standing Orders. Thereafter, the Manager ordered Sulemankhan to be summarily dismissed without notice and without compensation in lieu of notice. Sulemankhan made an application against this order to the Labour Commissioner, Madhya Pradesh under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. The Labour Commissioner was of opinion that the authority to decide the legality of a strike had been entrusted by s. 41 of the Act by the legislature to the State Industrial Court. He also held that before a strike had been held by either of these authorities to be illegal the employer had no right to take any action against his workmen on his own view that a strike was illegal. The Lobour Commissioner further held that there was no legal evidence to prove the allegations against Sulemankhan and that in inflicting the punishment of dismissal the Manager had not paid due regard to sub-el. (4) of Cl. 26 of the Standing Orders. Accordingly, he ordered the reinstatement of Sulemankhan with full wages from the date of dismissal to the date of reinstatement.

3. The revision application by the first respondent proved unsuccessful. The State Industrial Court, which is the revisional authority disagreed with the Labour Court s view that the employer could not take action before a decision from the State Industrial Court or the District Industrial Court declaring the strike to be illegal had been obtained. Being however of opinion that the enquiry had not been held in accordance with the Standing Order in Cl. 26 (2) and also that in awarding the punishment the Manager had not taken into consideration the matters mentioned in the Standing Orders in Cl. 26 (4), the Industrial Court concluded that the Labour Commissioner was justified in examining the evidence for itself. It further held that the finding of fact given by the Labour Commissioner could not be challenged in revision. The final conclusion of the State Industrial Court, as already indicated, was that the order of reinstatement made by the Labour Commissioner was fully justified.

4. Against this order the employer (the first respondent) moved the High Court of Madhya Pradesh under Art. 226 of the Constitution. The High Court indicated its view that though the Labour Commissioner may not have the jurisdiction to decide the question of illegality of a strike, it may decide the question incidentally for the purposes mentioned in Section 16 of the Act if in an enquiry under S. 16 a question is raised that the dismissal was wrongful as there was no incitement of an illegal strike under Cl. 25(b) of the Standing Orders. After expressing this view the High Court, however, added the words : "That aspect of the matter need not be considered because the strike instigated here was not held to be a legal strike." The High Court was of opinion that the Industrial Court had fallen into an error in thinking that the charge sheet served on the workmen was defective. It also held that neither