Associated Cement Companies LTD. : Rama Shanker vs T. C. Shrivastava

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1984 Supreme(SC) 99

SUPREME COURT OF INDIA
V.D. TULZAPURKAR AND R.S. PATHAK, JJ.
Associated Cement Companies Ltd., Appellant
Versus
T.C. Shrivastava and others, Respondents.
Civil Appeals Nos. 209 of 1973 and 1140 of 1974
Decided on 29-3-1984.
AND
Rama Shanker and others, Appellants
Versus
T.C. Shrivastva and another, Respondents.
Advocates appeared

Mr. F. N. Kaka, Sr. Advocate, Mr. D. N. Misra, Advocate with him for Appellants in C. A. No. 209 of 1973 and for Respondents No. 2 in C. A. No. 1140 of 1974; Mr. M. K. Ramamurthy, Sr. Advocate, Mr. Vineet Kumar and Mr. Naresh K. Sharma, Advocate with him for Respondents Nos. 2 and 4 in C. A. No. 209 of 1973 and for Appellant in C. A. No. 1140 of 1974.
* (1) Misc. Petn. No. 129 of 1970, D/- 27-7-1972 (M. P.).
(2) Misc. Case No. 365 of 1970, D/- 27-7-1972 (M. P.).

Advocates:
D.N.Mishra, F.N.KAKA, M.K.RAMAMURTHY, NARESH K.SHARMA, VINIT KUMAR

Headnote:(1) Industrial Employment (Standing Orders) Act, 1946 -- S. 5 -- Standing Order of Associated Cement Co. Ltd. (Certified) -- No. 17 -- Para 3 -- second opportunity to show cause not contemplated -- no opportunity to contest punishment need be given.
       (2) Standing Order of Associated Cement Co. Ltd. (Certified) -- No. 17 -- Para 3 -- interpretation of -- second opportunity to show cause is not contemplated -- punishment proposed need not be intimated.
       (3) Natural Justice -- rules of -- opportunity to show cause -- second opportunity not contemplated unless especially provided.
       It is clear that neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary. This, of course, does not mean that a Standing Order may not provide for it but unless the Standing Order provided for it either expressly or by necessary implication no inquiry which is otherwise fair and valid will be vitiated by non-affording of such second opportunity. The question is whether Para 3 of the Standing Order No. 17 provides for such second opportunity being given to the delinquent? The relevant words are "all dismissal orders shall be passed by the Manager...............after giving the accused an opportunity to offer any explanation". The words (italicized) here are wholly inappropriate to convey the idea of a second hearing or opportunity on the question of punishment but appropriate in the context of seeking an explanation in regard to the alleged misconduct charged against him. An 'explanation' is to be called from the "accused" which suggests that the same is to be called for prior to the recording of a finding that the delinquent is guilty of misconduct; it is the alleged misconduct that is to be explained by him and not the proposed punishment. On a plain reading of the relevant words no second opportunity of showing cause against the proposed punishment is contemplated either expressly or by necessary implication. In other words, the opportunity spoken of by Para 3 of the Standing Order is the opportunity to be given to the delinquent to meet the charges framed against him.
       That being the position, it would be difficult to attribute any intention to the framers thereof to provide for a second opportunity being given to the delinquent of showing cause against the proposed punishment. The latter part of para 3 merely casts a unilateral obligation on the concerned authority or the officer to give the consideration to the gravity of the misconduct and the previous record of the delinquent in awarding the maximum punishment. (1962) 2 Lab. L. J. 772, (1969) 1 Lab. L. J. 734 and (1963) 1 Lab. L. J. 684 referred to. [Para 8

JUDGMENT

TULZAPURKAR, J. — The principal question raised for our determination in these appeals is : Whether on its proper construction the certified Standing Order 17 provides for second opportunity being given to a workman after conclusion of the enquiry into his misconduct and before inflicting on him the punishment of dismissal and if so whether the enquiry gets vitiated by not affording him such opportunity?

2. Facts giving rise to the question may be stated. The Associated Cement Companies Limited (hereinafter called the appellant) has quarries worked by its department called Kymore and Bamangaon Lime-stone Mines at Kymore, District Jabalpur, M. P. Workers employed in the said quarries have a union called Kymore Quarry Karamchari Sangh and the four concerned workmen Rama Shanker, Barmapradhan, Emmanuel and Mohd. Rauf (hereinafter called the respondents) were at the material time the office-bearers in the union.

3. In connection with the implementation of the recommendation of Second Central Wage Board for the cement industry, after serving a strike notice on the management of the appellant on 13th September; 1968, the Karamchari Sangh and all its members went on a strike for 24 hours commencing from the midnight of 19th September 1968 which was accompanied by acts of intimidation, threats, gheraoes and unlawful obstruction. According to the management before the commencement of the strike two meetings were organized by the respondents, one at 4 P. M. and the other at 11 P. M. on 19th September at which fiery speeches were made by them wherein they not only instigated the quarry workers to resort to strike but intimidated and prevented the willing workers from going to their work and threatened the supervisory staff and officers with dire consequences if they tried to work the quarries and what is more from the midnight of 19th September till 4.30 A. M. on 20th September the quarry Manager and the supervisory staff were ghearoed and at 4.30 A. M. the Agents car slopped at the gate and he was unlawfully obstructed from visiting the quarry premises. Since resorting to a strike without giving 14 days prior notice as also the aforesaid acts on the part of the respondents amounted to serious misconduct under the certified Standing Orders applicable to the quarries the Management served charge-sheets dated 3rd of October, 1968 on the respondents in which four common charges were levelled against all of them; in addition a fifth charge was levelled against two of them Emmanual and, Mohd. Rauf; and yet another 6th charge was levelled against Mohd. Rauf. The common charges were (a) themselves going on strike without 14 days prior notice, (b) inciting and instigating other workers to go on strike, (c) gheraoing the Quarry Manager and other supervisory staff between midnight and 4.30 A. M. on 20th September and inciting others to gherao the said staff and (d) forcibly and unauthorisedly occupying the area near the quarry canteen between 4 P. M. on 19th Sept. and 1 A. M. on 20th Sept. and installing and using loud speakers for inciting the workers. Shri Emmanual and Shri Rauf were further charged with threatening the gheraoed staff with dire consequences, if they moved out; and Mohd. Rauf was charged in addition for having restrained the Quarry Agent from entering the quarry premises. The respondents were called upon to submit their explanation in respect of the charges to the General Manager which they did; in their Explanations they by and large denied the charges levelled against them. A departmental enquiry was held against them by Shri H. S. Mathur during the course of which at one stage the respondents withdrew from the enquiry on 24th October, 1968 on the plea that the Quarry Agent should be examined first which was not being done, whereafter the enquiry proceeded ex parte and on a consideration of the entire evidence led before him the Enquiry Officer came to the conclusion that the first three charges were full proved and the

Click Here to Read the rest of this document

1984 Supreme(SC) 99

Cases Referred (2)