JUDGMENT - J. R. MUDHOLKAR J. :

This is a petition under Articles 226 and 227 of the Constitution and is directed against the order of the State Industrial Court, Nagpur, which confirmed the order of the Assistant Labour Commissioner, Nagpur, refusing to order re-instatement of the petitioner.

(2) It is common ground that the petitioner was employed as a Fitter with R. S. Rekchand Mohota Mills, Hinganghat, and was removed from service as from 19-10-1954 after having been offered one months salary in lieu of notice.

(3) The petitioners contention before the two Tribunals below was and still is that the action taken against him was, in fact, one of dismissal and that as he was not given an opportunity to show cause against his dismissal that dismissal was erroneous. It is pointed out on his behalf that under Standing Order 25 in cases of this type opportunity has to be given to the employee before his dismissal from service.

(4) On behalf of the respondent No. 3 R. S. Rekchand Mohota Mills, it was contended that the action taken was under Standing Order 23 which did not require any opportunity to be given to the petitioner to show cause against the termination of his service. This contention of the respondent No. 3 was negatived by both the Tribunals below and they held that the petitioner was wrongfully dismissed from service.

(5) Both the Tribunals however only awarded compensation to the extent of Rs. 500/- to the petitioner. It is contended on his behalf by Shri Sathe that under S. 16 of the C. P. and Berar Industrial Disputes Settlement Act, 1947, the Labour Commissioner was bound to order reinstatement and that his refusal to do so was erroneous in law. It is further contended on behalf of the petitioner that even assuming that the Labour Commissioner had discretion in the matter that discretion was not judicially exercised by him in this case. He also contends that the State Industrial Court was likewise in error in holding that the petitioner was not entitled to reinstatement in this case and that compensation was an adequate relief.

(6) We shall first deal with the contention of this respondent No. 3 to the effect that the removal from service of the petitioner was under Standing Order 23. that this cannot be regarded as a case of wrongful dismissal at all and that therefore the petitioner was not entitled to any relief whatsoever.

(7) We may point out that upon the argument advanced on behalf of the respondent No. 3, the petitioner would be disentitled even to the compensation. But the order made in his favour awarding compensation was not challenged by the respondent No. 3 before the State Industrial Court or even before this Court. Shri Sathe contends that in view of this circumstance it is no longer open to the respondent No. 3 to say that the termination of the petitioners service was not a case of wrongful dismissal. In our opinion, there is no force in this contention. It is true that the petitioner was awarded the relief of compensation on the basis that the termination of his service amounted to a wrongful dismissal. But even though the respondent No. 3 does not challenge the award of the relief of compensation to the petitioner, it is still open to him to say that the other relief, i.e., that of reinstatement should not be granted because in point of fact the petitioner has not been wrongfully dismissed. The respondent No. 3 is not barred from raising the ground merely because upon that ground he could also have challenged the grant of compensation to the petitioner, but has not so challenged it.

(8) Be that as it may, we are of opinion that the respondent No. 3 is not entitled to rely upon Standing Order 23, because that Order must now be deemed to be subject to the provisions of Chap. V-A of the Industrial Disputes Act, 1947. This is specifically provided for by S. 25J which occurs in that Chapter. Section 25F of that Act provides that no workman employed in any industry who has been in continuous service for not le

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