Mill Manager, Savatram Ramprasad Mills vs Industrial Court, Nagpur & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1986 Supreme(Bom) 312

IN THE HIGH COURT OF BOMBAY
(NAGAPUR BENCH)
M.M. Quazi A.A. Desai, JJ.
Mill Manager, Savatram Ramprasad Mills.... Appellant.
Versus
Industrial Court, Nagpur another.... Respondents.
Letters Patent Appeal No. 91 of 1983, decided on 25-11-1986.
Advocates appeared :
K.H. Deshpande V.C. Daga, for appellant.
S.D. Thakur, for respondent No. 2.

Headnote:Section 28(a)-Termination of services of employee-Validity of--Principles of natural justice -Standing orders are Mandatory and the same were since not complied with, would amount to breach of the principles of natural justice.
       It is to enable the vast number of tenants who were dispossessed before the tillers day otherwise than in accordance with the provisions of the Act, to recover the possessions of their lands, While enabling such tenants to recover the possession of their lands the legislature had also to safeguard the interests of third parties who were bona-fide absolute transferees from the landlords and who in the meanwhile might also have invested their resources of the land. Hence the legislature has excepted from the provisions to improve the sub-section only the cases of absolute transfers, but has brought within its purview all other cases where the transfers have not divested the landlord either of actual or constructive possession. The expression and the land is in the possession of the landlord or his successor-in-interest.
       used in the sub-section has to be read in the context of this objective - The word "possession" used there therefore, must mean not only actual possession but also constructive possession. So long as the ownership of the land continues with the landlord, the possession of the land for the purposes of the sub-section, in his. For, he has undoubtedly the present right to claim possession and he can recover it if the stipulated conditions are satisfied. So long, therefore, the right to claim possession remains with the landlord, it has to beheld that he, is in possession of the land within the meaning of the sub-section.
       To canvass the contrary view heavy reliance is placed on the Explanation which defines the expression "successor-in-interest, and it is argued that the specific meaning given to the expression must be deemed to exclude all transferees under the transfers by the act of parties. Looking at the object of the sub-section, it is clear that the Explanation to Section 32(18) is added to provide an inclusive definition of "landlord" and not an exclusive definition of "transferee" from the landlord. The purpose of the definition is not to define "transferee" but to define "landlord. To hold otherwise would mean that what is intended to widen the definition of "landlord" should he construed to restrict it. It will he a case of tail wagging the dog.
       In the instant case, admittedly, the landlord was never out of possession of the land. He has always been in actual possession of it. The simultaneous transactions of mortgage and lease are nothing hut a device to hide the real nature of the transaction to circumvent the restrictions imposed by the Act. The mortgage loan is to be paid by annual instalments of Rs. 325-92 Ps. each which includes the principal amount of the loan and the interest accruing thereon annually. The alleged lease carries annual rent in the same amount and the lease is to expire on the repayment of the instalments. It is, therefore, obvious that the loan is granted against the security of the land the device of the mortgage and the lease is resorted to secure the repayment of the loan.

JUDGMENT - M.M. QUAZI, J.:---The present Letters Patent Appeal arises out of the order passed by the learned Single Judge dismissing the writ petition filed by the appellant.

2. The respondent No. 2 was an employee of the appellant. His services came to be terminated vide notice dated 27-7-1980, on the ground that the demanded and accepted bribe of Rs. 20/- from another employee in order to grant him leave. He, therefore, filed a complaint under section 28(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act') contending that the dismissal was in utter disregard to the principles of natural justice, inasmuch as while inflicting the punishment of dismissal his past unblemished service record was not taken into consideration. According to him, he had put in 30 years service and had earned good testimonials from the Department. According to him, the order was in contravention of the mandatory requirement of the Standing Order No. 25(6), which reads thus :

"25(6). In awarding punishment under this standing order, the Manager shall take into account the gravity of misconduct, the previous record, if any of the clerk and any other extenuating or aggravating circumstances that may exist."

The Labour Court vide order dated 29-7-1981 recorded a finding that the domestic enquiry was legal, proper and as per the principles of natural justice. After having recorded this preliminary finding, the Labour Court proceeded to consider the quantum of punishment and accordingly gave further opportunity to the delinquent to show cause in the matter of punishment. The Labour Court ultimately vide order dated 30-7-1981 recorded a finding that the sentence of dismissal was legal and proper, particularly in view of the fact that the delinquent was found to have accepted the bribe of Rs. 20/- from another employee.

3. This order was challenged by way of revision before the industrial Court at Nagpur. The Industrial Court allowed the revision and quashed the order of dismissal and directed reinstatement with full back wages. The Industrial Court allowed the revision essentially on the ground that the order of dismissal was passed without complying with Standing Order 25(6). This order was challenged by the Management by way of writ petition before the High Court. The matter came up for hearing before the learned Single Judge, who dismissed the writ petition and confirmed the order of the Industrial Court, and hence the present Letters Patent Appeal.

4. Mr. Deshpande urged the following points for our consideration, viz. (1) the past service record is relevant only when it has any bearing on the punishment to be imposed; (2) Non-consideration of past service record is inferred merely from the fact of omission of it from the order of dismissal, (3) the past service record will come up for consideration when the Labour Court finds that the punishment imposed is disproportionate, (4) without considering the proportionate or disproportionate nature of the punishment it could not be said that the order of dismissal was bad, (5) the Labour Court should have given an opportunity to the Management to find out whether the punishment of dismissal was proper in view of the past record. Mr. Deshpande vehemently submitted that the courts below have drawn an inference that the Management did not taken into consideration the past service record of the delinquent merely because the same has not been referred to in the termination order. In other words, he suggested that the past service record of the delinquent was taken into consideration even though it has not been so referred to in the dismissal order. It is difficult to accept this contention. We have gone through the complaint as well as the written statement filed by the Management. In the complaint it has been specifically asserted by the delinquent that the Management did not take into consideration his past unblemished service re

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