The dismissal of an employee is not an illegal change within the meaning of S. 47 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 unless it is a change in an industrial matter mentioned in Sch. II of the Act or it is not in accordance with law or as provided for in the standing orders.

JUDGMENT :

D.J. JAGANNADHA RAJU, J.

1. This judgment will dispose of two Criminal Revisions Nos. 453 and 475 of 1959. The facts involved are common and common questions of law are also involved. The facts giving rise to these two revision applications are that one Ramji, who is admittedly an employee of the bidi factory of the firm of Ramkrishna Ramnath of Kamptee at Tumsar, was dismissed on 20 October 1953. Admittedly Radhakisan (applicant in Criminal Revision No. 453 of 1959) is the proprietor of this firm and Ghasilal (applicant in Criminal Revision No. 475 of 1959) was the general manager and agent at Tumsar. After Ramji was dismissed by Ghasilal on 20 October 1953, he applied to the district industrial court, Bhandara, for a declaration that his dismissal was illegal. The district industrial court by its order dated 30 April 1956. Held the dismissal to be illegal and in appeal the State industrial court. Nagpur, confirmed this order on 28 June 1957. Ramji then gave notice to the firm of Ramkrishna Ramnath for being reinstated, but the firm replied on 15 July 1957 declining to reinstate him. Thereafter Ramit prosecuted the two applicants and also Goverdhandas for having committed an offence punishable under S. 47 of the Central Provinces and Berar Industrial Disputes Act of 1947 which will hereinafter be referred to as the Act. Goverdhandas was acquitted but the other two persons were convicted.

2. The trying magistrate hold that the prosecution evidence has sufficiently established that the complainant was removed from duty without any cause or enquiry into the matter, and that such a removal of a permanent employee amounted to an illegal change as already held by the industrial courts. After holding that an illegal change had taken place, the trying magistrate hold that both Radhakisan and Ghasilal were responsible for this illegal change. The trying magistrate thereupon convicted each of them under S. 47 of the Act and sentenced them each to pay a fine of Rs. 1,000 or in default to suffer simple imprisonment for 3 months.

3. In appeal the learned Sessions Judge held that the question whether an illegal change had taken place or not had become conclusive in view of the decision of the district industrial court and the State industrial court. He also added that even if that question can be gone into by civil or criminal court, oven then having regard to S. 51 of the Act and item 3 of Sch. II there to no doubt that the dismissal of the complainant, not being in accordance with law, would amount to an illegal change. He, therefore, confirmed the conviction of both Radhakisan and Ghasilal under S. 47 of the Act and he also confirmed their sentences.

4. Section 47 of the Act reads as follows:-

"Penalty for illegal changes:-

(1) Any employer who makes any illegal change shall, on conviction, be punishable with fine which may extend to five thousand rupees and in the case of a continuing offence with an additional fine which may extend to two hundred rupees per day for every day during which the offence continues after his last conviction for such offence.

(2) An employer who acts in contravention of a standing order settled under S. 30 shall, on conviction, be punishable with fine which may extend to one hundred rupees and in the case of a continuing contravention of such standing order, with an additional fine which may extend to twenty-five rupees per day for every day during which such contravention continues after his last conviction for such contravention."

The charge against the two applicants was that they had effected an illegal change and not that they had contravened any standing order. The charge against the two applicants and their convictions are, therefore, under S. 47(1) and not under Sub-section (2) of S. 47. This is conceded by the learned Special Government Pleader. The conviction of the two applicants, therefore, rests on the finding that they had made an illegal change. The finding in turn rests mainly on the decisi