P. N. BHAGWATI, N. G. SHELAT, J.

( 1 ) THESE petitions raise a short yet an important question relating to the extent and power of a Labour Court under sec. 78 (1) A of the Bombay Industrial Relations Act 1946 hereinafter to be referred to as the Act.

( 2 ) THE facts leading to these petitions are quite simple. Narsinhbhai Motibhai the respondent No. 2 in Special Civil Application No. 456 of 1963 was serving as a clerk and that way an employee in the Manek- Chowl and Ahmedabad Manufacturing Company Ltd. to be referred to hereinafter as the petitioner-Mills since last about 28 years. On 29-4-1960 at about 11-40 a. m. while respondent No. 2 was on his duty in the office room of the Mills the Manager of the petitioner-Mills happened to pass through that room and he found respondent No. 2 sleeping with legs stretched on the Gadi. He bad to be awakened by crying out by the Cashier working in the same office room. That led the Manager of the Mills to give him a notice Ex. 8 calling upon him to explain and show cause as to why he should not be dismissed from service on account of such gross misconduct which was subversive of discipline under Standing Order No. 22 (1) he being treated as an operator in the Mills. Simultaneously on that day a preliminary suspension order was passed whereby he was suspended for a period of four days i. e. from 29-6-60 to 2-7-60 as per Ex. 8/1 in the case. On 1-7-60 the respondent No. 2 gave his explanation Ex. 9 to the Manager of the Mills wherein he stated that he had some toothache trouble as 8 result of which he had no sleep on the previous night of 28-6-60. He had taken treatment from his doctor and that since that pain had subsided he had attended the office. He has further stated that as the pain started again he closed his eyes and since he had no sleep on the previous night he had fallen asleep and that he was sorry for the same. On that very day his statement was recorded by the Factory Manager as pet Ex. 18 in the case. After reiterating the same what he had stated in his explanation Ex. 9 he stated in response to certain questions pot to him that he was aware that it amounts to an offence if any one were to sleep during the working hours in the office and that such an act was against the rules of discipline of the Mills. with regard to the question about his having stretched his legs he had stated that he did not know whether his legs were stretched after he was asleep. He has however admitted that it was on account of his being called out by the Cashier that he woke up and that it was his mistake for which he was sorry. Besides he also admitted about his having been similarly found sleeping during the working hours of the office once before and in respect of which such a notice was given to him and that be had come to be dismissed by the petitioner-Mills and that at the recommendation of the Majoor Mahajan he was allowed to be taken back on work by the petitioner-Mills. Such a statement by him before the Factory Manager was taken to be in the nature of an admission of guilt in respect of the misconduct alleged against him and since he was once dismissed for similar offence and re-employed at the instance of the Majoor Mahajan the Factory Manager dismissed him without notice or without wages in lieu of notice. That order was passed on the same day below his statement Ex 18.

( 3 ) THEREAFTER on 15th September 1960 before filing an application before the Labour Court under sec. 71 (1) A of the Act the respondent No. 2 Narsinhbhai sent an approach notice to the Manager of the petitioner-Mills stating inter alia that he had given a proper written explanation to the show cause notice dated 29-6-1960 issued against him and that in support thereof he had shown a medical certificate. He further stated that no questions were asked and the certificate was returned. Then he has stated that the reason for the passing of an order of dismissal from service was not sufficient and that the order was arbitrary

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