# [1978] 3 S.C.R. 1044

- **Citation:** [1978] 3 S.C.R. 1044
- **Court:** Supreme Court of India
- **Decided:** 1978
- **Bench:** N;·r.;_ UNTWALIA, 0 Jaswant Singh, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1978-3-s-c-r-1044-7454
- **Pages:** 15

## Headnote

Supreme Court Rules 1966 Order.XV;_Rules 1,. 5,. SA with Articles 131, 132"
135 of Constitution of lndia~cope· of-Whether the leave of the Supreme Court
is necessary to urge- in appeal other grounds when certificate granted by a High
Court is restricted to a particular ground-Considerations required to be looked
_into by the High· Court -while granting the certificate.
Industrial Disputes Act, (14 of 1947), 1947, S. 10(1) (c)-Whether a reference for adjudication of a labour dispute by the Labour Court which is in
the prescribed proforma without striking off the appropriate words amounts to
non-application of the mind and th'erefore the reference void.
Standing Order No. 20 clause (i) and (ii) 0.nd. Stariding order. 2l(A)- as
certified under s. 5 of the Industrial Employment (Standing Orders) Act, (Act
20) 1946-Difjerence between "habitual',. and neglect of work" explainedRelief which should be granted to the workmen whose dismissal has been found
to be wrongful, mala fide or illegal, -explained.
A chargesbeet to the effect viz., .. Neglect of work in-that on 21-5-66 -you
packed approximately 1301\.f~ Embassy packets with Scissors slides whilst operating
].f/C No. 14 resulting in loss of 200 (two hundred man-hours approximately
. for opening up the packets and changing the slides, and loss of material valued
at Rs. 126/- approximately." was served upon respondent no. 3 for hfa misconduct which was followed up by a domestic enquiry \\·hich found him guilty.
Accepting the report his services ·were terminated.
On the raising of an industrial dispute it was referred for adjudication by the
Government of Bihar to the Labour Court? Patna, respondent no. 1 by a Notification dated the 6th/17th February, 1968. The Labour Court noticed "(I)
from the documents of record it is abundantly clear that the management and
Sbri Ram Krishan Pathak are not on happy terms for several years" (2) .. the
service card indicates that the service records of Shri Pathak are not neat and
clean". In view of its finding that the order of discharge was mata fide and
unreasonable in tbe sense that the workman was guilty of the charge of fault
only and not of misconduct the Labour Court made an award on November 23,
1970 ordering reinstatement of Respondent No. 3 with all his back wages from·
the date of dismissal till the date of reinstatement. The Appellant challenged
the award by filing a writ petition in the High Court which was dismissed on
July 23, 1973. At the instance of the l\.fanagement a certificate of fitness was
granted by the High Court on February 22, 1974. In the order granting the
certificate, the High Court mentioned that out of three points urged by the
appellant only one point justified the ground of certificate as that point involved
a substantial question of law of general importance needing the decision by the
Supreme Court.
Pursuant to the grant of the certificate, a petition of appeal
was filed in this Courty foilowed in the usual course by a statement of the case.
Various other points which have been argued on behalf of the management
before the labour court as also in the High Court were taken in the petition
of appeal and the statement of the case.
However no separate petition was
lodged by the appellant along with the petition of appeal in accordance with
Rule 5 of Order XV of the Supreme Court Rules 1966. The appellant restricted
his arguments only to the three following points out of the several argued -
before the High Court, viz. (a) That the reference is invalid on the very face of
it,. that it was mechanically made by the Government without the application of
mind. (b) T,bat the workman was guilty of misconduct within the meaning of
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I.T.C. LTD •• I'. PATNA LABOUR COURT
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clause (ii) of Standing Order 20 applicable to the appellant and both the Courts
below have committed errors of law on the face of the record in taking a
contrary. view.
(c) That in any view of the matter on the

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1044
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l\IANAGEMENT, OF MONGHYR FACTORY OF ITC LTD.,
.A
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. MONGHYR, BIHAR
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THE PRESIDING OFFICER, LABOUR COURT PATNA (BIHAR)
,
& 3 ORS.
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.
iuly 24, 1978
[N;·r.;_ UNTWALIA,
0
JASWANT SINGH AND R. S. PATHAK, JJ.]
Supreme Court Rules 1966 Order.XV;_Rules 1,. 5,. SA with Articles 131, 132"
135 of Constitution of lndia~cope· of-Whether the leave of the Supreme Court
is necessary to urge- in appeal other grounds when certificate granted by a High
Court is restricted to a particular ground-Considerations required to be looked
_into by the High· Court -while granting the certificate.
Industrial Disputes Act, (14 of 1947), 1947, S. 10(1) (c)-Whether a reference for adjudication of a labour dispute by the Labour Court which is in
the prescribed proforma without striking off the appropriate words amounts to
non-application of the mind and th'erefore the reference void.
Standing Order No. 20 clause (i) and (ii) 0.nd. Stariding order. 2l(A)- as
certified under s. 5 of the Industrial Employment (Standing Orders) Act, (Act
20) 1946-Difjerence between "habitual',. and neglect of work" explainedRelief which should be granted to the workmen whose dismissal has been found
to be wrongful, mala fide or illegal, -explained.
A chargesbeet to the effect viz., .. Neglect of work in-that on 21-5-66 -you
packed approximately 1301\.f~ Embassy packets with Scissors slides whilst operating
].f/C No. 14 resulting in loss of 200 (two hundred man-hours approximately
. for opening up the packets and changing the slides, and loss of material valued
at Rs. 126/- approximately." was served upon respondent no. 3 for hfa misconduct which was followed up by a domestic enquiry \\·hich found him guilty.
Accepting the report his services ·were terminated.
On the raising of an industrial dispute it was referred for adjudication by the
Government of Bihar to the Labour Court? Patna, respondent no. 1 by a Notification dated the 6th/17th February, 1968. The Labour Court noticed "(I)
from the documents of record it is abundantly clear that the management and
Sbri Ram Krishan Pathak are not on happy terms for several years" (2) .. the
service card indicates that the service records of Shri Pathak are not neat and
clean". In view of its finding that the order of discharge was mata fide and
unreasonable in tbe sense that the workman was guilty of the charge of fault
only and not of misconduct the Labour Court made an award on November 23,
1970 ordering reinstatement of Respondent No. 3 with all his back wages from·
the date of dismissal till the date of reinstatement. The Appellant challenged
the award by filing a writ petition in the High Court which was dismissed on
July 23, 1973. At the instance of the l\.fanagement a certificate of fitness was
granted by the High Court on February 22, 1974. In the order granting the
certificate, the High Court mentioned that out of three points urged by the
appellant only one point justified the ground of certificate as that point involved
a substantial question of law of general importance needing the decision by the
Supreme Court.
Pursuant to the grant of the certificate, a petition of appeal
was filed in this Courty foilowed in the usual course by a statement of the case.
Various other points which have been argued on behalf of the management
before the labour court as also in the High Court were taken in the petition
of appeal and the statement of the case.
However no separate petition was
lodged by the appellant along with the petition of appeal in accordance with
Rule 5 of Order XV of the Supreme Court Rules 1966. The appellant restricted
his arguments only to the three following points out of the several argued -
before the High Court, viz. (a) That the reference is invalid on the very face of
it,. that it was mechanically made by the Government without the application of
mind. (b) T,bat the workman was guilty of misconduct within the meaning of
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1945
clause (ii) of Standing Order 20 applicable to the appellant and both the Courts
below have committed errors of law on the face of the record in taking a
contrary. view.
(c) That in any view of the matter on the facts and in the
circumstances of the case it was not expedient, fit or proper to order reinstatement
of the concerned workman and in lieu thereof only compensation should have
been allowed.
A preliminary objection was raised on behalf of respondent no. 3 to the
effect that the appellant, having not complied with the requirement of Rule 5
of Order XV of the Supreme Court Rules 1966, could urge only one point on
the basis on \Vhich the certificate was granted by the High Court and not other .
AllO¥iing the a·ppeal in part th~ Court
HELD : (1} (a) Rule· 5 of Order XV of the Supreme Court Rules, was
not applicable and compliance thereof was not necessary to enable the appellant
to urge and reiterate any of the points taken by it in· the High Court; (b) Rule
5-A of Order XV suggests that the High Court is required to record the reasons
or the grounds for granting the certificate. In this case the High Court in its
order gave the reasons and finding that atleast one of the points was such that
could justify the granting of the certificate under Art. 133(1) and granted the
certificate to appeal to the Supreme Court; and (c) The certificate granted is
an open one enabling the appellant to urge all- the points arising in _the appeal
in this Court.- There is nothing either in any provision of the Constitution or
the rules to indicate the points other than the one which enabled the High Court
to grant the_ certificate could not be raiseU in this Court Vlithout its leave. [1049BEJ
.
(2) For the purpose of granting the certificate all that the Iligh Court is
required to consider is whether the case raise a substantial question of law on
the ground mentioned in the constitutional provision.
Even if a single such
question of law is found to arise in the case, a certificate must be granted.
Once the certificate is granted and the appeal is lodged in the Supreme Court
it is open to the appellant to raise all grounds which properly arise in the
appeal.
The circumstance, that there are grounds
which were not found
sufficient for the grant of a certificate does not preclude the Supreme Court from
entertaining them as grounds arising in the appeal. The stage at which the
High Court considers the grant of a certific;_ate under Art. 133(1) and the stage_
at \vhich the Supreme Court hears the appeal are two distinct stages and different jurisdictions are exercised with respect to each stage. Considerations perti·
nent to the grant of a certificate are not identical with considerations which
govern the hearing of the appeal.
Accordingly even if some of the points
raised by the appellant in the High Court in support of the petition for a -.'.:ertificate are foqnd insufficient for that purpose. they can still be considered as
ground5 during the hearing of the appeal.
The amendment brought about in
Art. 133(1) makes no difference in the matter of the applicability of the princi-,
pie to the point at issue.
In the instant case it is clear that the leave of this
Court was not necessary to enable the appellant to urge in appeal the other
grounds of attack in relation to the award as affirmed by the High Court.
[1049 F-H. 1050 A. DJ
Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr., [1964]
2 SCR 933 followed.
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(3) Order XV of. the Rules is not confined to a certificate granted by a
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High Court under clause (1) of Art. 133 only.
But it relates to a certificate
granted under clause (1) of Art. 132 also. Order XV of the Rules will be
clearly attracted to such a situation stated in Art. 132(3). When a certificate is
granted under A.rt. 133(1) only. then the party appealing to the Supreme Court
can urge as one of the grounds in appeal filed pursuant to such certificate that
a substantial question of law as to the interpretation of the Constitution has
been wrongly decided. An express provis!o.n to this effect was, perhaps, thought
necessary to remove any doubt for the ra1s1ng of such a new point even without
the leave of the Court. That being so, it will be highly unreasonable to hold
H
that in an appeal filed in accordance with Art. 133(1) of the Constitution the
appel1ant cannot urge any new grounds and must be confined to the grounds
which enable the High Court to grant the certificate. [1050 E, F. H, I05IAJ .
. ' ·,
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1046.
' SUPREME. COURT REPORTS
[1978] 3 S.C.R.
A
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4) The referen~e, in the instant case, was not bad for the alleged non-application of the mind by the Government though care should al wa-ys be taken to
- avoid the mere copying of the words from the Statute while making an order
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of reference. [1051 F-G] \
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(a) To keep an . order of reference free from the pale of attack on the
ground that the Government did not apply its mind to the · fact whether the
dispute is only apprehended' or whether a specific dispute existed, the Govern-
-ment must sp_ecify- one or, the other in their order of reference. The Government· should clarify the position -in such cases and remove the ambiguity by
filing a counter when the reference order is challenged on this ground. [1051 Ii,
1052-A]
.
In the instant case, neither the one nor the other was done although the
State was made a party respondent to this writ petition, and (b) on the facts
and in the circumstances the industrial dispute· existed ,,,.hen it was referred to
by the Government to the Labour Court for adjudication and the Government
,'made the reference on being satisfied that it \Vas so. There was no question of
-· dispute being apprehended.
The mention of the words ••or is apprehended"
, in the order of reference is a mere surplus age and does not in this case, necessarily lead to the conclusion that the reference was made in a cavalier manner
without any application of mind; and (c)-The observation in '}.tf/s. Hindustan
General Electrical Corporation Ltd. Kara1npura v. State of ·Bihar & Ors. -AIR
1967 -Pat. 284 indicating that even if no definite opinion was formed as to the
existence or apprehension of a dispute, the reference could be made are not
quite correct.
(d) In Kurji _Holy Fan1ily Hospital case, 1970 . labour
and
Industrial, Cases, 105. While making the reference
an identically
defective
phraseology was used without specifying \Yhether the industrial dispute existed
or was apprehended.
The view expressed by the Patna High Court therein
viz.
..merely because in the notification the words "or is apprehended" are
also there, it cannot be said that the . Government were not 'satisfied as to the
existence of a dispute was not quite accurate either, though it can be sustained
on a slightly different basis. [1052 A, C-D, F, 1053 C, EJ
Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr., [1964)
2 S.C.R. 933, llindustan General Electrical Corp. Ltd. Karampura v. State ot
Bihar & Ors., AIR 1967 Pat. 285; India Paper Pulp Co. Ltd.' v. India Paper Pulp
Workers' Union & Anr., [1949-50] FCR 348; State of J.-fadras v. C.P. Sarathy &
Anr., [1953] SCR .J34; Sl1'•adeshi Cotton Mills Co. Ltd. v. State of U.P. & Ors.,
{1962] 1 · SCR -422; J.1anagement of Express 1'r-ewspapers Ltd. v. JVorkers &
Staff en1ployed under it and Ors. [1963] 3 SCR 540 discussed and explain~d.
(5) The argument that even neglect of work simpliciter can be a· misconduct
within the meaning of sub-clause (i) of clause (ii) of Standing Order 20 apart
from its being a fault within the meaning of sub-clause (b) of clause (i) of
the said Standing Order, as the word 'habitual' in the former merely qualifies
the word 'negligence' and not the expression 'neg]ect of v.·ork' is not correct.
[1056A]
.... ~Iere neglect of_ work canilot be both.
If it is so it is a fault:, If it is
habitual, that is, if it is repeated several times then only it is misconduct. It may
\vell be that fault of one kind or the other as enumerated in sub-clans~ -(a)
to (g) of Standing Order 20(i) if repeated more than once may be habitual
within the meaning of Standing Order 20(ii) (i) and especially in the light of
the fourth fault being a misconduct within the meaning of Standing Order 20(a).
But on the facts of this case there being no charge against respondent no. 3
that he was guilty of habitual neglect of work, the Labour Court found that
the negligence of the workman was not of a serious kind.
Some others in the
factory also contributed to it. [1056 B-C] ·
(6) \Vhile Con_sidering the proper reli~f to be granted to the workmaa-v.'hosedismissal bas been found to be wrongful, mala fide or illegal, though no hard
and fast rule could be laid dov.n the Tribunal has to consider each case on its
merits. The past record of the employee, the nature of his alleged present
lapse and the ground on which the order of the management is set aside are _
also relevant factors for consideration.
The High Court has the authority to
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I.T.C. LTD .. v. PATNA LABOU.~ COURT (Untwalia, !.)
1047
interfere with _the discretion of the Tribunal '\Vbere reinstatement was ordered
A
without proper, adequate and justifiable factors in support of the alternative.
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relief of compensation..
[10560, 1~57A, E]
Punjab National Bank Ltd. v. Workmen, [1960} 1 SCR 806; Buckingham
& Carnatic Mills· Ltd. v. Workmen, 1951 II LL.J. 314; quoted again with
approval; Ruby General Insurance Co. Ltd. v. Chopra (P.P.) 1970 I LU 63; ·
Hindustan Steels Ltd. Rourkela v.· A. K. Roy & Ors. [1970] 3 SCR 343 followed.
Western Irulia Automobile v. Industrial Tribunal
Bombay & Ors. (1949-50)
B
SCR 321 referred to.
In the present case; (a) the Labour Court without applying its mind, in spite
of its noticing the unsatisfactory record of respondent no. 3, as to V.'hether it
was a fit case where reinstatement should be ordered or compensation should
be awarded, followed the former course vihich \Vas affirmed by the High C.:Ourt.
(b) every ca-se has to be adjudged on its special facts and in the instant case,
the service record of the employee showed that he had
committed several
. faults in the past. "\Vas sometimes warned, sometimes suspended and sometimes
reprimanded for all those omissions and commissions. In the incident in question
he was clearly .,guilty of neglect of duty in putting \vrong slides, althou,gh they
were wrongly supplied to him, while packing _the cigarettes on the packing
machine.
Even shortly before the incident in questiOn according to his own
showing he was once warned for absence from proper place of work without
permission and was suspended for three days for an act subversive of discipline -
before he was dismissed in June 1966. Therefore it was not a fit case where
the High Court ought to. have sustained the order of reinstatement as passed by
the Labour Court [1057 F-H, 1058 B, C, El
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[The Court directed payment of a sum of Rs. 30,000 /- to respondent nO. 3
within a -month's time by way of compens<ition in addition to the gratuity and
provident fund ridmi~sible to him less any amount paid already.]
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D.
Clv!L APPELLATE JURISDICTION : Civil Appeal No. 864 of 1974.
From the Judgment and Order dated 23-7~ 73 of the Patna Hlgh
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Court in C.W.J.C. No. 31 of 1971.
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G. B. Pai, 0. C. Mathur and K. l: John for the Appellant.
Santokh Singh for Respondent No. 3.
R. C. Prasad and U. P- Singh for Respondent Nos. 1 and 4.
The Judgment of the Court was delivered by ·
UNTWALIA J. This appeal on certificate granted by the Patna
High Court under Article 133 (1) of the Constitution ·of India as it.
stands after the 30th Constitution .AIBendment Act is by the Management of the Monghyr Factory of India Tobacco Company Limited
impleading the Labour Union as respondent no. 2 agd the concerned
workman as respondent no. 3.
The State of Bihar is responcfent
no. 4.
Respondent no. 3 was working as an operator on a packing
machine in the appellant's factory at Monghyr on May 21, 1966 wlleii
he is said to have committed certain acts of misconduct. _A chargesheet was served on him by the Management on May 24. At the
domestic inquiry he.ld by the Management, he was found guilty 'and
eventually dismissed from service on June 9, 1966. O:ti the raising of
an industrial dispute, it was referred for adjudication by the Govetnment of Bihar to the Labour Court, Patna, . respondent no. 1 by a
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[l978j 3 S.C.R •
notification dated the 6th/17th February, 1968 .. The Labour Court
made an award on November 23, 1970 ordering reinstatement of the
workman Shri. Ram Krishan Pathak, respondent· no. 3, with all his
back wages· from the date of dismissal till the date of reinsfatement.
The appellant challenged the award by filing a Writ Petition in the
High C~urt, which was dismissed on July 23, 1973. .,
At, the instance of the Management, a certificate of fitnes~ was
granted by the High Court. on February 22, 197 4.
Since by that
time Art. _ 133(1) had bfen amended by the 30th Constitution
Amendment Act, the-certificate was granted in accordance with 11.
In the order granting the certificate it is mentioned that three points
were urged by the appellant but the High Court thought that two of
them were such as would not justify the grant of. the certificate, but
one of the points involved in the case was a substantial question of
law of general importance and the said question needed to be decided
by the Supreme Court. Pursuant to the_ grant of the certificate a
petition of appeal was filed in this Court followed in the usual course
by a statement of the case.· Various other points which have been
argued on behalf of the Management before the Labour Court as iilso
in the High Court were taken in the petition of appeal and the statement of the case. ·
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Mr. G. B. Pai appearing in support of the appeal uiged only the
three following points out of the several argued before the High ·
Court:-·
( 1) That the reference is invalid as on its very face it
indicates that it was
mechanically
made
by the
Government without application -of mind.
(2) _That the workman was guilty of misconduct within
the meaning of clause (ii) of Standing Order 20
applicable to the appellant and both the Courts
below have committed errors of
law on the face
of the record in taking a contrary view.
(3) That in any view of the matter on the facts and in .
the circumstances of this case it was not expedient,
fit or proper to order reinstatement of the concerned workman and in lieu thereof, only compensation ought to have been allowed.
·
Mr. Santokh Singh, appearing for the Union and
represen~ing
the workman raised a preliminary objection and submitted that the
appellant having not complied with the requirement of Rule 5 of
Order XV of the Supreme Court Rules, 1966, hereinafter to be called
the Rules. could urge only one point on the basis of which the certificate was granted by the High Court and no other.
'Mr. Ram
Chandra Prasad appearing for the State of Bihar refuted the first submission made on behalf of the appellant while
Mr. Santokh Siilgh
combated the other two .
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l.T.C. LTD .. v. PATNA LABOUR COURT (Untwalia, !.)
1049
We shall first deal with the preliminary objection of Mr. Singh.
Order XV, Rule 5 of the Rules reads as follows :-
"Where a party desires to appeal on grounds which can
be raised only with the leave of the Court, it shall lodge
along with the petition of appeal a separate petition stating
the grounds so proposed to be raised and praying for leave
to appeal on those grounds."
It is true that no separate petition was lodged by the appellant along
with the petition of appeal in accordance with Rule 5.
But in our
opinion the said Rule was not applicable and compliance thereof was
not necessary to enable the appellant to urge and reiterate any of the
points taken by it in the High Court. Rule 5-A(d) of Order XV of
the Rules enjoins that: "an appeal on a certificate granted by .a High
Court under Articles 132(1) and/or 133(1)(c) of the Constitution
or under any other provision of law if the High Court has not recorded
the reasons or the grounds for granting the certificate" shall be put
up for hearing ex parie before this Court.
Article 133(1) (c) mentioned in the above extracted words has got to be read now (and it
would be advisable to correct it by an amendment of the Rule, if not
already done) as Artide 133(1). The said Rule suggests that the
High Court is required to record the reasons or the grounds for granting the certificate. In this case, the High Court in its order gave the
reasons and finding that at least one of the points was such that could
justify the granting of the Certificate under Article 133(1) granted
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the certificate to appeal to the Supreme Court. But it did not limit
it to that extent alone, even assuming it could do so. The certificate
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granted, as is commonly known, is an open one enabling the 2ppellant
to urge all the points arising in the appeal in this Court.
Nothing
was brought to our notice by Mr. ~ingh either from aμy provision of
the Constitution or the Rules to indicate that the points other than
the one which enabled the High Court to grant the certificate could
not be raised in this Court without its leave.
For the purpose of granting the certificate, aU that the High Court
is required to consider is whether the case raises a substantial question of law of the kind mentioned in the constitutional provision. Even
if a single such question of law is found to arise in the case, a certificate must be granted. Once the certificate is granted and the appeal
is lodged in the Supreme Court, it is open to the appellant to raise
all grounds which properly arise in the appeal.
The circumstances
that there are grounds which were not found sufficient for the grant of
a certificate does not preclude the Supreme Court from entertaining
them as grounds arising in the appeal. The stage at which the High
Court considers the grant of a certificate under Article 133 (1) and
the stage at which the Supreme Court hears the appeal are two distinct stages, and different jurisdictions are exercised with respect to
each stage. Considerations pertinent to the grant of a certificate are
not identical with considerations which govern the hearing of the
!6-329SCI/78
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SUPREME COURT REPORTS
(1978) 3 S.C.R.
appeal. Accordingly, even if some of the points raised by the appellant in the High Court in support of the petition for a certificate are
found insufficient for that purpose, they can still be considered as
growids during the hearing of the appeal.
The view which we have expressed above is amply supported by
the ·c1ecis_ion of this Court in Addagada Raghavamma and Anr. v.
Addagada Chenchamma and Anr. ( 1), wherein at page 945 it wils
said with reference to Article 133 of the Constitution, as it stood
before the 30th Amendment Act :-
"Under Art. 133 of the Constitution the certificate
issued by the High Court in the manner prescribed therein
is a precondition for the maintainabi)ity of an appeal to
the Supreme Court. But the terms of the certificate do not
circumscribe the scope of the appeal, that is to say, once a
proper certificate is granted, the Supreme Court has undo,ubtedly the power, as a court of appeal, to consider the
correctness of the decision appealed
against from every
standpoint, whether on questions of fact er law."
The amendment brought about in Article 133(1)
makes no difference in the matter of the applicability of the principle. to the point
at issue. Thus it is clear that the leave of this Court was not necessary to enable the appellant to urge in appeal the other grounds of
attack in relation to the award as affirmed by the High Court.
Order XV of the Rules is not confined to a certificate granted by
a High Court under clause ( 1} of Art. 133 only. But it relates to a
certificate granted wider clause (1) of Art. 132 also.
Clause (3)
of Art. 132 says :-
"Where such a certificate is given, or such leave is
granted, any party in the case may appeal to the Supreme
Court on the ground that any such question as aforesaid
has been wrongly decided and, with the leave of the Supreme Court, on any other ground."
Order XV Rule S of the Rules will be clearly attracted to such a
situation. In contrast, we may quote clause (2) of Art. 133 which
says:-
"Notwithstanding anything in article
132,
any party
appealing to the Supreme Court under clause
( 1) may
urge as one of the growids in such appeal that a substantial
question of law as to the interpretation of this Constitution
has been wrongly decided."
It is interesting to notice that when a certificate is
granted under
Art. 133(1) only, then the party appealing to the Supreme Court can
urge as one of the grounds in appeal filed pursuant to such certificate
that a substantial question of law as to the interpretation of the Constitution has been wrongly decided.
An express
provision to this
'(I) -Cl964] 2 S.C.R. 93~.
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I.T.C. LTD .. v. PATNA LABOUR COURT (Untwalia, !.)
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effect was, perhaps, thought necessary to remove any doubt for tlfo
raising of such a new point even without the leave of the Court. That
being so, it will be highly unreasonable to hold that in an appeal fi!ed
in accordance with Art. 133(1) of the Constitution the appellant cannot urge any new grounds and must be confined to the grounds which
enabled the High Court to graut the certificate. We, therefore, reject
the preliminary objection raised by Mr. Santokh Singh.
We now proceed to deal with the three submissions made on behalf
of the appellant.
POINT NO. 1.
The relevant words to be extracted from the order of reference for
deciding this point arc the following :-
"Whereas the Governor of Bihar is of opinion that an
Industrial dispute'
exists or is
apprehended between the
management of the Imperial Tobacco
Company of India
Limited. . . . . . . . . . and their
workmen
represented by
Tobacco Manufacturing
Workers' Union ........... .
Now, therefore, in exercise of the powers conferred
by
clause (c) of sub-·section (1) of Section 10 of the Tndustrial
Disputes Act, 1947 (14 of 1947) the Governor of Bihar is
pleased to refer the said
dispute for
adjudication to the
Labour Court, Patna ........ " ·
The dispute referred was in the following terms.:-
"Whether the dismissal of Shri Ram Kishan Pathak is
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proper and, justified ? If not, whether he is entitled to reE
instatement and/or any other relief?
Mr. Pai's contention is that on the facts of, the case either an industrial
dispute existed or it could be apprehended, It could not be both. It
was necessary for the Governor to be satisfied about the one or the
other, namely, whether the dispute "exists or is apprehended", Tne
use of both the phrases in the order of reference demonstrates that
there was no application of mind of the authorities concerned before
making an order of reference.
The point is not free from difficulty.
The High Court repelled it relying upon its two earlier decisions, On
a close scrntiny, however, on the facts of this case we do not feel
persuaded to hold that the reference was bad for the alleged noriapplication of the mind of the Government. We
would, however,
like to observe that care should always be taken to avoid: a mere copying of the words from the Statute while making an order of reference,
Ordinarily and generally in a large number of cases, a reference is
made when the Government finds that an industrial dispute exists.
There are cases where a dispute is only apprehended or even there
may be some where some disputes exist and some are apprehended,
To k!ltp an order of reference free from the pale of attack on such
a ground, the Govem.ment will be well-advised to specify one or the
other. in their order of reference. As observed in some of the cases
of this Conrt, to be alluded to hereinafter, the Government should
clarify the position and remove the ambiguity by filing a counter when
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SUPREME COURT REPORTS
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the reference order is challenged on this ground.
We are unhappy
to note that neither the one nor the other was done in this case although the State was made a party respondent in the Writ Petitioin.
Out of the cases cited at the Bar on the first point, we shall refer
only to a few which are very near it, there being no direct decision
of this Court on it. The Labour Court repelled the contention of the
Management apropos the alleged invalidity of the reference, by statinp
in paragraph 9 of its order-"The fact that a dispute existed cam10t
be denied." In that Court the next attack on the competency of the
reference was on the ground that the concerned workman was not a
member of the Union on the date when the cause giving rise to the
dispute arose and, therefore, the Union could not have espoused his
cause to make it an industrial dispute. While repelling this argu-
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ment, the Labour Court said in the 10th paragraph :-In my opinion l
there appears no merit in the contention made on behalf of the
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management and it is held that in reality an industrial dispute existed
when the appropriate Government was '!J)proached to refer the matter
to this Court for adjudication.' On the facts and in the circumstances
of this case, therefore, we have no doubt in our mind that the industrial dispute existed when it was referred by the Government to the
Labour Court for adjudication, and the Government made the reference on being satisfied that it was so. There was no question of the
dispute being
apprehended.
The mention of the words "or is
apprehended" in the order of reference is a mere surplusage and does
not, in this case, nec.essarily lead to the conclusion that the reference
was made in a cavalier manner without any application of mind.
We. may first briefly deal with the two Patna decisions which
were relied upon by the High ,Court in repelling the first point of the
appellant.
They are-(1) M/s. Hindustan General Electrical Corporation Ltd., Karampura v. State of Bihar and others('!) and (2)
Kurji Holy Family Hospital v. State of Bihar and others('). In the
case of Hindustan General Electrical Corporation
(supra)
although
the relevant phraseology in the order of reference was in identical
tenns, the argument advanced was somewhat different.
In that case
it was urged on behalf of the petitioner management that there was
no industrial dispute before the Labour Court.
It was
a simple
dispute between an individual
workman and the management and
hence the Court had no jurisdiction to decide it.
The High Court,
while rejecting this argument, observed at page 285 column 2 :-
"Moreover, it is well known that even an individual
dispute between a workman and an employer might have
the potentiality of becoming an industrial dispute, and if
there is an apprehension that such an industrial dispute
might exist, the Government have jurisdiction to make a
reference under Sec. 10 ( 1) .
In the order of reference,
which I have already quoted, the Government had made
it clear that in their opinion there was in existence an
(I) A.I.R. 1967, Patna. 284.
(2) (1970] Labour and Industrial Cases. JOI.
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l.T.C. Lrn., I'. PATNA LABOUR COURT (Unitwalia, !.)
1053
industrial dispute, or else there .was an apprehension of the
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existence of such a dispute.
In the circumstances of this
case, this opinion of the Government must be held to be
not liable to challenge in this application."
It would thus be seen that neither in argument nor in the judgment
attention was focussed whether the reference could be bad when the
order of reference did not indicate precisely as to the
existence of
an imlustrial dispute or whether it was apprehended.
The observations, extracted above, indicating that even if no definite opinion was
formed as to the existence or apprehension of a dispute,
the reference could be mace, are not quite cotTect. In Kurii Holy Family.
Hospital case (supra) the dispute raised related to the action taken
by the management <.gains! two of its employees.
While making the
reference an identically defective phraseology was used without specifying whether the industrial dispute existed or was
apprehended.
The validity of the reforence in this case was directly attacked on the
ground-"the Government were not definite while making the refer-
• ence whether a dispute was existing or was apprehended and were
not able to form any opinion in the matter."
This argument was
repelled by the Bench of the High Court relying upon its earlier
decision in the case of
Hindustan General Electrical
Corporation
(supra) and three decisions of this Court and a decision
of
the
Federal Court which will be shortly adverted to.
Finally it was said
at page 111 column 1 :-"In the circumstances, there can be no
doubt that a dispute was existing on the date qi the reference. Merely because in the notification the words "or is apprehended" are also
there, it cannot be said that the Government were not satisfied as to
the existence of a dispute."
The view so expressed by 'the Patna
High Court is not quite accurate. But it can be sustained on a slightly
different basis as discussed by us above.
In the case of The India Paper Pulp Co. Ltd. v. The India Paper
Pulp Workers' Union <11td another('') the attack on the order of reference, as could appear from page 355, was 'not identical to the one with
which we are concermd in this case.
But the lacunae pointed out
were that the order of the Government did not mention any industrial
dispute and secondly, the order, as worded, was only an order of
appointment and there were no words of reference to the Tribunal.
The attack was repelled by Kania C.J. on the same page in these
words
"It is sufficient if the existence of a dispute and the fact
that the dispute il\ referred to the Tribunal are clear from
the order.
To that extent the order does not appear to be
defective.
Section 10 of the Act however requires a reference of the dispute' to the Tribunal. The Court has to read
the order as a whole and determine whether in effect the
order makes a reference."
(1) [t9~9-50] Federal Court Repotts 348.
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SUPREME COURT REPORTS
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The Court foμnd on reac;!ing the order as a whole that the order could
be reasonably construed lo constitute a reference to the Indu~trilll
Tribunal. In State of Madras v. C. P. Sarathy and another(") it was
contended at page 345 that "the reference was not competent as it
was too vague and general in its terms containing no spc:cification
of the disputes or of the parties between whom the disputes ar~."
This argument was repelled by Patanja!i Sastri C.J., with re~erence
to the decision of the Federal Court in the case of The (ndia Pager
Pt;}p Company (supra).
The learned Chief Justice added at page
346
"This is, however, not to say that the Government will
be justified in making a reference under section 10 ( 1) without satisfying itself on the facts and circumstances brought
to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a gefinite group of establishments engaged in a particular industry, and it is also
desirable that the Government should, wherever possible,
indicate the nature of the dispute in the order of r~er- ·
ence."
Even in this case the attack to the validity of the reference was not
on the ground exactly as has been done in the present case. In TheSwadeshi Coton Mills Co. Limited v. The State of U.P. and others~'),
the reference was assailed on somewhat different grounds. The argument was not accepted by Wanchoo J., as he then was, by saying at
page 432 :-
"This opinion is naturally formed before the order is made.
If therefore such an opinion was formed and an order was
passed thereafter, the subsequent order would be a valid; exercise of the power conferred by the section. The fact that in
the notification which is made thereafter to publish the order,
the formation of the opinion is not recited will not take away
the power to make the order which had already arisen and
led to the making of the order."
Says the learned Judge further at page 434 :-
"We are equally not impressed by Shri Pathak's argument
that if the recital is not there, the public or courts and tribunals will not know that the order was validly passed and
therefore it is necessary that there must be a recital on th~
face of the order in such a case before it can be held to be
legal. The p.resurnption as to the regularity of public acts
would apply in such a case; but as soon as the order is.challenged and it is said that it was passed without the condition$
precedent being satisfied the burden would be on the aQtbor.ity
to satisfy by other means (in the absence of recital in the
order itself) that the conditions precedent had ~n complied
with."
(J) [195'] S.C.R. 334.
(2) [1962] I S.C.R. 422.
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J.T.C. LTD .. v. PATNA LABOUR COURT (Untwalia, !.)
1055
Ii\ the case of The Management of Express
Newspaipers Ltd. v.
Workers & Staff employed under it and others(') the point canvassed
and decided was a different one. The attack was on the wordings of
)55ue no. 2 ,-eferretl to the Industrial Tribunal for adjudication.
The
argument was that this issue had in fact been determined by the Go-
. vernmeut and nothing was left to the Tribunal to consider or decide.
It would appear from pages 555 and 556 that this argument was not
accqited. In our opinion, reliance on this case by the appellant before
us or by the High Court in the ca·se of Kurji Holy Family Hospital
(supra) is not quite apposite.
For the reasons stated above, on the facts of this case, we do not
feel persuaded to accept the first contention of the appellant as correct.
POINT NO. 2
To substantiate this point Mr. Pai relied upon the relevant words
of clauses (i) and (ii) of Standing Order 20 and Standing Order 21 (a).
Standing Order 20(i) says :-
"The following acts or omissions shall be treated as faults :-
(a) Careless work.
(b) Laziness or neglect of work
Standing Orde< 20(ii) provides :-
"The following acts or omissions shall be treated as miscondnct :-
( 1) Habitual negligence or neglect of work."
Standing Order 21 (a) provides for different kinds of punishment in
cases of first, second and third faults committed within the meaning of
Standing Order 20(i). Lastly it is provided in the Standing Order
2l(a) that~"In the '.case of a fourth fault by the same worker such
worker shall be reported to the Factory Manager by the head of
the department as a worker regarded guilty of misconduct as defined
in Order No. 20(ii) ." Mr. Pai submitted with refe<ence to the service·
card of respondent no. 3 which was an exhibit before the Labour
Court that his service record was bad, he had committed several faults
in the past and the fault in question even if it was a fault was a fourth
one wl1ich could be treated as a misconduct under Standing Order 21 (a)
entailing dismissal of the workman.
This argument, as
presented
before us, is not well-founded and must be rejected.
No such stand
was taken in either of the Courts below.
Nor was the charge framed
on this line. The charge served on respondent no. 3 is as follows
"Neglect of work in-that on 21-5-66 you packed approximately 130 M. Embassy packets with Scissors slides
whilst operating M/C. No. 14, resulting in loss of 200 (two
hundred)
man hours
approximately for
opening up the
packets and changing the slides, and loss of material valued
at Rs. 126/- approximately."
(\) [1963] 3 S.C.R.
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Mr.