# Bril•rh lndi.J Oorptwation Ltl v. CQ/leelo,. of Ctntt•l ixci•• •

- **Citation:** [1963] 3 S.C.R. 650
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** P. B. GAJl!INDRAGADKAR, K. C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bril-rh-lndi-j-oorptwation-ltl-v-cq-leelo-of-ctntt-l-ixci-2655
- **Pages:** 10

## Headnote

Industrial Dispute- Dismissal of employee -Finding
that no enquiry held by employer before dismissing -
Finding
per~erse -
Appeal Court confi1ming finding -
Writ Pelition
before
High Court -
Interference by High Court -
C. P. &
Berar Industrial
Disputes Settlement Act, 1~47(C. P. 23 of
1947), •. 16.
The appellant employed K as a temporary motor driver on the express condition that until such time as he was
confirmed his services were liable to be terminated without
notice or compensation and without assigning any reason.
Sometime afterwards, the appellant served a charge sheet
upon K and aftet holding an enquiry dismissed him.
K
made an application before the Labour Commissioner under
s. 16 C. P. & Berar Industrial Disputes Settlement Act, 1947,
praying for reinstatement alleging that
the dismissal was
illegal as it was not preceded by an enquiry. The Labour
Commissioner was doubtful whether any enquiry,·was held
·by the appellant but on the basis of evidence adduced before
him he held the charges proved and accordingly dismissed
the application. On appeal, the Industrial Court held that
the Labour Commissioner had no jurisdiction to hold the en~
quiry and mad~ an order directin9 reinstatement of Kwit!\
..
3 S.C.R.
SUPREME COURT REPORTS
6.51
back wages.
Thereupon, the appellant filed a writ petition
before the High Court for quashing the order of the Industrial Court but the High Court dismissed the application.
The appellant contended (i) that in view of the terms of employment the appellant co11ld dismiss K ·without holding an
enquiry, (ii) that the Labour Commissioner had jurisdiction to
hold the equiry and. (iii) that the finding of the Labour
Commissioner that no enquiry had been held by the appellant was perverse and the High Court should have intervened,
Hela,
that the finding that no enquiry had been held
by the appellant before dismissing K was perverse and the
appellanf was entitled to a writ quashing the order of the
Industrial Court and restoring that of the Labour Commissioner. The appellant had produced
before the Labour
Commissioner the evidence recorded at the enquiry which
consisted of the statement of K himself signed by him and
. the statements of two conductors. The explanation of K
that lie had been made to. sign on a blank paper was unacceptable. The finding of the Labour Commissioner amounted
to a clear error of law, the industrial Court erred in thinking
that it was bound by this finding and this error on its part
was so apparent on the face of the record that it was proper
and reasonable for the Righ Court to correct the error.
Semble,
Inspite of the terms of employment the appellant could not dismiss K without holding an enquiry and
that even if the appellant had failed to hold the enquiry it
was open to the Labour Commissioner to hold one.
CIVIL APPELLATE JuRisDIOTION: · Civil Appeal
No. 504 of 1961.
Appeal 9y special leave from the judgment
and order dated October l 7, I959, of the Bombay
High Court at Nagpur in Special Civil Application
No. 5.9 of 1959.
M. O. Setalvad, Attorney-General for India,
E. J. Mohrir, J. B. Dadachanji, 0. O. Mathur and
Ravinder Narain, for the appellant,
B. A. Masodkar, Bishambar Lal and Ganpa/,
.Rai1 for the res:pondent :No. 3,
lfJ/lS
Pr,.inci•l
Transport Serrice
v.
Stat1 lndvstri,l
Court
1912
, Pro•ln&ial
Traneprwt Seroic•
;
'f.
S tit• lttda1Wisi
i
Gour I
Das Oupla J, ·
85~ SUPREME COURT REPORTS [1963)
1962. August 21.
The Judgment of the Court
was delivered by
DAS GUPTA, J.-This appeal by special leave
is against an order of the High Court of Bombay
at Nagpur rejeoting an applioation made by this appellant under Arts. 226 and 2~7 of the Constitution
for quaghin~ an order made by the State Industrial
Court, Nagpur, in the matt.er of dismiBBal by the ap·
pellant of jte employee, Kundlik Tulsiram Bhosle .
. Kundik Tulsiram Bhosle, who· is the third respondent before us, was en~a.ged as a· temporary Motor
driver in the service of the appellant. He was appointed on DAcember

## Text

Bril•rh lndi.J
Oorptwation Ltl.
v.
CQ/leelo,. of Ctntt•l
ixci••
•
1962
650
SUPREME COURT REPORTS (1963]
In our judgment the Schedule which is characterised
as discriminative is based upon a reasonable classification and is validly enacted. If the law is held
to be valid the attack under Arts. 19 and 31 must
also fail.
In view of what we have sairl above the petition must fail.
It will be dismissed with costs.
Petition dismissed .
THE PROVINCIAL TRANSPORT SERVICE
v.
STATE INDUS:l'RIAL COURT
(P. B. GAJl!INDRAGADKAR and K. C. DAS GUPTA, JJ.)
Industrial Dispute- Dismissal of employee -Finding
that no enquiry held by employer before dismissing -
Finding
per~erse -
Appeal Court confi1ming finding -
Writ Pelition
before
High Court -
Interference by High Court -
C. P. &
Berar Industrial
Disputes Settlement Act, 1~47(C. P. 23 of
1947), •. 16.
The appellant employed K as a temporary motor driver on the express condition that until such time as he was
confirmed his services were liable to be terminated without
notice or compensation and without assigning any reason.
Sometime afterwards, the appellant served a charge sheet
upon K and aftet holding an enquiry dismissed him.
K
made an application before the Labour Commissioner under
s. 16 C. P. & Berar Industrial Disputes Settlement Act, 1947,
praying for reinstatement alleging that
the dismissal was
illegal as it was not preceded by an enquiry. The Labour
Commissioner was doubtful whether any enquiry,·was held
·by the appellant but on the basis of evidence adduced before
him he held the charges proved and accordingly dismissed
the application. On appeal, the Industrial Court held that
the Labour Commissioner had no jurisdiction to hold the en~
quiry and mad~ an order directin9 reinstatement of Kwit!\
..
3 S.C.R.
SUPREME COURT REPORTS
6.51
back wages.
Thereupon, the appellant filed a writ petition
before the High Court for quashing the order of the Industrial Court but the High Court dismissed the application.
The appellant contended (i) that in view of the terms of employment the appellant co11ld dismiss K ·without holding an
enquiry, (ii) that the Labour Commissioner had jurisdiction to
hold the equiry and. (iii) that the finding of the Labour
Commissioner that no enquiry had been held by the appellant was perverse and the High Court should have intervened,
Hela,
that the finding that no enquiry had been held
by the appellant before dismissing K was perverse and the
appellanf was entitled to a writ quashing the order of the
Industrial Court and restoring that of the Labour Commissioner. The appellant had produced
before the Labour
Commissioner the evidence recorded at the enquiry which
consisted of the statement of K himself signed by him and
. the statements of two conductors. The explanation of K
that lie had been made to. sign on a blank paper was unacceptable. The finding of the Labour Commissioner amounted
to a clear error of law, the industrial Court erred in thinking
that it was bound by this finding and this error on its part
was so apparent on the face of the record that it was proper
and reasonable for the Righ Court to correct the error.
Semble,
Inspite of the terms of employment the appellant could not dismiss K without holding an enquiry and
that even if the appellant had failed to hold the enquiry it
was open to the Labour Commissioner to hold one.
CIVIL APPELLATE JuRisDIOTION: · Civil Appeal
No. 504 of 1961.
Appeal 9y special leave from the judgment
and order dated October l 7, I959, of the Bombay
High Court at Nagpur in Special Civil Application
No. 5.9 of 1959.
M. O. Setalvad, Attorney-General for India,
E. J. Mohrir, J. B. Dadachanji, 0. O. Mathur and
Ravinder Narain, for the appellant,
B. A. Masodkar, Bishambar Lal and Ganpa/,
.Rai1 for the res:pondent :No. 3,
lfJ/lS
Pr,.inci•l
Transport Serrice
v.
Stat1 lndvstri,l
Court
1912
, Pro•ln&ial
Traneprwt Seroic•
;
'f.
S tit• lttda1Wisi
i
Gour I
Das Oupla J, ·
85~ SUPREME COURT REPORTS [1963)
1962. August 21.
The Judgment of the Court
was delivered by
DAS GUPTA, J.-This appeal by special leave
is against an order of the High Court of Bombay
at Nagpur rejeoting an applioation made by this appellant under Arts. 226 and 2~7 of the Constitution
for quaghin~ an order made by the State Industrial
Court, Nagpur, in the matt.er of dismiBBal by the ap·
pellant of jte employee, Kundlik Tulsiram Bhosle .
. Kundik Tulsiram Bhosle, who· is the third respondent before us, was en~a.ged as a· temporary Motor
driver in the service of the appellant. He was appointed on DAcember 22, 1954, and it was expressly
mentioned in the lettei: of appointment that until
such .time as he was oonfirmed by e.n order in writing his services were liable to be terminated at any
time without notice or oompensation and without
assigning any reason. It waR also stated that his
case would be oonsi iered for confirmation one year
after the date of appointment, provided a suitable
permanent post fell vacant and his work was found
s&tisfactory. By an order dated DAcember 19. 1955,
he was dismissed from service from Dec,,.mber 20,
l 955. It appears that befnre this step was taken by
the managem nt, Kundlik bad been served with a
charge sheet that on November 14, when he was in
charge of a Bue as a driver he allowed Conductor,
Vyankati to carry five passengers without tioket and
also allowed an una.uthorised driver Sheikh Akbar
to drive the Bus. The charge sheet was served on
Kundlik on November 9, and on November 19, he
submitted an explantion. ·According to the management an enquiry was thereafter held by the Depot
Manager and the charges were foun<i established.
Accordingly he was dismissed.. Kundlik,
the
employee made an application under s.16 of the
C. P. & Bera.r Industrial Disputes Settlement Act,
1947, before tha Labour Commissioner,. Madhya.
Pradesh, Nagpur, alleging that his dismissal had not
r•
-
3 S.C.R.
SUPREME COURT REPORTS
653
been preceded by a.n enquiry, that he had been
illegally dismissed and praying for reinstatement.
The appellant pleaded in its written st11itement
that an enquiry had been prop~rly held and that!
the order of dismissal was legally made. The Assi11·
taut Labour Commissioner, who has the powers of
the Labour Commissioner, under s.16, dealt with the
application. He was of opinion that there were
"sufficient grounds to doubt whether 11.n enquiry
was really made by the Non-applicant Management
and if at all one was held, whether the applicant .
as an accused person, had the chance to put ques·
tions to the witnesses who deposed against him."
On the basis of the evidence adduced before ltim
the Assistant Labour Commissioner came to th9
conclusion that the employee could not be held gui~
lty of the charge of allowing an unauthorised person
to drive the vehicle as Sheikh Akbar was a fully
licensed driver of the Company but that his guilt
on the other charge that he carried five passengers
withont tickets was fully established. Accordingly
he dismissed the applications.
Against this order the employee moved the'
State Industrial Court, Nagpur. That Court felt
that it would not be justified in interfering with
the findingi;i of the La hour Commissioner that no
enquiry had been held by the Management and that
the Assistant Labour Commissioner had no jurisdiction to hold an enquiry. In this view the Court
set aside the order of the Labour Commissioner and
made an order directing reinstatement of tho employee with back wages.
It was against this order that the employer
moved the High Court of Bombay on the ground
that the Assistant Labour Commissioner and the ·
State lndμstria.1 Court had erred in thinking that
no enquiry had been held by the managemont and
19~2
P•oDincial
f"ransporl S1rviot
.
v.
Slat• Irtduilriai
Caurl
De1 GwJI• J,
1968
Pr(lvincia1
T41tJnsport Se·~·ice
v.
Stale l11du.strial
a~rt
Das Gupl•-•1.
654
'8UPREME cOURT REPORTS (1963j
that the said Industrial Court was also wrong in
thinkin~ that the Assistant Labour Commissioner
h~d no jurisdiction .to hold an enquiry.himself.
'.1.'he High Court was of opinion that it could
not exercise its powers under Arte, 226 and 227 of
the Constitution to interfere with the finding of the
Assistant Labour Commissioner aud the Hevisiona.I
Court that no enquiry had been held.
Proceeding
on that basis the High Court also agreed with the
Industrial Court that the Assistant Labour Commissioner had no jurisdiction to hold the enquiry himself.
'.l.'he High Court concluded that there was no
error in the decision of the Industrial Court and so
re~used the application.
Three points have been urged on behalf of the
appellant.
The first is that it was not necessary in
law to hold an enquiry before dismissing· the employee in view of the terms of his employment and
so in exercising jurisdiction under s.16 of the C. P. ·
& Berar Industrial Disputes Settlement Act,
the
Industrial Court was not justified in interfering with
the order of dismissal. Secondly, it was urged that
in any case, if it be held that an enquiry by the
management was necessary in law it should be
proper to hold tha·t the Assistant La.hour Commissioner had jurisdiction to hold enquiry himself.
Thirdly, it was urged that the view taken by the
Assistant Labour Commissioner that no enquiry
had been held · was perverse and the High Court
ought to have set aside that finding and given relief
on the basis that an enquiry had been properly
held.
For a proper understanding of the first contention raised it is necessary to remember briefly
-
tbe scheme of the jurisdiction conferred by s.16.
Section 16(1 l authorises the State Government to r
make a reference to the Labour Commissioner in
I.
, __
..J
.
3 S.C.R.
SUPREME OOURT REPOR'TS
655
disputes touching, inter alia, the dismissal of an
employee; Section 16 .(2)
provides that if the
Labour · Commissioner finds "after such enquiry
as may be prascribed" that the dismissal was
''in contravention of any of the provisions
of this Act or in contravention of the Standing
orders made or sanctioned under the Act," he may
give certain reliefs to the employee.
According
to the employee the order of dismissal was
in contravention of the provisions ofs.31 of the Act.
That sf.'lction provides inter alia that if any employer
intends to effect a change in respect of any industrial matter mentioned in Schedule 2 he shall give
14 da.ys' notice of such intention in the prescribed
form to the repn'sentative of the employees. Among
the industrial matters mentioned in Schedule 2 is
included "dismissal of any employee except in accordence with law or as provided for in the Standing
Orders settled under s.30 of this Act." Admittedly,
the appellant concern had no standing order on
the matter of dismissal. The question is whether
the dismissal
of
the
employee without an
enquiry was "inaccordance with law".
If it
is not, the Labour Commissioner would have jurisdiction. If the dismissal without such an enquiry
be in accordance with law the Labour Commissioner
would have no jurisdirtion to interfere with the
order of dismissal made by the management.
The
learned Attorney-General
argues . that. a
dismissal made in accordance with the ordinary
law of contract as between Master and Servant
must he held to be "inaccordance with lR.w" ·within
the meaning of this Schedule, and the fact that any
industrial law as evolved by the courts in industrial
adjudication under the Industrial Disputes Act
should not colour oar consideration of the matter.
As at present advised, we are unable to see why
t.he word ''law" in this phrase "in accordance with
law" as used in 8ohedule 2 should be given a
1962
Provinci•I
Tran1port Servtc(
v.
Stale 1 niwtrial
Court
Dai Gu}t•J •.
196B
Provincial
Transpo1t SertJicB
..
8.at, laduJtri1l
Courl
Das Guple J.
656
SUPREME COURT REPORTS [1963)
restricted connotation so as to leave out industrial
law as evolved by the courts.
In dealing with industrial disputes under the
Industrial Disputes Act and other similar legislation,
Industrial Tribunal&, Labour Courts, Appellate
Tribunals and finally this Court have by a series of ·
deoision1 laid down the law that even though
under contract
law,
pure
and
simple, an
employee may by liable to dismissal,
without
anything more, industrial adjudication
would
set
aside
the
order
of
dismissal
and
direct reinstatement of the workman where dismissal was made without proper and fair enquiry by
the management or where even if such enquiry had
been held the decision on of the Enquring Officer
was perverse or the action of the management was
mala fide or amounted to unfair labour practice or
victimisation, subject to this that even where no
enquiry had been held or the enquiry had not been
properly held the employer would have an opport-
, unity of establishing its case for the dismissal of
the workman by adducing evidence before an
Industrial Tribunal. It seems to us reasonable to
think that all this body of law was well known to
those who were responsible for enacting the C. P.
& Berar Industrial Disputes Settlement Act, 1947,
and that when they used the word "in accordance
with law" in cl.3 of Schedule 2 of the Act they did
not intend to exclude the law !IS settled by the
Industrial Courts and this Court as regards where a
dismissal would be set aside and reinstatement of
the dismissed workman ordered. If the word "law"
in Sch.2 inolude not only enacted or statutory law
but also common law; it is difficult to see why it
would not include industrial law as it has been
evolved by industrial decisions. We are therefore
primafacie inclined to think that the first contention
raised by the . learned Attorney-General that it was
not necessary in law to hold an enquiry before
. \.
y
_;
3 S.C.R.
SUPREME COURT REPORTS
657
dismissing this employee-in view of the terms of
his employment, canpot be accepted. At the same
time we are inclined to think that there is considerable force in the second contention that even
though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction
to hold an enquiry himself. This would prima facie
be sufficient ground fOr holding that the Industrial
Court was wrong in interfering with the order made
by the -Assistant Labour Commissioner and the
High Court ought to. have issued an appropriate
writ to quash the order made by the Industrial
Court. We· are aware of the view ~a.ken by the
Bombay High Court in Prov. Transp. Services v.
Assist. Lab. Oommr. (1) and Maroti v. Member,
State Industrial Court (2) that the "Law" in the
phrase "in accordance with law" in Schedule 2
does not include Industrial law. For the reasons
mentioned above, we are inclined to think, with
respect, that this view is not correct.
We think
it unnecessary however to discuss this matter more
closely or record our definite and final conclusion
on these questions as for the reasons to be presently
stated we are of opinion that in any caAe the
third grounq . raised on behalf qf the appellant
should succeed.
·
As has already been stated the employee's
case was that no enquiry had been held by the
management. This was denied by the management
and it was alleged that an enquiry had been held.
The management produced before the Assistant
Labour Commissioner papers showing the evidence
that was claimed to have been recorded during
such enquiry. According to this record, three
persons were examined during the enquiry-the
employee Kundalik himself, one Conductor Surewar
and the Conductor Vyankati. At the bottom of
{l) jX Bcmbay Law Reporter, 72.
(2) IX Bombay Law Reporter, 1422.
1962
Provinciql
Tra111po1 I Snviu
. v.
Stat1 1Mduatria1&
c-• ,
DssGupt.J,
1962
l'r•1inci•l
·T~•~s}ort S~rv;ce
v.
Sta_te-1 rn:lu1t1ial
Comt
Das &uplti;J.
(
658
SUPREME OOuRT REPORTS llili63]
this paper there is Kundalik's signature and also
Vyankati's signature. The employee's case was
that his signature had been 'obtained ou a blank
paper and the document was then written up. In
the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade
hims!llf that the management would descend to
this step of forgery for the · purpose of getting rid
of an employee in the position of Kundalik.
The Assistant Labour Commissioner himself has
not said that he believes the explanation of
the employee
that his signature
had been
obtained on a blank paper. He was however
impressed . by the fact that signature of Kandalik
and Vyankati only were obtained and the Enquiring Officer's signature does not appear- on the paper
While it would certainly have been better if the
Enquiring Officer had also put his signature on the
paper containing the statements, that omission cannot possibly be a ground for thinking that he did not
hold the enquiry. The conclusion of the Assistant
Labour Commissioner that "there are sufficient
ground to doubt whether an enquiry was really
made" must therefore be held to be perverse. It
has often been pointed out by eminent judges that
when it appears· to an appellate court that no person properly instructed in law and acting judicially could have reached the particular decision the
Court may proceed on the assumption that misconception of law has been responsible for the
wrong decision.
The decision of the Assistant
Labour Commissioner that no enquiry had been
held by the management amounts therefore, in our
opinion, to a clear error in law. The Industrial Court
erred in thinking that it was bound by this decision of the Labour Commissioner and this error on
its part was, in our opinion, an error so lLpparent
on the face of the record that was proper and
reasonable for the High Court to correct that error.
\
...
.
. .
3 S.C.R.
SUPREME COURT RRPORTS-659~~,-·
On behalf of the respondent it was sought to
be argued that even if an enquiry had been held
it has . not been shown that the employee had
an opportunity. of . cross-examining witnesses or
adducing evidence of .his awn. It is not open how~.
ever for the learned Counsel to. raise. the question -
in view of the fact that the employee did not ever
make any such case himself. His ·case, as already
ptated, was that no' enq•1iry had been held at all .
No alternative case· that the enquiry held was
improper becallse he had not been allowed to cross- -
examine witnesses or to adduce evidence was made -
by him. It · does not appear that in the present ·
. proceedinizs the employee stated -clearly that he
wanted to lead evidence ·and was not allowed to
do so . or that 'he. wanted to cross-examine wit- -
nesses and was denied an opportunity ·to do so. It·
is not open to him therefore to raise this question
for the first time before us..
·
We have accordingly come to the conclusion
that the High Court ought to have held that there
was a proper enquiry held against this employee
and the management dismissed him on finding on
that enquiry that the two charges against him had
been fully proved, and that there was.no reason to
think that the management acted mala fide. The
appellant was therefore entitled to an_ order for
setting aside the order of the Industrial Court.
Accordingly, we allow the appeal, set aside
the_ arder of the High Court and order that the
appellant's application under Arts. 226 and 227 of
· the Constitution , be. allowed and the order of the
State Industrial Court be set aside and the order
of the Assistant Labour Commissioner dismissing
the employee's application be restored •. , There
· will be no order as to ~JOsts.
·
· ·
Appeal allawed.
.. er,.,.mu.z
TrwJOft Seoil•
y.
St•flT,.i~l
Cpun