TMI Blog1962 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... time without notice or compensation and without assigning any reason. It was also stated that his case would be considered for confirmation one year after the date of appointment, provided a suitable permanent post fell vacant and his work was found satisfactory. By an order dated December 19, 1955, he was dismissed from service from December 20, 1955. It appears that before this step was taken by the management, Kundlik had been served with a charge sheet that on November 14, when he was in charge of a Bus as a driver he allowed Conductor Vyankati to carry five passengers without ticket and also allowed an unauthorized 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 found established. Accordingly he wasdismissed. Kundlik, the employee made an application under s,16 of the C. P. Berar Industrial Disputes Settlement Act, 1947, before the Labour Commissioner, Madhya Pradesh, Nagpur, alleging that his dismissal had not been preceded by an enquiry, that he had been illegally dismissed and - p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 that the Assistant Labour 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 the scheme of, the jurisdiction conferred by s.16. Section 16(1) authorises the State Government to make a reference to the Labour Commissioner in disputes touching, inter alia, the dismissal of an employee. Section 16 (2) provides that if the Labour Commissioner finds after suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 opportunity 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 as 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 include 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 indeed to think that the first contention raised by the learned Attorney-General that it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 doei 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 op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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