Mitter, J. - (1.) In this appeal by certificate the question involved is, whether the Labour Court at Nagpur could exercise jurisdiction under Section 78 (1) (D) of the Bombay Industrial Relations Actin a case where the employee of an industry governed by the Act had not complied with the provisions of Section 42 (4)_ of the said statute read with the proviso to the said sub-section. The Bombay High Court has held that it was not necessary for an employee first to approach the employer or to follow the procedure laid down in Section 42 (4) including the proviso before the could apply to the Labour Court for relief under Section 78 (1) (D).
(2.) The facts are as follows. One Nathu, respondent No. 3 herein was employed as a munshi in the appellant's Bidi factory at Bhandara. The appellant had framed a charge sheet against him in respect of certain acts of misconduct, gross negligence of duty, insubordination etc. on May 13, 1965. As enquiry in respect thereof was held on May 15th after receipt of written statement from Nathu. Holding that the charges levelled against him were proved, the employer dismissed the third respondent with effect from August 1, 1965. The said respondent filed an application challenging the order of dismissal before the Labour Court under Section 78 of the Bombay Industrial Relations Act, 1946, hereinafter referred to as the 'Act', on the 5th August. His complaint was that the charge sheet was not proper, that the Head Office of the appellant had no authority to deal with his case under the Standing Orders, that no evidence was allowed or filed on behalf of the employer and that the finding was based only on his statement and in particular his cross-examination. He had been forced to append his signature to a certain paper without the same having been read over to him. The Labour Court after holding an enquiry took the view that the findings of the enquiry officer were perverse, that the order of dismissal was passed by a person not authorised to exercise the power and consequently the Labour Court directed the reinstatement of the third respondent with all back wages. The appellant preferred an appeal to the State Industrial Court contending, inter alia, that the third respondent had failed to comply with the provisions of law in that he did not make an application under Section 42 (4) of the Act which was a condition precedent to approaching the Labour Court and prayed that the order of the Labour Court should be set aside on that ground alone. The Industrial Court confirmed the order of the Labour Court. The appellant then filed a petition under Article 227 of the Constitution before the Bombay High Court. The High Court held against the appellant. Unfortunately, there is no appearance for the respondent before us.
(3.) In order to appreciate the scope of the Labour Court's jurisdiction under the Act and in particular the attractability of Section 78 (1) (D) it is necessary to examine the scheme of the Act as a whole including the provisions relevant for this appeal. The Act when first passed in 1946 known as the Bombay Industrial Relations Act was applicable to a limited area with the State. In the Vidarbha region of the State, there was another similar Act in operation. The Act suffered numerous amendments from time to time until 1965 when Maharashtra Act 22 of 1965 was passed. The new Act was described as an Act "to extend the Bombay Industrial Relations Act, 1946 throughout the State of Maharashtra and for that and for certain other purposes further to amend that Act, and to repeal corresponding laws in force in any part of the State." Under Section 2 of that Act the Bombay Industrial Relations Act of 1946 as in force immediately before the commencement of the 1965 Act in the Bombay area of the State of Maharashtra was extended to the rest of the State. The C. P. and Berar Act was repealed. As a result, the Act now extends to the whole of the State. Chapter I contains only three sections:Section 2 deals with the extent, commencement and application of the Act and Section 3 is the definition section Chapter II sets out the authorities to be constituted or appointed under the Act. Section 9 provides for the constitution of Labour Courts and Section 10 of Industrial Courts. Chapter III containing Sections 11 to 22 deals with registration of Unions and Chapter IV with approved Unions Chapter V deals with representatives of employers and employees and appearance in proceedings on their behalf. Chapter VI deals with powers and duties of labour officer and Chapter VII deals with Standing Orders. Chapter VIII contaning Sections 42 to 47 deals with "changes". Chapter IX deals with Joint Committees, Chapter X with Conciliation Proceedings, Chapter XI with Arbitration and Chapter XII with Labour Courts, their territorial jurisdiction, their powers, commencement of proceedings before the Labour Court etc. It is not necessary to take note of other Chapters excepting Section 123 in Chapter XIII which deals with the rule-making power. The relevant definitive clauses in Section 3 are:- "(8)"change" means an alteration in an industrial matter; (13) "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes............. (a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of subclause (e) of Clause (14); (b) a person who has been dismissed, discharged or retrenched or whose services have been terminated from employment on account of any dispute relating to change in respect of which a notice is given or an application made under Section 42 whether before or after his dismissal, discharge, retrenchment or, as the case may be, termination from employment; but does not include....... (i) a person employed primarily in a managerial, administrative, supervisory or technical capacity drawing basic pay (excluding allowances) exceeding five hundred and fifty rupees per month; (ii) any other person or class of persons employed in the same capacity as those specified in Clause (i) above irrespective of the amount of the pay drawn by such person which the State Government may, by notification in the Official Gazette, specify in this behalf. (17) "Industrial dispute" means any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter; (18) "Industrial matter" means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment, and includes..... (a) all matters pertaining to the relationship between employers and employees, or to the dismissal or non-employment of any person; (b) all matters pertaining to the demarcation of functions of any employees or class of employees. (c) all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or a ward made under this Act; (d) all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole;" Under Section 31 (1) every employer must submit for approval to the Commissioner of Labour in the prescribed manner standing Orders regulating the relations between him and his employees with regard to the industrial matters mentioned in Schedule 1 within six weeks from the date of the application of the Act to the industry. Under sub-section (5) of the section; "Until standing orders in respect of an undertaking come into operation under the provisions of sub-section (4), model standing orders, if any notified in the Official Gazette by the State Government in respect of the industry shall apply to such undertaking." Schedule I to the Act contains among other matters Items 10 and 11 relating to termination of employment including notice to be given by the employer and employee and punishment including warning, censure, fine, suspension or dismissal for misconduct, suspension pending enquiry into alleged misconduct and the acts or omissions which constitute misconduct.;