- (1.) THE petitioner, the New victoria Mills Ltd., Kanpur, prays for a writ of certiorari to quash the award of a labour Court dated 16 -9 -1966 (Annexure 27 to the writ petition) and consequential directions. The impugned award was given after this Court had caused, on 6 -8 -1963, In Civil Miscellaneous writ petition No. 2720 of 1959 connected with civil miscel laneous writ petition No. 2014/58, a pre vious award dated 26 -6 -1958 given by the same Labour Court adiudicating the same question between the same parties. Mr. Justice Dwivedi had ordered in that case: - "I direct the Labour Court to re -hear the dispute and decide the question of fair hearing in the light of my Judgment" The question for adiudication before the Labour Court was framed as follows: - "Whether the employers have wrong fully and/or unjustifiably dismissed Sri Jagannath, son of Sri Kunji, T. N, 9 and Sri Chhotey, son of Sri Chhedi, T. N. 3. sweepers, with effect from February 7, 1967, if so, to what relief are the work men concerned entitled - The employers had tried and found Jagan nath and Chhotey, opposite parties 2 and 3, guilty on a charge framed as follows: "Aap 6 -11 -1954 ki rat me ek baje sagar peshi me cement ki bori chorate hue pakade gave aur usi samay aap police me bhi dediye gave. Aap jawab deejiye ke chori ki case men aap ke khilaf kiyon na karwai Mya jai and thereby committed an act of misconduct under Standing Order 23 (D) (Theft)." This charge framed in language which was a mixture of Hindi and English, as indi cated above, certainly put the matter with which the accused were charged fairly and squarely to them in language which was quite intelligible to them. The ques tions which were argued before this Court on the previous occasion were whether the charge had been properly framed and whether the accused had been given a fair hearing. Dwivedi, J._, who quashed the previous award, had observed in the course of his judgment: "I have already stated that the award is founded on the only ground that the domestic enquiry did not give fair hearing to the employees." After coming to this conclusion. Dwivedi, J. held that the charge contained full details of the misconduct alleged against the workmen. It was also held there that the Labour Court had proceeded on a number of irrelevant considerations in coming to the conclusion that the accused had not got a fair hearing.
(2.) IN the award now assailed by the petitioner, the Labour Court has observed that the case had been sent back by this Court in order to determine whether there was a fair hearing before the domestic tribunal After making this observation, the Labour Court, for some reason, made no effort whatsoever to decide the ques tion of fair hearing and seems to have forgotten all about it Perhaps the Labour Court was of opinion that the direction to rehear the dispute meant that the whole case was re -opened and could be decided entirely afresh on whatever grounds the Labour Court thought fit to take. I may observe that even if the Labour Court's assumption that every question was open to it for adjudication afresh could be justified, it should have given a decision on the question this Court had expressly directed it to decide. The order of this Court, as I understand it, was that, although the dispute is to be re heard, a fresh decision must be given, in any case, on the only question which was apparently raised before the Labour Court and before this Court on the previous oc casion, that is to say, the question whether a fair hearing was given to the workmen by the domestic tribunal. Unfortunately, the labour Court has not given any reason for treating the whole case as open to it for re -adjudication without finding that the workmen did not get a fair hearing. The labour Court held that a charge for misconduct brought by an employer against a workman need not be restricted to theft committed on the company's pre mises or during working hours of the operative. It relied on the decision of the Supreme Court in Central India Coal Fields v. R. B. Sobnath, AIE 1961 SC 1189 hi order to decide issue No. 2 in favour of the employers. It was held in that case that improper conduct of an employee committed even outside the Company's premises and also outside the working hours could be misconduct under the standing orders. The Labour Court fram ed and decided an additional Issue No.2 against the workmen: Whether the Stand ing Orders of the concern were applicable to the workmen who are employed at the bungalows of the officers of the mills? Apparently, the workmen had raised the question whether a theft alleged to have been committed at the bungalows of tha officers by employees could constitute misconduct within the meaning of that term as given in the Standing Orders, Although the Labour Court held that the Standing Orders would cover theft by a workman outside the Company's premises, it took the view that, there being no evi dence that the cement stolen belonged to the Company, no charge for misconduct could be made out
(3.) I have been taken through the written statements filed on behalf of the employers and the workmen before the Labour Court. The fresh question on which the Labour Court seems to have decided the whole case on this occasion, whether the cement alleged to have been stolen was the property of the Company or not, was not raised any where by the parties. The Labour Court, however, ob served that the Managing Officer's bun galow on wnich the theft was committed was two and a half miles from the factory and did not belong to the factory. It practically negatived the effect of its own finding that the Standing Orders applied to a case of theft outside the premises of the Company by Introducing the condi tion that the theft had to be shown to be of the Company's property. It held that, as no evidence was produced at the domestic inquiry that the cement alleged to have been stolen was the property of the Company or that the theft was in connection with the Company's business, there 'was no evidence whatsoever to sup port the charge of misconduct. In other words, the Labour Court construed the charge as confined to theft of the property of the Company or one committed in con nection with the Company's business and misconduct as confined to such theft. It held the finding of the domestic tribunal to be "perverse" on the ground that there was no evidence at all about the owner ship of the cement said to have been stolen,;