SRIVASTAVA S P Vs. BANARAS ELECTRIC LIGHT AND POWER COMPANY LTD

JUDGEMENT

(1.) THE appellant, S. P. Srivastava, was employed as an accountant by the respondent-company, Banaras Electric Light and Power Company, Ltd. , Varanasi. He was suspected of having been responsible for the disappearance of a sum of Rs. 223 14. 0 which was due from the company to another employee, Mahabir Prasad, towards payment of bounds. His past record and conduct also aroused suspicions. Therefore, on 10 October 1957, the company served a notice of termination of his services upon the appellant in accordance with the terms of the contract of service between the appellant and the company. On a reference to the labour court at Gorakhpur, it was found that the notice was not a proper one under Clause 7 of the terms of agreement between the parties. Therefore, the appellant was reinstated on 27 November 1958, and the entire amount due to him under the award was paid. But the company gave a fresh notices of termination of his services to the appellant on the ground that it had lost confidence in him. The appellant was paid one month's salary in lien of period of notice. The matter was, however, again referred to the labour court which held on 8 October 1959, that the company had wrongfully and unjustifiably terminated the service of S. P. Srivastava inasmuch as the standing order, which provided for an opportunity to be given to the employee to explain his position before terminating his services in such circumstances, had not been complied with.

(2.) THE Company then filed a writ petition against the award given by the labour court on 8 October 1959. It claimed the benefit of the particular agreement between the parties and contended that it prevailed over the standing orders of the company. Oak, J. (as he then was), accepted the company's submissions and quashed the award of the labour court. Following his own previous decision in J. K. Cotton Manufacturers v. J. N. Tewari the learned Judge held that a special contract would prevail over the provisions of the standing orders. S. P. Srivastava, the employee concerned, then filed a special appeal. Our learned brethren, Jagdish Sahai and B. D. Gupta, JJ. , hearing the special appeal, seem to have taken by Oak, J. A Division Bench case of this Court in British India Corporation, Ltd. , Kanpur v. Labour Appellate Tribunal, Lucknow and Ors. 1961 II L. L. J. 523 where the view taken in the case of J. K. Cotton Manufactures (vide supra) had been affirmed, vas also placed before them. Therefore, our learned brethren have referred the following question for decision by a Full Bench of this Court: In the case of a conflict between the contract of service entered into between the employee and the company and the standing orders of the latter, which would prevail?

(3.) AS the outset, we may mention an argument, based upon the provision of the standing orders of the company, which has been addressed to us by Sri Jagdish Swarup on behalf of the respondent company. It is that the standing Order 35 of the company itself provides for such special agreements. This standing order runs as follows: