judgement:
ivil Appeal No. 353 of 1957.
Appeal by special leave from the judgment and decree dated November 1, 1955, of the Punjab High Court (Circuit Bench) at Delhi in Regular Second Appeal No. 28 D of 1955, arising out of the judgment and decree dated December 31, 1954, of the Court of the Senior Subordinate Judge at Delhi in Regular Civil Appeal No. 685 of 1954, affirming the judgment and decree of Subordinate Judge Third Class Delhi in Suit No. 273/213 of 1953.
Janardhan Sharma, for the appellant.
C. K. Daphtary, Solicitor General of India, R. Gana pathy Iyer and R. H. Dhebar, for the respondents.
1082 1957.
December 13.
The following Judgment of the Court was delivered by DAS C. J.
This appeal by special leave granted by this Court to the plaintiff appellant is directed against the judgment and decree passed on November 1, 1955, by a single Judge of the Punjab High Court sitting in the Circuit Bench at Delhi in regular second appeal No. 28 D of 1955.
The facts leading up to the present appeal are shortly as follows: On April 6, 1943, the appellant was appointed a sub inspector under the Delhi Audit Fund.
In February 1947, he was transferred to the Co operative Societies Department and posted as subinspector in the Milk Scheme.
On July 3, 1947, the the appellant was confirmed by the then Deputy Commissioner of Delhi who was also the ex officio Registrar of Co operative Societies.
On August 1, 1948, the appellant was transferred to the Rehabilitation Department of the Co operative Societies and posted as sub inspector.
On July 1, 1949, the appellant was suspended by the then Deputy Commissioner, Delhi.
On July 9, 1949, the appellant was served with a charge sheet under r. 6(1) of the Rules which had been framed by the Chief Commissioner, Delhi to provide for the appointment to the subordinate services under his administrative control and the discipline and rights of appeal of members of those services.
After formulating eight several charges the document concluded as follows: " You are, therefore, called upon to show cause why you should not be dismissed from the service.
You should also state in your reply whether you wish to be heard in person or whether you will produce defence.
The reply should reach the Asst.
Registrar, Co operative Societies, Delhi, within ten days from the receipt of this charge sheet".
The chargesheet was signed by Shri Rameshwar Dayal who was at that time the Deputy Commissioner of Delhi and was admittedly the authority competent to dismiss the appellant.
The appellant duly submitted his explanation in writing.
One Shri Mahipal Singh, Inspector, Co. 1083 operative Societies was appointed by the Deputy Commissioner, Delhi the officer to hold the enquiry.
The appellant attended two sittings before the Enquiry Officer and then applied to the Deputy Commissioner to entrust the enquiry to some Gazetted Officer under him.
This request of the appellant was rejected and he was informed accordingly.
Indeed, the appellant was warned that the Enquiry Officer had been authorised to proceed with the enquiry ex parte if the appellant failed to attend the enquiry.
The appellant, however, did not, after October 20, 1949, attend any further sittings before the Enquiry Officer.
The Enquiry Officer thereupon framed four additional charges against the appellant, namely, (1) for his refusal to attend the enquiry, (2) for his refusal to accept the service of the order of the Enquiry Officer, (3) for his absence without permission and (4) for his misconduct in snatching away papers from one Mohd. Ishaq and using unparliamentary and threatening language.
It appears that at or about this time the appellant became involved in a criminal case on a charge under section 307 of the Indian Penal Code and on October 30, 1949, he was actually arrested but was released on bail two or three days later.
Eventually on May 20, 1950, the appellant was discharged from the criminal charge.
On November 14, 1951, the appellant was served with a notice signed by one Shri Vasudev Taneja, Superintendent.
The notice was in the following terms: "Please note that you are to appear before Shri J.B. Tandon, 1. A. section, Additional District Magis trate,on the 24th November, 1951, at 10 30 a.m., in his court room in connection with the departmental enquiry pending against you".
The language employed in the notice does lead some support to the conten tion that the Enquiry Officer, Shri Mahipal Singh, had not concluded the enquiry entrusted to him and that the departmental enquiry was still pending.
Pursuant to the notice the appellant appeared before Shri J. B. Tandon and urged two points, namely, (1) 138 1084 that the enquiry of the charges framed against him ought to have been held by a Gazetted Officer of the District Court and (2) that the enquiry should have been held in his presence.
It will be noticed that both the points related to the enquiry before Shri Mahipal Singh.
On December 13, 1951, Shri J. B. Tandon made a report.
After reciting the charge sheet containing the notice calling upon the appellant to show cause why he should not be dismissed from service and setting out the charges contained in the notice and summarising the explanation submitted by the appellant with regard to each of the charges and reciting the prayer of the appellant that the Enquiry Officer should be changed and the rejection thereof and the framing of additional charges and the appellant 's absence from the enquiry with effect from October 20, 1949, the report proceeded to set out the actual charges which Shri Mahipal Singh was appoint ed to enquire into.
The report then stated that the enquiry with regard to the first two charges had been held in the presence of the appellant and the rest were enquired into ex parte as the appellant had absented himself from the enquiry.
Then the report recited that twelve charges had been proved against the appellant and he was given the benefit of doubt in respect of charge No. (iii) and that no charge sheet had been given with regard to charges Nos.
(xiii) and (xiv) and that no enquiry had been held on those charges.
Out of the twelve charges said to have been proved against the appellant, Shri J. B. Tandon found that no charge had been actually framed in one case and, therefore, he reduced the number of proved charges to eleven and proceeded to base his recommendation on them.
After stating that the charges of embezzlemient, acceptance of illegal gratification and borrowing of money from societies were so serious that even one of them alone was sufficient to demand the appellant 's dismissal and that the entries made in his character roll disclosed that his work and conduct had not been satisfactory and explaining that the enquiry had been held up by reason of the appellant having been challaned under section 307, Indian Penal Code, Shri J. B. 1085 Tandon, in his report, formulated the following points for consideration: namely, (1) what penalty should be imposed on Shri Khem Chand for the eleven charges proved against him? (2) Whether his gun licence should be cancelled and (3) whether the dues of societies, which had been proved, might be realised out of the security deposit furnished by him? Then, after stating that a personal hearing was given to the appellant who raised the two points mentioned above and holding that there was no substance in either of them, paragraph 16 of the report ran as follows: " The charges of embezzlement, acceptance of illegal gratification, making wrong statement, misbehaviour at the time of enquiry and refusal to receive orders to attend enquiry which had been proved against him are so serious that, I am sorry, I cannot suggest lesser punishment than dismissal from service and he may be dismissed.
" The report also recommended that the appellant 's gun licence be cancelled and that he be directed to surrender his licence and deposit the gun in the district Malkhana and that the money, which had been proved to have been taken by the appellant from various societies, might also be recovered from the security deposit furnished by him.
There is no positive and definite statement in Shri J. B. Tandon 's report that Shri Mahipal Singh had concluded the enquiry or submitted a formal report.
The general tenor of Shri J. B. Tandon 's report, however suggests that Shri Mahipal Singh did arrive, at definite findings on twelve charges.
The appellant 's grievance is that he was not given a copy of the report of Shri Mahipal Singh, if any had been made, and no such report has been exhibited in this case.
At the foot of Shri J. B. Tandon 's report the following endorsement appears over the signature of the Deputy Commissioner, Delhi under date December 14, 1951: " The report is approved.
Action accordingly.
" Thereupon on December 17, 1951, a formal order was issued over the signature of the Deputy Commissioner, Delhi.
It was in the following terms: 1086 "I, the undersigned, do hereby dismiss Shri Khem Chand, sub inspector, Co operative Societies, Delhi, from the Government Service with effect from the date of this order.
He has been found guilty of the charges of embezzlement, acceptance of illegal gratification, making wrong statement,misbehaviour at the time of the enquiry and refusal to receive order to attend the enquiry.
I further order that money which has been proved to have been taken by Shri Khem Chand from various societies be recovered from the security deposit furnished by him.
On March 15, 1952, the appellant appealed to the Chief Commissioner, but his appeal was dismissed on December 8, 1952.
Thereafter the appellant served a notice of suit on the respondents under section 80 of the Code of Civil Procedure and on May 21, 1953, filed civil suit No. 213 of 1953 complaining, inter alia, that article 311(2) had not been complied with.
The suit was decreed by the subordinate judge, Delhi on May 31, 1954, declaring that the plaintiff 's dismissal was void and inoperative and that the plaintiff continued to be in the.
service of the State of Delhi at the date of the institution of the suit and awarding costs to the plaintiff.
The Union of India preferred an appeal against the judgment of the subordinate judge, Delhi, but the appeal was dismissed by the senior subordinate judge, Delhi on December 21, 1954, and the decree of the trial court was confirmed.
A second appeal was taken by the defendants to the Punjab High Court.
By his judgment dated November 1, 1955, the Single Judge held that there had been a substantial compliance with the provisions of article 311 and accordingly accepted the appeal, set aside the decree of the courts below and dismissed the plaintiff 's suit.
On September 6, 1956, the plaintiff obtained special leave from this Court and has preferred this appeal against the order of the learned Single Judge.
The appellant has also been allowed to prosecute the appeal in forma pauperis.
In the courts below a point was raised as to whether the appellant was a member of any of the services 1087 referred to in article 311.
But it was a conceded before the High Court and has also been admitted before us that the appellant was such a member and consequently that point does not arise.
The only point that has been canvassed before us, as it had been before the High Court, is: Was the appellant given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ? There is no dispute that the appellant was served with a charge sheet on July 9, 1949, as required by r. 6 of the Rules which had been framed by the Chief Commissioner, Delhi and which governed the appellant 's conditions of service.
It is also conceded that the appellant actually appeared at two hearings before the Enquiry Officer, Shri Mahipal Singh, but that subsequently he wanted a transfer of the enquiry to some other officer and that that prayer having been refused he did not take any further part in the enquiry before that officer.
There is no grievance that no opportunity had been given to him to defend himself against the charges levelled against him in that enquiry.
It is also an admitted fact that some time after the appellant was discharged from the criminal case, be received a notice on November 14, 1951, requiring him to appear before Shri J. B. Tandon on November 25, 1951, in connection with the pending enquiry.
The appellant did appear on the appointed day, bad been given a personal hearing and in fact raised two several objections against the enquiry held by Shri Mahipal Singh.
His only grievance is that, after Shri J. B. Tandon had made his report on December 13, 1951, recommending the dismissal of the appellant and the Deputy Commissioner had on the very next day approved of the report and proposed to take action accordingly, the appellant was not given an opportunity to show cause against the action so pro.
posed to be taken in regard to him, as he was entitled to under article 311 of the Constitution.
In order to appreciate the arguments advanced by learned counsel for the parties, it is necessary at this stage to set out the provisions of the Constitution qearing on them.
The relevant portions of articles 310 1088 and 311 of the Constitution, which substantially reproduce sub sections
(1), (2) and (3) of section 240 of the Government of India Act, 1935, are as follows: " 310(1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
(2). . . . . . . . . 311(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2)No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided. . . . . . . . . (3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.
" The answer to the question canvassed before us depends on a true construction of the aforesaid pro,visions and in particular on the view we take as to the meaning, scope and ambit of article 311(2).
In Parshotam Lal Dhingra 's case (1) it wag said that the word "removed " was not in section 240(3) but had been introduced in article 311(2).
It may be mentioned that although the word " removed " was not actually used in section 240(3), the reference to dismissal, according to section 277, included a reference to removal.
(1) Civil Appeal No. 65 Of 1957, decided on November 1, 1957.
1089 Article 310(1) no doubt provides that every person falling within it holds office during the pleasure of the President or the Governor, as the case may be.
The language of both cls.
(1) and (2) of article 311 are prohibitory in form and was held by the Judicial Committee in High Commissioner for India vs 1.
M. Lal (1) to be inconsistent with their being merely permissive and consequently those provisions have to be read as qualifications or provisos to article 310(1) as has been held by the Judicial Committee in that case and recently by this Court in Parshotam Lal Dhingra vs The Union of India(2) in a judgment pronounced on November 1, 1957.
The limitations thus imposed on the exercise of the pleasure of the President or the Governor in the matter of the dismissal, removal or reduction in rank of government servants constitute the measure of the constitutional protection afforded to the government servants by article 311(2).
Clause (1) of article 311 is quite explicit and protects government servants of the kinds referred to therein by providing that they cannot be dismissed, or re.
moved or reduced in rank by a lesser authority than that which appointed them.
Likewise cl.
(2) protects government servants against being dismissed, removed or reduced in rank without being given a reasonable opportunity to show cause against the action proposed to be taken in regard to them.
As has been explained by this Court in Parshotam Lal Dhingra 's case (2), the expressions 'dismissed ', 'removed ' and ,reduced in rank ' are technical words taken from the service rules where they are used to denote the three major categories of punishments.
In exercise of powers conferred by section 96 B(2) of the Government of India Act, 1915, the Secretary of State in Council framed Civil Service (Governors Provinces Classification) Rules.
Rules (x) and (xiii) of those rules provided that local government might, for good and ,sufficient reasons, inflict the several punishments therein mentioned on persons therein indicated.
Rule (xiv) prescribed the procedure for all cases in which dismissal, removal or reduction in rank of any officer was intended (1) L.R. (1948) 75 I.A. 225 at P. 241. 1090 to be ordered.
These rules were reproduced with some modifications in the Civil Services (Classification, Control and Appeal) Rules which were, on May 27, 1930, ,promulgated by the Secretary of State in Council in exercise of the same powers under section 96 B of the Government of India Act, 1915.
Rule 49 of those rules specified seven different kinds of punishments which could, for good and sufficient reasons, be imposed upon the members of the services therein specified.
Rule 55 reproduced old r. (xiv) with greater details.
It provided: " Without prejudice to the provisions of the , no order of dismissal, removal or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communi cated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person.
If he so desires, or if the authority concerned so direct, an oral inquiry shall be held.
At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to crossexamine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness.
The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.
This rule shall not apply where the person concerned has absconded, 1091 or where it is for other reasons impracticable to com municate with him.
All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.
" Similar rules were framed and are to be found in the Indian Railway Establishment Code which governs the railway servants.
Rule 6 of the Rules framed by the Chief Commissioner, Delhi, referred to above, is more or less on the same lines.
In R. Venkata Rao vs Secretary of State for India it was held, with reference to the rules made under s.96 B of the Government of India Act, 1915, that while that section assured that the tenure of office, though at pleasure, would not be subject to capricious and arbitrary action, but would be regulated by the rules, it gave no right to the appellant, enforceable by action, to hold his office in accordance with those rules.
It was held that section 96 B and the rules made thereunder only made provisions for the redress of grievances by administrative process.
The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of the Crown under the Government of India Act, 1915, the rules could not over ride or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself.
The only protection that the Government servants had was that, by virtue of section 96 B(1), they could not be dismissed by an authority subordinate to that by which they were appointed.
The position, however, improved to some extent under the 1935 Act which, by section 240(3), gave a further protection, in addition to that provided in section 240(2) which reproduced the protection of s 96 B(1) of the Government of India Act, 1915.
We have, therefore, to determine the true meaning, scope and ambit of this now protection given by section 240(3) of (1) L. R. (1936) 64 I.A. 55.
139 1092 the Government of India Act, 1935, which has been reproduced in article 311(2).
The majority of the Judges of the Federal Court (Spens, C.J., and Zafarulla Khan, J.) in I. M. Lall 's case (1) took the view that in sub section
(3) of section 240 there had been enacted provisions of a very limited scope in permanent statutory form as compared with the provisions under the rules considered in Venkata Rao 's case (2).
Further down, after referring to the fact that prior to 1935 a sort of protection for the servants of the Crown provided by sub section
(3) was merely to be found in the rules, many and various and liable to change, their Lordships proceeded to state that from those rules had been picked out and enacted in the section itself certain limited specific provisions only.
The majority of the Federal Court at page 138 construed section 240(3) as follows: "In our judgment the words "against the action proposed to be taken in regard to him " require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon.
It should be noted that the sub section does not require any inquiry, any formulation of charges, or any opportunity of defence against those charges.
All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him.
It is also significant that there is no indication as to the authority by whom the action is to be proposed.
It does, however, seem to us that the sub section requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the (I) , 136.
(2) L.R. (1936) 64 I.A. 55 1093 action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken.
It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow.
This may indeed be sufficient in some cases.
In our judgment each case will have to turn on its own facts, but the real point of the sub section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed.
That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank.
" The above passage indicates that in the view of the majority of the judges of the Federal Court section 240(3) corresponding now to article 311(2) does not " require any inquiry, any formulation of charges or any opportunity to defend against those charges ".
According to them " all that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him ".Their
Lordships added that as that opportunity had to be a reasonable opportunity the section must be taken to require "not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be 1094 taken and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which sit is proposed to be taken ".
It is quite clear that the majority of the Federal Court put a somewhat narrow interpretation on the relevant provision in that they considered that the requirement of reasonable opportunity contemplated by it arose only at a later stage when the competent authority definitely proposed to take a particular action and that this opportunity did not cover the earlier stage where charges were formulated and enquired into.
Varadachariar, J. in his dissenting judgment took much the same view on this point as did the High Court.
The High Court observed as follows: "The plaintiff 's contention is that this opportunity should have been afforded to him after the finding of the enquiring officer had been considered and the punishment decided upon.
With this contention we are unable to agree.
Eight charges were served on the plaintiff and at the end he was asked to show cause why he should 'not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce for breach of Government Rules and conduct unbecoming to the Indian Civil Service.
He was aware 'from the very start of the enquiry against him that removal from service was one of the various actions that could have been taken against him in the event of some or all the charges being established, and in this sense he was showing cause during the course of the inquiry against the action proposed.
The plaintiff 's contention that there should be two enquiries the first to establish that be had been guilty and the second to determine what should be the appropriate punishment, and that in each stage he should have reasonable and independent opportunities to defend and show cause does not appear to be correct or intended by the Legislature (1).
" In agreement with the High Court Varadachariar J. held that the requirements of sub section
(3) of section 240 (1) Lah.
325, 347, 348.
1095 demanded nothing beyond what was required for compliance with the provisions of r. 55 of the Civil Services (Classification, Control and Appeal) Rules.
His Lordship found nothing in the language of el.
(3) to indicate that anything more or anything different was contemplated or to suggest that a further opportunity was to be given after the enquiry had been completed in the presence of the officer charged and the enquiring officer had made his report.
The learned Judge was unable to accept the suggestion that the words of the statute were appropriate only to the stage when the authorities would be in a position to indicate definitely what action they intended to take, namely, whether it was to be one of dismissal or one of reduction and that this could be predicated only after the Enquiring Officer had made his report.
In our judgment neither of the two views can be accepted as a completely correct exposition of the intendment of the provisions of section 240(3) of the Government of India Act, 1935, now embodied in article 311(2) of the Constitution.
Indeed the learned Solicitor General does riot contend that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him.
We think that the learned Solicitor General is entirely right in not pressing for such a limited construction of the provisions under consideration.
It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned.
All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
He must not only be given an opportunity but such opportunity must be a reasonable one.
In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punish 1096 ment proposed to be given is much more drastic and severe than he deserves.
Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment.
If this is the correct meaning of the clause, as we think it is, what consequences follow ? If it is open to the governmnet servant under this provision to contend, if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence.
If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross examine the witnesses called against him and to examine himself or any other witness in support of his defence.
All this appears to us to be implict in the language used in the clause, but this does not exhaust his rights.
In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him.
He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case.
To summarise: the reasonable opportunity envisaged by the provision under consideration includes (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what 1097 the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by crossexamining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.
In short the substance of the protection provided by rules, like r. 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in section 240 (3) of the Government of India Act, 1935 so as to give astatutory protection to the government servants and has now been incorporated in article 311 (2) so as to convert the protection into a constitutional safeguard.
We find support for our above mentioned conclusion in the judgment of the Judicial Committee in I. M. Lall 's case (1).
It is true that after quoting a portion of the passage from the judgment of the majority of the Federal Court set out above their Lordships at page 242 stated that they agreed with the view taken by the majority of the Federal Court, but their Lordships did not stop there and went on to say: " In their opinion, sub section
3 of section 240 was not intended to be, and was not, a reproduction of r. 55, which was left unaffected as an administrative rule.
, Rule 55 is concerned that the civil servant shall be informed " of the grounds on which it is proposed to take action ", and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of " a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ".
In the (1) L.R. (1948) 75 I.A. 225 at 241.
1098 opinion of their Lordships, no action is proposed within the meaning of the sub section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on.
Before that stage, the charges are unproved and the suggested punishments are merely hypothetical.
It is on that stage being reached that the statute gives the civil servant the opportunity for which sub section 3 makes provision.
Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage.
If the civil servant has been through an inquiry under r. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry.
" The above passage quite clearly explains that the point on which their Lordships of the Judicial Committee agreed with the majority of the Federal Court is that a further opportunity is to be given to the government servant after the charges have been established against him and a, particular punishment is proposed to be meted out to him.
The opening sentence in the above passage, namely, that section 240 (3) was not a reproduction of r. 55 and that r. 55 was left unaffected as an administrative rule does seem to suggest that section 240 (3) is not at all concerned with the enquiry into the charges which comes at the earlier stage, but a close reading of the rest of that passage will indicate that in their Lordships ' view the substance of the protection of r. 55 is also included in section 240 (3) and to that is superadded, by way of further protection, the neces sity of giving yet another opportunity to the government servant at the stage where the charges are proved against him and a particular punishment is tentatively proposed to be inflicted on him.
Their Lordships referred to " statutory opportunity being reasonably afforded at more than one stage ", that is to say, that the opportunities at more stages than one are comprised within the opportunity contemplated 1099 by the statute itself.
Of course if the government servant has been through the enquiry under r. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, which implies that if no enquiry has been held under r. 55 or any analogous rule applicable to the particular servant then it will be quite reasonable for him to ask for an enquiry.
Therefore, in a case where there is no rule like r. 55 the necessity of an enquiry was implicit in section 240 (3) and is so in article 311(2) itself.
Further their Lordships say that an enquiry under r. 55 " would not exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry ".
This clearly proceeds on the basis that the right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his " statutory right " and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant.
The learned Solicitor General appearing for the Union of India, then, contends that assuming that the government servant is entitled to have an opportunity not only to show cause against his guilt but also an opportunity to show cause against the punishment proposed to be inflicted on him, the appellant in the present case has had both such opportunities, for by the notice served on him on July 9, 1949, the appellant was called upon to show cause against the charges as well as against the punishment of dismissal in case the charges were established.
He points out that in I. M. Lall 's case (1) the notice given to I. M. Lall did not specify dismissal as the only and particular punishment proposed to be imposed on him, but called upon him to show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority, might think fit to enforce, whereas in the present case the notice referred to above clearly indicated that the punishment of dismissal alone was proposed to be inflicted.
L.R. (1948) 75 1.
A. 225.
140 1100 The learned Solicitor General in support of his contention relies on the observations of the majority of the Federal Court quoted above and in particular on the passage where their Lordships stated " that in some cases it would be quite sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced in rank if all or any of the charges are proved, dismissal or reduction in rank would follow and that this would be sufficient in some cases." He also strongly relies on the circumstance that their Lordships of the Judicial Committee, after quoting the above passage, stated that they agreed with the view taken by the majority of the Federal Court.
But as we have already explained, the other observations of their Lordships of the Judicial Committee, which follow immediately, quite clearly indicate that what they agreed with was that a second opportunity was to be given to the government servant concerned after the charges had been brought home to him as a result of the enquiry.
Their Lordships made it clear that no action could, in their view, be said to be proposed within the meaning of the section until a definite conclusion had been come to on the charges and the actual punishment to follow was provisionally determined on, for before that stage the charges remained unproved and the suggested punishments were merely hypothetical and that it was on that stage being reached that the statute gave the civil servant the opportunity for which sub section
(3) made provision.
A close perusal of the Judgment of the Judicial Committee in I. M. Lall 's case will, however, show that the decision in that case did not proceed on the ground that an opportunity had not been given to 1.
M. Lall against the proposed punishment merely because in the notice several punishments were included, but the decision proceeded really on the ground that this opportunity should have been given after a stage had been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the 1101 proved charge tentatively and proposed a particular punishment.
There is as the Solicitor General fairly concedes, no practical difficulty in following this procedure of giving two notices at the two stages.
This procedure also has the merit of giving some assurance to the officer concerned that the competent authority maintains an open mind with regard to him.
If the competent authority were to determine, before the charges were proved, that a particular punishment would be meted out to the government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject matter of the charge or, at any rate, as regards the punishment itself.
Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done.
It is on the facts quite clear that, when Shri J. B. Tandon concluded his enquiry and definitely found the appellant guilty of practically all the charges he for the first time suggested that the punishment of dismissal should be the proper form of punishment in this case.
Shri J. B. Tandon was not, however, the competent authority to dismiss the appellant and, therefore, he could only make a report to the Deputy Commissioner who was the person competent to dismiss the appellant.
When the Deputy Commissioner accept ed the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have a further opportunity given to him to show cause why that particular punishment should not be inflicted on him.
There is, therefore, no getting away from the fact that article 311(2) has not been fully complied with and the appellant has not had the benefit of all the constitutional protection and accordingly his dismissal cannot be supported.
We, therefore, accept this appeal and set ' aside the order of the Single Judge and decree the appellant 's suit by making a declaration that the order of dismissal passed by the Deputy Commissioner on 1102 December 17,1951, purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which this appeal has arisen.
The appellant will get costs throughout in all courts.
He must pay all court fees that may be due from him.
Under order XIV, Rule 7 of the Supreme Court Rules were direct that the appellants could be paid his fees which we assess at Rs. 250.
Appeal allowed.

summary/full:
Reasonable opportunity to show cause ' in article 311(2) Of the Constitution contemplates not merely the opportunity to do so at the enquiry stage but also when the competent authority, as a result of the enquiry, proposes to inflict one of the three punishments mentioned in the Article on the delinquent servant.
Such reasonable opportunity must, therefore, include, (1) opportunity to deny his guilt and establish his innocence which means that he must be told what the charges against him 1081 are and the allegations on which such charges are based ; (2)opportunity to cross examine the witnesses produced against him and examine himself or other witnesses on his behalf and, (3)opportunity to show that the proposed punishment would not be the proper punishment to inflict, which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him.
High Commissioner for India vs I.M. Lall, L.R. (1948) 75 I.A. 225, explained and relied on.
Secretary of State for India vs I. M. Lall, (1945) F.C.R. I03, not followed.
Parshotam Lal Dhingra vs The Union of India, and Venkata Rao vs Secretary of State for India, L.R. (1936) 64 I.A. 55, referred to.
The procedure followed in such cases must, therefore, include the giving of two notices to the servant, one at the enquiry Stage and the other when the competent authority, as a result of the enquiry, tentatively determines to inflict a particular punishment on him.
Consequently, in a case where the Government Servant sought to be proceeded against for misconduct was served with a charge sheet and appeared before two officers conducting the enquiry, one after the other, but no notice was served upon him when the competent authority accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on him, and no cause could, therefore, be shown by him, the provision of article 311(2) had not been fully complied with and the order of dismissal passed against him must be declared void and inoperative.


judgement:
, right in holding that Respondent No. 1 was a 'workman ' and in granting relief on that basis.
[996E] & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3521 3523 of 1987.
From the Judgment and order dated 17.10.
1986 of the Rajasthan High Court in D.B. Civil Special (Writ) Appeals Nos.
27,28 of 1983 and 224 of 1982.
Dr. Shankar Ghosh, N.C. Shah and Praveen Kumar for the Appellant.
Tapas Ray, S.K. Jain, Mrs. P.Jain and section Atreya for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
After hearing parties and after considering the relevant documents, additional as well as original, we grant leave to appeal in these matters.
The appeals are disposed of by the judgment herein.
989 Since prior to Ist of January, 1978 the respondent No. 1 Shri Kishan Bhageria was working under the appellant company as an Internal Auditor on a monthly salary of Rs.1186.60 per month.
The appellant alleged that the respondent started absenting himself from 28.1.78 and as such was not entitled to any salary for any period beyond 28.1.78 The said respondent was thereafter placed under suspension on 30th of March, 1978.
The respondent on 4th of May, 1978 filed an application under section 33C(2) of the (hereinafter called 'the Act ') claiming the total sum of Rs.4,746.40 on account of salary from Ist of January, 1978 to 30th of April, 1978 at the rate of Rs.11,86.60 per month.
The appellant company objected.
The main ground of objections was that the respondent was not a workman.
On or about 9th of November, 1978 there was an order dismissing the respondent from service.
The respondent thereafter on 2nd of January, 1979 filed an application under section 28A of the Rajasthan Shops & Establishments Act, 1958 (hereinafter called 'the Rajasthan Act ').
The said application was dismissed on 31st of July 1979 on the ground of limitation.
The Labour Court on 2nd of August, 1979 held that the respondent was doing clerical duties and as such was a workman under the Act and he was entitled to Rs.2,060 as salary from 1.1.78 to 9.3.78.
The appellant filed Writ Petition No. 765 of 1979 in the Rajasthan High Court against the order of the Labour Court allowing the said salary.
The respondent also filed another writ petition being writ petition No. 1091 of 1979 for declaration that he was entitled to receive Rs.2,066.98 as salary from 9.3.78 to 30.4.78.
There was thereafter a reference under section 10 of the Act on 8.8.80 arising out of the dismissal of the respondent.
The appellant filed another writ petition being Writ Petition No. 1623 of 1980 challenging the order of reference.
All these aforesaid writ petitions were disposed of by the learned Single Judge of the Rajasthan High Court on 16.3.82 holding that the respondent was not a workman.
The other contentions urged before the leaned Single Judge were not considered by the Division Bench in the view it took later on.
On 17th of October, 1986 the Division Bench reversed the judgment of the learned Single Judge and held that the respondent was a workman.
Two writ petitions of the appellant were dismissed and the writ petition of the respondent was allowed.
Aggrieved by the aforesaid orders the appellant has come up in these appeals before this Court.
The main question which requires consideration in these appeals is whether the respondent was a workman or not.
For the determination of this question it is necessary to refer to section 2(s) of the Act which defines "workman" and states that it means any person emp 990 loyed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes any such person who has been dismissed discharged or retrenched in connection with or as a consequence of any dispute.
But sub clause (iii) does not include any person who is employed mainly in a managerial or administrative capacity and sub clause (iv) does not include any person who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per month or duties attached to the office or by reason of the powers vested in him, discharges functions mainly of a managerial nature.
In view of the said definition, we are concerned here with the question whether the respondent was a workman as not being employed in any supervisory capacity.
There is no controversy that the said respondent is not employed in any managerial or administrative capacity.
In this case before we deal with the facts and the relevant authorities of this Court it may be appropriate to refer to a decision of P.B. Mukharji, J. Of the Calcutta High Court as the learned Chief Justice then was in Mcleod and Co. vs Sixth Industrial Tribunal, West Bengal and others, A.I.R. 1958 Calcutta 273.
There the learned Judge observed that whether a person was a workman within the definition of the was the very foundation of the jurisdiction of the Industrial Tribunal.
The Court further observed that in order to determine the categories of service indicated by the use of different words like "supervisory", "managerial", "administrative", it was necessary not to import the notions of one into the interpretation of the other.
The words such as supervisory, managerial and administrative are advisedly loose expressions with no rigid frontiers and too much subtlety should not be used in trying to precisely define where supervision ends and management begins or administration starts.
For that would be theoretical and not practical.
It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application.
The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge functions mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him.
In that case the learned Judge further held that a person in charge of a Department could not ordinarily be a clerk even though he may not have power to take disciplinary action or even though he may have another superior 991 officer above him.
It was further observed that distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision.
It is reiterated that a manager or administrator 's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator.
Bearing in mind the aforesaid indication, it would be necessary to discuss some decisions of this Court.
In All India Reserve Bank Employees Association vs Reserve Bank of India, ; , this Court dealing with certain types of employees observed "These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical." At page 46 of the report Hidayatullah, J. as the learned Chief Justice then was observed that the work in a Bank involved layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision, (emphasis supplied).
There the Court referred to a previous decision in Llyods Bank Ltd. vs Pannalal Gupta, , where the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn and it was reiterated that before a clerk could claim a special allowance payable to a supervisor, he must prove that he supervises the work of some others who are in a sense below him.
It was pointed out by Hidayatullah, J. that mere checking of the work of others is not enough because this checking was a part of accounting and not of supervision and the work done in the audit department of a bank was not supervision.
(emphasis supplied).
In Burmah Shell Oil Storage & Distribution Co. Of India.
vs Burmah Shell Management Staff Association & Ors., ; , this Court observed that a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work.
Therefore, in determining which of the employees in the various categories are covered by the definition of 'workman ' one has to see what is the main or substantial work which he is employed to do.
In The Punjab Co operative Bank Ltd. vs R.S. Bhatia (dead) through Lrs., it was held that the accountant was supposed to sign the salary bills of the staff even while performing the duties of a clerk.
That did not make the respondent employed in a managerial or administrative capacity.
The workman was, therefore, in that context rightly held as a clerk. 992 In P. Maheshwari vs Delhi Administration & Ors., ; the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle.
The principle therefore is, one must look into the main work and that must be found out from the main duties.
A supervisor was one who could bind the company to take some kind of decision on behalf of the company.
One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor.
See in this connection Black 's Law Dictionary, Special Deluxe, Fifth Edition.
At page 1290, "Supervisor" has been described, inter alia, as follows: "In a broad sense, one having authority over others, to superintend and direct.
The term 'supervisor ' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
" Reference may be made to the observations of this Court in Ved Prakash Gupta vs M/s. Delton Cable India (P) Ltd., ; There on facts a Security Inspector was held to be a workman.
At page 575 of the report this Court referred to the decision in Llyods Bank Ltd. vs Panna Lal Gupta, (supra) and also the observations of this Court in Hind Construction and Engineering Company Ltd. vs Their Workmen, In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch towers or around the factory or to accompany visitors to the factory and making entries in the visitors ' register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory.
There it was found that he had no power to appoint.
In the instant case the evidence have been summarised by the Division Bench.
Reference may be made to pages 65, 73, 80, 84 to 94, 993 95, 96 and 97 of the Paper Book which indicate the nature of duties performed by the respondent No. 1 herein.
His duties were mainly, reporting and checking up on behalf of the management.
A reporter or a checking clerk is not a supervisor.
The respondent herein does not appear to us doing any kind of supervisory work.
He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company.
In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor.
That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Article 136 of the Constitution.
It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench.
Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date 14th of May, 1976 where the respondent reported that certain materials were lying in stores deptt.
in absence of any decision.
It was further reiterated that on inspection of the pieces that those pieces were found cracked.
Similarly, our attention was drawn to several other letters and we have perused these letters.
We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent.
A checker on behalf of the management or employer is not a supervisor.
In the aforesaid view of the matter the conclusion of the Division Bench that respondent No. 1 is a workman has to be sustained.
We do so accordingly.
The next question that arises in this case is whether Act would apply or the Rajasthan Act would apply.
In this connection section 28A of the Rajasthan Act is material.
It enjoins that no employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee at least one month 's prior notice or on paying him one month 's wages in lieu of such notice.
Sub section (2) of section 28A gives every employee, so dismissed or discharged, right to make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge.
Sub section (3) of section 28A provides that the prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record 994 briefly the evidence produced by the parties, hear them and make such enquiry as it might consider necessary and thereafter pass orders in writing giving reasons therefor.
Section 37 of the Rajasthan Act reads as follows: "37.
Saving of certain rights and privileges.
Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to on the date this Act comes into force under any other law, contract, custom or usage applicable to such establishment or any award, settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.
" It has to be borne in mind that section 2A of the Act was amended to permit individual workman to ask for a reference in the case of individual dispute.
This amendment was assented to by the President on 1st of December, 1965.
The Rajasthan Act received the assent of the President on 14th of July, 1958.
On 8th March, 1972 Chapter 6A including section 28A was inserted in the Rajasthan Act.
Therefore the material provision of the Rajasthan Act is the subsequent law.
Under Article 254(2) of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List.
It appears that both of these Acts tread the same field and if there was any conflict with each other, then section 28A of Rajasthan Act would apply being a later law.
We find, however, that there is no conflict.
The learned Single Judge of the Rajasthan High Court in Poonam Talkies, Dausa vs The Presiding Officer, Labour Court, Jaipur, (S.B. Civil Writ Petition No. 1206/85 decided on 9.6.1986) so.
That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No. 231/86.
The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy.
It appears to us that it cannot be said that these two Acts do not tread the same field.
Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance.
There is no inconsistency between these two acts.
These two Acts, in our opinion, are supplemental to each other.
995 In Deep Chand vs The State of Uttar Pradesh and others, [1959] Suppl.
2 S.C.R. 8, Subba Rao, J., as the learned Chief Justice then was observed that the result of the authorities indicated was as follows: "Nicholas in his Australian Constitution, 2nd Edition, p. 303, refers to three tests of inconsistency or repugnancy: 1.
There may be inconsistency in the actual terms of the competing statutes; 2.
Though there may be no direct conflict, a State law may be inoperative because the Commonwealth Code is intended to be a complete exhaustive code; and 3.
Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter.
" Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals Ltd. and others vs State of Bihar and others; , at page 87 where A.P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other.
Therefore, in order to raise a question of repugnancy two conditions must be fulfilled.
The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other.
These are two conditions which are required to be fulfilled.
These are cumulative conditions.
Therefore, these laws must tread on the same field and these must be repugnant or inconsistent with each other.
In our opinion, in this case there is a good deal of justification to hold that these laws, the and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee.
But these two laws are not inconsistent or repugnant to each other.
The basic test of repugnancy is that if one prevails the other cannot prevail.
That is not the position in this case.
Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under section 28A of the Rajasthan Act and which was dismissed on ground of limitation.
Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any 996 relief is given under the Act.
We are unable to accept this position, because the application under Section 28A of the Rajasthan Act was dismissed not on merit but on limitation.
There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause.
But there is no period of limitation provided under the .
Therefore, that will be curtailment of the rights of the workmen or employees under the .
In the situation section 37 declares that law should not be construed to curtail any of the rights of the workmen.
As Poet Tennyson observed "freedom broadens from precedent to precedent" so also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India.
It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed.
Therefore in no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for an adjudication in case of the termination of the employment.
If that is the position in view of the provisions 6 months ' time in section 28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the and that Act must prevail.
In the premises, there is no conflict between the two Acts and there is no question of repugnancy.
The High Court was, therefore, right in holding that the respondent was workman and in granting relief on that basis.
Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice.
Reference was made to certain observations in P. Maheshwari vs Delhi Admn.
& Ors., (supra).
But as mentioned hereinbefore in this case, the interference was made by the High Court not at the initial stage.
In the premises, we are of the opinion that the High Court was right in the view it took.
These appeals, therefore, fail and are accordingly dismissed.
There will, however, be no order as to costs.
The reference before the Tribunal should proceed as expeditiously as possible.
N.V.K. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
% The Ist respondent was working in the appellant company as an Internal Auditor on a monthly salary of Rs.1186 60P per month.
The appellant alleged that the respondent started absenting himself from 28th January, 1978 and as such was not entitled to any salary for any period beyond the said date.
The respondent was thereafter placed under suspension on 30th March, 1978.
On 4th May, 1978 the respondent filed an application under section 33C(2) of the claiming a total sum of Rs.4746 40p on account of salary from Ist January, 1978 to 30th April, 1978.
The appellant objected on the ground that the respondent was not a 'workman '.
On 9th November, 1978 there was an order dismissing the respondent from service.
On 2nd January, 1979 the respondent filed an application under section 28A of the Rajasthan Shops and Commercial Establishments Act, 1958 which was dismissed on 31st July, 1979 on the ground of limitation.
On the 2nd August, 1979 the Labour Court held that the respondent was doing clerical duties and as such was a 'workman ' under the and he was entitled to Rs.2060 98p as salary 986 from 9th March, 1978 to 30th April, 1978.
There was also a reference under section 10 of the on 8th August, 1960 arising out of the dismissal of the respondent.
The appellant filed a writ petition challenging this order.
All the aforesaid writ petitions were disposed of by a Single Judge of the High Court on 16th March, 1982 holding that the respondent was not a 'workman '.
Division Bench of the High Court, however reversed the aforesaid judgment and held that the respondent was a 'workman '.
The two writ petitions of the appellant were dismissed, while the writ petition of the respondent was allowed.
Aggrieved by the aforesaid orders the appellant appealed to this Court.
On the questions: (1) whether the respondent was a 'workman ' or not within the definition of section 2(s) of the and (2) whether the or the Rajasthan Shops and Commercial Establishments Act, 1958 would apply.
Dismissing the appeals, ^ HELD: 1.(a) Whether a person was performing supervisory or managerial work is a question of fact.
One must, therefore, look into the main work and that must be found out from the main duties.
A supervisor has to take some kind of decision on behalf of the company.
One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting is not supervisor.
[992A B] (b) There is no controversy in the instant case, that the respondent is not employed in any managerial or administrative capacity.
Distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision.
A manager or administrator 's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator.
Where there is a power of assigning duties and distribution of work there is supervision.
[990C,991A B,991D] Mcleod and Co. vs Sixth Industrial Tribunal West Bengal and others, A.I.R. 1958 Calcutta 273; All India Reserve Bank Employees Association vs Reserve Bank of India, ; ; Llyods Bank 987 Ltd. vs Pannalal Gupta, ; Burmah Shell Oil Storage & Distribution Co.
Of India.
vs Burmah Shell Management Staff Association & Ors. ; ; The Punjab Co operative Bank Ltd. vs R.S. Bhatia (dead) through Lrs, ; Maheshwari vs Delhi Administration Delton Cable India (P) Ltd.; , and Hind Construction and Engineering Company Ltd. vs Their Workmen, referred to.
(c) A checker on behalf of the management or employer is not a supervisor.
[993E] In the instant case, the nature of duties performed by Respondent No. 1 were mainly reporting and checking up on behalf of the management.
A reporter or a checking clerk is not a supervisor.
The respondent does not appear to be doing any kind of supervisory work.
He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company.
The Division Bench came to the conclusion that the respondent was a 'workman ' within the meaning of section 2(s) of the taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor.
That conclusion on the appreciation of evidence cannot be interfered with under Article 136 of the Constitution.
[993A C] 2.(a) In order to raise the question of repugnancy two conditions must be fulfilled.
The State law and the Union law must operate in the same field and one must be repugnant or inconsistent with the other.
These are two cumulative conditions which are required to be fulfilled.
[995E] Deep Chand vs The State of Uttar Pradesh and others, [1959] Suppl.
2 S.C.R. 8 and M/s. Hoechst Pharmaceuticals Ltd. and others vs State of Bihar and others; , at page 87 referred to.
(b) In this case there is a good deal of justification to hold that these laws, the and the Rajasthan Shops and Commercial Establishments Act, 1985 tread on the same field and both laws deal with the rights of a dismissed workman or employee.
But these two laws are not inconsistent or repugnant to each other.
The basic test of repugnancy is that if one prevails the other cannot prevail.
That is not the position in this case.
[995F G] 988 (c) The application under section 28A of the Rajasthan Act was dismissed not on merits but on limitation.
There is a period of limitation provided under the Rajasthan Act and it may be extended for reasonable cause.
But there is no period of limitation as such provided under the .
Therefore, that will be curtailment of the rights of the workmen or employees under the .
In that situation section 37 declares that law should not be construed to curtail any of the rights of the workmen.
[996A B] (d) Social Welfare and labour welfare broadens from legislation to legislation in India.
It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed.
In no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for adjudication in case of the termination of the employment.
[996C] (e) There is, therefore, no conflict between the and Rajasthan Shops and Commercial Establishments Act, 1985 and there is no question of repugnancy.
These two Acts are supplemental to each other.
[994G H; 996D]