CHHOTOBHAI JETHABHAI PATEL & CO versus THE INDUSTRIAL COURT, MAHARASHTRA NAGPUR BENCH, NAGPUR & OTHERS.

Citation: [1972] 3 S.C.R. 731 · Decided: 09-03-1972 · Supreme Court of India · Bench: G.K. MITTER · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
731 
CllHOTOBRAI JETHABRAI PATEL &: CO. 
v. 
THE INDUSTRIAL· COURT, MAHARASHTRA NAGPUR 
BENCH, NAGPUR &: OTHERS. 
March 9, 1972 
[C. A. VAIDIALINGAM, J. D. DUA AND G. K. MITTER, JJ.J 
Bomba>' Industrial Re/r.1ionr 
Ac/, 194&-ss. 78(1) D, 42{4)-
Compliance wit!h s. 42(4) i/ condition precedent for invoking jurisdic· 
tion of Labour Court under s. 78(1) D. 
Against the order 
of the appellant 
company 
dismissing him, an 
employer filed an application before the Labour Court under secltion 
78 of the Bombay Industrial· Relations Act, 1946. The Labour Court 
set aside the order. The Industrial Court ®d the High Court confirm· 
ed the order Of the Labour Court rejecting the appellant's contention 
that the order of the Labour Court was liable to be set aside on the 
ground that the employee did not make an application under s. 42( 4) 
in Ch:lpttl' VIII of the Act which was a condition precedent to apo 
proaching the Labour Court. On the question whether the Labour Court 
could exerc.'ise jurisdiction under s. 78(1) D of the· Act in a 
cue 
where the employee of an industry governed by the Act had not com• 
plied with the provisions of .sub-oection ( 4) of s. 42 of the Act ~cad 
with the provisc to the sub-oection, 
HELD : Allowing the appeal. 
(i) The scheme of Chapter VIII of the Act is that in regard to 
any "Change" in an industrial m'ltter there must be compliance with 
the provisions of that chltpter. There is nothing in the Act: which 
warrants .the conclusion that the legislattire bv inserting paragraph D 
in s. 78 ( i) intended to chalk out a wholly different course of ac~ion to 
that prescribed in Ch1pter VIII dealing with changes. 
The 'cheme of 
s. 78(1) is that Labour Court is to have power to decide all 'the dis-
putes covered by paragraph A. In other words, efforts must first be made. 
by the employer 
intending to effect any change in respect of matten 
cove"'d by s. 42 (I), or an employee desiring a change in respect of any 
order p:is.ed by the employer under standing· order which would 
of 
necessity include an order 9f dismissal, to see whether it was possible to 
come to any agreement · and an applicjation , to the Labour Court could 
only be resorted to after efforts had been made to settle the dispute and 
no agreement had been arrived at. P39C-Gl 
· 
(ii) A person who is di, missed would be an employee within the 
meaning of s. 3(13) of the Act and there is no valid reason for differen-
tiating the case of a dismimd employee from one who complains of some 
other change. P39Hl 
· 
· 
· 
CML APPELLATE JURISDICTION : 
Civil Appeal No. 12 of 
1968. 
732 
SUPREM.E COURT REPORTS 
[1972) 3 S.C.R. 
Appeal from th~ judgment and order dated April 12, 1967 of 
the Bombay High Court, Nagpur Bench in Special Civil Applica-
tion No. 812 of 1966. 
M. N. Phadke and M ohinder Narain, for the appellant. 
The Judgment of the Court was delivered by 
Mitter, 1. 
In this appeal by certificate the question involv-
ed is, whetner the Labour Court at Nagpur could exercise juris-
diction under s. 7 8 (1) D of the Bombay Industrial Relations Act 
in a case where the employee of an industry governed by the Act 
had not complied with the provisions of s. 42( 4) of the said 
statute read with the proviso to the said sub-section. 
The Bom-
bay High Court has held that it was not necessary for an empl<>-
yee first to approach the employer or to follow the procedure laid 
down in s. 42 ( 4) including the proviso before he could apply to 
the Labour Court for relief under s. 78 (I) D. 
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. Aµ enquiry in res-
pect thereof was held on May 15th after receipt of written state-
ment from Nathu. 
Holding that the charges levelled against him 
were proved, the employer dismissed the third respondent with 
effect from August I, 1965. The said respondent filed an appli-
cation challenging the order of dismissal before the Labour Court 
under s. 78 of the Bombay Industrial Relations Act, 1946, here· 
inafter referred to as the 'Act', on the 5th August. 
His com-
plaint 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 

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