Sudhir Kumar Katriar, J.
1. This writ petition is directed against the order dated 15.5.1992, passed by the learned Presiding Officer, Labour Court, and the Authority under the Bihar Shops and Establishment Act 1953 (hereinafter referred to as the 'Bihar Act'), whereby the order of dismissal from service passed against respondent No. 2 herein has been set aside and he has been reinstated in service with full back-wages and other consequential benefits.
2. A brief statement of facts essential for the disposal of the writ petition may be indicated. Indeed the basic facts are not in dispute. It appears that respondent No. 2 had originally joined the appellant Corporation way back in December 1955 as a Class IV employee. He was promoted to the clerical cadre, as Record Clerk, in July 1967. During the period October 1980 to July 1981, he had functioned as Record Clerk in the Despatch Section of Patna Branch No. 1. He was served with charge-sheet dated 31.8.1982 (Annexure-1), whereby allegations were levelled against him that he had been pilfering/de-affixing postal stamps from the envelopes meant to be despatched the Corporation's office to the addressees. Departmental proceeding was conducted under the provisions of Life Insurance Corporation of India (Staff) Regulations 1960 (hereinafter referred to as the 'Regulations'), framed under the Life Insurance Corporation Act 1956 (hereinafter referred to as the 'Central Act'). Respondent No. 2 participated in the enquiry proceedings. The learned enquiry officer submitted his enquiry report dated 10.5.1984 (Annexure-3), wherein he found respondent No. 2 guilty of the charges. Second show-cause notice dated 6.12.1984 (Aannexure-4) was served on him to which he had shown cause by his communication dated 21.1.1985 (Annexure-5). On a consideration of the materials on record, the learned disciplinary authority dismissed respondent No. 2 from the services of the Corporation by his order dated 19.3.1985 (Annexure-6). He preferred departmental appeal which was dismissed by order dated 28.8.1985 (Annexure-7). Aggrieved by the appellate order, respondent No. 2 preferred memorial in terms of Regulation 49 of the Regulations, which was also dismissed by the Corporation's Chairman by order dated 24.1.1986 (Annexue-8). Respondent No. 2 thereafter preferred CW.J.C. No. 2128 of 1986, which was disposed of by this Court by the following order dated 30.8.1986:
Heard learned Counsel for the petitioner and learned Counsel for the L.I.C.
It is stated on behalf of the learned Counsel for the respondents that the remedy lies before the Central Administrative Tribunal.
In this circumstances learned Counsel for the petitioner seeks permission to withdraw the petition. He is permitted to do so and the petition is dismissed as withdrawn.
Sd/- B.P. Jha.
Sd/- R.C.P. Sinha.
Respondent No. 2 thereafter filed Original Application before the Patna Bench of the Central Administrative Tribunal, which was disposed of by order dated 20.10.198 6, with the observation that the Tribunal did not have the jurisdiction to adjudicate the dispute. Respondent No. 2 approached this Court once again by preferring C.W.J.C. No. 5092 of 1986, which was disposed of by the following order of 16.12.1986:
Learned Counsel for the writ petitioner wishes to withdraw this writ application in order to resort to some other remedy that may be available in Industrial Law, The prayer is amended and the application is permitted to be withdrawn.
Sd/- S.S. Sandhawalia.
Sd/- B.N. Sinha.
Respondent No. 2 thereafter filed a complaint under the provisions of Section 26(2) of the Bihar Act which has on contest been allowed, the order of dismissal has been set aside, and the service of respondent No. 2 has been restored with full back-wages and consequential benefits. Hence this writ petition.
3. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that 'insurance' is covered by entries 43 and 47 of the 7th Schedule to the Constitution. The Central Act was enacted under these entries. After amendment of the Central Act, whereby Sections 2(cc), (2A), and (2C) were inserted in Section 48 of the Central Act, by Act 1 of 1981, with effect from 31.1.1981. The question of its retrospectivity and enforcement has been discussed in the following judgments of the Supreme Court. Learned Counsel, therefore, submits that after these statutory amendments, Regulations will be deemed to have been framed by the Central Government in terms of Section 48(2A). In view of the said amendments, particularly Section 48(2) of the Central Act read with the Regulations, jurisdiction of the industrial courts is completely barred for the employees of the Corporation. He relies on the following reported judgments of the Supreme Court:
(i) : A.I.R. 1982 S.C. 1126 (A.V. Nachane and Anr. v. Union of India and Anr.) (paragraphs 8 and 9); and
(ii) : (1994)2 SCC 323 (M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and Anr.) (paragraphs 11 and 12).
If the disciplinary proceedings have been held as per the Rules/Regulations, then the employee will have to take recourse to the remedies provided under the Act read with the Regulations which will of course be subject to the supervisory jurisdiction of this Court, and that of the Supreme Court. The industrial courts have no jurisdiction whatsoever to adjudicate such disputes. He relies on the judgment of the Supreme Court, reported in : (1997)5 SCC 125 (R.C. Tiwari v. M.P. State Cooperative Marketing Federation Ltd. and Ors.). He next submits that the Central Act read with the Regulations provides for the terms and conditions of service, disciplinary action against the employees of the Corporation and redressal of grievances. Disciplinary proceedings conducted as per the statutory provisions and the Rules are of quasi-judicial nature. He relies on the judgment of the Supreme Court reported in : A.I.R. 1963 S.C. 395 (Bachhittar Singh v. State of Punjab and Anr.) (paragraph 7). He submits in the alternative that, even if the forum under Section 26 of the Bihar Act were available to the employee, a complaint before the Labour court would not be maintainable in view of the provisions of Section 26(2)(iii) of the Bihar Act, if the employee has been found guilty of misconduct. He relies on the following reported judgments:
(i) 1993 (1) P.L.J.R. 333 (Bihar State Cooperative Marketing Union Ltd. through its Administrator v. The State of Bihar and Ors.); and
(ii) 1993 (2) P.L.J.R. 710 (Nanandra Kumar Singh and Ors. v. Kendriya Vidyalaya Sangathan and Ors.) (paragraph 6).
He next submits that the Corporation is not 'establishment' within the meaning of Section 2(6) of the Bihar Act. He also submits that, in view of the combined effect of the laws applicable to the present situation, the Labour Court has no jurisdiction to sit in appeal over the disciplinary proceedings conducted by the Corporation.
4. Learned Counsel for respondent No. 2 submits that the question of jurisdiction of the Labour Court is a mixed question of facts and law and cannot, therefore, be permitted to be raised for the first time in writ jurisdiction, The Bihar Act-has been enacted in terms of entries 22 and 24 of the concurrent list. He relies on a Division Bench judgment of this Court, reported in 1991 (1) P.L.J.R. 81 (Beldih Club, Jamshedpur v. The Presiding Officer, Labour Court, Jamshedpur and Ors.). He submits that, in view of the provisions of Section 2(4) of the Bihar Act read with item No. 24 of the schedule thereto, the Corporation is within the sweep of the Bihar Act. He submits in the same vein that Rule 20 of the Bihar Rules prescribes misconduct. He next submits that, on a consideration of the A.V. Nachane's case and M. Venugopal's case, the Supreme Court has held in the case of Life Insurance Corporation of India v. R. Suresh reported in (2008) 11 SCC 319, that disciplinary proceedings conducted by the Corporation can be agitated before the industrial courts. Law is well-settled that the employee should have the benefit of an independent forum to agitate his grievances and the forums prescribed. under the departmental rules are inadequate to prevent miscarriage of justice. He relies on the judgment of the Supreme Court in Life Insurance Corporation of India v. R. Suresh (supra). This has to be read with his submission that the Tribunal constituted under Section 17 of the Central Act has not till date been constituted. He also submits that the sufferings of respondent No. 2 may be considered in the perspective. He has been made to run from court to court, and cannot be deprived of the benefits of the impugned order in a situation where jurisdiction of the Labour Court was not challenged. He also submits that this Court should not interfere in a situation where complete justice has been done to the parties. He relies on the judgment of the Supreme Court in A.M. Allison and Anr. v. B.L. Sen and Ors. reported in : A.I.R. 1957 S.C. 227, paragraphs 16 and 17. He lastly submits that Section 48(2C) excludes the jurisdiction only of the Tribunal under the Industrial Disputes Act.
5. Learned Counsel for the petitioner has submitted in reply that the judgment of the Supreme Court in Life Insurance Corporation of India v. R. Suresh (supra) was rendered by a Bench of two Judges, and has in substance overruled the earlier judgments of the Supreme Court in the cases of A.V. Nachana and M. Venugopal, which were rendered by Bench of three Judges. He submits that the judgment is Per Incurium for the following reasons:
(i) Paragraphs 20 and 22 of the judgment states that there is no clause in the Act which bars the jurisdiction of industrial courts which is completely overlooking the provisions of Section 48(2C) of the Act.
(ii) In paragraph 29 of the judgment, reliance has been placed on S.K. Verma's case which has been held to be Per Incurium in the judgment of the Supreme Court in H.R. Adyanthaya and Ors. v. Sandoz (India) Ltd. and Ors. reported in : (1994)5 SCC 737.
(iii) S.K. Verma's case has been declared to be Per Incurium by the Supreme Court in the Case of Mukesh K. Tripathi v. Senior Divisional Manager, L.I.C. and Ors. reported in : (2004)8 SCC 387, paragraph 16.
(iv) The Supreme Court has held in the case of Mukesh K. Tripathi (supra) (paragraph 23), that a judgment which has been declared to be Per Incurium is not good law and does not bind anybody.
6. We have perused the materials on record and considered the submissions of learned Counsel for the parties. The parties have indeed raised a vital question of jurisdiction of the industrial courts, including the Labour Court under the Bihar Act, to adjudicate cases with respect to disciplinary proceedings against the employees of the Corporation. We must at the outset make it perfectly clear that the law governing the field prior to the insertions in Section 48 of the Central Act, by virtue of Act 1 of 1981, was fundamentally different than the one which now obtains after the legislative insertions. We are not concerned with the anterior period and, therefore, should not detain us to consider the earlier situation. The insertions have been the subject-matter of various decisions of the Supreme Court and, therefore, we are not required to undertake the task of interpretation of the relevant provisions. Our task has, however, been rendered difficult for the reason of two line of cases of Supreme Court governing the issues in hand, which are seemingly irreconcilable, and has fallen to our lot to be re-conciled and to find out as to which line of cases applies to the facts and circumstances of the present case. The issue is not free from difficulties. We have, however, take the view that we have taken for the reasons assigned hereinafter.
7. We must first of all notice the relevant insertions made in Section 48 by Act 1 of 1981.
48. Power to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.....
(2)(cc) - the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under this Act.
xxx xxx xxxxxx xxx xxx(2A) The regulations and other provisions as in force immediately before the commencement of the Life Insurance Corporation (Amendment) Act, 1901, with respect to the terms and conditions of service of employees and agents of the Corporation including those who became employees and agents of the Corporation on the appointed day under this Act, shall be deemed to be rules made under Clause (cc) of Sub-section (2) and shall, subject to the other provisions of this section, have effect accordingly.
xxx xxx xxxxxx xxx xxx(2C) The provisions of Clause (cc) of Sub-section (2) and Sub-section (2B) and any rules made under the said Clause (cc) shall have effect, and any such rule made with retrospective effect from any date shall also be deemed to have had effect from that date, notwithstanding any judgment, decree or order of any court, tribunal or other authority and notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947), or any other law or any agreement, settlement, award or other instrument for the time being in force.
8. The combined effect of these insertions was considered by a Bench of three Hon'ble Judges of the Supreme Court in A.V. Nachane v. Union of India (supra). The Same was considered by a Bench of three Hon'ble Judges of the Supreme Court in M. Venugopal (supra), and the enunciation of law in A.V. Nachane (Supra), was reiterated. Paragraph 11 and 12 of the judgment in M. Venugopal (supra), is reproduced hereinbelow:
11. ...In view of the amendments aforesaid introduced in Section 48 it has to be held that Regulation 14 referred to above in respect of termination of the service of an employee of the Corporation within the period of probation shall be deemed to be a rule framed under Section 48(2)(cc) having overriding effect over Section 2(oo) and Section 25-B' of the Industrial Disputes Act.
12. The Industrial Disputes Act as well as the Corporation Act both have been framed by the Parliament. But the amendments aforesaid have been introduced in the Corporation Act in Section 48 with effect from January 31, 1981 with a non-obstante Clause. In Sub-section (2-C), the intention of the Parliament has been made apparent and obvious. It was pointed out in Aswini Kumar Ghose v. Arabinda Bose, A.V. Fernandez v. State of Kerala and South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum that the effect of non obstante clause is to obliterate in regard thereto the provisions which were earlier applicable. The framers of the Corporation Act through the amendments aforesaid have given the provisions, of the Corporation Act an overriding effect over the provisions of the Industrial Disputes Act, so far as the provisions relating to the terms and conditions of employment, which are in conflict with the provisions of the Industrial Disputes Act are concerned. Unless the said attempt is held to be ultra vires being in conflict with any of the provisions of the Constitution it was open to the Parliament to treat the employees and agents of the Corporation as a separate class for purpose of fixing their terms and conditions of service.
(Emphasis added)
It is thus evident that the Supreme Court has in the two judgments held to the same effect and it has been laid down that Section 48(2C) read with Section 48(2)(cc) authorise the Central Government to make rules to carry out the purposes of the Act notwithstanding the Industrial Disputes Act or any other law. This means that the provisions of the Industrial Disputes Act or any other Act, will not be operative with respect to the matters covered by the rules. In other words, in view of the aforesaid amendments introduced in Section 48, it has been held by the Supreme Court that Regulation 14 in respect of termination of service of employee of the Corporation within the period of probation shall be deemed to be a rule framed under Section 48(2)(cc), having overriding effect over industrial laws. In view of the non-obstante clause engrafted in Section 48(2C) of the Central Act, the framers of the Act have given the provisions of the Act an overriding effect over the provisions of the industrial laws in so far as the provisions relating to the terms and conditions of employment obtaining in the Regulations are concerned. It has further been held that it was open to the Parliament to treat the employees and agents of the Corporation as a separate class with respect to their terms and conditions of service. In other words, the Supreme Court has in the two judgments, both rendered by Bench of three Judges, held that in view of the provisions of Section 48(2C) of the Central Act, the jurisdiction of the industrial courts is completely ousted in so far as the terms and conditions obtaining in the Regulations are concerned.
9. This takes us on to the consideration of the scheme of the Regulations. Regulation 21 is headed 'Liability to abide by the Regulations', and, inter alia, stipulates that every employee of the Corporation shall at all times maintain absolute integrity and devotion to duty etc. Regulation 36 provides for suspension of an employee in contemplation, or during the pendency of, disciplinary proceedings. Regulation 38 provides for treatment of the period of suspension. Regulation 39 provides the penalties, Clause (g) of which is dismissal. Detailed provisions have been made as to the manner in which the departmental proceeding has to be conducted. Regulation 40 provides the right of appeal against an order of punishment. Regulation 48 provides the procedure in which the appeal has to be considered and disposed of. Regulation 49 provides for memorial before the Chairman of the Corporation. It thus appears to us that the Regulations constitutes a complete code for disciplinary action against the employees of the Corporation, and also provides a hierarchy of forums of appeal, revision etc. The Supreme Court has held in Bachhittar Singh v. State of Punjab (supra) that any action taken against a Government servant under Rules akin to the Civil Services (Classification, Control and Appeal) Rules, where the Government servant is found guilty of misconduct, is a judicial order and as such cannot be varied at the will of the authority who is empowered to punish. The Supreme Court proceeded to observe that it would be wholly erroneous to characterise the taking of action against a person found guilty of any charge at a departmental proceeding as an administrative order. And to this has to be added the powers of this Court under Articles 226 and 227 of the Constitution, apart from the right of intra-court appeal, or before the Supreme Court under Article 136 of the Constitution as well as the powers of the Supreme Court under Article 32 of the Constitution. We are thus convinced that in the scheme of the Regulations, a detailed statutory scheme has been put in place to take action against an employee of the Corporation, and the employee has adequate remedy to ventilate his grievance with respect to the departmental proceeding.
10. We should now consider the judgment of the Supreme Court in L.I.C. v. R. Suresh (supra), rendered by a Bench of two Judges wherein, after noticing the aforesaid judgments in A.V. Nachane (supra), and M. Venugopal (supra), it has been held that in spite of the amendment brought about by Act 1 of 1981, the industrial courts will continue to have jurisdiction over such disputes. Learned Counsel for the petitioner in reply places particular emphasis on paragraphs 20 and 22 the judgment, and submits that the non-obstante clause engrafted in Section 48(2C) of the Central Act has been overlooked in L.I.C. v. R. Suresh, which are reproduced hereinbelow:
20. Section 48 provides for a rulemaking power. Clause (cc) of Sub-section (2) whereof only empowers the Central Government to lay down the terms and conditions of service of the employees and agents of the Corporation. The Act does not contain any provision in terms whereof the jurisdiction of the civil court and/or Industrial Court is taken away. It is now a well-settled principle of law that any provision taking away the jurisdiction of a court shall be strictly construed. A presumption arises against the ouster of jurisdiction. Having regard to the provisions contained in Section 9 of the Code of Civil Procedure and as also the provisions of the 1947 Act, an endeavour should be made to construe the provisions in such a manner so as to retain the jurisdiction subject, however, to the ouster of jurisdiction either expressly or by necessary implication.
22. We have noticed hereinbefore that the 1956 Act does not contain any provision ousting the jurisdiction of the civil court or the Industrial Court. The question, therefore, would be as to whether the jurisdiction is ousted by necessary implication. For the said purpose, construction of Clause (cc) of Sub-section (2) of Section 48 of the Act is necessary. It is one thing to say that rules may provide for the terms and conditions of service of the employees but it is another thing to say that a person is entitled to avail his human right of access to justice to get his grievances adjudicated before an independent fora. Access to justice as is well known is a valuable right.
(Emphasis added)
It will bear repetition to state that the earlier two judgments have been rendered by Benches of three Hon'ble Judges of the Supreme Court, whereas that of the L.I.C. v. R. Suresh has been rendered by a Bench of two Judges, which seems to be the determining factor.
11. The Supreme Court had the occasion to consider such a situation in its judgment in the case of Official Liquidator v. Dayanand and Ors. reported in : (2008)10 SCC 1. The issue for consideration has been indicated in paragraph 75 of the judgment, wherein it is indicated that the judgment of a Constitution Bench of the Supreme Court in the case of State of Karnataka v. Uma Devi (3) : (2006) 4 SCC 1 has been followed by various Benches of the Supreme Court comprising of lesser number of Judges mentioned therein. However, the judgment in U.P. SEB v. Pooran Chandra Pandey (2007) 11 SCC 92 attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven Judge Bench in Menka Gandhi v. Union of India : (1978)1 SCC 248]. The Supreme Court in paragraph 78 of the judgment has stated as follows:
78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.
(Emphasis added)
12. The Supreme Court has proceeded to place reliance on the observations of a number of judgments of the Supreme Court which are to the effect that the judgment of a larger Bench binds the Benches comprising of lesser number of Judges. In case the latter disagrees with the larger Bench, then it has to refer with its reasonings for consideration by a Bench of the same strength of that Bench whose judgment is being referred for consideration. If the larger Bench deems it fit and proper, then it may refer the matter to a still larger Bench to consider the matter afresh. The Supreme Court has gone to the extent of observing that in case of disagreement, a Bench of lesser number of Judges has no jurisdiction to refer the matter to a Bench comprising of more number of Judges than the number of Judges comprising the Bench which has doubted the law laid down. By way of illustration, we reproduce hereinbelow the observations made in paragraph 83 of the judgment:
83. In Pradip Chandra Parija v. Pramod Chandra Patnaik the Constitution Bench noted that the two learned Judges denuded the correctness of an earlier Constitution Bench judgment in Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha and reiterated the same despite the fact that the second Constitution Bench refused to reconsider the earlier verdict and observed: (Pradip Chandra Parija case SCC pp. 3-4, paras 3 & 5-6)
3, We may point out, at the outset, that in Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha a Bench of five Judges considered a somewhat similar question. Two learned Judges in that case doubted the correctness of the scope attributed to a certain provision in an earlier Constitution Bench judgment and, accordingly, referred the matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the view that the decision of a Constitution Bench binds a Bench of two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, the Bench of two learned Judges could have ordered that the matter be heard by a Bench of three learned Judges.
* * *5. The learned Attorney General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges - a proposition that learned Counsel for the appellants did not dispute. The learned Attorney General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India where it has been said that 'no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench' (SCC p.98, para 5). The learned Attorney General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same-view of Nityananda Kar, could have referred the case to a Bench of five learned Judges.
6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, Judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges; setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.
(Emphasis added)
13. It has in substance been held that in such a situation the safest guide for the High Court is to follow the judgment of the larger Benches, We are, therefore, left with the only option to apply the law laid down by the Supreme Court in A.V. Nachane and M. Venugopal. Consequently, we hold that, in view of the amendments brought about in the Central Act by Act 1 of 1981, read with the Regulations, the industrial courts have no jurisdiction to deal with the disciplinary matters covered by the Regulations. In the facts and circumstances of the present case, we are convinced that in a case of disciplinary proceeding on account of embezzlement of Corporation's property leading to dismissal from service is covered by the Regulations and, therefore, the Labour Court, Patna, did not have the jurisdiction to deal with the complaint of respondent No. 2.
14. Learned Counsel for the petitioner has also contended that, assuming for the sake of argument that the Labour Court had the jurisdiction in a matter like the present one, yet the complaint in terms of Section 26(2)(iii) of the Bihar Act is not maintainable. Section 26 is headed 'Notice of the dismissal or discharge', Sub-section (2) of which is reproduced hereinbelow for the facility of quick reference:
26(2). Every employee, dismissed or discharged or whose employment is otherwise terminated, may make, a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal or discharge or termination of employment on one or more of the following grounds namely:
(i) there was no reasonable cause for dispensing with his service; or
(ii) no notice was served on him as required by Sub-section (1.); or
(iii) he has not been guilty of any misconduct as held by the employer; or
(iv) no compensation as prescribed in Sub-section (1) was paid to him before dispensing with his service.
It is manifest on a plain reading of the provisions of law that a complaint under Section 26(2) of the Bihar Act is not maintainable if the complainant is guilty of misconduct as held by the employer in pursuance of a departmental proceeding. From this angle also, the complaint of respondent No. 2 was not maintainable.
15. We must also deal with the objection raised by learned Counsel for respondent No. 2 that the petitioner contested the matter before the Labour Court but did not raise the issue of maintainability of the complaint petition, and jurisdiction of the Labour Court. We have given our anxious consideration to the same. It appears to us that, in view of the amendments brought about by Act 1 of 1981, read with the Regulations, the jurisdiction of the industrial courts is completely barred. The issue was considered by the Supreme Court in the case of Hira Lal v. Kali Nath reported in : A.I.R. 1962 S.C. 199, wherein the question of lack of jurisdiction and inherent lack of jurisdiction was considered. A Division Bench of this Court had the occasion to apply the principles in the case of L.I.C. v. P.P. Bhadani reported in 1985 P.L.J.R. 119. The combined effect of the two judgments is that the objection as to the local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. It was further observed that competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. The present case is not one of lack of territorial jurisdiction or pecuniary jurisdiction which may fall in the category described as lack of jurisdiction. The present case stands on a different footing and falls in the second category. In view of the non-obstante clause engrafted in Section 48(2C) of the Central Act, the Parliament has completely taken away the jurisdiction of the industrial courts with respect to disciplinary proceedings like the present one. The same shall be covered by, and can be agitated only in the manner, prescribed in the Regulations. We are thus convinced that it is a case in which the Labour Court did not have the competence to deal with the subject-matter of the complaint before him which goes to the root of the jurisdiction and is indeed a case of inherent lack of jurisdiction. Such an order is obviously void ab-initio and has only to be declared as such.
16. The issue relating to jurisdiction of the court can for the first time be raised at any stage provided two conditions are established, namely, it is a case of inherent lack of jurisdiction where the court concerned whose jurisdiction is in question did not have the jurisdiction over the subject-matter of the lis before him and, secondly, if it is raised before the Superior court as pure question of law and facts are not required to be adjudicated for the purpose. These two conditions are fully satisfied in the present case.
17. Learned Counsel for respondent No. 2 has also submitted that this Court should not interfere in a case where complete justice has been done. Should this submission be taken to mean that justice is meant only for the complainant and the employee, and not for the employer. The present one is a case of misappropriation of Corporation's property which has traditionally been viewed as a very serious matter in employer-employee relationship and, if established, can well lead to loss of confidence. This issue was considered in the case of U.P. State Road Transport Corporation v. Vinod Kumar reported in : (2008)1 SCC 115, paragraph 10 of which is reproduced hereinbelow:
10. As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the enquiry officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the inquiry conducted, it was not open to the Labour Court to go into the findings recorded by the enquiry officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh wherein this Court, after taking into account the earlier decisions, held in para 18 as under: (SCC p. 193)
18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court: in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikatti was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential, In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judge of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.
18. We are also reminded of the observations of the Court of Appeal in England in the case of Latham v. Johnson & Nephew reported in 1911-13 All E.R. 117. The defendants were the owners of a piece of unfenced waste ground, on which to their knowledge and with their permission children had been in the habit of playing. Early one morning a heap of stones was deposited on the land by the defendants' servants, and soon after, while on the land alone, the plaintiff, a child under three years of age, was injured by one of the stones falling on her hand. In an action brought on behalf of the plaintiff for damages for his injury, it was held that the defendants were not liable. It was further held that '...we must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles....' This judgment has been cited with approval by the Indian Courts in a large number of cases. For example, (i) : (2004) 2 S.C.C. 130 (Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Ors. and (ii) 2006 (3) P.L.J.R. 409 (SC) (Divisional Controller N.E.K.R.T.C. v. H. Amaresh).
19. In the facts and circumstances of the present case, it has been established beyond doubt that respondent No. 2 had got into the inveterate habit of pilferage of postal stamps which were affixed on the envelopes intended to be issued by the Corporation to different persons. This not only resulted in wrongful gain to respondent No. 2, but is also capable of great mischief to the addressees. We can quite conceive of a situation that a reminder was issued to a policy-holder to deposit the instalment which had become due, and non-receipt of the same may have resulted in non-deposit of the instalment and the policy may have consequently lapsed. We are, therefore, convinced that the allegation against respondent No. 2 has been well established during the course of an enquiry, and has been upheld by the learned appellate authority, as well as the revisional authority. The punishment of dismissal from service is well-merited and proportionate to the gravity of the proven charges. Any effort on our part to reduce the quantum of punishment would create a situation of misplaced and unwanted sympathy, unwarranted in the present case, and impermissible in law.
20. We must also deal with the objection raised by learned Counsel for respondent No. 2 that the intra-departmental appeal provided under the Regulations is illusory. The contention is stated only to be rejected, above all on the authority of the Supreme Court in the case of Bachhittar Singh v. State of Punjab (supra), Secondly the orders of the authorities under the Regulations are subject to the jurisdiction of this Court and that of the Supreme Court, All the employees of the Bihar Government are subject to identical conditions.
21. In the result, this writ petition is allowed and the order dated 15.5.1992, passed by the Presiding Officer, Labour Court, Patna, in B.S.E. Case No. 1 of 1987 (Ramesh Chandra Sinha v. Divisional Manager, Life Insurance Corporation of India, Divisional Office, Frazer Road, Patna), is hereby set aside. In the circumstances of the case, the parties shall bear their own costs.
Kishore Kumar Mandal, J.
I agree.