Andhra Handloom Weavers' Co-op. Society Vs. Labour Court and Ors. (04.08.1975 - APHC) - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 2,84091 .he has also, it appears failed to account for the cash balance of rs. the 2nd respondent submitted an explanation on 28th october, 1967 (marked as exhibit m1) admitting the charges of misappropriation (according to the petitioner) and agreed to make good the amount by remitting 50% of the amount deficit and the balance by way of instalments. in the counter also it was stated like that and on the documents filed in the case, there was no clear admission of this charge of misappropriation. but apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admit sum of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. i am satisfied that, on a reading of the two documents relied upon by the petitioner, no such conclusion can be arrived at.venkatarama sastry, j.1. the only point urged by mr. haranadha rao in this writ petition is whether the domestic enquiry in this case was properly dispensed with or not.2. the 2nd respondent herein, who was a worker in the petitioner concern, was suspended from duty on 29th september, 1967, on account of some deficit stocks found on an inspection on 3rd september, 1967. they valued the stocks so missing at rs. 2,84091 . he has also, it appears failed to account for the cash balance of rs. 278,35. thus, the total amount in deficit was rs. 3,120.26, while he was in charge of the sales depot at karimnagar as assistant manager at the time of the closure of the said depot. the petitioner-society framed charges and issued a show cause notice to the 2nd respondent on 15th october, 1967, as to why his services should not be terminated for misappropriating the aforesaid amounts. the 2nd respondent submitted an explanation on 28th october, 1967 (marked as exhibit m1) admitting the charges of misappropriation (according to the petitioner) and agreed to make good the amount by remitting 50% of the amount deficit and the balance by way of instalments. the 2nd respondent has also in his further tetter dated 7th may, 1968, to the petitioner society agreed to remit asnmoflls 1,(00 towards deficit and wanted the manage, ment to adjust the amount of rs. 1,140 which was due to him from the management. the petitioner says that after adjusting the entife amount to the tune of rs. 1,524.76 towards the deficit amount due from the 2nd respondent, there was a further sum of rs. 1,595.50 due from him for which an arbitration reference was pending before the deputy registrar.3. the 2nd respondent raised a dispute before the government and the government referred the matter to the industrial tribunal his case was taken as industrial dispute no. 113 of 1970. no oral evidence was adduced on behalf of the parties. the 2nd respondent also did riot file any claim statement. the petitioner filed a reply statement setting forth all the facts. the labour court passed an order holding that the order passed by the petitioner society was vitiated and awarded two years' wages as compensation in lieu of reinstatement. it also further granted suspension allowance from 29th september, 1967 to 12th december, 1970.4. in this writ petition the only point urged before me was that there was no necessity for a domestic enquiry in view of the admission of the 2nd respondent of his guilt. this point was considered by the labour court in its judgment in paragraph 10. the charge, according to the labour court, was one of misappropriation. in the counter also it was stated like that and on the documents filed in the case, there was no clear admission of this charge of misappropriation. hence, the labour court rejected the plea of the employer that there was no necessity for a domestic enquiry.5. mr. haranadha rao has taken me through the admissions made by the worker in ext. m7 and also in ext. m7. exhibit m2 is a letter prepared on 3rd september, 1967. on a reading of that letter we do not get any definite and categorical admission that the 2nd respondent has misappropriated goods worth rs. 2,841.91.6. the charge against the 2nd respondent on 15ih october. 1967 (vide ext. m5), is to the following effect that 'he created a huge deficit of rs. 3,129,26 both in petty cash balance and in physical stocks at the time of closure of karimnagar depot'. in reply to this charge, we have got the explanation of the worker marked as ext. m7. the said explanation does not refer to this figure of rs 3 120.26 at all or the component parts of it. on the other hand, it says that as regards the deficit he would pay half the amount under challan and pay the balance by deducting from the salary and warts that he should be continued in service. we do not gel a clear and unequivocal admission in this letter ext. m7 to operate as an admission. moreover, in the reply statement field by the management the way in which they pleaded in page 2 is that the 2nd respondent misappropriated the total amount of rs. 3,120.26 and a notice was given to him as to why his services should not be terminated for misappropriating the said amount; it is also further stated that the 2nd respondent admitted the charge of misappropriation and hence no domestic enquiry was held. the management wants to rely upon exts. m2 and m7 as constituting an admission to dispense with the domestic enquiry. it is therefore, a clear case where the charge as framed by them in ext. m5 was understood by the 2nd respondent only as a charge of misappropriation though the actual word 'misappropriation' has not been used in ext. m5. exhibit m 5 has to be read along with the reply statement and if it is so read is clear that the charge was only one of misappropriation.7. we have, therefore, to see whether there is a dear and unequivocal admission of this charge of misappropriation by the worker so as to disperse with the domestic enquiry. as muted already, exts. m1 and m7 do not constitute such an admission on his part. we do not have any indication in these two letters about the petty cash balance which is to the tune of rs. 278 and odd. even in regard to the sum of rs. 2841.91, being the balance of stock which was missing, the worker does not in clear terms, say that he has misappropriated the said amount. on the other hand, he says in ext. m1 that he had bundled all the goods and placed the bundle at some place and the bundle was missing. besides this, there is no other explanation. he no doubt offered to pay the amount from the cash security and the provident fund due to him. in the further letter ext. m7 he says that he has sold it to somebody on credit system and that he was trying to collect the amount. his explanation that there were credit sales was not forthcoming in the eat her explanation given on 3rd september, 1967, as per ext. m2. the party was prevaricating from stage to stage and adopting each time a defence for exoneration and for continuing him in service. in these circumstances, it cannot be taken that there was any admission of guilt at all.8. it has no doubt been held by their lordships of the supreme court in central bank of india v. kaunamoy banerjee 1967 ii l.l.j. 739 : (1967) 32 f.j.r. 481 at p. 489, that in order to dispense with the enquiry there should be a clear admission of guilt. their lordships observed as follows:when ones the ,workman himself has in answer to the charge levelled against him, admitted his guilt, in our opinion, there will be nothing more for the management to enquire into.this decision, therefore, requires that there mast be an admission of guilt in clear terms. the other two decisions, viz. burn & co. calcutta v. their employees 1957 i l.l.j. 226 and sambasiva chetty v. marnan katti 1959 ii l.l.j. 630, do not really help the petitioner.9. on the other hand, their lordships of the supreme court have held in jagdish prasad saxena v. state of m.p. a.i.r. 1961 sc. 1070 at p. 1073, as follows:.in such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. but apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admit sum of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him.' (underlining is mine; here primed in italics). in view of the above indisputable proposition laid down by their lordships that there must be a clear and unambiguous admission of guilt, we have to see whether the evidence in ibis case warrants such an admission. i am satisfied that, on a reading of the two documents relied upon by the petitioner, no such conclusion can be arrived at.10. mo other point has been urged in this writ petition. in tae circumstances, the writ petition fails and is dismissed bat, in such circumstances without court.