JUDGMENT
Untwalia, J.
1. Respondent No. 2 was in the employment of the petitioner-company as Clerical Supervisor. Accounts Department. The petitioner’s case is that upon receipt of various allegations of misconduct, charge-sheets were issued to him and the Resident Engineer of the petitioner-company held an enquiry and found those charges to be proved. The Resident Engineer submitted his report to the Managing Agents who have got their head Office in Calcutta and recommended dismissal of respondent No. 2 The Managing Agents decided to dismiss him and accorded their approval of the action suggested by the Resident Engineer. Respondent No. 2 was, accordingly, dismissed on 12-9-1968. As a conciliation proceeding was pending before the Assistant Labour Commissioner in respect of some general demands raised by the workmen of the Company, the petitioner-company filed an application under Section 33 (2) (b) of the Industrial Disputes Act for approval of the order of dismissal. This application was filed on 12-9-1968, the day the order of dismissal was communicated to respondent No. 2. The said respondent appeared to oppose the application filed by the petitioner-company for approval of the order of dismissal and parties were heard by the Assistant Labour Commissioner on 17-10-1968. He reserved orders. On 7-11-1968 respondent No. 2 filed an appeal before the Labour Commissioner, respondent No. 1 purporting to be an appeal under Standing Order No. 25 of the Certified Standing Orders of the Company. On 16-1-1969 the petitioner-company filed an objection before respondent No. 1 objecting to the maintainability of the so-called appeal filed by respondent No. 2. On 21-1-1969 the Assistant Labour Commissioner passed orders on the application filed under Section 33 (2) (b) of the Industrial Disputes Act and approved the order of dismissal passed by the petitioner-company. Even thereafter on 3-5-1969 the Labour Commissioner heard the parties upon the preliminary objection raised by the petitioner Company and reserved orders. On 9-5-1969 respondent No. 1 held that he had jurisdiction to entertain and proceed with the appeal filed under Standing Order No. 25. The petitioner-company challenges the said order of respondent No. 1 on the ground that no appeal lay to the Labour Commissioner under Standing Order No. 25 or, in any event, on the facts and in the circumstances of this case, he ought not to have entertained the appeal.
2. No counter-affidavit has been filed by respondent No. 2 controverting any statement made by the petitioner company in the writ application. Cause has, however, been shown by his learned counsel at the time of the hearing of the case.
3. One thing is clear from annexures 1 and 2, the letter of the Resident Engineer dated 5-9-1968 written to the Managing Agents and the latter’s reply dated 10-9-1968, that it was not the Resident Engineer who had passed any order of dismissal of respondent No. 2. He had held enquiry and recommended punishment of dismissal for approval of the Managing Agents. The Managing Agents approved the implementation of the punishment recommended by the Resident Engineer. In other words, in substance and in effect, the order dated 12-9-1968, namely, the order of dismissal of respondent No. 2, was the ultimate decision and order of the Managing Agents Standing Order No. 25 reads as follows :–
“The decision of the Resident Engineer upon any question arising out of, in connection with, or incidental to these orders shall be final subject, however, to appeal to the Managing Agents and the Labour Commissioner and without prejudice to any right of an employee aggrieved by his or their decision to resort to legal proceedings in a court of law.”
4. Mr. K. D. Chatterji, learned counsel appearing for the petitioner, submitted that under the said order an appeal could lie to the Managing Agents or to the Labour Commissioner from the decision of the Resident Engineer upon any question which would have arisen out of the certified Standing Orders or would have arisen in connection with or incidental to them. The order of dismissal, even if it be assumed that it was the order of the Resident Engineer, was not such a decision. In the alternative, he submitted that in this case the final decision and the order were of the Managing Agents and not of the Resident Engineer. I am unable to accept the first submission of the learned counsel, as so put, to narrow down the scope of Standing Order No. 25. If there is any question which falls for determination of the Resident Engineer which question arises out of or is in connection with or incidental to the Standing Orders and the Resident Engineer decides that question, under Standing Order No. 25, an appeal could lie to the Managing Agents or to the Labour Commissioner because the word ‘and’ occurring between the description of the two authorities must mean or, as was rightly contended by Mr. Gur Bachan Singh, learned counsel for respondent No. 2. From the decision of the Resident Engineer, there cannot be appeal to the Managing Agents as also to the Labour Commissioner. Remedy of appeal has got to be availed of only once, either by filing it before the Managing Agents or before the Labour Commissioner. In what kind of orders of the Resident Engineer one may say that there is a decision of the Resident Engineer which is subject to appeal under Standing Order No. 25 and in which case there is no such decision, is a matter which will depend on the facts and circumstances of each case. There cannot be any hard and fast catalogue of such matter on either side of the line. If I may just endeavour an illustration, I would like to say that if the order of dismissal in question would have been passed by the Resident Engineer after taking the decision, as he must have passed the order after that decision that the employee is guilty of misconduct, in my opinion, the decision of the Resident Engineer necessarily would be upon any question which arises out of the Standing Orders. Standing Orders 17 and 17 A provide as to what acts of the employee would be tantamount to misconduct and how the order of dismissal can be passed by the Resident Engineer. To give the other illustration which to my mind would fall outside the scope of Standing Order No. 25, I may simply indicate that if the Resident Engineer, in his discretion, refuses to grant casual leave to an employee under Clause (b) of Standing Order No. 9, the matter simpliciter standing at that cannot be said to be a decision within the meaning of Standing Order No. 25, as subject to appeal either to the Managing Agents or to the Labour Commissioner. To put it in a broad line, any order of the Resident Engineer under the Standing Order or to put it in the language of learned counsel for respondent No. 2, any decision taken by the Resident Engineer under the Standing Orders will not be a decision within the meaning of Standing Order No. 25 unless it involves his decision upon anv question arising out of or in connection with or incidental to the Standing Orders. In this case, however, the matter is simple. On the uncontrovert-ed facts the decision or the order of dismissal was not of the Resident Engineer and, therefore, no appeal lay to the Labour Commissioner.
5. Learned counsel for respondent No. 2 submitted that the Standing Orders have not got statutory force although they are certified under the Industrial Employment (Standing Orders) Act, 1946 (Act 20 of 1946), in one sense they are terms of the agreement of service between the employer and the employee and, therefore, the Labour Commissioner, while entertaining the appeal under Standing Order No. 25, is not performing any public duty or a judicial function so as to be amenable to the jurisdiction of this Court under Article 226 of the Constitution. I have no difficulty in rejecting this argument. Even assuming that the learned counsel jis correct in the first part of his submission, the appeal which is taken to the Labour Commissioner under Standing Order No. 25, is decided by him in his official capacity of the Labour Commissioner and not as persona designate. He has got to decide the appeal judicially and if he entertains the so-called appeal which does not lie to him under Standing Order No. 25, he commits a wrong which can be rectified in exercise of the powers of this Court under Article 226 of the Constitution.
6. Learned counsel for respondent No. 2 then submitted that the preliminary objection taken before the Labour Commissioner was of a different kind and not of the kind as has been taken here in this Court. To some extent, this comment is justified. The main ground of preliminary objection before the Labour Commissioner was that since the matter had gone to the Assistant Labour Commissioner for his approval of the action of dismissal taken by the Managing Agents under Section 33 (2) of the Industrial Disputes Act, another authority should not go into this question especially when the order of dismissal has been approved by the Assistant Labour Commissioner. There seems to be some justification in this objection, also, taken by the petitioner-company, but I do not propose to decide this question in this case. The point which has been urged in this Court touches the verv jurisdiction of the Labour Commissioner on the facts which are not controverted to entertain the so-called appeal filed by respondent No. 2 before him under Standing Order No. 25 and that being so, the petitioner-company cannot be debarred from raising this objection at any stage of the proceeding.
7. In the result, the application succeeds and is allowed. The proceeding before the Labour Commissioner, respondent No. 1, in the appeal filed by respondent No. 2 under Standing Order No. 25 is quashed and respondent No. 1 is directed not to proceed further with that appeal. There will be no order as to costs.
S.N.P. Singh, J.
8. I agree.