Judgment P.S. SAHAY, J. 1. This application under Articles 226 and 227 of the Constitution of India for quashing of the Constitution of India for quashing of the award which was made by Mr. J.M. Shelat, a retired Judge of the Supreme Court, under section 10A of the Industrial Disputes Act, 1947 hereinafter referred to as the Act, on 2.4.76 as contained in Annexure 1, upholding the dismissal of 28 out of 31 workmen. 2. In order to appreciate the points raised in the case it will be necessary to state some facts. The Associated Cement Company owns a cement factory at Sindri, and there is a Union for the Workmen. According to the case of the Management, at the Instigation of the Union, the workmen resorted to an illegal strike between the period 14th to the 24th August 1968 and committed a number of illegal acts, such as, picketing, obstructing and preventing, other workmen and officers from attending their duties, mobbing the car of the Manager, and ultimately the Management gave notice for dismissal to 31 workmen and they were asked to show cause. A domestic enquiry was instituted, and Mr. M.S. Kapoor, an officer of the Personnel Department, was to conduct the enquiry. The workmen were divided Into 10 group, depending on the parts played by each of them, some of which were common, and dates were fixed, but the workmen did not participate in the enquiry, which was held between the period 11.10.68 and 16.11.68. It may be mentioned that only one workman, Sadhu Ram, appeared on one day. The enquiry officer submitted report, bolding all the 31 workmen guilty and the Management accepted the report of the enquiry officer and by order dated 21.2.69 ordered their dismissal with effect from 22.2.69. 3. Thereafter, the union raised a dispute in regard to those dismissals, and the Governor of Bihar by notification dated 20.11.69 made a reference under section 10 of the Act, and the matter was to be decided by the Labour Court, Ranchi. In the meantime, a Labour Court was established at Bokaro, and this reference was transferred from Ranchi to Bokaro on 28.3.73. while the matter was pending at Bokaro, the parties filed a joint application on 31.10.13 stating that they had agreed to refer the said dispute to the Arbitrator, Mr. In the meantime, a Labour Court was established at Bokaro, and this reference was transferred from Ranchi to Bokaro on 28.3.73. while the matter was pending at Bokaro, the parties filed a joint application on 31.10.13 stating that they had agreed to refer the said dispute to the Arbitrator, Mr. J.M. Shelat (retired Judge of the Supreme Court) and prayed for the Labour Court to dispose of the said reference as a “No Dispute Award", and an agreement was also entered Into between the parties on 24.11.73. Thereupon, the Governor of Bihar, as required under section 10A (3) of the Act, published the said agreement of reference in the Bihar Gazette dated 15th of March 1974. The following was the specific matter of the dispute referred to the Arbitrator regarding 31 workmen, their names having been mentioned in paragraph 6 of the petition ; "Whether the dismissal of the following workers is proper and justified and if not, are they entitled to re-Instatement and/or any other relief ? ” 4. The case of the Management, in short, was that at the Instigation of the Union, the workmen resorted to illegal strike and committed various overt acts, for which they alone were responsible and, after they had been asked to show cause, they evaded enquiry and ultimately the enquiry officer, On the materials brought by the Management held diem to be guilty, and they were dismissed by the Management. The case of the workmen on the other hand, was that several demands were made on behalf of the workers, but the Management did not pay any heed and, therefore, the workmen had to resort to peaceful Dharna, but they never prevented any officer or workman from going to their duty. 5. The learned Arbitrator, on a perusal of the entire matter and after hearing tile parties. held the dismissal of 28 workmen, out on 31, to be justified, but in case of three workmen namely Chartiar Sah, Bihari Singh and Kapildeo Yadav, it was held that enquiry was not proper, and, therefore, their dismissal was set aside and a fresh enquiry was to be held by the Arbitrator himself, and the Management was given an opportunity to lead additional evidence on merits, provided such an application was mad within ten days or publication of the Award, otherwise the Management will have to reinstate them with their full back! wages from the respective dates of the orders of dismissal served upon them till the date or dates on which they are reinstated. 6. Being aggrieved by the aforesaid order of dismissal of 28 workmen, the Union has moved this Court for the quashing of the award on various grounds. 7. Mr. Nanavati appearing on behalf of the Management has raised a preliminary objection that the petitioners have made false statements touching the integrity of the Arbitrator in order to get the case admitted by this Court which, according to the learned counsel, are without any foundation, and on that ground alone the application is fit to be dismissed without considering the merits. In this connection, he has drawan our attention to paragraphs 19 and 20 of the petition where it has been stated that the Arbitrator respondent no.2 held a large stock of shares in the concerned company and had vested financial interest and thus was guilty of gross misconduct and that this fact was not know to the workmen, otherwise they would not have entered into an agreement appointment respondent no. 2 as Arbitrator. It has also been stated that a huge sum of money by was of fees and other charges paid to respondent no.2, both in cash and cheque, and these transactions were kept a closely guarded secret and the workmen knew about it subsequently, and this workmen knew about it subsequently, and this amounted to gross misconduct and this vitiated the Awared. 8. Counter affidavit in reply, has been filed on behalf of the Company and in paragraph 21 It has been stated in reply to paragraph 19 of the petition that nothing was concealed by the Arbitrator, and at the first preliminary bearing, which was held on 27.4.74, the Arbitrator himself bad disclosed that he held a few shares in the respondent Company. Late Mr. Pranab Chatterjee, who was appearing on behalf of the workmen, did not object to this and thereafter the arbitration proceeded. Thus, it is clear that this fact was disclosed at the earliest stage of the arbitration and no reply to this has been filed on behalf of the petitioners. Late Mr. Pranab Chatterjee, who was appearing on behalf of the workmen, did not object to this and thereafter the arbitration proceeded. Thus, it is clear that this fact was disclosed at the earliest stage of the arbitration and no reply to this has been filed on behalf of the petitioners. It has also been stated on affidavit by the Company that the Arbitrator was holding four shares in his own name and 14 shares jointly alongwith his wife and there were 28, 48, 386 total shares of the company held by 54, 866 share holders. The fact that a huge sum of money has been paid to the Arbitrator by way of fees has been paid to the Arbitrator by way of fees has also been denied for the entire arbitration proceeding a sum of Rs. 38,700/-was paid, which cannot be said to be excessive. Learned counsel on behalf of the Company has also produced a letter dated 1.4.77 written by Mr. Pranab Chatterjee which has been filed along with the affidavit in which it has been stated that though some allegations were made in the main petition regarding certain shares and payment of fees to the Arbitrator, but after going through the counter affidavit filed by the Company the workmen were satisfied about the true facts as stated in the said affidavit of the Company, and the Counsel for the Union would not press those allegations. Further it has been mentioned that the Arbitrator was requested to proceed with the cases of the three workmen which had been remanded and they expressed their confidence in the Arbitrator. Thus, it is clear that the allegations made against the Arbitrator are all haseless. Such irresponsible and reckless statements should not have been made in the affidavit, touching the honesty and integrity of the Arbitrator who had enjoyed the high office of a Judge of the Supreme Court. Before the proceeding actually started, the Arbitrator has placed all facts before the parties and thereafter the matter proceeded because no objection was raised. Even after the award was given it is clear from the letter of Mr. Chatterjee, President of the Union and the lawyer, who had conducted the proceeding on behalf of the workmen, that the Union had complete faith in the Arbitrator Mr. Even after the award was given it is clear from the letter of Mr. Chatterjee, President of the Union and the lawyer, who had conducted the proceeding on behalf of the workmen, that the Union had complete faith in the Arbitrator Mr. Lal, learned counsel appearing on behalf of the petitioners, has very candidly submitted that in view of the statements made in the counter affidavit filed on behalf of the Company and the letter of late Mr. Pranab Chatterjee, he would not pursue the matter which should be treated as closed. It is hoped that in future, counsel appearing in the case will not make such insinuation or cast any appointed an Arbitrator with the agreement of the parties. The matter will now be decided on merits, and the preliminary objection is disposed of accordingly. 9. Mr. Lal has submitted that the Arbitrator failed to exercise his jurisdiction under section 11A of the Act, and to re-assess the evidence in order to come to the conclusion whether the punishment was adequate or required some modification. In this connection, he has submitted that the learned Arbitrator has completely ignored the provisions of section 11A of the Act, which gives power to the Arbitrator to reassess the evidence and differ from the findings of the domestic enquiry. Mr. Nanavati has submitted that the reference under section 10 was made on 20.11.69 and it was published in the Bihar Gazette on 28.4.73 and Section 11A having come into force with effect from 15.12.71 will not be applicable to this case in view of the fact that the reference was made much earlier. He has also 11A it is clear that no such power has been given to the Arbitrator, and therefore, the Arbitrator was uncovered by this new section. In this connection, the parties have placed reliance on the case of the Workmen of M/s Firestone Tyre and have relied on different paragraphs of the judgment in support of their respective contentions. He has also 11A it is clear that no such power has been given to the Arbitrator, and therefore, the Arbitrator was uncovered by this new section. In this connection, the parties have placed reliance on the case of the Workmen of M/s Firestone Tyre and have relied on different paragraphs of the judgment in support of their respective contentions. It would be better to quote the provisions of section 11A of the Act: “Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workmen on such terms and conditions, if any, as it thinks fit, or given such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunbal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.” It is not necessary to consider now the submissions made at the Bar in this connection, because the matter has been decided by the Supreme Court in Gujarat Steel Tubes Ltd. V. Gujarat Steel Tubes Masdoor sabha. There also question arose whether the Arbitrator had Plentitude of power to re-examine the punishment imposed by the Management even if it disagreed with its severity. It was argued on behalf of the Management In that case that section 11A did not clothe the Arbitrator with similar power as Tribunals and their Lordships, on a consideration or a number of decisions, held that though 'Arbitrator' is not specifically mentioned in section 11A. yet, by necessary Implication the Arbitrator will come within the meaning of Tribunal as mentioned in that section, and their hardships held that section 11A applied to the Arbitrator and and, in that view of the matter he has full power to reassess the evidence and differ with the domestic enquiry. The contention of Mr. Nanavati must, therefore, be rejected. yet, by necessary Implication the Arbitrator will come within the meaning of Tribunal as mentioned in that section, and their hardships held that section 11A applied to the Arbitrator and and, in that view of the matter he has full power to reassess the evidence and differ with the domestic enquiry. The contention of Mr. Nanavati must, therefore, be rejected. 10. Now, in this background it has to be considered whether the Award given by the Arbitrator has been vitiated due to the noncompliance of section 11 A of the Act. In this connection, Mr. Nanavati has submitted that the question to adequacy or otherwise of the punishment imposed by the enquiry officer was not raised before the Arbitrator and has also not been taken in the petition filed in this Court. If that be the position, then certainly it was not incumbent on the Arbitrator to have dealt with the matter. Learned counsel for the Company has drawn our attention to the points which had been raised before the Arbitrator. It would be better to quote the points from the Award itself: "(1) Failure to give notice to the concerned workmen of the date, time and place of the enquiries against them (2) Malafides of the management to picking these workmen for taking disciplinary action. (a) by reason of hostile relations between the union and the management. (b) by reason of hostile relation between there workmen and certain officers of the company, viz, Manager Rao, Mitra, the Administrative Officer, Jha, the personnel Office" and the two peons Janki Singh and Milki Ram on account of their animosity (i) towards the union and (ii) these workman on account of their being the active members of the union. (3) Bias of M.S. Kapur the inquiry officer against these workmen. (4) Perversity of his findings. (5) The enquiries were so maneuvered that they could be held exparte and as a mere ritual to satisfy the legal requirements. (6) No second opportunity to explain afforded to the workmen before ordering their dismissal" The learned Arbitrator has dealt with the points mentioned above separately and, after recording his findings, states as follows : "These were all the contentions urged before me." This clearly show that besides the point which have been mentioned earlier no other point had been taken on behalf of the workmen. In my considered opinion, the Arbitrator was never called upon by the petitioners to differ from the findings of the enquiry officer, in exercise of powers under section 11A of the Act. As I have said earlier, this point has not been taken to the petition, though a number of point have been railed. It the Arbitrator would have been invited to consider about the quantum of punishment awarded to the workmen then certainly it was necessary to consider their individual cases and decide in accordance with law, In view of section 11A of the Act. 11. The order of the Arbitrator has alia been placed before us, and it appears that he has considered the case of the parties in great detail, including the point regarding the perversity of the findings recorded by the enquiry officer; and in this connection it was also argued that the order of dismissal passed by the manager was illegal and the Arbitrator, while discussing the question of giving a second notice to the employees before passing any final order, has also held that the workmen were charge-sheeted not only for resorting to illegal strike but also for their individual acts, such, as, obstructing and/or preventing there from going to their duty, assaulting, mobbing the Manager’s car, etc. and that having been found to be established from the materials on the record, it cannot be said that the dismissal of those workmen was unjustified. Therefore, we cannot feel to be persuaded to take a view different from the Arbitrator in this regard. 12. Mr. Lal has then contended that the Manager has not followed the provisions of the Standing Order no. 16 of the Company's Standing order which required a second notice to show cause against the proposed punishment which was dismissed in this case, and without giving a second notice the workmen have been dismissed from service. According to the learned counsel, this was mandatory and intended to give an opportunity to the concerned workmen to show the findings of the enquiry officer were bad and lesser punishment should be awarded to them. Learned counsel appearing on behalf of the Company has submitted that the second show cause was not at all necessary. This point was also taken before the Arbitrator who has held that there was no question of the Manager holding a second enquiry before imposing any punishment on the workmen. Learned counsel appearing on behalf of the Company has submitted that the second show cause was not at all necessary. This point was also taken before the Arbitrator who has held that there was no question of the Manager holding a second enquiry before imposing any punishment on the workmen. Reliance in this connection has been placed on Standing order no. 16, after the Sindri Cement Works, Sindri, which runs as follows: "A worker may be suspended for a period not exceeding 4 days or fined in accordance with the Payment of Wages Act, or dismissed without notice or any compensation in lieu of notice If found guilty of misconduct, defined in Standing Order No. 15, after the enquiry. All orders of suspension and fines shall be in writing setting out the misconduct for which the punishment is awarded. No officer below the rank of the Head of the Department shall award the above punishment. All dismissal order shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation. Due consideration to the gravity of misconduct and the previous record of the worker shall be given in awarding the maximum punishment. x x x 13. Learned counsel appearing on behalf of the workmen relied on the last paragraph of the above Standing Order. Admittedly no second notice had been given to the workmen. Mr. Lal relied on the decision of The Imperial Tobaco Company V. Workmens where it has been held that even though the workmen had withdrawn from the enquiry, whether rightly or wrongly, the enquiry should have been completed and all evidence should have been taken ex-parte. Thereafter, the Branch Manager should have appraised the evidence and recorded his conclusions and the punishment he intended to inflict and should have called upon the workmen to say what we wanted to say against the Intended punishment. It was only thereafter that he could proceed to punish the workman. Mr. Nanavati has submitted that the above decision was given in connection with the Standing Orders relating to the employees of the Imperial Tobacco Co. and under Standing Order no. 10 of that Company a second show cause notice had to be given, which is not the position in the instant case, A copy of the Standing order of the Imperial Tobacco Co. and under Standing Order no. 10 of that Company a second show cause notice had to be given, which is not the position in the instant case, A copy of the Standing order of the Imperial Tobacco Co. has been produced before us, and standing order no. 10 reads as follows : "The Branch Manager will make a brief appraisal of the evidence recorded, and shall record his conclusion and the punishment, if any, intended to be imposed by him, in writing. In doing so he shall take into consideration the service record of the employee concerned and shall record what such employee has to say against the intended punishment. He shall pass orders of punishment in writing and shall record the misconduct and the punishment imposed, on the service record of the employee concerned," Reading the above provision, it is clear from the language that it contemplates two enquiries one at the initiate stage, when a case is made out against the workman, and thereafter a second notice has to be given to the employee asking him to show cause against the intended punishment and then punishment is imposed for misconduct, taking into consideration the service record of the employee. Therefore, Standing Order no. 10 of the Imperial Tobacco Co. is couched in a different language and is quite different from Standing order no.16 of the Sindri Cement Works. 14. Learned counsel for the Company has relied upon Management, Shahadra (Delhi) Saharanpur Light Railway Co. Ltd. V. S.S. Railway Workers Union, in which it has been held that a second show cause notice is not required either under the ordinary law or under the Industrial law. On a consideration for a number of decisions, it has been held that for Courts or Tribunal a second show cause notice the enquiry was not conducted in the manner required by provisions contained in the manner required by the Standing Orders, meaning thereby that the provisions contained in Standing Order no. 10 were not complied with, which required a second notice to be given. A similar case came up for consideration in the case of M/s Lakmiretan Cotton Mills Co. 10 were not complied with, which required a second notice to be given. A similar case came up for consideration in the case of M/s Lakmiretan Cotton Mills Co. Ltd. V. Its workmen Bhagwati, J. speaking for the Bench, while considering the relevant standing order, held “This clause clearly contemplates a notice to be given to the workmen for the purpose of enabling him to show cause within a specified period as to why the proposed is intended to provide an opportunity to the workman to show cause against the proposed punishment of dismissal. The workman may show that the findings of the enquiring office are not justified on the evidence on record or that even if the findings are justified, they do not warrant the extreme penalty of dismissal from service having regard to the nature or gravity of the misconduct, the past record of the workman and any other extenuating circumstances. The notice must, therefore, give a reasonable opportunity to the workman. That is a condition precedent which must be satisfied before an order of dismissal can be validly passed by the employer" 15. Thus, on a careful consideration of the authorities cited in this connection, I am of the opinion that a second notice is not contemplated under the Standing Orders of the Respondent Company, and the finding of the Arbitrator on this point is correct and cannot be interfered with. 16. Lastly, it has been submitted that the Arbitrator has committed an error of record. holding that notice was served on the employees who were under Batch no. 5 and 10, and the letter on which reliance has been placed by the learned Arbitrator was never filed before the enquiry officer. He has further submitted that the enquiry reports were prepared subsequently, even after the order was passed by the enquiry officer. But these points which require investigation of facts were never raised before the learned Arbitrator and have not been taken in the petition also. In my opinion, there is no substance in this point which also must be rejected. 17. Thus, on a careful consideration of the points which have been raised in this application, no ground for interference has been made out. The application is, therefore, dismissed; but in the circumstances of the case there will be no order for costs. I agree. Application dismissed. 17. Thus, on a careful consideration of the points which have been raised in this application, no ground for interference has been made out. The application is, therefore, dismissed; but in the circumstances of the case there will be no order for costs. I agree. Application dismissed. (dlbna (H. L. Agrawal, J.) 1981 BBCJ pared subsequently, even after the order wal passed by the enquiry officer. But thele pol• nts wblch require investigation of facts were never railed before tb~ leua,d Arbitrator and bave not been talilen io thl petition also. In my opinion, there is no substance in this point wbich also must be rejected. 17. Tbus, on a careful consideration of the points whicb haye been raised in this application, no ground (or interference has been made out. The appliciltlon is, therefore, dilmissed. but In the circumstances of the case there will b::: ao order for costs. K.B.N. Singh, G. J. I agree. Application dismissed.