Lakshmi Devi Sugar Mills Ltd. Vs. Pt.
Ram Sarup [1956] INSC 62 (24 October 1956)
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA DAS, S.K.
MENON, P. GOVINDA
CITATION: 1957 AIR 82 1956 SCR 916
ACT:
Industrial Dispute-Application for permission
to dismiss workmen-Jurisdiction of Appellate Tribunal-Scope of enquiryInterim
order of suspension by employer pending enquiry and receipt of permission-If
amounts to a lock-out-If amounts to punishment -Prior Permission of the Appellate
Tribunal, if required-Enquiry by General Manager-Non-co-operation by
workmen-Enquiry not held within the prescribed time-If a breach of Standing
Orders Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950), ss. 22,
23-Industrial Disputes Act (XIV of 1947), s. 33(a)(b)--Standing Orders, cl. L
12.
HEADNOTE:
Seventy-six workers of the appellant company
resorted to a tools-down strike in sympathy with a dismissed -co-worker.
Repeated attempts to persuade them to resume
work having failed the General Manager suspended them until further orders.
After midday recess the Management sought to prevent the workers from entering
the mills but they violently entered the mills and the Police had to be called
in by the company to keep the peace. Charges of misconduct and insubordination
were thereafter framed against the workers and they were called upon to show
cause in an open enquiry to be held by the General Manager why disciplinary
action should not be taken against them and the order of suspension was
extended pending the enquiry. The workers took up an attitude of total
non-cooperation and the atmosphere was tense with the result that the enquiry
could not be held within 4 days. The Management decided to dismiss the workers
as a result of the enquiry but as an appeal was then pending before the Labour
Appellate Tribunal, the company applied to it under s. 22 -of the Industrial
Disputes (Appellate Tribunal) Act of 1950 for permission to do so and extended
the period of suspension pending receipt of such permission. The workmen in
their turn filed an application under a. 23 of the Act to the Appellate
Tribunal for requisite action to be taken against the company for having
contravened s. 22(b) of the Act by resorting to an illegal lock-out and thereby
punishing them without its prior permission. The Appellate Tribunal held that
the company had not held the enquiry within the time specified by el. L 12 of
the Standing Orders and on that ground dismissed its application. It allowed
the application of the workers holding that the wholesale suspension of the
workers and preventing them from continuing work. after the mid-day recess
amounted to a lock-out 917 and punishment by the company and contravened s.
22(b) of the Act and directed their reinstatement. The company appealed. It was
contended on behalf of the company that there had been neither a breach of el.
L 12 of the Standing Orders nor a contravention of s. 22(b) of the Act.
Hold, that the contentions were correct and
the appeals must succeed.
The conduct of the company did not come
within the definition of a lock-out and even if there was any lock-out it was
in consequence of the illegal strike resorted to by the workmen and as such
could not be deemed to be illegal by virtue of s. 24(3) of the Industrial
Disputes.Act, 1947.
Moreover, even assuming that the company
declared an illegal lock-out it was not necessary for it to obtain the
permission of the Appellate Tribunal under s. 22 of the Act before it could do
so.
A lock-out was neither an alteration of the
conditions of service within the meaning of el. (a) nor a discharge or
punishment by dismissal or otherwise within the meaning of el. (b) of s. 33 of
the Industrial Disputes-Act, 1947 or under s. 22 of the Industrial Disputes
(Appellate Tribunal) Act, 1950 and no permission was, therefore, required for
its declaration. If the lock-out was illegal the workmen had their remedy under
s. 26 of the Industrial Disputes Act and in any event they had the right to
have the dispute referred for adjudication.
Jute Workers Federation, Calcutta v. Clive
Jute Mills ([1951] 11 L.L.J. 344) and Colliery Mazdoor Congress, Asansol v. New
Beerbhoom Coal Co. Ltd. ([1952] L.A.C. 219), approved.
The Company having been declared a public
utility concern, the workers had no right to go on strike without giving a
notice in terms of s. 22(1) of the Industrial Disputes Act, 1947 and the
tools-down strike resorted to by them was illegal and the company was within
its rights in suspending them.
Buckingham and Carnatic Co. Ltd. v. Workers
of the Buckingham and Carnatic Co. Ltd., ([1953] S.C.R. 219), referred to.
Mere failure to hold an enquiry within the
period of four days prescribed by el. L 12 of the Standing Orders could not
determine the matter before the Appellate Tribunal and where, as in the instant
case, the delay was due to the conduct of the workers it was sufficiently explained.
Where full and free opportunity was given to
the workers to be present and defend themselves in a duly notified enquiry and
they failed to do so, the Management was quite within its right to come to its
own conclusion as to their guilt and the punishment to be meted out to them and
it was not open to the workmen thereafter to urge that such enquiry was not
fair or impartial or violated the principles of natural justice.
918 There could be no punishment so long as
there was no offence and any action of the employer to the detriment of the
workers' interest would not amount to punishment. The law did not contemplate
anything like a contingent punishment of a worker and, consequently, where
there was an interim order of suspension pending an enquiry or the grant of
permission by the Appellate Tribunal, the question of pay for the period of
such suspension depending on whether or not the permission would be granted,
such suspension would not amount to punishment even where it was of an
indefinite duration so as to attract the operation of s. 22 of the Industrial
Disputes (Appellate Tribunal) Act, 1950.
Champdany Jute Mills and Certain Workmen,
([1952) 1 L.L.J.
554), Joint Steamer Companies and -Their
Workmen, ([1954] II L.L.J. 221), Assam Oil Co. Ltd. v. Appalswami, ([1954] 11
L.L.J. 328), Standard Vacuum Oil Co. v. Gunaseelan, M. G. ([1954] II L.L.J.
656), relied on.
Under that section the only thing that the
Appellate Tribunal had to consider was whether a prima facie case had been made
out by the employer for lifting the ban imposed by the section and if, on the
materials before it, it was satisfied that there bad been a fair enquiry in the
circumstances of the case and the Management had bona fide come to the
conclusion that the worker was guilty of misconduct with which he had been
charged and it would be detrimental to discipline and dangerous in the
interests of the company to continue him in its employ, a prima facie case was
made out and the Tribunal would be bound to permit the employer to punish the
workman. It would be no part of its duty to judge whether the punishment was
harsh or excessive, except so far it might bear on the bona fides of the
Management, and could only grant the permission as sought for or refuse it and
the question of the propriety of the punishment could be decided only by the
appropriate Tribunal appointed by the Government for adjudicating the
industrial dispute which would ensue upon the action of the management.
Atherton West & Co. Ltd. v. Suti Mills
Mazdoor Union and Others, ([1953] S.C.R. 780), The Automobile Products of India
Ltd. v. Bukmaji Bala & Others, ([1955] 1 S.C.R. 1241) Champdany Jute Mills
and Shri Alijan, ([1952] II L.L.J.
629), R.B.S. Lachmandas Mohan Lal & Sons
Ltd. and Chini Hill Karmachari Union, ([1952] II L.L.J. 787) and Assam Oil
Companies' Case, ([1954] L.A.C. 78), referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 244 and 245 of 1954.
Appeals from the judgment and order dated
August 19, 1952, of the Labour Appellate Tribunal of India (Calcutta) at
Allahabad in Miscellaneous Cases Nos, C-91 and 93 of 1952.
919 N. C. Chatterji, H. J. Umrigar, J. B.
Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant in both appeals.
Purshottam Tricumdas, R. Ganapathy Iyer and
B. P. Maheshwari, for respondents in both appeals. M. C. Setalvad,
Attorney-General for India, Porus A. Mehta and R. H.
Dhebar, for the Intervener.
1956. October 24. The Judgment of the Court
was delivered by BHAGWATI J.-These two appeals :by special leave arise out of
an order of the Labour Appellate Tribunal of India, Lucknow Bench, by which it
dismissed the application of the appellant under s. 22 of the Industrial
Disputes (Appellate Tribunal) Act, 1950, hereinafter referred to as the Act for
permission to dismiss the respondents from its employ and allowed the
application of the respondents under s. 23 of the Act for reinstatement.
The respondents are 76 employees of the
appellant, a limited company of Sugar Mills, situated in village Chitauni in
the district of Deoria and were working in the engineering department of the
mills in the mill house, boiling-house and the workshop sections. There were
disputes between the appellant and its workmen and, on the date in question,
i.e., May 27, 1952, there was pending before the Labour Appellate Tribunal an
appeal which was registered as Cal101/51. It appears that one Motilal Singh, an
employee of the appellant, had been dismissed by it sometime prior thereto and
he had been inciting the workmen to make common cause with him, and, at a
meeting held the previous night, some sort of action had been decided upon.
When the workmen of the appellant entered the mills on the morning of May 27,
1952, these 76 workmen, though they entered their respective sections of the
engineering department, did not commence any work from 7 a.m. as they should
have done. The sectional engineers in-charge asked these workmen as to why they
did not commence their work and became a ware of their intention to resort 920
to a tools-down strike. They reported the fact to the Chief Engineer who sent a
slip to the General Manager informing him that the workers had gone on a tools
down strike. The General. Manager thereupon personally went to the workshop,
mill house and -the boiling house and asked these workmen not to resort to such
strike but the latter did not pay any heed to his advice. -The General Manager
then asked the Chief Engineer to persuade these workmen to commence the work,
give them time for about 2 hours till 10-30 a.m. and report to him if, in spite
of his persuasions, they did not commence work. The persuasions of the Chief
Engineer and also of the section engineers proved of no avail and the 76
workmen persisted in their attitude with the result that the section engineers
made their reports to the General Manager through the Chief Engineer giving the
names of the workmen belonging to their respective sections who had resorted to
the tools-down strike with effect from 7 a.m. that day.
These reports were endorsed by the Chief
Engineer and passed on to the General Manager who,in his turn, passed an order
at about 10-30 a.m. suspending these 76 workmen till further orders. The order
for suspension was communicated to these workmen through their sectional heads
and was also pasted on the notice board of the mills. There was a recess
between 11 a.m. and 1 p.m. and when the gates were opened at 1 p.m.
these 76 workmen, in spite of the warnings of
the gatekeepers and Jemadar to the contrary, rushed into the mills, entered
their respective sections and adopted a threatening attitude. The sectional
engineers made reports to the General -Manager in regard to this occurrence and
these reports also were endorsed by the Chief Engineer and passed on by him to
the General Manager. The situation which was created by these workmen by
forcibly entering their respective sections and continuing there threatening
violence was explosive and the management had to call in the police in order to
avert violence and damage to the property. The police came in at 5 p.m. and
order appears to have been restored. There was no untoward incident that day
921 but the management appears to have viewed the situation with, seriousness
and approached the Regional Conciliation Officer the next day in order to ask
for advice in regard to the dismissal of these workmen. The Regional
Conciliation Officer, however, pointed out to the General Manager that, in view
of the pendency of the appeal before the Labour Appel, late Tribunal, he had no
jurisdiction to entertain any application for such permission and referred the
General Manager to the Labour Appellate Tribunal. The workmen, on the other
hand, got a letter dated May 28, 1952, addressed to the General Manager by the
General Secretary of the Chini Mill Mazdoor Sangh to the effect that they had
gone to the gates of 'the mills as usual at 7 a.m. that day to attend to their
work but they were not allowed to enter the mill premises. They charged the
management with the intention to victimise them -on the charge of a tools down
strike and stated that they had neither struck nor intended to strike but had
been prevented from attending to their work and had therefore been advised to
go back to their quarters with a view to maintain peace. The last paragraph of
that letter was very significant. The General Manager was told that if he did
not mend his illegal mistakes and did not take the workmen back on duty he
would be responsible for any breach of peace.
After receipt of that letter it was evident
that the workmen would resort to violent measures in order to attend to their
work and a breach of peace was apprehended. The management evidently continued
the police precautions and, after having waited for some time, the General
Manager furnished to these 76 workmen on June 2, 1952, a charge-sheet wherein
he charged them with having committed misconduct within the meaning of cl. L. I
(a) and (b) and wailful insubordination within the meaning of el. L. I (a), (b)
and (w) of the Standing Orders. He called upon them to show cause within 24
hours of the receipt of the charge-sheet why disciplinary action should not be
taken against them and gave them intimation that an open enquiry in connection
with the said charges 120 922 would be held by him at 8 a.m. on June 6, 1952.
He also intimated that if all the workmen arranged to present themselves
earlier than June 6, 1952, he would take up the said enquiry earlier provided,
however, an intimation was received to that effect from them or from their
Union. The workmen were to remain suspended till the enquiry was finished.
The workmen addressed uniform letters to the
General Manager denying that there was any tools down strike on May 27, 1952,
and alleging that the sectional heads and the Chief Engineer bad conspired
together "under some mysterious preconceived plans" and stated that
no useful purpose would be served by holding an enquiry on the 1 1 th day of
their suspension. They pointed out that such indefinite period of suspension
during the pendency of the appeal before the Labour Appellate Tribunal and
Reconciliation Board was illegal and unjustified and was in utter disregard of
the Standing Orders. By their further letter dated June 5, 1952, similarly
addressed to the General Manager, they voiced their apprehension that they
would not get any justice from an enquiry held by the management itself and
asked for investigation by an impartial tribunal. The management, however, held
the enquiry as intimated at 8 a.m.
on June 6, 1952. The workmen non-co-operated
and did not present themselves at the enquiry.
The General Manager immediately addressed a
letter to these workmen putting on record thatin spite of the orders conveyed
by him earlier the workmen had disobeyed the. same and had not appeared at the
appointed time and place for the enquiry into the tools-down strike. He pointed
out that by not appearing in this manner they had made themselves liable to
dismissal for insubordination, and intimated that the management was applying
to the proper authorities for permission to dismiss them pending receipt of
which the workmen would remain under suspension. This letter was received by
the workmen at 9 a.m. that day and they replied through the General Secretary
of the Chini Mill Mazdoor Sangh repeating that a demand had been made for an
923 investigation by an impartial tribunal and in so far as no impartial
tribunal had been appointed they were not agreeable to present themselves and
submit their defence at the enquiry which was conducted by the management
itself.
The appellant thereafter made the necessary
application under s. 22 of the Act before the Labour Appellate Tribunal of
India, Lucknow Bench, for permission to dismiss these 76 workmen. In the
affidavit which was filed in support of that application, all the facts herein
before mentioned were set out in extenso and it was pointed out that the
management, after giving full consideration to the explanations and offering
every possible opportunity to these workmen to explain their conduct coupled
with the unreasonable attitude adopted by them, had adjudged them guilty of
misconduct under cl. L. I (a), (b) and (w) of the Standing Orders and
considered that any further employment of these workmen would be extremely
detrimental to discipline and dangerous in the interests of the industry.
The workmen, in their turn, filed on June 9,
1952, an application under s. 23 of the Act for requisite action to be taken
against the appellant for having contravened s.
22(b) of the Act by inflicting on them the
punishment in the shape of harassment by resorting to an illegal lookout for an
indefinite period with effect from May 27, 1952, without obtaining the prior
permission of the , Labour Appellate Tribunal and "thereby acting contrary
to law and resorting to mala fide actions in direct violation of the provisions
of the Standing Orders in continuation of the management's anti-trade (Union)
activities".
Counter-affidavits were made by the workmen
as also the management in reply to both the above applications. The Labour
Appellate Tribunal held that the appellant did not act in strict compliance
with cl. L. 12 of the Standing Orders and was, therefore, not entitled to ask
for permission to dismiss the 76 workmen. It accordingly dismissed the
appellant's application under s. 22 of the Act. In regard to the application of
the workmen under s. 23 of the Act, it held 924 that the wholesale suspension
of the 76 workmen and their prevention from resuming work at I p.m. after the
lunch hour amounted to a lockout and that this conduct of the appellant
amounted to punishment of the workers whether by dismissal or otherwise and
was, therefore, in contravention of s.
22(b) of the Act. It accordingly ordered the
reinstatement of the workmen if they presented themselves at the office of the
General Manager during office hours on any day within 15 days of the order and
also ordered payment of half the salary and allowances for the period of
non-payment, viz., from the date of their suspension up to the date on which
they were taken back in service.
Shri N. C. Chatterjee for the appellant
before us has strenuously urged that the workmen had resorted to the tools-down
strike which was an -illegal strike and that the appellant was well within its
rights in suspending the pending enquiry and also pending the application for
permission to dismiss them made before the Labour Appellate Tribunal. Even if
it be held that the appellant had declared a lockout, such a lockout was in
consequence of the illegal strike resorted to by the workmen and could not be
deemed to be illegal. He further urged that the management had held an enquiry
into the illegal strike which had been resorted to by the workmen and found
that the workmen were guilty of misconduct and insubordination within the
meaning of cl. L. I (a), (b) and (w) of the Standing Orders and the appellant
rightly came to the conclusion that any further employment of these workmen
would be extremely detrimental to discipline and dangerous in the interests of
the industry. He also contended that the delay in holding the enquiry was not
unreasonable and the suspension of the workmen pending enquiry for more than
four days was due to sufficient reason, the atmosphere created by the noncooperation
of the workers being so tense as not being appropriate for the holding of an
enquiry within those four days, that there was no breach of cl. L. 12 of the
Standing Orders and that the Labour Appellate Tribunal was in error when it 925
refused to grant the application under s. 22 of the Act.
Civil Appeal No. 245 of 1954 which is
directed against the order of the Labour Appellate Tribunal under s. 23 of the
Act may be disposed of at once. The Labour Appellate Tribunal was of opinion
that the conduct of the appellant in preventing the workmen from continuing
work after I p.m. on May 27, 1952, came within the definition of a lockout and
the workmen being employed in a public utility concern such lockout would be
illegal without a proper notice. It was further of opinion that this conduct
amounted to punishment of a worker whether by dismissal or otherwise and was,
therefore, in contravention of s. 22(b) of the Act. This conclusion of the
Labour Appellate Tribunal was, in our opinion, based on a misapprehension of
the whole position.
The position had been summed up by the Labour
Appellate Tribunal in the following words:"As a matter of fact the
management never thought of a lockout. Their idea was to suspend the suspected
persons pending enquiry for which they gave a notice".
If this was the correct position, the
conclusion reached by the Labour Appellate Tribunal that the conduct of the
management came within the definition of a lockout was absolutely
unjustifiable. The Labour Appellate Tribunal recorded its inability to come to
a definite finding as to what was the position which obtained on May 27, 1952. It
observed" We have got a number of affidavits in support of the parties'
case and there is oath against oath. We do not find ourselves in a position to
hold definitely as to what was the exact situation. But it does appear to us
that a mountain has been made of a mole hill and conclusions have been arrived
at without going deep into the matter".
Even if the parties had made a mountain of a
mole hill and had reached conclusions without going deep into the matter, it
was certainly the business of the Labour Appellate Tribunal itself to record a
finding of fact in regard to the situation as it obtained on 926 that day. This
unfortunately the Labour Appellate Tribunal did not do and it came to record
its conclusion, that the conduct of the management came within the definition
of a lockout without realizing that such conclusion was inconsistent with what
it' had stated a little earlier that the management as a matter of fact never
thought of a lockout. -We have been taken through the whole evidence by the learned
counsel for the appellant and there is clear documentary evidence to show that
the 76 workmen resorted to a tools-down strike from 7 a.m. on May 27, 1952. The
reports which were made by the section engineers and sent to the General
Manager through the Chief Engineer were clear and categoric in regard to such
tools-down strike having been resorted to by the workmen in question and the
list of the 76 workmen which was prepared by the General Manager ordering their
suspension was based on those reports. The further reports which were made by
the section engineers again sent by them to the General Manager through the
Chief Engineer in the afternoon of May 27, 1952, also were clear and categoric
in regard to the said workmen having been asked not to enter the workshop, the
boiling house and the mill house at 1 p.m. but their having entered the same
threatening violence. A faint attempt was made to charge the section engineers
and the Chief Engineer with having conspired "under some mysterious
preconceived plans" but the same rested merely on a bare allegation and
was not substantiated by any tangible evidence. Even though there was some
conflict of evidence in regard to the time when the notice of suspension was
given by the General Manager to these workmen and when the notice in that
behalf was pasted on the notice-board of the appellant, it is abundantly clear
on the documentary evidence above referred to that the 76 workmen resorted to a
tools down strike from 7 a.m. on the morning of May 27, 1952, that they were
suspended till further orders immediately after the receipt by the General
Manager of the first series of reports from the section engineers, that they
were prevented from entering the premises 927 at I p.m. but entered the same
threatening violence. If this is the true position it follows that there was no
lockout declared by the appellant, much less an illegal lockout. The workmen
bad resorted to an illegal strike and the General Manager rightly ordered that
the workmen indulging in such strike should be suspended pending further orders
which obviously meant pending enquiry into their conduct and the obtaining of
the permission to. dismiss them as a result of such enquiry if the management
thought fit.
If there was thus no illegal lockout at all,
the conclusion reached by the Labour Appellate Tribunal in that behalf was
absolutely unjustified. Even if there had been a lockout as concluded by the
Labour Appellate Tribunal the same was in consequence of the illegal strike
which had been resorted to by these workmen and could not by virtue of s. 24(3)
of the Industrial Disputes Act, 1947, be deemed to be illegal.
There is, however, a more fundamental
objection that, even if the appellant be held responsible for having declared
an illegal lockout, the lockout would not come within the ban of s. 22 of the
Act. The Labour Appellate Tribunal had before it an earlier decision of its own
in Jute Workers Federation, Calcutta v. Clive Jute Mills(1), in which the same
question had beed considered with reference to s. 33 of the Industrial Disputes
Act, 1947. In that case, a lockout had been declared which involved 4,000
workers of the company and a preliminary contention was urged that there was no
contravention of the provisions of s. 33 of the Industrial Disputes Act, 1947.
The Labour Appellate Tribunal considered the question whether the lockout had
(1) in fact altered the conditions of service of the workmen to their
prejudice, or (2) had the effect of discharge, or (3) amounted to punishment of
the workmen. It came to the conclusion that a lockout had not the effect of a
discharge, for a lockout does not automatically terminate the services of the
workmen. It did not also amount to punishment, for punishment presupposes an
offence or misconduct. A lockout is generally adopted as a security measure and
may in certain cases be used as a weapon corresponding to what the employees
have in the shape of a strike and that, therefore, a. 33(b) would not be
contravened by the company by. declaring a lockout.
The Labour Appellate Tribunal then considered
whether a lockout would attract the operation of s. 33(a). It was of opinion
that no automatic termination of the services of the employees was brought
about by a lockout and the question was whether any of the conditions of
service was altered thereby to their prejudice. The contention of the Union was
that the conditions of service were altered to the prejudice of the workmen
because those employees did, not in fact get their pay during the period of the
lockout with the possibility of losing it. This contention was negatived and
the Labour Appellate Tribunal was of opinion that the conditions of their
service would be altered by the lockout if the employees lost their right to
receive their pay during the period of lockout in 'all circumstances but the
question whether they would be entitled to get their pay during that period
could not be postulated with certainty for that would depend on a variety of
considerations.. In the opinion of the Labour AppellateTribunal to bring a case
within s.-33(a), the questioned act of the employer must directly and in fact
alter the conditions of service to the prejudice of the workmen concerned, that
is to say, the moment the lockout was declared. The possibility that they may
or may not get their pay meant that the lockout may or may not alter the
conditions of their service to their prejudice. Section 33(a) would not,
therefore, be attracted by the mere fact of a lockout. The Labour Appellate
Tribunal thus came to the conclusion that -neither s. 33(a) nor s. 33(b) would
be contravened by the company in declaring the lockout.
This decision of the Labour. Appellate
Tribunal was followed in Colliery Mazdoor Congress, Asansol, v. New Beerbhoom
Coal Co. Ltd.(1) and the Labour (1) 11952] L A.C. 219.
929 Appellate Tribunal there held that a
lockout did not come within the ambit of s. 33 and, therefore, no permission
under that section was required for declaring a lockout.
We agree with the reasoning adopted in the
above cases and are of opinion that a lockout is neither an alteration to the
prejudice of the workmen of the conditions of service applicable to them within
the meaning of cl. (a) nor a discharge or punishment whether by dismissal or
otherwise of the workmen within the meaning of cl. (b) of s. 33 of the Industrial
Disputes Act) 1947, or s. 22 of the Industrial Disputes (Appellate Tribunal)
Act, 1950, and that, therefore, no permission of the Conciliation Officer,
Board or Tribunal as the case may be is necessary to be obtained before a
lockout can be declared. If the lockout is legal, no question can at all arise.
If, on the other hand,, the lockout is illegal, a remedy is provided in s. 26
of the Industrial Disputes Act, 1947. The employees affected by a lock-out
would in any event be entitled to refer the industrial dispute arising between
themselves and the employer for adjudication by adopting the proper procedure
in regard thereto.
The Labour Appellate Tribunal was, therefore,
clearly in error when it came to the conclusion that the conduct of the
appellant came within the definition of a lockout and that it amounted to
punishment of the workmen whether by dismissal or otherwise and was, therefore,
in contravention of s, 22(b) of the Act. The application of the respondents
under s. 23 of the Act was accordingly liable to be dismissed and should have
been dismissed by the Labour Appellate Tribunal. Civil Appeal No. 245 of 1954
will, therefore, be allowed and the order of the Labour Appellate Tribunal
reinstating the respondents in the service of the appellant will be set aside.
Coming now to Civil Appeal No. 244 of 1954,
the first question to determine is whether the respondents had resorted to an
illegal strike. We have already pointed out the circumstances under which the
76 workmen resorted to the tools-down strike from 7 a.m. on May 27, 1952, and
recorded the finding 121 930 that they not only resorted to such strike but
persisted in their attitude in spite of the persuasions of the Chief Engineer
and the General Manager of the appellant. The appellant having been declared a
public utility concern, the workmen were not entitled to resort to such strike without
giving to the appellant notice of the strike in terms of s.
22(1) of the Industrial Disputes Act, 1947,
and the toolsdown strike which was resorted to by them was, therefore, an
illegal strike. The fact that the strike was of a short duration viz., from 7
a.m. till 10-30 a.m. would not exculpate the respondents from the
consequence" of having resorted to such illegal strike, the avowed
intention of the strikers being not to resume work until their pre-concerted
plan conceived at, the meeting held on the previous night was carried out. The
strike resorted to by the workmen was of an indefinite duration. and the
management, having failed in its attempts to persuade the workmen to resume
their work was well within its rights to suspend these workmen pending further
orders. (Vide Buckingham and Carnatic Co. Ltd. v. Workers of the Buckingham'
and Carnatic Co. Ltd.(1)).
The Labour Appellate Tribunal did not decide
this issue at all but only considered the alleged non-compliance by the
appellant of cl. L. 12 of the Standing Orders as determinative of the whole
enquiry before it observing that "although the delay (in holding the
enquiry) was not unreasonable, there was no doubt that the management did
violate the letter of the rule". It further observed that there was no
sufficient reason indicated for extending the period of suspension beyond the
period of four days provided in cl. L. 12 of the Standing Orders, the tension
created by the non-co-operation of the workers not having been considered
sufficient to preclude the management from collecting materials for conducting
the enquiry within the said period of 4 days, This reasoning of the Labour
Appellate Tribunal was unsound. Having once come to the conclusion that the
delay was not unreasonable, there was no justification for the further (1)
[1953] S.C.R. 219.
931 conclusion reached by the
Labour-Appellate Tribunal that the tension created by the non-co-operation of
the workers was not a sufficient reason for extending the period of such
suspension. The workmen had forcibly entered the premises of the mills in spite
of the warnings of the watchmen and the Jemadar and had also entered the
workshop, the boiling house and the mill house and continued to stay there
threatening violence. In their letter dated June 3, 1952, they had also
threatened the General Manager that if he did not mend his illegal mistakes and
did not take the workmen back on duty be would be responsible for any breach of
peace. This was enough evidence of their mentality and the management naturally
enough apprehended breach of peace at the hands of these workmen. If this was
the tense atmosphere created by the non-co-operation of the workmen, the
management was perfectly justified in postponing the enquiry by a few days and
continuing the workmen under suspension. The delay which was thus caused in
furnishing the charge-sheets and giving notice of the enquiry to these workmen
on June 2, 1952, was, therefore, sufficiently explained and if there was any
one responsible for this.
delay it was the workmen and not the
management. It did not then lie in the mouth of the workmen to protest against
this delay in the enquiry and trot out their suspension for a period exceeding
four day's as an excuse for abstaining from the enquiry. As a matter of fact,
the management intimated to the workmen that -in spite of June 6, 1952, having
been fixed as the date for the open enquiry, the management would be prepared
to take up the enquiry earlier provided an intimation was received either from
the workmen or from their Union to that effect. Instead of responding to this
gesture of the appellant the workmen persisted in asking for an independent
enquiry and non-co-operated with the management in the enquiry which was
ultimately held by it as notified at 8 a.m. on June 6, 1952. We are of opinion
that under the circumstances the appellant was not guilty of having contravened
el. L. 12 of the Standing Orders and the Labour Appellate 932 Tribunal was in
error when it came to the contrary conclusion and dismissed the application of
the appellant under s. 22 merely on that ground without making any further
enquiry into the circumstances of the case. It appears that the Labour
Appellate Tribunal was driven to take this step because it found itself unable
to hold definitely as to what was the exact situation on May 27, 1952. We shall
only observe that if the Labour Appellate Tribunal had really applied its mind
to the question it would have come -to the conclusion that the respondents in
fact did resort to the illegal strike from 7 a.m. on May 27, 1952, and that
there was no contravention of cl. L. 12 of the Standing Orders by the
appellant.
The next question that falls to be determined
is whether the enquiry which was held by the management on June 6, 1952, was a
fair enquiry and whether the General Manager observed the principles of natural
justice in the conduct of that enquiry Due notice of the enquiry was given to
the respondents by the letter of the management addressed to them on June 2,
1952, and if the respondents did not avail themselves of the opportunity of
presenting themselves and defending their action at the enquiry they had only
themselves to blame for it. It was within the province of the management to
hold such an enquiry after giving due notice thereof to the respondents and to
come to its own conclusion as a result of such enquiry whether the respondents
were guilty of the charges which had been leveled against them. If full and free
opportunity was given to the respondents to present themselves at the enquiry
and defend themselves it could not be said that the enquiry was anything but
fair. No principles of natural justice were violated and the management was at
liberty to come to its own conclusions in regard to the culpability of the
respondents and also to determine what punishment should be meted out to the
respondents for the misconduct and insubordination proved against them. If the
ban which is imposed by s. 22 of the Act had not been in existence, the
management would have been entitled to impose the punishment on the 933
respondents and dismiss them without anything more, if it honestly came to the
conclusion that dismissal of these workmen was the only punishment which should
be meted out to them in all the circumstances of the case. The respondents
would no doubt then have been entitled to refer the industrial dispute which
arose out of their dismissal for adjudication by adopting the proper procedure
set out in the Industrial Disputes Act, 1947, and the Industrial Tribunal
appointed by the Government for the adjudication of such dispute would have
been in a position to thrash out all the circumstances and award to them the
appropriate relief This course was, however, not open to the appellant by
reason of the pendency of the appeal before the Labour Appellate Tribunal and
the only thing which the appellant could do, therefore, was, after coming to
its own conclusion as a result of such enquiry, to apply to the Labour
Appellate Tribunal under s.22 of the Act for permission to dismiss the
respondents and this the appellant did on June 8, 1952. It was not open to the
respondents then, having regard to the attitude which they had adopted
throughout in relation to the said enquiry, to urge that the enquiry was not
fair or impartial or that the principles of natural justice had been violated
by the General Manager of the appellant in the conduct of the enquiry.
It was, however, urged on behalf of the
respondents that the suspension for an indefinite period beyond the period of
four days provided in cl. L. 12 of the Standing Orders was a punitive measure
and the appellant was not justified in imposing that punishment on them without
the permission of the Labour Appellate Tribunal. It was contended that such
suspension involved loss of pay by the respondents and being of an indefinite
duration inflicted such harassment on them that it could not be deemed to be anything
except a punishment. We do not accept this contention. It has been rightly held
by the Labour Appellate Tribunal that suspension without pay pending enquiry as
also pending permission of the Tribunal under the relevant section could not
934 be considered a punishment as such suspension without payment would only be
an interim measure and would last till the application for permission to punish
the workman was made and the Tribunal bad passed orders thereupon. If the
permission was accorded the workman would not be paid during the period of
suspension but if the permission was refused he would have to be paid for the
whole period of suspension.
There is nothing like a contingent punishment
of a workman and therefore such suspension could not be deemed to be a
punishment of the workman at all. Such suspension would of necessity be of an
indefinite duration because to get a written permission of the Tribunal would
mean delay and no Tribunal would likely issue any order without notice and
without hearing all the parties concerned. Orders for suspension were meant
only as security measures or precautionary ones taken in the interest of the
industry itself or its employees in general. These measures were sometimes
called for immediately after an incident and any delay, however small, might
defeat the purpose for which such measures were intended. It would therefore be
necessary to adopt these measures immediately and to suspend the workman
pending the enquiry as also the permission to be obtained from the appropriate
Tribunal for dismissing him if as a result of the enquiry the, management
thought fit to inflict such punishment upon him. The suspension., however,
would not be a punishment by itself. The ordinary dictionary meaning of the
word "Punish" is "to cause the offender to suffer for the
offence" or "to inflict penalty on the offender" or "to
inflict penalty for the offence" (Concise Oxford Dictionary, 4th Ed.).
Punishment can be otherwise defined (Vide Law Lexicon by P.R. Aiyar, 1943 Ed.)
as penalty for the transgression. of law, and the word cc punish" denotes
or signifies some offence committed by the person who is punished. Any action
of the employer to the detriment of the workman's interest would not be
punishment so long as no offence was found to have been committed by the
workman. The suspension under such circumstances, therefore, could 935 not be a
punishment even though it may be of an indefinite duration and would not
attract the operation of s. 22 of the Act. It could not be contended, therefore,
that suspension without pay even for an indefinite period pending enquiry or
pending the permission of the appropriate Tribunal to dismiss the workman would
be a punishment which would require permission under s. 22 of the Act before
the same could be meted out to the workman. (Vide Champdany Jute Mills And
Certain Workmen(1); Joint Steamer Companies And Their Workmen(2); Assam Oil Co.
Ltd. v. Appals wami(3);
Standard Vacuum Oil Co. v. Gunaseelan, M.
O.(4)).
The scope of the enquiry before the Labour Appellate
Tribunal under s. 22 of the Act has been the subject-matter of decisions by
this Court in Atherton West & Co. Ltd. v.
Suti Mill Mazdoor Union and Others(5) and The
Automobile Products of India Ltd. v. Rukmaji Bala & Others(6). The Tribunal
before whom an application is made under that section has not to adjudicate
upon any industrial dispute arising between the employer and the workman but
has only got to consider whether the ban which is imposed on the employer in
the matter of altering the conditions of employment 'to the prejudice of the
workman or his discharge or punishment whether by dismissal or otherwise during
tile pendency of the proceedings therein referred to should be lifted. A prima
facie case has to be made out by the employer for the lifting of such ban and
the only jurisdiction which the Tribunal has is either to give such permission
or to refuse it provided the employer is not acting mala fide or is not
resorting to any unfair practice or victimization. It cannot impose any conditions
on the employer before such permission is granted nor can it substitute another
prayer for the one which the employer has set out in his application. If the
permission is granted, the ban would be lifted and the employer would be at
liberty, if he so chooses thereafter, to deal out the (1) [1952] I L.L.J. 554.
(2) [1954] II L.L.J. 328. [1953] S.C.R. 780.
(4) [1951] II L.L J. 221.
(5) [1954] II L.L.J. 656.
(6) [1965] 1 S.C.R. 1241, 936 punishment to
the workman. On such action being taken by the employer the workman would be
entitled to raise an industrial dispute which would have to be referred to the
appropriate Tribunal for adjudication by the Government on proper steps being
taken in that behalf. When such industrial dispute comes to be adjudicated upon
by the appropriate Tribunal, the workman would be entitled to have all the
circumstances of the case scrutinized by the Tribunal and would be entitled to
get the appropriate relief -at.
the hands of the Tribunal. If, on the other
hand, such permission is refused, the parties would be relegated to the status
quo and the employer would not be able to deal out the punishment which he
intends to do to the workman. Even then an industrial dispute might arise
between the employer and the workman if the workman was not paid his due wages
and other benefits. Such industrial dispute also would have to be referred to
the appropriate Tribunal by the Government and the Tribunal would award to the
workman the appropriate relief having regard to all the circumstances of the
case.
The Tribunal before whom such an 'application
for permission is made under s. 22 of the Act would not be entitled to sit in
judgment on the action of the employer if once it came to the conclusion that a
prima facie case had been made out for dealing out the punishment to the
workman. It would not be concerned with the measure of the punishment nor with
the harshness or otherwise of the action proposed to be taken by the employer
except perhaps to the extent that it might bear on the question whether the
action of the management was bona fide or was actuated by the motive of
victimization.
If on the materials before it the Tribunal
came to the conclusion that a fair enquiry was held by the management in the
circumstances of the case and it bad bona fide come to the conclusion that the
workman was guilty of misconduct with which he had been charged a prima facie
case would be made out by the employer and the Tribunal would under these
circumstances be bound to give the requisite permission to the employer to deal
937 out the punishment to the workman. If the punishment was harsh or excessive
or was not such as should be dealt out by the employer having regard to all the
circumstances of the case the dealing out of such punishment by the employer to
the workman after such permission was granted would be the subject-matter of an
industrial dispute to be raised by the workman and to be dealt with as
aforesaid. The Tribunal, however, would have no jurisdiction to go into that
question and the only function of the Tribunal under s. 22 of the Act would be
to either grant the permission or to refuse it.
(Vide Champdani Jute Mills And Shri
Alijan(1); R.B S. Lachmandas Mohan Lal & Sons Ltd. And Chini Mill
Karmachari Union(2) Assam Oil Companies' case(3)).
In the circumstances of the present case,
once the appellant succeeded in establishing that the workmen had resorted to
an illegal strike from 7 a.m. on May 27, 1952, that a fair enquiry into the
alleged misconduct and insubordination of the workmen had been held by the
management without violating any principles of natural justice, that the
management had as a result of such enquiry found that the workmen had been
guilty of misconduct and insubordination with which they had been charged -and
that the management had come to the bona fide conclusion that continuing the
workmen in its employ was detrimental to discipline and dangerous in the
interests of the appellant, the Labour Appellate Tribunal ought to have held
that a prima facie case for the dismissal of the workmen had been made out by
the appellant and ought to have granted the appellant the permission to dismiss
the workmen.
We are, therefore, of opinion that the Labour
Appellate Tribunal was clearly in error in rejecting the application of the
appellant under s. 22 of the Act and refusing it the permission to discharge
the respondents from its employ.
Civil Appeal go. 244 of 1954 will, therefore,
be allowed and the order of (1) [1952] II L.L.J. 629. (2) [1952] II L.L.J. 787,
(8) [1954] L.A.C. 78.
122 938 the Labour Appellate Tribunal
dismissing the application under s. 22 of the Act will be set aside. The
appellant will be granted permission under s. 22 of the Act to discharge the
respondents from its employ.
Under the orders of the Court, one-half of
their salary has been already paid by the appellant to the respondents from May
27, 1952, onwards. As a result of this decision, the appellant would be
entitled to recover the same back from them. Shri N. C. Chatterjee appearing on
behalf of the appellant has, however, stated that the appellant would forego
the recovery of that amount and would also keep the respondents on the reserve
list to be employed in the mills as and when there were vacancies in their
permanent cadre.
We hope that the respondents will take this
offer in the true spirit with, which it has been made on behalf of the
appellant and behave better in the future. Shri N. C. Chatterjee has also left
the question of costs of both these appeals to us and we do order that, in all
the circumstances of the case, it would be proper that each party do bear and
pay its own costs of both these appeals.
Appeals allowed.
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