Mckenzie & Co. Ltd. Vs. Its
Workmen & Ors  INSC 102 (17 October 1958)
IMAM, SYED JAFFER DAS, S.K.
CITATION: 1959 AIR 389 1959 SCR Supl. (1) 222
CITATOR INFO :
F 1960 SC 160 (28) R 1961 SC1158 (12)
Industrial Dispute-Illegal strike-Enquiry by
companyRejection by Tribunal of application for Permission to dismiss
workmen-Fresh enquiry if barred-Notice of enquiry, how to be effected
-Dismissal after fresh enquiryjurisdiction of TribunalIf can interfere with
decision of company-industrial Disputes Act (XIV Of 1947), s. 33.
During the pendency of the adjudication of a
reference before the Industrial Tribunal, the workmen illegally confined the
works manager and went on strike. The company issued notices to the workmen to
resume work immediately but they refused. The company declared a lock out and
served charge sheets on the workmen calling upon them to submit their
explanations. No explanation having been submitted the company held an enquiry
and found the workmen guilty of gross misconduct amounting to major
misdemeanour which merited dismissal. The company applied to the Tribunal under
S. 33 Of the Industrial Disputes Act for permission to dismiss the workmen. The
Tribunal granted permission in respect of three workmen but refused it in
respect of 61 workmen on the ground that there was reasonable doubt as to their
identity and complicity in the incident. The order was upheld in appeal by the
Labour Appellate Tribunal.
Thereupon the company took fresh proceedings
against the 64 workmen. It sent charge sheets to them by registered notices to
their addresses registered with the company and also affixed notices on its
notice boards both inside the premises and outside the gate. The registered notices
could not be served upon workmen Nos. 2 to 24 as they were not found at the
addresses given. The company wrote to the Workers 223 Union for the addresses
of these workmen but received no reply. The company held the enquiry and, as at
that time no proceedings were pending under the Act, terminated the services of
the 64 workmen. The Government made a reference in respect of the termination
of services of the workmen.
Sixteen workmen resigned and one pleaded
guilty. With respect to the rest the Tribunal held that workmen Nos, 2 to 24
had not been properly served and the order of the termination of their services
was bad but upheld the order in respect of the remaining workmen. Both parties
appealed to the Labour Appellate Tribunal. The Appellate Tribunal dismissed the
appeal of the company but allowed that of the workmen holding that the
testimony of the works manager could not be accepted and apart from that
evidence there was no other evidence to show which of the workmen had taken
part in wrongfully confining the works manager and in the illegal strike.
Held, that the Appellate Tribunal was in
error in setting aside the order of termination of service on the around that
it was unable to accept the testimony of the works-manager.
It was for the management to determine what
constituted major misconduct within its standing orders sufficient to merit
dismissal of a workman but in determining such misconduct it must have facts
upon which to base its conclusions, and it must act in good faith, without caprice
or discrimination or motive of vindictiveness or intimidation, without
resorting to unfair labour practice and in accordance with the accepted rules
of natural justice. When the management has so acted its judgment cannot be
questioned. The Appellate Tribunal proceeded as if it were sitting in appeal
against the decisions of the managerial enquiry and this was beyond the scope
of its powers.
Indian Iron and Steel Co. Ltd. v. Their
Workmen, A. 1. R.
1958, S.C. 130; Lakshmi Devi Sugar Mills Ltd.
v. Pt. Ram Sartip, A. 1. R. 1957 S. C. 82 and Hanuman jute Mills v. Amin Das,
A.I.R. 1957 S.C. 194, followed.
Held,.further, that both the Industrial
Tribunal and the Appellate Tribunal were wrong in holding that proper notices
had not been given to workmen Nos. 2 to 24. The standing order merely required
that service of notice upon a workman may be made by communicating the same
orally to the worker and/or by fixing the same on the company's notice board.
The Company acted in conformity with this
standing order by affixing the notices on its notice board.
Held, further, that the second enquiry was
not barred by the principle of Yes jubilated on account of the previous
findings of the Tribunal on the application under s. 33. As the purpose Of s.
33 is merely to give or withhold permission and not to adjudicate upon an
industrial dispute, any finding under s. 33 could not operate as Yes judicator
and bar the raising of an industrial dispute. There was nothing in S. 33 or in
the findings of the 224 Tribunals in the s. 33 proceedings which could debar
the company from holding the second enquiry and dismissing the workmen.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 500 of 1957.
Appeal by special leave from the judgment and
order dated September 11, 1956, as altered by Order dated September 28, 1956,
of the Labour Appellate Tribunal of India, Calcutta, in Appeals Nos. Cal. 208
and 223 of 1956, arising out of the Award dated June 7, 1956, of the Sixth
Industrial Tribunal, Calcutta, in Case No. VIII-233 of 1955.
M.C. Setalvad, Attorney-General for India, D.
N. Mukherjee and B. N. Ghosh, for the appellants.
Y.Kumar, for respondents Nos. 2 to 25 and 27
to 48. 1958.
October 17. The Judgment of the Court was
delivered by KAPUR, J.-This is an appeal by special leave against the order of
the Labour Appellate Tribunal and the question for decision is the dismissal of
some workmen. The appellant before us is the employer and the respondents are
some of' the workmen, 47 in number who might be divided into two sets, the first
set Nos. 2 to 24 and second Nos. 25 to 48.
Out of the latter No. 26 is dead.
The facts leading to the appeal are that on
August 3, 1953, the Government of West Bengal referred under s. 10 of the
Industrial Disputes Act, hereinafter called the Act, to the second Industrial
Tribunal, an industrial dispute between the appellant and its workmen. During
the pendency of this Reference the workmen acted in a manner subversive of
discipline, wilful insubordination and disobedience inasmuch as they surrounded
by forming a kind of cordon round E. L. D'Cruz, acting Works Manager of the
company, illegally confined him in a small place in the factory premises and
kept him so confined between the hours of 9-15 a.m. to 2-15 p.m., till he was
rescued by the police. The cause of this action on the part of the workmen is
stated to be a dispute as to the payment of Puja bonus for the year 1953. The
same 225 day the workmen went on strike at 9-15 a.m. D'Cruz called upon them to
resume work but they refused and the appellantcompany issued notices at 9-45 a.
m., and 10-45 a.m. asking the workmen to resume work immediately. The workmen
took no notice of these notices and the appellant company after the arrival of
the police declared a lock out. Some of the workmen were then arrested. The
appellant company then served charge sheet on the workmen calling upon them to
submit their explanations within 24 hours. The workmen gave no explanation. An
enquiry was held and the workmen were found guilty of gross misconduct
amounting to major misdemeanour which merited dismissal and the company
proposed to dismiss them. For that purpose the appellant company on October
31,1953, made three applications Cal.
Nos. 518, 519 and 557 of 1953 to the Tribunal
for permission under s. 33 of the Act to dismiss 170 workmen with effect from
October 6, 1953. During the course of the proceedings the appellant company
withdrew its case against a large number of workmen and the proceedings were
ultimately continued against 67 workmen. One of these workmen died and two
resigned leaving 64 workmen against whom the proceedings were continued.
The workmen in their defence denied the
commission of any offence and also denied the receipt of charge sheets. They
pleaded that there was no enquiry, that the lock-out was illegal and that the
appellant had acted in contravention of the principles of natural justice. The
three applications were heard together and were disposed of by one order. The
Tribunal held that a prima facie case had been made out for granting permission
for dismissal of workmen directly involved in the incident; that the appellant
company had acted bona fide and that it was not guilty of discrimination,
vindictiveness or arbitrary action.
Although it had started cases against 170
workmen it took back a majority of them on their expressing regret. The
Tribunal gave permission for the dismissal of only three workmen Subbas Roy,
Madhusudhan 29 226 Rout and Bimal Kumar Ghose and permission with regard to the
rest was refused on the ground that there was reasonable doubt as to their
identity and complicity in the incident.
On January 8, 1954, the workmen made an
application under s. 33A of the Act which was allowed on July 2, 1954. Three
appeals were filed, two by the appellant company against the orders under s. 33
and the other made under s. 33A of the Act. The third appeal was filed by
workmen as to the dismissal of three workmen. On March 29, 1955, the appeal of
the company with regard to application under s. 33 of the Act was dismissed and
so was the appeal of the workmen and thus the order as to 3 workmen was upheld.
The employers contended that as the strike was illegal, the management had the
right to terminate the services of the workmen and the Tribunal was therefore
bound to accord sanction to the management but the Labour Appellate Tribunal
did not go into this matter as the question had not been raised at any previous
stage. On the same day tile Labour Appellate Tribunal set aside the order of
the Tribunal under s. 33A on the ground that the application under that section
was misconceived and the order made by the Tribunal was without jurisdiction.
On April 20, 1955, the management of the
appellant company took fresh proceedings against the 64 workmen and in order to
serve charge sheets on them sent registered notices to their addresses,
registered with the appellant company, and also affixed notices on its Notice
Boards both inside the premises and outside the gate of the premises which
remained affixed there from April 20, 1955, till June 9, 1955. Out of the
registered notices sent notices could not be served on workmen Nos. 2 to 24 and
they were returned. to the sender with the remark that the addressees had
either left or their addresses were unknown. On April 28, 1955, the appellant company
wrote a letter to the Labour Commissioner informing him of the offences
committed by the workmen and the action that it proposed to take against its
workmen. On May 20, 1955, the appellant company wrote to the secretary of the
Workers Union 227 asking him for the addresses of the workmen who had not been
served but it received no reply from the secretary. The enquiry started by the
management of the appellant company terminated on June 9, 1955, and as at that
time no proceedings were pending under the Act, the appellant company
terminated the services of all the 64 workmen on June 22, 1955.
The termination of the services of these
workmen gave rise to an industrial dispute and a reference was made by the West
Bengal Government on August 8, 1955, in regard to all the 64 workmen. The
points referred for adjudication. were:(1)Whether the dismissal of the 64
workmen mentioned in the attached list is justified. Whether the Company should
not reinstate them. What compensation should they be paid for the action taken
against them by the Company ? (2)What compensation should be paid to them in
respect of the period of enforced idleness from 6-10-53, particularly for the
period they were refused permission to rejoin work even after their cases had
been disposed of by the Tribunal (3)Whether the Tribunal Awards concerning the
64 workmen have been properly implemented. What compensation should be paid to
them by the company for not having properly implemented the Award ? Sixteen
workmen resigned and one of them Haroo Haldar pleaded guilty and therefore
proceedings were continued against only 47 workmen. The Tribunal (6th
Industrial Tribunal, West Bengal) made its award on June 7, 1956. It held that
the workmen Nos. 2 to 24 had not been properly served and ordered their
reinstatement as from April 1, 1955, with back wages, dearness allowance, etc.,
from April 1, 1955, but upheld the dismissal of workmen Nos. 25 to 48.
It held that there was evidence to establish
the identity of persons who had taken part in the strike and had wrongfully
confined D'Cruz and that no bias or ill will could be attributed to the
management nor was it inspired by any vindictive motives. It said:
Since there was evidence and it was a
possible 228 view, the Tribunal must accept the finding and hold that the
dismissal of those workers was justified ".
In regard to wages the Tribunal held that the
strike of October 6, 1953, was illegal as at that time the reference was
pending before the Industrial Tribunal; that the lock out was fully justified
as the strikers had taken a belligerent attitude and had actually kept the
acting Works Manager illegally confined till he was rescued by the police; that
no compensation could therefore be claimed for the period from October 6, 1953,
upto the time that the Labour Appellate Tribunal on March 29, 1955, disposed of
the proceedings under s. 33 but the workmen Nos. 2 to 24 who were held to be
wrongfully dismissed and had been ordered to be reinstated but had not been
allowed to return to work were entitled to wages but only from April 1, 1955,
upto the date of reinstatement. On the third issue i. e. the matter of Subbash
Roy, Madhusudan Rout and Bimal Kumar Ghosh permission for dismissal granted by
the State Tribunal was confirmed on appeal. No question of compensation could
arise in their case.
Against this order of the 6th Industrial
Tribunal, two appeals were taken to the Labour Appellate Tribunal one by the
Union and the other by the appellant company. On September 11, 1956, the Labour
Appellate Tribunal dismissed the appeal of the appellant company and allowed
that of the Union. It held that the evidence of E. L. D'Cruz given in the
managerial enquiry in May 1955 could not be accepted.
In its order the Appellate Tribunal said: In
June 1954 Mr. E.L. D'Cruz was unable to give evidence against the appellants in
Appeal No. Cal. 223 of 1956. In May 1955 he gave evidence connecting the
appellants with the misconduct that was committed on the 6th October, 1954. No
other evidence is to be found on the record to show that the workmen who are
concerned in these proceedings committed misconduct on the 6th October,
1954." In these circumstances, it is difficult to act on the evidence
given by Mr. E.L. D'Cruz in the managerial enquiry in May 1955 After refering
to the principles laid down in the case of 229 Buckingham and Carnatic Co. Ltd.
v. Its workmen (1) the Labour Appellate Tribunal ruled out the evidence of
D'Cruz and as there was no other evidence to prove misconduct against the
workmen, it came to the conclusion that the decision of the management was
perverse. It held:" In these circumstances, we set aside the order of the
Industrial Tribunal giving permission to the management to discharge the
appellants from service and consequently the order of the Industrial Tribunal
giving permission to discharge workmen Nos. 25 to 48 was set aside.
The Appellate Tribunal suo motu amended this
order on September 28, 1956, and the following order was substituted in place
of the operative portion 'of the order of September 11, 1956:
" In these circumstances we set aside
the order of the. Industrial Tribunal upholding the action of the Management in
'discharging the appellants from service........ In the result the Award under
appeal con I firming the action of the Management in discharging twenty four
workmen from service is set aside. In other respects that Award is confirmed.
In other words we order the reinstatement of the twenty four workmen discharged
by the Management with back wages for the period between the 1st of April,
1955, to the date of reinstatement ".
Against this order the appellant company has
come up in appeal by special leave and on its behalf the learned Attorney
General raised two questions : (1) that appeal to Labour Appellate Tribunal on
behalf of the Union was not competent as no question of law was involved and
(2) that it could not sit in appeal against the managerial enquiry. It is not
necessary to go into the first question because, in our opinion, the second
question raised is well founded.
The principles which govern the power of an
Industrial Tribunal to interfere with the decision of the employer following an
enquiry made by him were laid down by this Court in Indian Iron and Steel Co.
Ltd. v. Their Workmen (2) where S. K. Das J., said at page:138:
(1) (1952) L.A.C. 490.
(2) A.I.R. 1958 S-C. 130.
230 Undoubtedly, the management of a concern
has power to direct its own internal administration and discipline; but the
power, is not unlimited and when a dispute arises, Industrial Tribunals have
been given the power to see whether the termination of service of a workman is
justified and to give appropriate relief. In cases of dismissal or misconduct,
the Tribunal does not, however, act as a Court of appeal and -substitute its
own judgment for that of the management. It will interfere (i)-when there is
want of good faith, (ii) when there is victimisation or unfair labour;
practice, (iii) when the management has been guilty of a basic error or
violation of a principle of natural justice, and (iv) when on the materials,
the finding is completely baseless or perverse." In Lakshmi Devi Sugar
Mills Ltd. v. Pt. Ram Sarup which was a case under s. 22 of the Industrial
Disputes (Appellate Tribunal) Act, 1950, this Court held that if it was
established that the workmen had resorted to illegal strike, that a fair
enquiry into the alleged misconduct and insubordination of their workmen had
been held by the management without violating any principles of natural justice
and as a result of enquiry the management had found the workmen guilty of
misconduct and insubordination with which they had been charged and the
management had come to the conclusion that continuing the workmen in its employ
was dangerous in the interest of the company the Tribunal would not interfere
with such order.
In Hanuman Jute Mills v. Amin Das (2) it was
held that no appeal lies against the order of an Industrial Tribunal where the
Tribunal had examined the question whether the discretion of the employer to
dismiss certain workmen was properly exercised, whether the employer was acting
bona fide, whether he had resorted to any unfair labour practice or
victimization and whether his desire to dismiss the workmen was actuated by any
It is for the management to determine what
constitutes major misconduct within its standing orders sufficient to merit
dismissal of a workman but in (1) A.I.R. 1957 S.C. 82.
(2) A.I.R. 1957 S-C. 194.
231 determination such misconduct it must
have facts upon which to base its conclusions and it must act in good faith
without caprice or discrimination and without motives of vindictiveness,
intimidation or resorting to unfair labour practice and there must be no
infraction of the accepted rules of natural justice. When the management does
have facts from which it can conclude misconduct its judgment cannot be
questioned provided the above mentioned principles are not violated. But in the
absence of these facts or in case of violation of the principles set out above
its position is untenable.
In our opinion, the Industrial Tribunal
proceeded on correct principles as to its power in regard to an enquiry held by
the management and the Labour Appellate Tribunal seems to have approached the
question as if it was sitting in appeal against the decision taken by the
management in regard to the termination of service of their workmen. In the
instant case none of the principles, which have been laid down by Labour Courts
as well as by this Court in regard to enquiry by the management into the
misconduct of their workmen, have been violated and the Labour Appellate
Tribunal was in error in setting aside the order of the Industrial Tribunal on
the ground that it was unable to accept the testimony of D'Cruz as to the
identity of persons who bad taken part in wrongfully confining him on the day
of the illegal strike.
It appears to have proceeded as if it was
sitting in appeal against the decision of the managerial enquiry and further it
was under a misapprehension as to the nature of the proceedings before the
Industrial Tribunal and before itself, inasmuch as it seems to have been under
the wrong impression that the appeal before it arose out of an application
under s. 33 -of the Act and that the Industrial Tribunal had given permission
to the appellant company to discharge its workmen. Its amended order shows that
it thought, and again wrongly, that really the proceedings were under s. 33A of
the Act and it was that mistaken view of the nature of the proceedings which
led to its order for reinstatement of the workmen with back wages from April 1,
1955, to 232 the date of reinstatement. The Labour Appellate Tribunal seems to
have overlooked the fact that the appeal before it arose out of a Reference
made by the West Bengal Government under s. 10 of the Act. This misconception
as to the nature of the proceedings vitiated its order as the Appellate
Tribunal misdirected itself as to the scope of the powers to be exercised by it
and consequently it led to the making of an erroneous order.
The question then arises as to whether the
managerial enquiry was vitiated by the infraction of any principle of natural
justice. According to the standing orders Major Misdemeanors have been defined
in el. 15, the relevant portion of which is:(a) Willful insubordination or
(b) Inciting to take part or taking part in
an illegal strike. (Any strike resorted to without giving notice as provided
under Section 22 of the Industrial Disputes Act will be considered as illegal)
The mode of service of notice as given in the standing order No. 15 is as
follows:No order of dismissal shall be made unless the worker concerned is
informed and given opportunity of explaining the circumstances alleged against
him, but to avail himself of this privilege such worker must attend before the management
when directed to do so. Service of any notice or direction upon a workman to
attend under this rule may be made by communicating the same orally to the
worker concerned and/or by fixing the same on the Company's Notice Board
In the present case the management of the
appellant company took the precaution of affixing the notices on its Notice
Boards both inside and outside the company's premises, and there is evidence to
show that they remained affixed from April 20, 1955 till June 9, 1955, i.e.
right upto the termination of the enquiry. It also sent Registered
Acknowledgement Due notices to all workmen. When some of them came back
unserved it wrote to the secretary of the Union asking for the addresses of the
workmen but that gentleman did not ,Care to reply to this letter. The
management also wrote 233 to the Labour Commissioner as to the action it was
proposing to take.
The Industrial Tribunal held that there was
no proper notice to workmen Nos. 2 to 24 and the mere affixing of the notices
on the Notice Board-of the company was not sufficient as the workmen could not
enter the appellant company's premises due to the look out. It overlooked the
evidence as to the notices being affixed on the appellant company's board
outside its gate from where the workmen were not excluded as a result of the
lock out and it was open to them if they so desired to go and look up the
notices there. Further the Tribunal was of the opinion that the appellant
company might have sent the notices to the secretary of the Union " for
circulation to the absentees ". In the first place this is not one of the
recognised modes of effecting service and in this case the company would have
been justified in not taking this action after the way that gentleman had neglected
even to reply to the appellant company's letter asking him to supply the
addresses of the workmen. Apart from complying with its standing orders the
appellant company made every effort under the circumstances to serve notices on
its workmen. No principle of natural justice has, in our opinion, been
infringed and the finding as to the workmen having no notice of the charges
against them and consequently not having a proper opportunity to meet the case
against them cannot be sustained. It cannot be said that the workmen did not
have a proper opportunity to answer the case against them. If the rule were as
the order of the Industrial Tribunal holds it to be then by their action of not
giving proper addresses to the employer or abstaining from looking up the
Notice Boards where under the standing orders notices were required to be
affixed the workmen might make it impossible for an employer to take
disciplinary action assuming that such action is necessary or justified.
The Labour Appellate Tribunal did not
consider or apply its mind to this aspect of the case, it being under a
misapprehension as to correct nature of the proceedings.
30 234 Counsel for respondents raised four
points: (1) that there was no proper notice served on workmen Nos. 2 to 24
after the-decision of the Industrial Tribunal refusing permission to dismiss
the workmen under s. 33 of the Act ; (2) that no second enquiry could be held
because the earlier findings of the Tribunal on the application under section
33 of the Act would not be challengeable on the principle of res judicature;
(3) that there are basic errors in the award of the Industrial Tribunal which
was rightly interfered with on appeal by the Labour Appellate Tribunal and (4)
that the workmen were entitled to compensation. As to notices the submission of
the counsel for the respondents was that notice given to the workmen Nos. 2 to
24 was not adequate as the employer did not send the notices to the Union for
being served on the workmen and in any case in order to serve the workmen
properly it was necessary in the circumstances of this case for the employer to
advertise the case in Bengalee newspapers. We have already held that in the
circumstances of this case the appellant company had done its best to serve the
workmen and had complied with the standing orders and it was not necessary for
the appellant to do anything more. This contention of the respondents' counsel
must therefore be repelled.
As to the applicability of the principle of
res judicata the argument raised by counsel for respondents was that the
findings of the State Industrial Tribunal in proceedings under s. 33 of the Act
which were confirmed by the Labour Appellate Tribunal barred the right of the
management of the appellant company to start a fresh enquiry in respect of the
same incident which formed the subject matter of the previous enquiry. There is
no force in this contention, which seems to be based on a misapprehension as to
the nature and scope of proceedings under s. 33. That section does not confer
any jurisdiction on a Tribunal to adjudicate on a dispute but it merely
empowers the Tribunal to give or withhold permission to the employer during the
pendency of an industrial dispute to discharge or punish a workman concerned in
the industrial dispute. And in deciding whether permission should or should 235
not be given, the Industrial Tribunal is not to act as a reviewing tribunal
against the decision of the management but to see that before it lifts the ban
against the discharge or punishment of the workmen the employer makes out a
Prima facie case. The object of the section. is to protect the workmen in
pending industrial disputes against intimidation or victimisation. As said
above principles governing the giving of permission in such cases are that the
employer is not acting mala fide, is not resorting to any unfair labour
practice, intimidation or victimisation and there is no basic error or
contravention of the principles of natural justice. Therefore when the Tribunal
gives or refuses permission it is not adjudicating an industrial dispute, its
function is to prevent victimisation of a workman for having raised an
industrial dispute. The nature and scope of proceedings under s. 33 shows, that
removing or refusing to remove the ban on punishment or dismissal of workmen
does not bar the raising of an industrial dispute when as a result of the
permission of the Industrial Tribunal the employer dismisses or punishes the
workmen. Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union (1), Lakshmi
Devi Sugar Mills v. Pt. Ram Sarup (2).
In the Automobile Products of India Ltd. v.
Rukmaji Bala (3 4V44) Das J., (as be then was) said at p. 1256:-"The
purpose of these two sections (s. 33 of the Industrial Disputes Act and s. 22
of the Industrial Disputes (Appellate Tribunal) Act) being to determine whether
the ban should be removed or not, all that is required of the authority
exercising jurisdiction under these two sections is to accord or withhold
As the purpose of s. 33 of the Act is merely
to give or withhold permission and not to adjudicate upon an industrial
dispute, any finding under s. 33 would not operate as res judicata and bar the
raising of an industrial dispute nor is there anything in the section itself or
in the findings arrived at by the Industrial Tribunal in s. 33 proceedings
dated June 6, 1954, or of the Labour Appellate Tribunal dated March 29, 1955,
(I)  S.C.R. 720. 788. (2) A.I.R. 1057 S.C. 82.
(3)  I S.C.R. 1241.
236 which would debar the appellant company
from holding the second enquiry or dismissing the workmen provided the
principles above set out are complied with.
It was next contended that in the present
case there was a basic error within the meaning of the rule laid down by S. K.
Das J., in Indian Iron and Steel Co. Ltd. v. Their Workmen(1). The basic error
according to counsel was this that the appellant company's witness Serjeant
Boards had stated that the number of persons who had confined and were
surrounding D'Cruz was 100 to 130 persons and if out of them 106 were
reinstated there could not be 67 workmen left to be proceeded against. The
appellant company had started proceedings against 170 workmen i. e. all their
workmen and after reinstatement of a large number of them only 67 remained
against whom the appellant company took proceedings with a view to take action
against them and. it was in regard to these persons that permission for
dismissal was sought under s. 33. It is significant that this basic error does
not seem to have been argued either before the Industrial Tribunal or the
Labour Appellate Tribunal, on the other hand, the parties seem to have
proceeded on the basis that the number of workmen proceeded against by the
appellant company was 67 out of whom 64 were left after three were allowed to
be dismissed. Out of the rest 16 bad resigned and there were only 48 persons
whose cases remained for adjudication by the Industrial Tribunal. No basic
error is therefore made out.
The question of compensation to the workmen
from the date when they were ordered to be reinstated i.e. from April 1, 1955,
to June 6, 1955, when their services were terminated is equally unsustainable.
The Industrial Tribunal in its order of June 26, 1954, and the Labour Appellate
Tribunal in its order dated March 29, 1955, held the strike to be illegal. Mr.
S. C. Sen Gupta Judge of the 6th Industrial Tribunal who gave the award dated
June 7, 1956, refused to give any compensation to workmen Nos. 25 to 48 whose
dismissal. he upheld on the ground that the strike was illegal, (1) A.I.R. 1958
237 the strikers had taken up a belligerent
attitude and the lock out was fully justified. The Labour Appellate Tribunal
awarded to the 24 workmen reinstated by its amended order dated September 28,
1956, back wages from April 1, 1956, to the date of reinstatement as was done
by the Industrial Tribunal in the case of workmen Nos. 2 to 24, whom the
Tribunal bad ordered to be reinstated. As we have come to the conclusion that
the order of reinstatement by the Industrial Tribunal of workmen Nos. 2 to 24
and by the Appellate Tribunal of workmen Nos. 25 to 48 was erroneous, neither
of the two sets of workmen is entitled to back wages by way of compensation.
The appeal is therefore allowed and the
decision of the Labour Appellate Tribunal as to all the workmen and the award
of the Industrial Tribunal as to workmen Nos. 2 to 24 are set aside and the
claim for compensation which was argued before us is disallowed. As the workmen
have been dismissed and no compensation has been allowed the proper order as to
costs is that both parties do pay their costs of this appeal.