The Punjab National Bank, Ltd. Vs. Its
Workmen  INSC 121 (24 September 1959)
SINHA, BHUVNESHWAR P.
CITATION: 1960 AIR 160 1960 SCR (1) 806
CITATOR INFO :
F 1960 SC 762 (13) R 1960 SC1262 (4) R 1961
SC 689 (7) R 1961 SC 860 (8) R 1963 SC 601 (6) F 1965 SC 917 (5) R 1965 SC1803
(11) F 1968 SC 231 (14) R 1971 SC2171 (5) R 1971 SC2417 (7,11) R 1972 SC 136
(33) R 1972 SC 277 (10) RF 1972 SC1031 (21,51) E 1973 SC1227 (18,20) F 1978 SC
995 (6,10,12) R 1978 SC1380 (8) RF 1978 SC1428 (18,20) RF 1979 SC1652 (18) RF
1980 SC1896 (148) RF 1981 SC 422 (4) RF 1990 SC1054 (19)
Industrial Dispute-Dismissal by employer
pending adjudication -Omission to hold proper enquiry or obtain permission of
the Tribunal-Such dismissal, if wholly void-Jurisdiction of Tribunal, Scope
of-Pen-down strike-Legality_ If disentitles a dismissed employee to
reinstatementIndustrial Disputes Act, 1947 (14 of 1947), ss. 2(q), 10, 33, 33A.
The employees of the appellant Bank commenced
pen-down strikes, which were followed by a general strike, pending arbitration
of an industrial dispute between them. The Government of India intervened and
as the result of an agreement that followed the Bank reinstated all the
employees except 150, against whom it had positive objections, and the
Government referred their cases under s. 10 of the Industrial Disputes Act,
1047, to the Industrial Tribunal for adjudication. The two issues before the
Industrial Tribunal were whether the 150 employees had been wrongly dismissed
and what wages and allowances would the 807 employees be entitled to on
reinstatement. The case of the employees was that the Bank wanted to penalise
the active trade union workers by the said dismissals while the Bank maintained
that the employees were guilty of participation in illegal strikes intended to
paralyse its business and scare away its customers. The Industrial Tribunal did
not hear evidence and, by its final award, held that, the strikes being
illegal, the Bank was, on that ground alone, justified in dismissing the
employees. Even so, it directed the Bank to make certain payments to the
employees on compassionate grounds. The Bank as well as the employees appealed.
The Labour Appellate Tribunal held that even though the strikes were illegal
under s. 23(b) read with s. 24(1) of the Industrial Disputes Act, 1947, the
Bank had, by entering into the agreement with the Government of India, waived
its right to take penal action against the employees for joining the illegal
strikes and that, therefore, an enquiry should be held on additional evidence
to decide the disputes on merits. Against this interlocutory order the Bank
appealed to this Court and it was held by this Court that while the strikes
were no doubt illegal under s. 23(b) of the Act, the orders of dismissal passed
by the Bank were no less so under s. 33 of the Act, and it dismissed the
appeal. The Appellate Tribunal, thereafter, heard the cases on merits,
directed-the reinstatement of 136 of the said employees, but refused to
reinstate the rest whom it found guilty of issuing posters and circulars
subversive of the credit of the Bank. Both the parties appealed to this Court.
Preliminary objections were raised on behalf of the said employees that, (1) in
view of the decision of this Court dismissing the Bank's appeal against the
said interlocutory order the subsequent inquiry by the Tribunal and the orders
of dismissal must be held to be void and, (2) no charges having been admittedly
framed nor any proper enquiry held by the Bank against the employees, the
orders of dismissal were wholly invalid. It was urged, inter alia, on behalf of
the Bank in the appeals that participation in a pen-down strike by itself
amounted to misconduct sufficient to disentitle an employee to reinstatement
and that the entire body of strikers, being collectively responsible for the
publication of the subversive documents in question, the dismissed employees
could by no means escape liability.
Held (per curiam), that the preliminary
objections must be negatived and the decision of the Appellate Tribunal
affirmed with this modification that, in view of its inconsistent findings, the
appeal of one of the employees must be allowed.
Per Sinha and Gajendragadkar, JJ.-The purpose
the Legislature had in view in enacting s. 33 of the Industrial Disputes Act,
1947, was to maintain the status quo by placing a ban on any action by the
employer pending adjudication.
But the jurisdiction conferred on the
Industrial Tribunal by S. 33 of the Act was a limited one. Where a proper
enquiry had been held and no victimisation or unfair labour practice had been
808 resorted to, the Tribunal in granting permission had only to satisfy itself
that there was a Prima facie case against the employee and not to consider the
propriety or adequacy of the ,proposed action. But to such permission, when
granted, the Tribunal could attach no conditions; it can either grant or refuse
The effect of such permission was only to
remove the ban imposed by s. 33 of the Act. It could neither validate a
dismissal nor prevent it from being challenged in an industrial dispute; but in
such a dispute, when raised, the employer could justify its action only on such
grounds as were specified in the original charge-sheet and no others.
There was substantial difference between
non-compliance with s. 33 of the Act and that with Art. 311(2) of the Constitution.
Compliance with s. 33 only avoided the penalty under s. 31(1) of the Act, while
compliance with Art. 311(2) of the Constitution made the order of dismissal
Atherton West & Co. Ltd. V. Suti Mills
Mazdoor Union,  S.C.R. 780, The Automobile Products of India Ltd. v.
Rukmaji Bala,  1 S.C.R. 1241, Lakshmi
Devi Sugar Mills Ltd. v. Pt. Ram Sarup,  S.C.R. 916, Indian lron and
Steel Co. Ltd. v. Their Workmen,  S.C.R. 667 and McKenzie & Co. Ltd.
v. Its Workmen,  S.C.R. (Suppl.) 222 referred to.
It was not, therefore, correct to contend
that noncompliance with s. 33 of the Act could render the orders of dismissal
wholly void or take away the jurisdiction of the Tribunal to hold the enquiry.
Nor could the failure to hold a proper enquiry have that effect.
Under s. 33A of the Act, as construed by this
Court, the jurisdiction of the Tribunal was not limited to an enquiry as to the
contravention of s. 33 of the Act. Even if such contravention was proved, the
employer could still justify the impugned dismissal on merits and there was no
difference in this regard between a reference under s. 10 of the Act and a
dispute raised under s. 33A of the Act.
The Automobile Products of India Ltd. v.
Rukmaji Bala,  1 S.C.R. 1241 and Equitable Coal Co.Ltd. v. Algu Singh,
A.I.R. 1958 S C. 761, referred to.
Although there can be no doubt that in proper
cases the Industrial Tribunal has the power to direct reinstatement in disputes
arising out of dismissal of employees, it is not possible to Jay down any hard
and fast rule to be applied to such cases. In coming to its decision, the
Industrial Tribunal has to reconcile the conflicting claims of the employer and
the employee,--the latter's right to protection against wrongful dismissal, and
in such a case the normal rule is reinstatement, and the interest and safety of
the industry itself. Its approach to such a problem cannot, therefore, be
legalistic or doctrinaire or as is permissible 809 in a civil court deciding
the validity of dismissals under S. 240 of the Government of India Act, 1935,
or Art. 311(2) of the Constitution.
Western India Automobile Association v.
Industrial Tribunal, Bombay,  F.C.R. 321 and Buckingham & Carnatic
Mills Ltd. v. Their Workmen, (1955) 11 L.L.J. 314, referred to.
If no enquiry is held by the employer before
it passes an order of dismissal, the propriety of such dismissal can be
adjudged by the Tribunal on evidence and no employer can be allowed to object
to it on the ground that it interferes with the exercise of its managerial
The Madras Electric Tramways, (1904) Ltd.
Madras v. Their Workers, (1951) 11 L.L.J. 204, distinguished and held inapplicable.
The propriety of reinstatement in a case of
wrongful or illegal dismissal is normally a question of fact and where the
Industrial Tribunal on a proper consideration of the relevant factors refuses
to pass such an order this Court would be reluctant, in absence of any general
or substantial question of law, to interfere under Art. 136 of the
A pen-down strike falls within the definition
of a strike contained in S. 2(q) of the Industrial Disputes Art, 1947, and is
not Per se illegal. Even if it might involve an element of civil trespass as in
the present case, that cannot disentitle an employee to reinstatement. M/s.
Burn & Co. Ltd. v. Their Workmen, A.I.R. 1959 S.C. 529, referred to.
It is not safe to extend principles of
American decisions to such a strike without a careful scrutiny of the relevant
provisions of the American Statute and the facts on which the said decisions
National Labour Relations Board v. Fansteel
Metallurgical Corporation, 306 U.S. 238, considered and held inapplicable.
William Truax v. Michael Corrigan, 66 Law.
Ed. 311, referred to.
Since in the instant case, the peaceful and
non-violent conduct of the strikers, as found by the Appellate Tribunal, could
not amount to criminal trespass within, the meaning of s. 441 of the Indian
Penal Code, mere participation in the pen-down strike did not disentitle them
T. H. Bird v. King-emperor, (1934) L.R. XIII
Pat. 268, held inapplicable.
The mere fact that the employer had engaged
new hands during the strike, was not sufficient to defeat the claim to
reinstatement of such employees as were subsequently found to have been
National Transport and General Co. Ltd. v.
The Workmen, C.A. NO. 312 of 1956, decided on January 22, 1957, referred to.
810 But where, as in the instant case, the
Appellate Tribunal took a common-sense view of the matter of evidence and held
certain office-bearers and leaders of the union liable for subversive acts and
refused to extend such liability to the entire body of strikers on theoretical
and academic grounds, no principles of natural justice could be said to have
been contravened by it.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 519 to 521 of 1958.
Appeal by special leave from the decision
dated January 4,1955, of the Labour Appellate Tribunal of India, Calcutta, in
Appeals Nos. Cal. 69152 and Cal. 70/52.
AND Civil Appeal No. 521 of 1958.
Appeal by special leave from the decision
dated January 4, 1955, of the Labour Appellate Tribunal of India, Calcutta in
Appeal No. Cal 70/52.
Ram Lal Anand and Naunit Lal, for the
appellant in C.A. No.
519 of 58.
H. N. Sanyal, Additional Solicitor-General of
India, Ram Lal Anand and Naunit Lal, for the appellants in C.A. No. 520/58 and
respondents in C.A. NO. 521 of 58.
M. C. Setalvad, Attorney-General for India,
C. K. Daphtary, Solicitor-General, M. K. Ramamurthi, Syed Mahummud, B. K. Garg,
Miss. A. B. Varma and Janardan Sharma, for respondent No. 1 in C.A. Nos. 519
and 520 of 58 and appellant in C.A. No. 521 of 58.
Hardyal Hardy and M. B. Krishna Pillai, for
respondent No. 2 in C.As, Nos. 519 & 520 of 58.
1959. September 24. The judgment of Sinha and
Gajendragadkar, JJ., was delivered by Gajendragadkar, J.
Subba Rao, J., delivered a separate judgment.
J.GAJENDRAGADKAR J.-These three appeals arise
out of an industrial dispute between the Punjab National Bank, Ltd.
(hereinafter called the Bank) and two sets of
its employees represented by the. All-India Punjab National Bank Employees'
Federation (hereinafter called the Federation) and the U.P. Bank Employees'
Union hereinafter called the Union) respectively.
811 On July 2, 1951, this dispute was
referred by the Central Government for adjudication to the industrial tribunal
of which Mr. A. N. Sen, a retired Judge of,, the Calcutta High Court, was the
sole member. It raised two issues. The first was whether the 150 workmen
mentioned in Sch. 11 attached to the reference had been wrongfully dismissed by
the Bank, and the second had reference to the claim for reinstatement and
payment of wages and allowances from the date of dismissal to the date of
reinstatement. The reference thus made has gone through a long and protracted
career and the final decision of the dispute would be reached after we dispose
of the present appeals. In order to appreciate the points raised for our
decision in these appeals it is necessary to indicate briefly at the outset the
salient points of controversy between the parties, the findings made by the
original tribunal, the conclusions reached by the Labour Appellate Tribunal in
its interlocutory and final judgments and the decision of this Court in the
appeal which had been brought before it by the Bank against the interlocutory
judgment of the Labour Appellate Tribunal.
The 150 employees, whose dismissal has given
rise to the present dispute are spread over several branches of the Bank. 52 of
them work at its head office in Delhi, 15 in Bombay, 73 in East Punjab and 10
in U.P. 140 workmen in the first three areas are represented by the Federation
while the last 10 in U.P. are represented by the Union. All of these employees
took part in strike which, according to the Bank, were illegal. The strikes in
which the two respective groups of workmen took part were, however, for
The strike in which the Federation took part
was the result of the suspension by the Bank of its typist Sabharwal employed
in the Delhi Branch of the Bank on April 17, 1951.
It appears that Sabharwal, who was the
Secretary of the Punjab National Bank Employees' Union, Delhi, had applied for
leave for seven days on April 3, 1951, but his application was rejected; even
so he absented himself from duty and went to Bombay. As soon as he resumed his
duties on 812 April 14, 1951, he was supplied with a written chargesheet for
absence without leave which he refused to accept. It was then sent to him by
registered post, and on April 17 he was suspended. This suspension was followed
by an immediate pen-down strike at the head office of the Delhi Branch
subsequent to which the Bank suspended 60 other employees.
This led to a general strike in Delhi and
many other branches and it commenced at different dates from April 18 to 20,
1951. On April 21-22, 1951, the Bank issued notices calling upon all striking
members of the staff to report for duty by 10 a. m. on April 24, 1951, and it
warned them that if they did not comply with the notice it would be taken that
they had voluntarily ceased to be its employees and their services would be
deemed to have terminated from that date. This was followed by another notice
on April 24 which announced that the strikers who had failed to report for duty
as aforesaid had ceased to be the employees of the Bank from April 24, 1951. An
option was, however, given to the strikers who were still willing to rejoin
duty to apply in that behalf and explain their action in staying away. It is
common ground that the 140 employees represented by the Federation who had
taken part in the strike were dismissed by the Bank for absence due to the
strike. That is the genesis of the dispute between the Bank and the Federation
in relation to the 140 employees of the Bank.
The strike in which the remaining 10
employees of the Bank from the U.P. branches are concerned commenced on April 23,
1951. This strike was in pursuance of the strike notice served by the Union on
the Bank on April 22, 1951. This pen-down strike was a part of the general
strike which affected not only the Bank but also the Allahabad Bank and other
banks in the U.P. region. The Regional Labour Commissioner of the U.P.
Government who intervened suggested that the general strike should be called
off and recommended that some of the demands made by the strikers should be
referred to the industrial tribunal for adjudication; in accordance with this
request, on April 30, 1951, the strike committee decided to call off the strike
and 813 Advised workmen to join duty from May Is 1951. This advice, however,
did not reach all the branches in time with the result that some of the employees
of the Bank offered to resume work on May 3,1951. The other banks in the U.P. region
took back their employees who rejoined on May 3, but the Bank refused to take
back its employees on the ground that they' had not offered to rejoin on or
before the date fixed; and so it proceeded to dismiss them. The dismissal of
the said 10 employees is also the subject-matter of the present reference. That
is bow the reference is concerned with the dismissal of 150 employees of the
Bank in all.
The strikes in question which affected the
head office and the large number of branches of the Bank operating in more than
one State and a very large number of its employees caused public concern, and
so the Prime Minister and the Labour Department of the Central Government
thought it necessary to intervene; and a conference was arranged at New Delhi
between the officers of the Government and the Bank.
To this conference the representatives of the
Federation or the Union were, however, not invited. This conference led to an
agreement as a result of which the Bank undertook to reinstate all its
employees who had taken part in the strikes except those to whose reinstatement
it had " positive objections". This, however, was subject to the
reservation that the number of such employees was not to exceed 150 and that
their case,-, would be referred by the Central Government for adjudication by a
tribunal. This agreement was the result of several meetings between the
representatives of the Bank and the Labour Department of the Central Government
and it was reached on or about May 9, 1951.
Thereafter the head office of the Bank sent a
circular letter to all its branches calling for names of the employees who
according to the branch managers could not be considered for reinstatement. The
list of such employees received by the head office from the respective managers
of its branches was examined by the head office and the Bank then compiled the
103 814 list of 150 workmen whom it was not prepared to reinstate.
This list was in due course communicated by
the Bank to the Central Government; and in pursuance of the agreement aforesaid
the Central Government referred the dispute in respect of the said 150 workmen
for adjudication before the tribunal by its notification issued on July 2, 1951.
Before the tribunal the case for the
Federation and the Union was that the refusal of the Bank to take back the 150
workmen in question was a part of the concerted and deliberate plan adopted by
the management of the Bank for victimising the President, the Vice-President,
the General Secretary and Secretaries and Treasurer of the Federation and of
the working committees of the different trade unions of workers and the members
of the strike committees, and it showed that the sole object of the Bank in
refusing to take back those employees was to teach a lesson to the Federation
and -the Union and to penalise all active trade union workers who supported the
cause of the employees.
On the other hand, the Bank contended that
the strikes in which the 150 employees had participated were illegal and had
been resorted to not with a view to obtain relief for the employees but with a
view to paralyse the business of the Bank and to scare away its customers. The
Bank further alleged that the said 150 employees were guilty of "
unpardonable acts of violence, intimidation, coercion and victimisation."
The tribunal gave two interim awards by which it directed the Bank to make some
payments to the 150 employees by way of allowance pending the final disposal of
the dispute. On February 2, 1952, the tribunal pronounced its final award.
It held that the strikes were illegal and
that the' Bank was entitled to dismiss the employees solely on the ground that
the said employees had participated in an illegal strike.
On this view the tribunal did not think it
necessary to allow evidence to be given on the question as to whether some of
the strikers were guilty of specific subversive or violent acts. It also did
not allow 815 evidence to be led by workmen in support of their plea that their
dismissal was the result of victimisation. It decided the dispute on the sole
ground, that the strikes were illegal and participation in illegal strikes
justified the dismissal of the employees. Even so the tribunal made an order
directing the Bank to pay certain amounts to the said employees on
The direction issued by the tribunal for the
payment of the said amount was challenged by the Bank by its appeal (No. 25 of
1952) before the Labour Appellate Tribunal (hereinafter called the appellate
tribunal), whereas the decision of the tribunal that the 150 employees were not
entitled to reinstatement was challenged by the two sets of employees by two
different appeals (Nos. 69 and 70 of 1952). The appellate tribunal recorded its
interlocutary decision on September 22, 1952. As a result of this decision the
dispute was set down for further hearing on the points indicated by it. It was
urged by the Bank before the appellate tribunal as a preliminary objection that
the appeals preferred by the employees were incompetent. This objection was
overruled. The appellate tribunal then proceeded to consider two questions of
law, (1) whether an employer has the right to dismiss a workman for his absence
from duty by reason of his mere participation in an illegal strike, and (2) if
he has, can the tribunal scrutinise the exercise of that right and grant relief
to such a workman when it comes to the conclusion that the right has been
exercised capriciously or by unfair labour practice. The appellate tribunal
held that the strike started by the Federation was illegal under s. 23 (b) read
with s. 24 (1) of the Industrial Disputes Act, 1947 (14 of 1947) (hereinafter
called the Act). It appears that on February 21, 1950, an industrial dispute
between the Bank and the Federation had been referred to the arbitration of Mr.
Campbell Puri, and whilst the proceedings in
the said reference were pending before the tribunal the strike was commenced on
or about April 17, 1951. That is why the strike was illegal. The appellate
tribunal, however, held that, even if mere participation 816 in an illegal
strike by workmen is assumed to give the employer certain rights against the
striking workmen, the employer can waive these rights, that is to say, rafrain
from exercising those rights against the workmen. According to the appellate
tribunal such waiver or relinquishment can be inferred from conduct, and it
thought that the conduct of the Bank evidenced by the agreement which it
reached with the Central Government on or about May 9, 1951, unambiguously
proved that it had waived or relinquished its rights to take any penal action
against its employees merely for their participation in the illegal strike. In
other words, the effect of the findings of the appellate tribunal was that,
though the strike was illegal, by its conduct the Bank had precluded itself
from exercising its alleged right to dismiss its employees for their
participation in such an illegal strike.
The appellate tribunal also considered the general
question of law as to whether participation in an illegal strike can be said to
deserve dismissal of the striking workmen. It took the view that an illegal
strike absolves the liability of the employer to pay to its employees wages
during the period of absence of the striking workmen, but that it cannot be
stated as a general proposition that participation in an illegal strike would
by itself necessarily involve the penalty of dismissal. The Bank attempted to
justify the dismissal in the present case by urging that the 150 employees were
guilty of violent or subversive acts but the appellate tribunal held that it
was not open to the Bank at that stage to plead in justification of their
dismissal any such acts of violence or subversive acts. " There is
abundant authority ", observed the appellate, tribunal, " for the
proposition that an employer can justify before the tribunal a dismissal only
on the ground on which he purported to dismiss him and not a ground different
from it ". That is why in the end the appellate tribunal held that the
dismissals were wrongful. The appellate tribunal had no doubt that mere
participation by a workman in an illegal strike or his absence due to such
participation does not entitle an employer to dismiss him and that it is 817
open to a tribunal to order reinstatement in a proper case.
Having reached this conclusion the appellate
tribunal observed that "though in the case of wrongful dismissals the
normal rule is that the employees wrongfully dismissed should be reinstated, it
would nevertheless be necessary to consider the question of reinstatement in
the case of each individual employee in the light of requirements of social
justice and fair play for which the employee claims and industrial peace and
discipline which the employer emphasizes." In order to decide the cases of
the several employees from this twofold point of view the appellate tribunal
thought it was necessary to allow the parties to lead additional evidence on
relevant points. The employees wanted to lead evidence in support of their case
of victimisation and they were allowed to do so by the appellate tribunal. The
Bank wanted to lead evidence on five points. The appellate tribunal held that
evidence on items (3) and (5) would be irrelevant and it thought that item (4)
was too vague. That is why 'the Bank was allowed to lead evidence only in
respect of item (2) and some heads mentioned in item (1). In the result
opportunity was given to the parties to lead evidence on the following points:
(1) victimisation, (2) past service records of the 150 employees, (3) conduct
of those 150 employees or any of them during the strike confined to acts of
violence, intimidating loyal workers and acts subversive of the credit of the
Bank, (4) employment which any of those 150 persons got after this dismissal,
the period during which they were in employment and the wages or emoluments
they received. The appellate tribunal then directed the Bank to file a
statement within a month giving particulars of the acts confined to the matters
on which the Bank was allowed to lead evidence in respect of each one of the
150 employees after supplying a copy of the same, one to the Federation and one
to the Union. In the meanwhile the appellate tribunal directed the Bank to make
interim payments to the employees as indicated in its order.
This interlocutary judgment was challenged by
the Bank before this Court by its appeal under Art. 136 818 of the
Constitution. On behalf of the Bank it was urged that the conclusion of the
appellate tribunal that the Bank had condoned the illegal strike by its workmen
was unjustified and that it was open to the Bank to rely upon the illegal
strike as justifying the dismissal of the said workmen. The case of the Bank
thus was that the order passed by the appellate tribunal setting down the
dispute for further enquiry was illegal and should be set aside.
The judgment of this Court delivered by
Patanjali Sastri, C. J., shows that this Court thought it unnecessary to
express any opinion on the question of condonation or waiver of the illegal
strike because, in its opinion, even if there was no such condonation or waiver
and even if it was open to the Bank to rely upon the illegal strike as a valid
ground for dismissing its employees, there was no doubt that the order of
dismissal was illegal having regard to the provisions of s. 33 of the Act. The
said section furnished a short answer to the Bank's contention that the
appellate tribunal had no jurisdiction to order reinstatement of the 150
workmen. In other words, just as the strike of the employees was illegal so was
the order of dismissal passed by the Bank illegal and for a similar reason. S.
23(b) of the Act made the strike illegal while s. 33 of the Act made the
dismissal also illegal. In the result the appeal preferred by the Bank was
dismissed; and it was held that there was no substance in the plea of the Bank
that the appellate tribunal had no jurisdiction to direct reinstatement of the
employees. This judgment was pronounced on April 10, 1953.
The proceedings before the appellate tribunal
were subsequently resumed and they terminated on January 4, 1955, when the
appellate tribunal directed the reinstatement of the 136 employees and passed
incidental orders about the payment of their wages. It refused to reinstate the
remaining 14 employees but passed orders in regard to payment of compensation
even in their cases. Before the appellate tribunal four general points were
sought to be raised at this subsequent hearing. The first was in regard to the
invalidity of the reference itself. The second was in regard to 819 the ultra
vires character of the relevant provisions of the Act. Both these contentions
were not allowed to be raised by the appellate tribunal and they have not been
urged before us either. The third contention' raised was that both the strikes
were not bona fide and so the striking workmen were not entitled to
reinstatement; and the last contention was that the pen-down strike was illegal
and participation in it should be considered as a circumstance disqualifying
the strikers from reinstatement. The appellate tribunal has held that the
strikes in question were bona fide and that mere participation in the pen-down
strike cannot be treated as a valid ground for refusing reinstatement to the
strikers. It considered the evidence led by the parties in regard to the
character of the strike, and it held that the definite instruction issued to
the employees was to continue occupation of their seats till the police
intervened and threatened to arrest and so it was not prepared to accept the
employees' case that the pen-down strikers "vacated their seats on the
mere asking by the management" According to the finding, the persons who
took part in the pen-down strike not only ceased to work but continued to occupy
their seats. The appellate tribunal also found that the pen-down strikers were
quiet and peaceful, that no slogans were shouted, no attempt at violence or
coercion was made and that they simply occupied their seats without doing any
It was conceded before the appellate tribunal
that pen-down strike falls within the definition of strike prescribed by s.
2(q) of the Act; but it was urged that the act of not vacating their seats when
asked by the management to do so introduced an element of illegality and made
the strikers liable in a civil court for trespass. The appellate tribunal was
not impressed with this argument but it held that even if the striking workmen
are assumed to have made themselves liable for civil trespass that itself would
not be sufficient ground for refusing reinstatement.
It appears that the Bank relied upon several
documents to show that the employees were guilty of subversive actions during
the course of the strike. The 820 appellate tribunal was not satisfied that
these documents were genuine and could be effectively pressed into service by
the Bank in support of its case. It was also urged by the Bank that during the
course of the strike posters and circulars were issued which were clearly
subversive of the credit of the Bank and it was contended that employees who
were guilty of issuing such posters and circulars did not deserve
reinstatement. The appellate tribunal examined these documents and held that
three of them amounted to subversive acts. They are Exs. 255(a), 255(c) and
302. In regard to Ex. 302 the findings recorded by the appellate tribunal in
two places of its decision are somewhat inconsistent; but the operative portion
of the decision shows that the appellate tribunal was inclined to hold that Ex.
302 was also objectionable and that it amounted to a subversive act. The rest
of the documents no doubt used strong and intemperate language but the
appellate tribunal was not prepared to treat them as constituting subversive
activity. On this finding a question which arose before the appellate tribunal
was : Who should be held responsible for the offending documents ? The
appellate tribunal was not prepared to hold all the 150 employees responsible
In this connection it considered the
statement made by H. N. Puri in this evidence and it field that since Puri had
admitted that he consulted 11 specified persons in preparing Exs. 255(a) and
255(c) as well as other documents they must share the responsibility for the
said documents along with Puri. Similarly the appellate tribunal held that the
persons who were shown to have been responsible for Ex. 302 must be treated on
the same basis. It was as a result of this finding that the appellate tribunal
refused to direct reinstatement of 14 employees. In regard to the remaining 136
employees the appellate tribunal held that it would not be right to impute the
responsibility for the publication of the three subversive documents to them
merely because they were members of the working committee or were otherwise
active leaders of the Union. The appellate tribunal the considered the
voluminous evidence led by the parties in respect 821 of each one of the 150
employees, and it held that in regard to the 136 employees no case had been
made out by the Bank for refusing them reinstatement.
It is clear from the decision of the
appellate tribunal that it was not at all satisfied with a substantial part ,of
the documentary evidence adduced by, the Bank. It held that the affidavits
filed by the Bank were sometimes prepared en masse and the deponents simply put
their signatures on them.
In most of the affidavits there were blank
spaces for the name, parentage and age of the deponents and they have been
subsequently filled up in ink. Some of them, though sworn at different places,
used identical language; while in some others material additions and
alterations have been made which do not bear the initials either of the
deponents or of the oath commissioner. It appeared to the appellate tribunal
that some of the statements made by the witnesses of the Bank showed that their
affidavits had been prepared by the Bank's lawyers and they simply put their
signatures thereon and affirmed them before the oath commissioner.
Indeed the appellate tribunal apparently
thought that there was some force in the contention raised by the employees
that some of the documents produced by the Bank had been manufactured or
tampered with long after the strike was over, It has noticed the argument urged
by the Bank that even if it was so the Bank cannot be condemned for the act or
acts of its branch managers in that behalf. This argument did not appeal to,
the appellate tribunal. Thus the decision of the appellate tribunal
substantially upheld the case made by the employees in that it directed the
reinstatement of the 136 out of the 150' employees and ordered payment of
compensation to the remaining 14 whose reinstatement was not granted.
This decision has given rise to the three
present appeals before us. Civil Appeal No. 519 of 1958 has been filed by the Bank
against the order of reinstatement in respect of 126 employees represented by
the Federation. Similarly Civil Appeal No. 520 of 1958 has been filed by the
Bank against the order directing 104 822 the reinstatement of 10 employees
represented by the Union;
and Civil Appeal No. 521 of 1958 has been
filed by the Federation on behalf of the 14 employees the claim for whose
reinstatement has been rejected. In regard to the first two appeals preferred
by the Bank special leave was granted to the Bank on February 21, 1958, limited
to grounds (b), (c), (d), (f) and (g) set out in paragraph 162 of its
These grounds are:(b) Whether employees, who
have been propagating against the stability and solvency of the Bank by
propaganda oral as well as written through open letters, posters, leaflets and
hand-bills amongst the customers and constituents of the Bank and the public at
large before, during and after an illegal strike are entitled to an order of
reinstatement ? (c) Whether after the declaration of an illegal strike,
forcible occupation of the seats and refusal to vacate them, when ordered to do
so by the Management, does not constitute as act of criminal trespass, it
having been held by the appellate tribunal that the employees formed a large
riotous assembly in and outside the premises of the Bank and delivered fiery
and provocative speeches to accompaniment of scurrilous slogans directed
against the institution and its high officers with a view to render impossible
the business of the institution, are entitled to an order of reinstatement ?
(d) Whether a 'pen-down' strike of such a character does not contravene the
provisions of the law of the land and is exempted under the Trade Unions Act or
the Industrial Disputes Act ? (f ) Whether employees, who, notwithstanding the
fact that they resorted to an illegal strike and were guilty of rioting, had
been invited by the Management to come back and resume work and who spurned at
this offer and in so many words treated it with contempt and whose places had,
therefore, to be replaced by fresh recruits are entitled to an order that those
fresh recruits be dismissed and replaced by the strikers ? 23 (g) Whether it is
open to the employees of a concern to raise with their Employers a question as
to whether the Employers should employ in their service employees of a concern
other than their own and whether such a question constitutes an 'industrial
dispute' within the meaning of the Industrial Disputes Act ? It may be
mentioned that the Bank's petitions had raised several other grounds in
paragraph 162 -but leave has not been granted to the Bank to raise any of them.
Almost a month and a half after limited leave
was thus granted to the Bank the Federation filed its petition for special
leave on April 4, 1955, and it applied for condonation of delay made in presenting
the petition. On April 9, 1956, this Court granted the employees' application
for condonation of delay and gave special leave to them to prefer their appeal.
This leave has not been limited to any particular grounds. Broadly stated these
are the relevant facts which give rise to the three present appeals.
Before dealing with the merits of these
appeals we must consider two preliminary objections raised by the learned
Attorney-General on behalf of the employees. He has claimed that if these objections
are upheld the Bank's appeals would have to be dismissed and the employees'
appeal allowed without considering the merits of the orders under appeal.
In pressing these objections he urged that
the questions raised were of considerable importance, and, though he conceded
that some aspects of the matter were covered by the previous decisions of this
Court, he requested us to examine the whole question afresh once more. We would
accordingly deal with these contentions at some length.
The first contention is that as a result of
the decision of this Court in the appeal preferred by the Bank against the
interlocutary judgment of the appellate tribunal, the whole of the enquiry held
by the said tribunal pursuant to the said interlocutary judgment is invalid and
This Court has held that the dismissal of the
150 employees is illegal having 824 regard to the provisions of s. 33 of the
Act; if the dismissal is illegal it is void and inoperative and as such it
cannot be said to have terminated the relationship of master and servant
between the Bank and its employees.
Despite the said order of dismissal the
employees continued to be in the employment of the, Bank and are entitled to
reinstatement without any further enquiry. That, it is said, is the effect of
the Bank's failure to comply with the provisions of s. 33.
It is next contended that the Bank does not
dispute the fact that it had held no enquiry into the alleged misconduct of its
employees before it passed the impugned: orders of dismissal against them. It
is well established that even where an employer is justified in terminating the
services of his employees he is bound to give them a charge-sheet and hold a
proper enquiry at which they would have, a chance to meet the said
charge-sheet. This requirement is universally treated as consistent with
natural justice and fairplay and since the Bank has not complied with it the
impugned orders of dismissal are wholly invalid for this additional reason;
and the result again would be that the said orders
are inoperative and void and the employees are entitled to reinstatement as a
matter of course.
In support of this argument reliance has been
placed on the decision of the Privy Council in the case of The High
Commissioner for India and High Commissioner for Pakistan and I.M. Lall (1).
This decision holds that the order of dismissal passed against a person who is
a member of the Civil Service of the Crown in India without complying with the
mandatory relevant provisions of s. 240 of the Government of India Act, 1935,
is void and inoperative, and that the Civil Servant against whom such an order
is passed is entitled to a declaration that he remained a member of the Indian
Civil Service at the date of the institution of the suit in which he challenged
the validity of the impugned order. Similarly in Khem Chand v. The Union of
India(2), this Court has held that an order of dismissal passed against a
public servant specified in Art. 311(a)with out complying with the mandatory
(1) 75 1. A. 225.
(2)  S.C.R. 1080.
825 provisions of Art. 311 (2) is void and
that the public servant sought to be dismissed by such an invalid order
continued to be a member of the service at the date of the institution of the
suit. It is in the light of these decisions that the learned Attorney-General
asks us to hold that the relationship between the Bank and its employees
remains wholly unaffected by the' orders of dismissal passed by the Bank
against them; and so, as soon as the orders are held to be void nothing more remains
to be done but to make a declaration about the the continuance of the
relationship of master and servant between the parties and to direct
reinstatement. Thus presented the argument no doubt appears prima facie to be
attractive; but in our opinion, a careful examination of the relevant sections
of the Act shows that it is not valid.
The three sections of the Act which are
relevant are ss. 33, 33A and 10. Let us first consider s. 33. This section has
undergone several changes but we are concerned with it as it stood in 1951. It
provides inter alia that during the pendency of any proceedings before a
tribunal in respect of any industrial dispute no employer shall discharge or
punish, whether by dismissal or otherwise, any workman concerned in such dispute
save with the express permission in writing of the tribunal. It is clear that
in cases to which this section applies a ban has been imposed on the power of
the employer to dismiss his employees -save with the express permission in
writing of the ,tribunal. The object of the Legislature in enacting this
section is obvious. By imposing the ban s. 33 attempts to provide for the
continuance and termination of the pending proceedings in a peaceful atmosphere
undisturbed by any causes of friction between the employer and his employees.
In substance it. insists upon the maintenance of the status quo pending the
disposal of the industrial dispute between the parties; nevertheless it
recognises that occasions may arise when the employer may be justified in
discharging or punishing by dismissal his employees; and so it allows the
employer to take such action subject to the condition that before doing so he
must obtain the 826 express permission in writing of the tribunal. It is true
that the ban is imposed in terms which are mandatory and s.
31(1) makes the contravention of the
provisions of s. 33 an offence punishable as prescribed therein. But the
question which calls for our decision is: What is the effect of such
contravention on the decision of the industrial dispute arising from it ? Where
an application is made by the employer for the requisite permission under s. 33
the jurisdiction of the tribunal in dealing with such an application is
limited. It has to consider whether a prima facie case has been made out by the
employer for the dismissal of the employee in question. If the employer has
held a proper enquiry into the alleged misconduct of the employee, and if it
does not appear that the proposed dismissal of the employee amounts to
victimisation or an unfair labour practice, the tribunal has to limit its
enquiry only to the question as to whether a prima facie case has been made out
or not. In these proceedings it is not open to the tribunal to consider whether
the order proposed to be passed by the employer is proper or adequate or
whether it errs on the side of excessive severity; nor can the tribunal grant
permission, subject to certain conditions, which it may deem to be fair.
It has merely to consider the prima facie
aspect of the matter and either grant the permission or refuse it according as
it holds that a prima facie case is or is not made out by the employer.
But it is significant that even if the
requisite permission is granted to the employer under s. 33 that would not be
the end of the matter. It is not as if the permission granted under s. 33
validates the order of dismissal. It merely removes the ban; and so the
validity of the order of dismissal still can be, and often is, challenged by
the union by raising an industrial dispute in that behalf. The effect of
compliance with the provisions of s. 33 is thus substantially different from
the effect of compliance with s. 240 of the Government of India Act, 1935, or
Art. 311(2) of the Constitution. In the latter classes of cases, an order of
dismissal passed after duly complying with the 827 relevant statutory
provisions is final and its validity or propriety is no longer open to dispute;
but in the case of s. 33 the removal -of the ban merely enables the employer to
make an order of dismissal and thus avoid incurring the penalty imposed by s.
31(1). But if an industrial dispute is raised on such a dismissal, the, order
of dismissal passed even with the requiste permission obtained under s.
33 has to face the scrutiny of the tribunal.
The decisions of this Court show that this
position is well established. In Atherton West & Co. Ltd. v. Suti Mills
Mazdoor Union (1) this Court was dealing with the provisions of cl. 23 of the
relevant U. P. Government notification which is similar to the provisions of s.
33 of the Act. " The enquiry to be conducted by the Regional Conciliation
Officer under the said clause ", observed Bhagwati, J., " was not an
enquiry into an industrial dispute as to the non-employment of workmen who was
sought to be discharged or dismissed which industrial dispute would only arise
after an employer, his agent or manager discharged or dismissed the workman in
accordance with the written permission obtained from the officer concerned. The
only effect of obtaining permission from the officer concerned was to remove
the ban imposed on the employer. But the order of dismissal passed after
obtaining the requisite permission can still become the subject-matter of an
industrial dispute under s. 2(k) of the Act and the workman who has been dismissed
would be entitled to have the industrial dispute referred to the appropriate
authority. " In The Automobile Products of India, Ltd. v. Rukmaji Bala
& Ors. (2), this Court was dealing with a similar problem posed by the
provisions of s. 22 of Act 48 of 1950, and s. 33 of the Act. Dealing with the
effect of these sections this Court held that the object of s. 33 was to
protect the workmen against the victimisation by the employer and to ensure the
termination of the proceedings in connection with the industrial disputes in a
peaceful atmosphere. That being so, all that the tribunal, exercising its
jurisdiction under s. 33, is (1)  S.C.R. 780, (2)  1 S.C.R. 1241.
828 required to do is to grant or withhold
the permission, that is to say, either to lift or to maintain the ban. This
section does not confer any power on the tribunal 'to adjudicate upon any other
dispute or to impose conditions as a prerequisite for granting the permission
asked for by the employer. The same view has been ,expressed in Lakshmi Devi
Sugar Mills Ltd. v. Pt. Ram Sarup (1).
In cases where an industrial dispute is
raised on the ground of dismissal and it is referred to the tribunal for
adjudication,-the tribunal naturally wants to know whether the impugned
dismissal was preceded by a proper enquiry or not. Where such a proper enquiry
has been held in accordance with the provisions of the relevant standing orders
and it does not appear that the employer was guilty of victimisation or any
unfair labour practice, that tribunal is generally reluctant to interfere with
the impugned order. The limits of the tribunal's jurisdiction in dealing with
such industrial disputes have been recently considered by this Court in the
-Indian Iron & Steel Co.
Ltd. v. Their Workmen (2 ) and it has been
held that the powers of the tribunal to interfere with cases of dismissal are
not unlimited because the tribunal does not act as a court of appeal and
substitute its own judgment for that of the management. In this judgment this
Court has indicated the classes of cases in which the tribunal would be
justified in interfering with the impugned order of dismissal. It would and
should interfere when there is want of good faith, when there is victimisation
or unfair labour practice, when the management has been guilty of a basic error
or violation of the principle of natural justice, or when, on the materials,
the finding of the management is completely baseless or perverse. The same view
has been again expressed by this Court in O. McKenzie & Co., Ltd., and Its
There is another principle which has to be
borne in mind when the tribunal deals with an industrial dispute arising from
the dismissal of an employee. We have already pointed out that before an
employer can (1)  S.C.R. 916. (2)  S.C.R. 667.
(3) (1959) 1 L.L.J. 285.
829 dismiss his employee he has to hold a
proper enquiry into the alleged misconduct of the employee and that such an
enquiry must always begin with the supply of a specific charge-sheet to the
employee. In Lakshmi Devi Sugar Mills, Ltd. (1), it has been held by this Court
that in dealing with the merits of the dismissal of an employee the employer
would be confined to the' charge-sheet given by him to his employee when an
enquiry was held into his conduct. It would not be open to the employer to add
any further charges against the employee and the case would have to be
considered on the original charge-sheet as it was framed. It is significant
that in the case of Lakshmi Devi Sugar Mills, Ltd. (1), this Court was
apparently inclined to take the view that the additional acts of
insubordination on which the appellant-mills wanted to rely would have
justified the employee's dismissal; but even so it was not allowed to raise
that plea because the said plea had not been included in the original
charge-sheet. It, therefore, follows that where a proper enquiry has been held
by the employer and findings are recorded against the employee that the
principles laid down by this Court in the case of Indian Iron & Steel Co.
Ltd. (2)would be applicable; and in applying the said principles the employer
would be confined to the grounds set out by him in his charge-sheet against the
This position is not disputed before us.
Indeed the learned Attorney-General contends that the principles applicable to
the decision of an industrial dispute arising from the dismissal of an employee
to which we have just referred serve to emphasise the obligatory character of
the limitation imposed on the employer by s. 33 of the Act and by the
requirements of natural justice that every dismissal must be preceded by a
proper enquiry. Where the ban imposed by s. 33 of the Act has been defied
and/or where a proper enquiry has not been held at all the action of the
employer in dismissing his employee must be treated as void and inoperative.
Such a case (1)  S.C.R. 916.
(2)  S.C.R. 667, 105 830 stands outside
the principles which we have discussed, so far. That in brief is the main
contention raised by the employees.
This contention is, however, untenable in
view of the decisions of this Court where the provisions of s. 33A have been
construed and considered, and so we must now turn to s. 33A. This section was
inserted in the Act in 1950. Before it was enacted the only remedy available to
the employees against the breach of s. 33 was to raise an industrial dispute in
that behalf and to move the appropriate Government for its reference to the
adjudication of a tribunal under s. 10 of the Act. The trade union movement in
the country complained that the remedy of asking for a reference under s. 10
involved delay and left the redress of the grievance of the employees entirely
in the discretion of the appropriate Government; because even in cases of
contravention of s. 33 the appropriate Government was not bound to refer the
dispute under s. 10. That is why s. 33A was enacted for making a special
provision for adjudication as to whether s. 33 has been contravened. This
section enables an employee aggrieved by such contravention to make a complaint
in writing 'in the prescribed manner to the tribunal and it adds that on,
receipt of such complaint the tribunal shall adjudicate upon it as if it is a
dispute referred to it in accordance with the provisions of the Act.
It also requires the tribunal to submit its
award to the appropriate Government and the provisions of the Act shall then
apply to the said award. It would thus be noticed that by this section an
employee aggrieved by a wrongful order of dismissal passed against him in
contravention of s. 33 is given a right to move the tribunal in redress of his
grievance without having to take recourse to s. 10 of the Act.
After this section was thus enacted the scope
of the enquiry contemplated by it became the subject matter of controversy between
the employers and the employees. This Court bad occasion to deal with this
controversy in the case of the Automobile Products of India Ltd. (1). Das, J.,
as he then was, who delivered (1)  1 S.C.R. 1241.
831 the judgment of the Court construed s.
33A of the Act and the corresponding s. 23 of Act 48 of 1950, which applied to
the Labour Appellate Tribunal then in existence, and observed that " the
scheme of the section clearly indicates that the authority to whom the
complaint is made is to decide both the issues, viz., (1) the effect of
contravention, and (2) the merits of the act or order of the employer ".
" The provision in the section that the complaint shall be dealt with by
the tribunal as if it were a dispute referred to or pending before it quite
clearly indicates ", said the learned Judge, "that the jurisdiction
of the authority is not only to decide whether there has been a failure on the
part of the employer to obtain the permission of the authority before taking
action but also to go into the merits of the complaint and grant appropriate
reliefs (p. 1253) ". It was urged before this Court that in holding an
enquiry under s. 33A the tribunal's duty was only to find out whether there had
been a contravention of s. 33, and if it found that there was Such a
contravention to make a declaration to that effect. The argument was that no
further question can or should be considered in such as enquiry. This
contention was, however, rejected.
The same question was raised before this
Court in Equitable Coal Co. Ltd. v. Algu Singh (1) and following the previous
decision of this Court in the case of the Automobile Products of India Ltd. (2)
it was held that in an enquiry under s. 23 two questions fall to be considered:
Is the fact of contravention of the provisions of s. 22 proved ? If yes, is the
order passed by the employer against the employee justified on the merits ?
Thus there can be no doubt that in an enquiry under s. 33A the employee would
not succeed in obtaining an order of reinstatement merely by proving
contravention of s. 33 by the employer. After such contraventionis proved it
would still be open to the employer to justify the impugned dismissal on the
merits. That is a part of the dispute which the tribunal has to consider
because the complaint made by the employee is treated as an industrial dispute
and all the relevant (1) A.I.R. 1958 S.C. 761.
(2)  1 S.C.R. 1241.
832 aspects of the said dispute fall to be
considered under 3.
33A. Therefore, we cannot accede to the
argument that the enquiry under s. 33A is confined only to the determination of
the question as to whether the alleged contravention by the employer of the
provisions of s. 33 has been proved or not.
In the present case the impugned orders of
dismissal have given rise to an industrial dispute which has been referred to
the tribunal by the appropriate Government under s. 10.
There can be no doubt that if under a
complaint filed under s. 33A a tribunal has to deal not only with the question
of contravention but also with the merits of the order of dismissal, the
position cannot be any different when a reference is made to the tribunal like
the present under s. 10. What is true about the scope of enquiry under s. 33A
is a fortiori true in the case of an enquiry under s. 10. What is referred to
the tribunal under s. 10 is the industrial dispute between the Bank and its
employees. The alleged contravention by the Bank of s. 33 is no doubt one of
the points which the tribunal has to decide; but the decision on this question
does not conclude the enquiry. The tribunal would have also to consider whether
the impugned orders of dismissal are otherwise justified; and whether, in the
light o the relevant circumstances of the case, an order of reinstatement
should or should not be passed. It is only after all these aspects have been
considered by the tribunal that it can adequately deal with the industrial
dispute referred to it and make an appropriate award.
In this connection it would be relevant to
remember that in dealing with industrial disputes arising out of dismissal of
employees the tribunal undoubtedly has jurisdiction to direct reinstatement in
proper cases. The question about the jurisdiction of an industrial tribunal to
direct reinstatement was raised as early as 1949, before the Federal Coort in
Western India Automobile Association v.
Industrial Tribunal, Bombay (1). In this case
the Federal Court considered the larger question about the powers of industrial
tribunals in (1)  F.C.R. 321.
833 all its aspects and rejected the argument
of the employer that to invest the tribunal with jurisdiction to order reemployment
amounts to giving it authority to make a contract between two persons when one
of them is unwilling to enter into a contract of employment at all. " This
argument ", observed Mahajan, J., as he then was, "overlooks the fact
that when dispute arises about the employment of a person at the instance of a
trade union or a trade union objects to the employment of a certain person, the
definition of industrial dispute would cover both those cases. In each of those
cases, although the employer may be unwilling to do so, there will be
jurisdiction in the tribunal to direct the employment or non-employment of the
person by the employer ". The learned Judge also added that " the
disputes of this character being covered by the definition of the expression
'industrial disputes, ' there appears no logical ground to exclude an award of
reinstatement from the jurisdiction of the industrial tribunal." Since
this judgment was pronounced the authority of the industrial tribunals to
direct reinstatement in appropriate cases has never been questioned.
In exercising its jurisdiction to direct
reinstatement of dismissed employees industrial tribunals have indicated certain
general considerations for their own guidance. In the case of a wrongful
dismissal the normal rule adopted in industrial adjudication is that
reinstatement should be ordered. "But", observed the Full Bench of
the Labour Appellate Tribunal in Buckingham & Carnatic Mills Ltd., And
Their Workmen (1), " in so ordering the tribunal is expected to be
inspired by a sense of fair play towards the employee on the one hand and
considerations of discipline in the concern on the other. The past record of
the employee, the nature of his alleged present lapse and the ground on which
the order of the management is set aside are also relevant factors for
consideration." It is obvious that no hard and fast rule can be laid down
in dealing with this problem.
Each case must be considered on its own
merits, and, in reaching the (1)  11 L.L.J.314.
834 final decision an attempt must be made to
reconcile the conflicting claims made by the employee and the employer.
The employee is entitled to security of
service and should be protected against wrongful dismissals, and so the normal
rule would be reinstatement in such cases. Nevertheless in unusual or
exceptional cases the tribunal may have to consider whether, in the interest of
the industry itself, it would be desirable or expedient not to direct
As in many other matters arising before the
industrial courts for their decision this question also has to be decided after
balancing the relevant factors and without adopting any legalistic or
doctrinaire approach. No such considerations can be relevant in cases where in
civil courts the validity of dismissals is challenged on the ground of
non-compliance with s. 240 of the Government of India Act, 1935 or Art. 311(2)
of the Constitution.
There is one more point which still remains
to be considered and that is the effect of the Bank's default it not holding an
enquiry in the present case. If the Bank has not held any enquiry it cannot
obviously contend before the tribunal that it has bona fide exercised the managerial
functions and authority in passing the orders of dismissal and that the
tribunal should be slow to interfere with the said orders.
It is true as we have already pointed out
that if the employer holds a proper enquiry, makes a finding in respect of the
alleged misconduct of the employee and then passes an order of dismissal the
tribunal would be glow to interfere with such an order and would exercise its
jurisdiction within the limits prescribed by this Court in The case of Indian
Iron & Steel Co. Ltd. (1).
But it follows that if no enquiry has in fact
been held by the employer; the issue about the merits of the impugned order of
dismissal is at large before the tribunal and, on the evidence adduced before
it, the tribunal has to decide for itself whether the misconduct alleged is
'roved, and if yes, what would be proper order to make. In such a case the
point about the exercise of managerial functions does not arise at (3) 
S.C.R. 667, 835 all. This answers the argument which Mr. Sanyal has raised
before us in his appeal.
Mr. Sanyal, however, seeks to derive support
to his argument from the decision of the Labour Appellate Tribunal in The
Madras Electric Tramways (1904) Ltd. Madras And Their Workers (1). In that case
the order of reinstatement passed by the tribunal was reversed in appeal by the
appellate tribunal which observed that in dealing with cases of dismissal where
the management had acted bona fide and with knowledge and experience of the
problems which confronted in the daily work of the concern it should be
considered to be well qualified to judge what sentence would be appropriate,
and the sentence imposed by the management should normally stand subject to the
qualification that it must not be unduly severe. It is obvious that in that case
the management had held a proper enquiry and the question which arose for
decision was what are the limits of the jurisdiction of the tribunal in dealing
with an industrial dispute arising from an order of dismissal passed by an
employer after holding a proper enquiry. The principles applicable to such a
case have been already considered by us; but they can have no application to
the present case where the employer has held no enquiry at all. Therefore, this
decision on which Mr. Sanyal relies is irrelevant.
The position then is that the effect of the
double default committed by the employer is not to limit the enquiry to the
decision of the sole question as to the commission of the said default, and so,
despite the said default the subsequent enquiry held by the appellate tribunal
pursuant to its interlocutory judgment was proper and legal. The two
preliminary objections raised by the learned Attorney General must, therefore,
Let us now deal with the two appeals filed by
the Bank (Civil Appeals Nos. 519 and 520 of 1958). We have already indicated
that in dealing with these appeals we have to bear in mind the limitations
imposed by the nature of the limited leave granted to (1) (1951) 11 L L. J.
836 the Bank; it is only the grounds
specifically covered by the leave which fall to be considered, and even these
grounds will necessarily have to be dealt with in the light of the findings
already recorded by the appellate tribunal which are no longer open to
challenge. The subsequent enquiry held by the appellate tribunal was limited to
the question as to whether the Bank was able to prove any specific
circumstances which disentitled the employees from claiming reinstatement. In
other words, the object of the said enquiry was to ascertain the nature of the
"positive objections" which the Bank had against each one of them.
The rest of the matters in dispute between
the parties are concluded by the other findings which have become final.
Considered in the light of these limitations
the grounds on which leave has been granted to the Bank must first be examined.
A bare perusal of the said grounds would show that some of them are vague and
they are urged on assumptions of fact which run counter to the findings
recorded by the appellate tribunal. That is why when those appeals were urged
before us, Mr. Anand and Mr. Sanyal have recast their contentions within the
frame,-work of the grounds in respect of which leave has been granted and have
urged the following points before us: (1) that participation in a pen-down
strike is itself an activity of such a subversive character that it
disqualifies the employees who took part in it from claiming the relief of
reinstatement, (2) that the publication and circulation of subversive documents
was the result of a concerted plan and represent a collective activity of all
the strikers and as such all the employees before us should be held responsible
for it and on this ground reinstatement should be refused to them, (3) that the
finding recorded by the appellate tribunal that only 14 persons were directly
and actively concerned with the preparation and publication of the subversive
documents is opposed to the weight of evidence and is perverse, (4) that the
appellate tribunal erred in law in not taking into account the fact that after
the 150 employees were dismissed the Bank has engaged fresh hands and the order
of reinstatement would, therefore, be unjust and 837 unfair, and (5) that the
appellate tribunal was also in error in not taking into account the fact that
some of the employees have in the meanwhile taken employment elsewhere.
It is these five grounds which we are asked
to consider by the Bank in its present appeals.
Before dealing with these contentions we
would like to make one general observation. Though not in the, same form, in
substance these contentions were raised before the appellate tribunal in
support of the plea that the dismissed employees should not be reinstated. As
we have already emphasized whether or not reinstatement should be ordered in
cases of wrongful or illegal dismissals is normally a question of fact and in
deciding it several relevant factors have to be borne in mind. If the appellate
tribunal applied its mind to those relevant factors and came to the conclusion
that 14 employees did not deserve to be reinstated while the remaining 136 did,
we would be reluctant to interfere with the said order under Art. 136 unless it
is shown that the order suffers from an error which raises a general or
substantial question of law.
The first contention raised by the Bank is in
regard to the conduct of the employees in entering upon a pen-down strike and
its effect on their claim for reinstatement. The finding of the tribunal on
this point is that the persons who took part in the pen-down strike not only
ceased to work but continued to occupy their seats. A tumultuous crowd had
gathered outside the premises of the Bank and some persons in the crowd were
shouting slogans in support of the strike.
The strikers had been definitely instructed
to stick to their seats until the police intervened and threatened arrest or
until orders of discharge or suspension were served on them. There has been
some argument before us as to the number of persons who actually took part in
this kind of pen-down strike. For the Bank Mr. Anand has urged that the
finding, of the appellate tribunal suggests that most of the strikers took part
in this strike; and in any event, according to him, at least 52 persons took
part in it. He has filed in this Court a list of these 52 employees. On the
other hand, 106 838 the learned Attorney-General has contended that on the
findings recorded by the appellate tribunal not more than 10 persons can be
said to have taken part in it. In dealing with the present contention of the
Bank we are prepared to assume that most of the strikers participated in the
pendown or sit-down strike as generally found by the tribunal.
Is this pen-down strike a strike within s.
2(q) of the Act or not? S. 2(q) defines a strike as meaning a cessation of work
by a body of persons employed in any industry acting in combination, or a
concerted refusal, or a refusal under a common understanding, of any number of
persons who are or have been so employed to continue to work or to accept
employment. It was conceded before the appellate tribunal that a pen-down
strike falls within this definition, and this position is not seriously
disputed before us either.
On a plain and grammatical construction of
this definition it would be difficult to exclude a strike where workmen enter
the premises of their employment and refuse to take their tools in hand and
start their usual work. Refusal under common understanding to continue to work
is a strike and if in pursuance of such common understanding the employees
entered the premises of the Bank and refused to take their pens in their hands
that would no doubt be a strike under s. 2(q). The main grievance of the Bank
is that these employees not only sat in their places and refused to work but
they would not vacate their seats when they were asked to do so by their
superior officers. Such conduct may introduce an element of insubordination but
that is a different matter. In our opinion, therefore, the pendown strike in
which the employees participated in the present case cannot be said to be
outside s. 2(q) of the Act.
It was, however, urged that the entry of the
strikers in the premises of the Bank amounted to civil trespass. The argument
is that by virtue of their employment the employees had a licence to enter the
premises of the Bank but this licence is subject to the condition that the
employees are willing to carry out their obligation of the contract and do
their allotted work during the, 839 office hours. If the employees had decided
not to work they were not entitled to the licence in question and so their
entry into the Bank itself constituted a civil trespass. On their hand, the
employees contend that during the continuance of their employment they are
entitled to enter the premises of the Bank and having thus entered they were
also entitled to exercise their right of going on strike.
They entered the premises as employees of the
Bank and having taken their seats they exercised their right of striking work.
If the Bank had suspended the employees it would have been another matter; but
so long as the relationship of master and servant continued the employees could
not be said to have committed civil trespass when they entered the premises at
In support of its case the Bank has relied on
the proposition that " even if a person has a right of entry on the land
of another for a specific purpose he commits a trespass if he enters for any
other purpose or under any other claim or title apart from that under which he
might lawfully enter. As an illustration of this proposition it is stated that
if a person having a licence for entry on land enters the land not by virtue of
the said licence but in order to contest the licensor's title, he commits a
trespass " (1). " But this proposition is subject to the exception that
if a person enters for a lawful purpose he is not a trespasser unless the case
is one to which the doctrine of trespass ab initio applies " (2). So the
decision of this technical point would depend on whether or not the employees
are given a limited or conditional licence to enter the premises and that if
they have decided to go on strike the said conditional or limited licence is no
longer available to them. We do not think it necessary to consider this
academic question in the present proceedings because, in our opinion, the
appellate tribunal was obviously right in holding that even if civil trespass
was involved in the conduct of the employees that by itself cannot justify the
rejection of their claim for reinstatement. Incidentally we may add that even
(1) Salmond on Torts, 12th Ed., p. 158.
(2) Salmond on Torts, 12th Ed., p. 159.
840 in America " the simple act of
trespassing upon the employer's property is no bar to reinstatement nor is the
act which at most a civil tort " (1).
Does the conduct of the strikers as found by
the appellate tribunal constitute criminal trespass unders. 441 of the Indian
Penal Code? That is the next point which calls for decision. It is argued that
the conduct of the employees amounts to criminal trespass which is an offence
and as suchthose who committed criminal trespass would not be entitled to
reinstatement. According to the Bank the employees committed the criminal
trespass inasmuch as they either entered unlawfully or having lawfully entered
continued to remain there unlawfully with intent thereby to insult or annoy
their superior officers. It would be noticed that there are two essential
ingredients which must be established before criminal trespass can be proved
against the employees. Even if we assume that the employees' entry in the
premises was unlawful or that their continuance in the premises became
unlawful, it is difficult to appreciate the argument that the said entry was
made with intent to insult or annoy the superior officers. The sole intention
of the strikers obviously was to put pressure on the Bank to concede their
demands. Even if the strikers might have known that the strike may annoy or
insult the Bank's officers it is difficult to, hold that such knowledge would
necessarily lead to the inference of the requisite intention. In every case
where the impugned entry causes annoyance or insult it cannot be said to be
actuated by the intention to cause the said result. The distinction between
knowledge and intention is quite clear, and that distinction must be borne in
mind in deciding whether or not in the present case the strikers were actuated
by the requisite intention. The said intention has always to be gathered from
the circumstances of the case and it may be that the necessary or inevitable
consequence of the impugned act may be one relevant circumstance. But it is
impossible to accede to the argument that the likely consequence of the act and
its possible knowledge (1) Ludwig Teller's "Labor Disputes and Collective
Bargaining" Vol. 11, p.855 841 must necessarily import a corresponding
intention. We think it is unnecessary to elaborate this point; we would only
like to add that the decision of the Patna High Court, in T.
H. Bird v. King-Emperor (1) on which reliance
was placed by the Bank is wholly inconsistent with the contention raised by it.
Thus our conclusion is that the Bank has failed to prove that the conduct of
the strikers as found by the appellate tribunal amounted to criminal trespass
under s.441 of the Code.
In resisting the employees' claim for reinstatement
on the ground that participation in a pendown strike creates a bar against such
a claim the Bank has strongly relied on the decision of the Supreme Court of
America in National Labor Relations Board v. Fansteel Metallurgical
Both Mr. Anand and Mr. Sanyal have contended
that this decision is an authority for the proposition that participation in
pen-down strikes necessarily disqualifies the strikers from claiming
reinstatement. It is, therefore, necessary to examine this case carefully. In
this case, the National Labor Relations Board bad directed the reinstatement of
participants in a sit-down strike whom, upon their refusal to leave the
employer's plant, the employer declared to be discharged. The Board had held
that despite the illegal strike and the consequent order of discharge the
status of the employees continued by virtue of the definition of the term
" employee " in s. 2, sub-s. (3) of the National Labor Relations Act.
It had also taken the view that it had jurisdiction to direct reinstatement of
the said employees under s. 10(c) of the said act with a view to effectuate the
policies of the Act. Both these conclusions were reversed by the Supreme Court
by a majority judgment.
According to the majority view, when the
Congress enacted the National Labor Relations Act it " did not intend to
compel employers to retain persons in their employ regardless of their unlawful
conduct,-to invest those who go on strike with an immunity from discharge for
acts of trespass or violence against the employer's property, which they (1)
(1934) I.L.R. XIII Pat. 268.
(2) 306 U.S. 238; 83 Law. Ed. 627.
842 would not have enjoyed had they remained
at work." It was also held that " the Congress was intent upon
,.protection of employees' right to self-organisation and to the selection of
representatives of their own choosing for collective bargaining without
restraint or coercion. " On the facts the conclusion of the majority was
that the strike was illegal in its inception and prosecution. This was really
not the exercise of the right to strike to which the Act referred. It was an
illegal seizure of the building in order to prevent their use by the employer
in a lawful manner, and thus by acts of force and violence compel the employer
to submit. The conclusion, therfore, was that to provide for the reinstatement
or re-employment of employees guilty of the acts which even according to the
Board had been committed would not only not effectuate any policy of the Act
but would directly tend to make abortive its plan for peaceable procedure. Mr.
Justice Reed, who delivered a dissenting judgment thought that both labour and
management had erred grievously in their respective conduct and so it would not
be unreasonable to restore both to their former status. That is why he was not
prepared to reverse the order of reinstatement passed by the Board. The Bank
naturally relies upon the majority decision in support of its contention that
its employees who participated in the pen-down strike are not entitled to reinstatement.
In considering the question as to whether the
principle underlying the majority decision should be, applied to a pen-down
strike in India it is necessary to remember that the pen-down strike properly
so-called is recognised as a strike under s. 2(q) of the Act and so it would
not be safe to extend the principles of American decisions bearing on this
question without a careful scrutiny of the relevant provisions of the American
statute and the facts on which the said decisions are based. Let us then
consider the facts on which the majority decision was based. It appears that an
acrimonious dispute had been going on between the Corporation and its employees
for some time before February 17,1937 when the pen-down strike commenced. The
Corporation was not prepared to recognise the 843 outside union and had
employed a labor spy to engage in espionage within the union and continued the
employment of the said spy. It also appears that the, super intendant of the
Corporation when requested to meet the deputation of the union required that
the deputation should consist only of employees of five years' standing.
Subsequently the superintendent' refused to confer with the committee in which
the outside Organisation had been included; and as a punitive measure he
required the president of the union to work in a room adjoining his office with
the purpose of keeping him away from the other workers. It was in this
background of bitter relationship that the strike commenced.
In the afternoon of February 17 the union
committee decided upon a sit-down strike by taking over and holding two of the
respondent's key buildings. These were then occupied by about 95 employees, as
a result of which work in the plant stopped. In the evening the superintendent
accompanied by police officials went to each of the building and demanded that
the men leave. They, however, refused whereupon the respondent's counsel who
had accompanied the superintendent announced in loud tone that all the men in
the plant were discharged for the seizure and detention of the buildings.
Even so the men continued to occupy the
buildings until February 26. Their fellow members brought them food, blankets,
stoves, cigarettes and other supplies. Meanwhile on February 18, the respondent
obtained from the state court an injunction requiring the men to surrender the
The men refused to obey the order and a writ
of attachment for contempt was served on them on February 19. When the men
refused to submit a pitched battle ensued and the men successfully resisted the
attempt by the sheriff to evict and arrest them. Efforts at mediation failed.
Ultimately on February 26, the sheriff with An increased force of deputies made
a further attempt and this time, after another battle, the men were ousted and
placed under arrest. They were subsequently prosecuted and most of them were
fined and given jail sentence for violating 844 the injunctions. A bare
statement of these facts would clearly bring out the true character of the
strike with which the Supreme Court was dealing. It was not merely an illegal
but violent strike, ; it was a strike which began with the wrongful seizure of
the employer's property and his exclusion from it; a strike accompanied by
violence which led to pitched battles between the strikers and the sheriff's
men; a strike continued by the strikers even after they were formally
discharged from the employment and against an order of injunction by a
competent court. It is difficult to accede to the argument that the majority
decision in that case can be extended to the facts before us. As Teller has
observed " the strike in question can be more accurately defined as a
strike in the traditional sense to which is added the element of trespass of
the strikers upon the property of the employer ". (1) Therefore, in our
opinion, this decision does not assist the Bank in support of its case that
mere-participation in the illegal strike in the present case can by itself
defeat the claim of the employees for reinstatement.
In this connection we may point out that,
according to Teller the Fansteel decision marks " what is hoped to be an
end of an unfortunate chapter in the history of American labor activity";
he has added that " there is danger, however, in viewing the sitdown
strike solely as the reflection of lawless labour leadership. The causes of its
emergence are deeper. Indeed labour has contended that capital and labor share
equal responsibility for its rise and development. No analysis of a sit-down
strike can claim a broad view of the subject, says labor, without a full
measure of consideration of the infamous Mohawk Valley methods used by
Remington-Rand to break strikes, nor to the facts elicited in the recent
Rand-Bergoff trial under the Byrnes Act........ The anarchy of law which
resulted from unlawful employer utilisation of instruments of violence and
chicanery in disregard of law needed the sit-down (1) Ludwig Teller's
"Labour Disputes and Collective Bargaining", Vol 1, p. 311, s. 106.
845 strike as an effective counterpoise
" ; and so the author significantly concludes that " it is no
coincidence that statistics show a precipitate drop in the prevalence of sitdown
strikes immediately upon validation by the United States Supreme Court of the
National Labor Relations Act." It is in the light of this background that
the Supreme Court had been( called upon to decide the question of reinstating
employees in the Fansteel case (1).
The history of the trade union legislation in
England shows that the trade union movement had to wage a long and bitter
struggle to secure recognition for the workmen's right to organise themselves
into unions and to exercise their right of collective bargaining if necessary
by the use of the weapon of strikes. In America a similar struggle took place,
and, as we have just pointed out, it was marked by violence on the part of both
capital and labour, because the employer's theory of " hire and fire
" offered relentless resistence to the workmen's claim to form unions and
to resort to strikes for trade union purposes. In Williams Truax v. Michael
Corrigan(2) Mr. Justice Brandeis, in his dissenting judgment, has given a, very
illuminating account of the history and progress of the trade union movement in
the United States, in England and the Colonies. " Practically every change
in the law ", observed Mr. Justice Brandeis, " governing the relation
of the employer and the employees must abridge in some respect the liberty or
property of one of the parties, if liberty and property is measured by the
standard of the law theretofore prevailing.
If such changes are made by acts of the
Legislature we call the modification an exercise of the police power, and
although the change may involve an interference with existing liberty or
property of individuals, the statue will not be declared a violation of the due
process clause unless the court finds that interference is arbitrary or
unreasonable, or that, considered as a means, the measure has no real or
substantial relation of cause to a permissible end".
(1) 306 U.S. 238; 83 Law. Ed. 627.
(2) 66 Law. Edn. 311 ; 257 U.S. 254.
107 846 In that case the validity of the
prohibition of Ariz. Civil Code 1913, cl. 1464 against the interference ,.by
injunction between employers and employees in cases growing out of a dispute
concerning terms or conditions of employment was challenged; and the challenge
was upheld by a majority of the learned -judges who took the view that the said
provision was contrary to the 14th Amendment of the Constitution. Holmes,
Pitney, Clarke and Brandeis, JJ., however, dissented. The main decision in that
case is not of direct assistance in the present appeals. No doubt Mr. Anand has
attempted to contend that the acts of which the strikers were held guilty in
that case are similar to the acts alleged against the employees in the present
but this argument would be relevant only if
it is shown by the Bank that the specific subversive acts alleged have been
committed by the specific individual employees. To that point we will refer
later on. Incidentally the present decision is of some importance because the
dissenting opinion delivered by Mr. Justice Brandeis has been subsequently
treated as an authoritative exposition of the problem of trade unionism and the
history of its growth and development.
Fortunately, as the Indian Trade Unions Act
1926, (16 of 1926), the Industrial Employment (Standing Orders) Act 1946 (20 of
1946), and the Industrial Disputes Act 1947 (14 of 1947) show, our Legislature
has very wisely benefitted by the experiences of other countries in the matter
of the development of trade union movement, and has made progressive, just and
fair provisions governing the important problem of industrial relationships,
the formation of trade unions, and the settlement of industrial disputes, It
can be justly claimed that though we have witnessed capital-labour conflicts in
our country, on the whole neither party has departed from the pursuit of
peaceful methods, and both parties submit their disputes to be resolved in
accordance with the provisions of the Act. In dealing with industrial disputes
like the present, we must, therefore, primarily consider the relevant statutory
provisions and the material Indian decisions, 847 Thus considered the
conclusion is inevitable that the pendown strike is a strike within s. 2(q) and
so per se it cannot be treated as illegal; it has been found to be illegal in
this case because it was commenced in contravention of s. 23(b) of the Act;
but, as has been held by this Court in M/s. Burn & Co. Ltd. v. Their
Workmen (1) mere participation in such an illegal strike cannot necessarily
involve the rejection of the striker's claim for reinstatement. As we have
already indicated, on the findings of the appellate tribunal nothing more than
such participation has been proved against the employees whose reinstatement
has been ordered; and so, unless the said finding is reversed, the first
contention raised by the Bank must fail.
It has been strenuously urged before us that
in the case of a Bank which is a credit institution a pen-down strike, if
continued for a long period, is likely to affect prejudicially the credit of
the Bank. It is also pointed out that, even in regard to industrial concerns,
if strikers entered the premises of the factory and sit around the plant in
large numbers, in the heat of the moment unfortunate and ugly incidents are
likely to happen, and so such pen-down or sit-down strikes should be positively
discouraged. We are prepared to concede that in the surcharged atmosphere which
generally accompanies strikes and when passions are aroused, a large scale and
continuous pen-down strike may lead to untoward consequences. But, on the other
hand, even in the case of such a strike, the employer is not without a remedy.
He may bar the entry of the strikers within
the premises by adopting effective and legitimate methods in that behalf as in
fact the Bank did in the present case from April 23. He may call upon the
employees to vacate, and, on their refusal to do so, take due steps to suspend
them from employment, proceed to hold proper enquires according to the standing
orders, and pass proper orders against them subject to the relevant provisions
of the Act. If the Bank had been properly advised to adopt such a course, many
of the difficulties which it had to face in the present proceedings would not
(1) A.I.R. 1959 S.C. 529.
848 probably have arisen. Therefore, we do
not think that the general hypothetical consideration that pendown strikes may
in some cases lead to rowdy demonstrations or result in disturbances or violence
or shake the credit of the Bank would justify the conclusion that even if the
strikers are peaceful and non-violent and have done nothing more than occupying
their seats during office hours, their participation in the strike would by
itself disqualify them from claiming reinstatement.
Let us then consider the second contention
raised by the Bank. It is urged on behalf of the Bank that it is really
unnecessary to examine which particular employee was directly associated with
the preparation and circulation of the subversive circular or posters. The
offensive posters and circulars had been drafted, printed and circulated in
pursuance of the common object of the strikers, and each one of them must,
therefore, share the responsibility for the said act. It is really an argument
based on the theory of conspiracy which makes all conspirators liable for the
act of any one of them.
This argument is countered by the employees
with the contention that the activities of the Union do not fall to be
considered in the present enquiry. It is the acts of individual strikers who
have been dismissed that have given rise to the dispute and the enquiry must be
confined to that dispute alone. The learned Attorney-General seriously asked us
to bear in mind that the application of the doctrine of conspiracy to the
decision of the present dispute may have far-reaching consequences on the
future of the trade union movement itself, and he suggested that since the
Union and its activities were not the subject matter of the present enquiry we
need not consider the argument of conspiracy at all. Besides, according to him,
if the theory of conspiracy was upheld it would mean that if any office bearers
of the Union were guilty of any subversive acts the whole membership of the
Union would be constructively responsible and that is plainly unreasonable. In
this connection he also referred us to ss. 17, 18 and 19 of the Indian Trade Unions
Act 1926 849 (16 of 1926). We have indicated this argument at this place by
anticipation. In fact this argument has been raised by the employees in their
appeal but we thought it would be convenient to deal with both these aspects of
the matter in one place.
Now the answer to both these technical and
academic contentions is the same. In industrial adjudication tribunals should
be slow to adopt any doctrinaire or legalistic approach. They should as far as
is reasonably possible avoid the temptation of formulating general principles
and laying down general rules which purport to cover all cases. Let us recall
the nature of the enquiry which the appellate tribunal had directed as a result
of its interlocutary judgment. This enquiry is confined to the question as to
whether in' regard to the case of each one of the dismissed employees, the Bank
has shown any positive circumstances as a result of which reinstatement, which
is the normal rule, should not be directed. Thus considered we do not think it
necessary to deal with the academic points raised by both the parties before
The third argument urged by the bank is in
regard to the finding of the tribunal that only 14 employees named by it are
responsible for the subversive posters and hand bills.
It is urged that this finding is perverse. We
are not impressed by this argument. There is no doubt that the three posters
Exs. 255 (a), 255 (c) and 302, to which strong exception has been taken by the
Bank are subversive of the credit of the Bank. They make imputations about the
honesty of the management of the Bank and in terms suggest improper use of the
funds of the Bank for personal purposes. It is also true that a large number of
other documents issued by the Union before and during the strike have used
exaggerated, and unduly militant intemperate, language, and in our opinion the
appellate tribunal was justified in expressing its disapproval of the use of
such language; but the appellate tribunal thought that none of these documents
could really be taken to be subversive of the credit of the Bank and with that
conclusion we are in full agreement.
Therefore the only question which we have to
consider is whether 850 the view taken by the appellate tribunal that 14
persons were actively concerned with these offensive documents can be
successfully challenged by the Bank before us.
In making its finding on this point the
appellate tribunal has substantially relied on the statement made by H. L.
Puri. He was asked whether the drafts of the
letters issued by him had been approved at the meeting of the working committee
or on his individual responsibility and he replied that they were never written
on individual responsibility but were based on consultation with the members of
the working committee. Then he was asked whether he could name the persons whom
he consulted in drafting the poster dated July 5, 1949 (Ex. 222). In reply to
this he enumerated the names of 9 persons and added the word " so
on." It appears that the appellate tribunal asked him several questions on
the same topic and the effect of his admissions clearly was to show that most
of the documents were issued by the secretary or the president after he had
consulted the persons named by Puri. In this connection Puri gave the names of
the office bearers of the Federation at Delhi. It was in the light of these
admissions that the appellate tribunal came to the conclusion that 14 persons
named by him can be safely taken to have been actively associated with the
drafting and the publication of the subversive documents.
Mr. Anand contends that the list of office
bearers separately supplied by Puri includes a much larger number of active
workers of the Union and on the evidence of Puri all these active workers
should have been held responsible for the said documents. In this connection he
has relied on the affidavit filed by Amar Singh on behalf of the Bank. We do
not think that this argument is wellfounded. It is significant that though the
appellate tribunal had directed the Bank by its interlocutary judgment to file
a statement giving particulars of the acts alleged against each one of the
employees no such statement -was filed. Besides it is fairly conceded before us
by Mr. Anand that most 851 of the employees who made affidavits in the
subsequent enquiry were not asked any general question about their alleged
subversive activities and no particular question was put to them in regard to
the relevant subversive documents.
The judgment of the appellate tribunal shows
that it first considered the general points and the evidence relied upon by the
parties in that behalf; and then it exhaustively dealt with the whole of the
evidence bearing on the case of each individual employees. We are satisfied
that the Bank is not justified in contending that in excluding 136 employees
from the responsibility of direct participation in the drafting and publication
of the subversive circulars and hand-bills the appellate tribunal has ignored
any important evidence. The argument that the said finding is opposed to the
weight of evidence and as such perverse must therefore be rejected.
Then Mr. Anand has invited us to consider
some individual cases. According to him the case against Joshi had not been
properly considered by the appellate tribunal. It does appear that Joshi
admitted that he had taken part in the drafting of documents P. 272, 274, 279,
280 and 286; but none of these documents has been found to be subversive and so
it is idle to contend that Joshi's connection with any of the three subversive
documents is established. So there is no substance in the argument that Joshi's
case should be reconsidered.
Then our attention has been drawn to the
cases of five other employees Narain Das, Chuni Lal, Som Datt, Trilok Chand and
Charan Singh.' In regard to these persons the appellate tribunal has found that
the Bank had failed to -prove any subversive acts against them, and that
undoubtedly is a question of fact and the finding of the appellate tribunal
cannot be reopened. But Mr. Anand has attempted to challenge the correctness of
this finding on the ground that it is entirely inconsistent with one material
document on the record. This document is the report made by Dina Nath on April
24 in which the incidents that took place on April 23 and 24 have been set out
and the names of persons who took prominent part in the said incidents 852 have
been enumerated. This list includes the names of the five persons in question.
Dina Nath had, however, died at the date of the enquiry and so he could not give
Jagan Nath, who was then the Superintendent
of Police, proved this report. Mr. Anand's grievance 'is that though the
evidence of Jagan Nath had been accepted by the appellate tribunal in a part of
its judgment it has failed to consider his testimony in dealing with the cases
of these five persons. In our opinion this argument is entirely misconceived.
It is not correct to say that the appellate tribunal has accepted the whole of
Jagan Nath's evidence in any part of its judgment; while dealing with the
question about the conduct of the crowd the appellate tribunal considered the
evidence of Rajinder Nath, Mehta, Ram Pratap and Amar Singh and held that part
of their evidence which was corroborated by Jagan Nath and also partially by
Puri must be believed; that is all. Besides, the evidence of Jagan Nath itself
does not carry the Bank's case any further against the five persons. No doubt,
while proving the report of Dina Nath, Jagan Nath first stated that the facts
narrated therein were correct; but in cross examination when he was asked about
some details mentioned in the report he added that the report was written by
Dina Nath and he could not say anything about it. Further he also admitted that
during the course of his visit and stay at the Bank when the strike was going
on he only knew three persons who took part in the activity which was described
by Dina Nath in his reports Thus the evidence of Jagan Nath does not show that
he clearly knew any of the five employees and the same comment obviously falls
to be made about Dina Nath himself who made the report. Therefore it is not
accurate to say that the conclusion of the appellate tribunal in regard to
these, five cases suffers from any infirmity on which it can be successfully
challenged before us; besides the Bank apparently relied upon other evidence
against these five persons, and not the report of Dina Nath, and that evidence
has been disbelieved, 853 Mr. Anand has then urged that in directing
reinstatement of 136 employees the appellate tribunal failed to consider the
fact that in the meanwhile the Bank has employed additional hands and it would
be unfair to the Bank to direct that these dismissed employees should be taken
back. The reinstatement order would lead to complications and the Bank may have
to face the claims of those who have been employed in the meanwhile. Mr. Anand
wanted to prove that the Bank had employed a large number of hands in the
meanwhile by referring to the statement made by the Union in the bulletin and
posters issued during the strike. These statements seem to indicate that the
Union complained that pending the strike the Bank was employing new hands. But
if the Bank wanted to urge this plea seriously it should have proved the
relevant facts, e.g., how many employees have been appointed and on what terms.
These are matters within the special knowledge of the Bank and they could have
been proved very easily. The Bank did not choose to prove these facts.
Indeed it does not appear that this plea was
urged as a separate plea against the order of reinstatement before the
appellate tribunal. In any case, in the absence of satisfactory materials it
would be difficult to deal with this plea on the merits. Besides, if the Bank
has failed to establish its specific case against any of the 136 employees,
there is no reason why the normal rule should not prevail and the employees
should not get the relief of reinstatement. The mere fact that the Bank may
have employed some other persons in the meanwhile would not necessarily defeat
such a claim for reinstatement. As has been held by this Court in the National
Transport and General Co. Ltd. v. The Workmen (1), however much the court may
sympathise with the employer's difficulty caused by the fact that after the
wrongful dismissals in question he had engaged fresh hands, the court cannot
" overlook the claims of the employees who, on the findings of the
tribunals below, had been wrongly dismissed. " In the case of such
wrongful (1)Civil Appeal No. 312 of 1956Decided by this Court on January 22,
108 854 dismissal the normal rule would be
that the employees thus wrongfully dismissed must be reinstated. " The
hardship in question ", observed this Court, " has been brought about
by the precipitate action of the appellants themselves who dismissed their
workmen without holding the usual enquiries after framing a proper charge
against them. If they had proceeded in the usual way and given a full and fair
opportunity to the workmen to place their case before the enquiring authority,
the result may not have been so bard.
" These observations are equally
applicable to the conduct of the Bank in the present appeals.
The last argument urged by Mr. Anand is that
a large number of employees who are clamouring for reinstatement have secured
employment on a fairly permanent basis and so it is unnecessary that they
should be forced on the Bank. This argument cannot be entertained because it
has not been urged before the appellate tribunal, and though it was sought to
be raised before us, Mr. Anand fairly conceded that in the absence of any
material it would not be possible for him to press this point. Indeed it is the
first two general points which were seriously pressed before us by Mr. Anand
and Mr. Sanyal on behalf of the Bank. Mr. Anand no doubt raised three
additional subsidiary points in Civil Appeal No. 519 of 1958, in which he
appeared, but as we have pointed out there is no substance in any one of them.
In Civil Appeal No. 520 of 1958, in which Mr. Sanyal appeared for the Bank he
did not challenge the findings recorded by the appellate tribunal in respect of
the 10 employees concerned in the said appeal. In the result both the appeals
preferred by the Bank fail and are dismissed with costs.