M/S. Bharat Sugar Mills Ltd. Vs. Shri
Jai Singh & Ors  INSC 275 (20 September 1961)
Industrial Dispute-"Go slow" by
workmen-Application for permission to dismiss-Domestic enquiry not Proper-If
Tribunal can take independent evidence for finding prima facie case Mala fides
and victimisation-Delay in making application-Effect of-Industrial Disputes
Act, 1947 (14 of 1947).s. 33.
Certain workmen of the appellant resorted to
"go slow". The appellant held, a domestic enquiry and as a result
thereof decided to dismiss 21 workmen. After considerable delay it made an
application under s. 33 of the Industrial Disputes Act, 1947, for permission to
dismiss these workmen.
Evidence was led before the Tribunal to prove
the charge against the workmen. The Tribunal held that the domestic enquiry was
not proper, that the appellant was guilty of mala fide conduct and
victimisation, that, except in the case of one workmen, the others were not
guilty of any deliberate go slow and accordingly granted permission in respect
of the one workman alone. The appellant contended that the finding that the
remaining 20 workmen were not guilty of deliberate go slow was perverse and
that the finding in respect of mala fides and victimisation was arbitrary and
erroneous. The workmen contended that once the domestic enquiry was found to be
improper the Tribunal had to dismiss the application and it could not take
independent evidence and arrive at a finding of its own as to the guilt of the
Held, that in an application under s. 33 of
the Industrial Disputes Act, 1947, when there has been no domestic enquiry or
when the domestic enquiry has not been properly conducted it is the duty of the
Tribunal to take evidence of both sides and to decide whether the alleged
misconduct has been made out. The evidence produced before the Tribunal clearly
established that 13 out of the 20 workmen were guilty of deliberate go slow. Go
slow was a pernicious and dishonest practice which was a misconduct punishable
with dismissal under the standing orders. Actual participation in go slow was
serious misconduct and the management could not reasonably be accused of mala
fides or revengefulness if it proposed punishment of dismissal for such
conduct. There was delay in holding the domestic enquiry and the management
showed lamentable callousness in this matter. In cases of this nature the
enquiry should be held as early as possible, specially when the workmen arc put
under suspension. Again, there was delay in making the application for
permission to 685 dismiss. But these delays did not show that the management
was guilty of mala fides or of an intention to victimise.
The order of the Tribunal refusing permission
to dismiss 13 of the workmen was entirely wrong and unjust and could not be
allowed to stand.
Sasa Musa Sugar Works v. Shobrati Khan,
 Supp. 2 S. C. R. 836, Shri Ram Swarath Sinha v. Belsund Sugar Co., Ltd.
1959 L. A. C. 697 and Punjab National Bank
Ltd. v. its workmen,,  1 S. C. R. 806, referred to.
CiviL APPELLATE JURISDICTION : Civil Appeal
No. 252 of 1960.
Appeal by special leave from the Award dated
March 6, 1958, of the Industrial Tribunal, Bihar, Patna in Misc. Case No. 1 of
A. B. N. Sinha, K. K. Sinha and G. N. Dikshit,
for the appellants.
T. R. Bhasin, for the respondents.
1961. September 20. The Judgment of the Court
was delivered by DAS GUPTA J.-The appellant, a Sugar Mill Company, made on
December 31, 1956 an application under s. 33 of the Industrial Disputes Act
before the Industrial Tribunal, Bihar, Patina for the dismissal of 21 workmen
for misconduct in connection with "go slow" alleged to have been
resorted to by the workmen of the factory from the midnight of February 12, to
the February 18, 1955. The Tribunal held that actual participation in a
"go slow" had been established only against one of the workmen at the
Donga end and that the "go slow" at the later stages in which the
other 20 workmen had been engaged occurred as a necessary consequence of this
go slow by one workman at the Donga end and was not a deliberate ,go slow"
by them, The Tribunal was of opinion also that the management was not acting
bona fide and really was seeking to victimise, active members of the Union
which the employer had refused to recognise.
Accordingly, it refused permission in respect
of 20 of the workmen and gave permission to dismiss only Nihora Dubey a workman
at the Donga The 686 correctness of this refusal is challenged before is in
this appeal by special. leave-. The appellant's contention is two-fold. First
it is said that the finding of the Tribunal that these workmen in respect of
whom permission to dismiss was refused were not guilty of any deliberate go
slow is perverse; secondly it is contended that the Tribunal's view that the
employer was guilty of mala fide conduct and victimisation of these workmen for
Union activities is arbitrary and erroneous.
It does not appear to have been disputed that
" go slow" was actually resorted to in this factory from February 12,
to February 18, 1955. It was indeed hardly open to the workmen to dispute this,
after all the pomp and ceremony with which go slow" was celebrated. We
find that as early as January 15, 1955, 10 demands were communicated by the
Union on behalf of the workmen by a letter which said that unless these demands
were conceded by the January 26, 1955 the workmen world resort to "go
slow" from January 30, 1955.
This notice to "';.to slow appears to
have been withdrawn on the 22nd January, 1955, apparently on the advice of the
Assistant Commissioner of Labour, Muzaffarpur. A further letter was issued the
same day in which 5 demands were made with a request to concede these by the
6th February failing which it was said they would "resort to go slow from
the February 19, 1955". The, Secretary of the Bharat Sugar Mills to whom
the Conciliation Officer wrote, that very day, wrote back on January 22, 1955,
that they had not received any notice dated January 22, 1955. In reply to a
further communication from the Assistant Labour Commissioner the appellant sent
a telegram on February 3, 1955, regretting inability to attend the proposed
conciliation meeting on February 4, 1955 as both the Secretary and the
Assistant Secretary were away. Then on February 8 another telegram was sent on
behalf of the management informing the Assistant Labour Commissioner that the
General Secretary would be returning soon and that any date after 687 the 11th
may be fixed. Thereafter, in reply to a further communication from the
Assistant Commissioner inquiring as to what date would suit the management the
General Secretary Shri K.C. Sarda sent another telegram requesting the
Assistant Labour Commissioner to fix any date before the 17th. This telegram
was sent on February 11. On the next date, February 12, Sarda sent a further
telegram to the Assistant Labour Commissioner stating that he would come to
Muzaffarpur on the 15th afternoon. Before any action could however be taken by
the Assistant Labour Commissioner, the workers commenced their "go
slow" from the midnight of February 12.
"Go slow which a picturesque description
of deliberate delaying of production by workmen pretending to be engaged in the
factory is one of the most pernicious practices that discontended or
disgruntled workmen sometime resort to. It would not be far wrong to call this
dishonest. For, while thus delaying production and thereby reducing the output
the workmen claim to have remained employed and thus to be entitled to full
wages. Apart from this also, ",go slow" is likely to be much more
harmful than total cessation of work by strike. For, while during a strike much
of the machinery can be fully turned off, during the "go slow" the machinery
is kept going on a reduced speed which is often extremely damaging to machinery
parts. For all these reasons logo slow" has always been considered a
serious type of misconduct. The Standing Orders which have been made under the
Standing Orders Act for the appellant factory specify "go slow" as
misconduct in sub-cl. (u) of cl. (1) para. M under the words : "
Malingering or deliberate delaying of production and carrying out of
orders." It is strange therefore to see that notice of intention to commit
this misconduct was solemnly given by the Union in one letter after another.
Some light on the mystery is however thrown by the fact that in Bihar a
Committee to 688 consider and report on the question of "go slow"
tactics in industries was appointed by the Bihar Central Standing Labour
Advisory Board and the report of the Committee was submitted in 1951. The
Committee made, several recommendations including one that "go slow"
by workers should be treated on a par with strike. It also recommended however
that workers should not resort to "go slow" without at least 7 days
notice, that the notice would remain in force for 4 weeks but. that it would
not be necessary to notify the exact date of starting the "'go slow".
Another recommendation was that workers should not resort to "go slow"
during the pendency of a conciliation proceeding but that the conciliation
proceeding must be concluded within four weeks of the notice. The Committee
went to the length of recommending that "go slow" due to
mal-practices by the management would be justified. By a resolution dated
December 1, 1951, the Government of Bihar "'were pleased to accept the
recommendations of the "go slow" Committee and expressed their
"thanks to the members of the Committee for the well considered report."
No action was however taken to delete item (u) of clause (1) of para. M of the
Standing Orders and so under the Standing Orders which it may be mentioned were
certified on November 7, 1951, the deliberate delaying of production continued
to remain a -misconduct" under the law inspite of the bleags it received
from the Committee and the Government of Bihar.
As to the fact that "go slow" was
resorted to in the factory from the midnight of February 12, 1955, up to the
February 18, 1955, could not be and was not disputed, it becomes necessary to
consider the evidence on the record to examine the conclusion reached by the
Tribunal that there was no deliberate "go slow" by any of the present
respondents. The charge -sheets which were served on the workmen accused them
not only of actual participation in the "go slow" but also of
instigating and intimidating other workmen to ",go slow".
It is 689 to be noticed however that while'
,,,inciting others to strike work" is misconduct under' the Standing
Orders para M. el. sub-el. (u) incitement to deliberate delaying of production
has not been specifically made a misconduct under the Standing Orders.
We shall therefore confine our attention to
the appellant's case that these workmen actually participated in the "go
Flow". A complaint was made on behalf of the respondents that the charges
that were given to the workmen were vague.
We have examined the charges and consider
this complaint wholly unjiustfied. We have no hesitation however in accepting
the criticism by the learned counsel for the respondents that the enquiry made
by the domestic tribunal of the appellant was far from a proper enquiry, as the
minimum requirements of natural justice were not satisfied.
It appears that no witness was examined by
the Enquiring Officer and the only person examined was the workman against whom
the enquiry was being held. Reports by some officers of the company were taken
into consideration but it does not appear that the contents of these reports
were read out and explained to the workmen. The persons whose reports were thus
considered were present at the enquiry, but even so it does not appear that the
workman was given an opportunity to examine them. Indeed, as none of these
persons were actually examined in the presence of the workmen the question of
their cross-examination by or on behalf of the workmen did not arise. The
workman thus had not only no proper chance of knowing what was being alleged
against him and by whom but also no chance of testing the correctness of the
allegations that were in fact made in the written report.
In view of these serious defects in the
enquiry by the domestic tribunal it was not possible for the Industrial
Tribunal to place any reliance an the findings of that domestic tribunal in
order to decide 690 whether permission to dismiss should be given Under s. 33
of the Industrial Disputes Act. (Vide Phulbari Tea Estate v.
Its Workmen) Evidence was however adduced by
the appellant before the Industrial Tribunal to make out its case that the
workmen concerned were in fact guilty of the alleged misconduct. On behalf of
the respondents it has been urged before us that once it is found that the
enquiry by the domestic tribunal has been defective it was not open to the
Industrial Tribunal before which the application under section 33 is made to
allow any evidence to be adduced before it. We see no force in this contention.
/When an application for permission for dismissal is made on the allegation
that the workman has been guilty of some misconduct for which the management considers
dismissal the appropriate punishment the Tribunal has to satisfy itself that
there is a prima facie case for such dismissal. Where there has been a proper
enquiry by the management itself the Tribunal, it has been settled by a number
of decisions of this Court, has to accept the findings arrived at in that
enquiry unless it is perverse and should give the permission asked for unless
it has reason to believe that the management is guilty of victimisation or has
been guilty of unfair labour practice or is acting mala fide. But the mere fact
that no enquiry has been held or that the enquiry has not been properly
conducted cannot absolve the Tribunal of its duty to decide whether the case
that the workman has been guilty of the alleged misconduct has been made out.'
The proper way for performing this duty where there has not been a proper
enquiry by the management is, for the Tribunal to take evidence, of both sides
in respect of the alleged misconduct. When such evidence is adduced before the
Tribunal the management is deprived of the benefit of having the findings of
the domestic tribunal being accepted as prima facie proof of the (1)  (1)
S. C. R. 32.
691 alleged misconduct unless the finding is
perverse and has to prove to the satisfaction of the Tribunal itself that the
workman was guilty of the alleged misconduct. We do not think it either just to
the management or indeed even fair to the workman himself that in such a case
the Industrial Tribunal should refuse to take evidence and thereby drive the
management to make a further application for permission after holding a proper
enquiry and deprive the workman of the benefit of the Tribunal itself being
satisfied on evidence adduced before it that he was guilty of the alleged
It may be pointed out in this connection that
in Sasa Musa Sugar Works V. Shobrati Khan & others (1) the management's
application under section 33 had not been preceded by any enquiry into the
misconduct of the workman and that itself, it was urged on behalf of the
workmen was a reason why the application should be rejected. The Industrial
Tribunal held that all the evidence 'which might have been taken in the enquiry
by the management had been led before it and it was in full possession of the
facts and no question of any prejudice to the workmen arose as it would be open
to it on a review of the entire, evidence before it to decide whether the
application for permission to dismiss should be granted or not. On a
consideration of that evidence the Tribunal held as regards 16 of the workmen
concerned that there was no evidence that they had taken part in the alleged
misconduct of "'go slow" or instigation to ,,,go slow". No
objection appears to have been taken either before the Appellate Tribunal or before
this Court to the application being disposed of on the evidence taken before
the Industrial Tribunal itself, and in, fact this Court allowed the application
under section 33 in respect of all the 48 workmen on the basis of the evidence
given before the Industrial Tribunal.
(1)  S. C. R. Suppl. 11 p. 836.
692 It is worth noting that several years
before this, the Appellate Tribunal had in Shri Ram Swarath Sinha v. Belsund
Sugar Co., Ltd. (1), laid it down that the materials on which a Tribunal acts
in disposing of an, application for permission to dismiss may consist of (1)
entirely the evidence taken by the management at the enquiry and the
proceedings of the enquiry, or (2) that evidence and in addition thereto
further evidence led before the Tribunal, or (3) evidence placed before the
Tribunal for the first time in support of the charges.
It was pointed out there that the last
mentioned case pre- supposed an absence of a prior enquiry by the management.
It is not without significance that even
though the question whether in the absence of a proper prior enquiry by the
management evidence can for the first time be placed before the Tribunal-in
support of the alleged misconduct had been discussed in Belsund Sugar Co., Ltd.
(1), no objection to the taking of such evidence for the first time before the
Tribunal was raised before this Court on behalf of the respondent in Sasa Musa
Sugar Work's Case (2).
Nor can we ignore the fact that for a long
time now, it has been settled law that in the case of an adjudication of a
dispute arising out of a dismissal of a workman by the management (as distinct
from an application for permission to dismiss under s. 33), evidence can be
adduced for the first time before the Industrial Tribunal. The important effect
of the omission to hold an enquiry is merely this :
that the tribunal would not have to consider
only whether there was a prima facie case but would decide for itself on the
evidence adduced whether the charges have really been made out. This war, (1)
 L. A. C., 697.
(2)  S. C. R. Suppl. 11 P. 836.
693 recently pointed out again in the Punjab
National Bank Ltd., v. Its Workmen (1) in these words : ',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 proved......... The reasons for which it is proper for the Tribunal to take
evidence itself as regards the alleged misconduct when adjudicating upon a
dispute arising out of an order of dismissal which has been made by the
management are equally present in the case where the management makes an
application for permission to dismiss without having held a proper enquiry. In
our opinion the tribunal rightly allowed the management to adduce evidence
before it in support of its application for permission to dismiss even though
the domestic enquiry held by it was highly defective as pointed out above.
Of the six witnesses examined on behalf of
the management the important evidence as regards the participation in the
"go slow" during the period February 12 to February 18 is given by
Ishwari Dayal, Chief Engineer, Kanpur the chief Chemist and Bhikari, a machine
On February 13, 1955 the Chief Engineer
submitted a report to the Secretary, K. C. Sarda about what he had seen that
very day. He referred to this report in an affidavit sworn before a Magistrate
and stated that the facts stated in the report was true. In his deposition
before the Tribunal he has referred to this affidavit and said that the
statements made therein are correct. While a more satisfactory way of putting
Dayal's evidence on record, would have been to record his testimony on all
these matters mentioned in the affidavit and report directly, it cannot be
reasonably said that the statements made in the affidavit ,and report do not
amount to legal evidence on (1)  (1) S.C.R. 806.
694 which the Tribunal could act. In this
report the Chief Engineer states thus :- "I noticed that groups of persons
from the assembled crowd moved about the factory announcing the commencement of
the go-slow" and actually threatened those who would not fall in line with
them. I particularly noticed Harikishan Kuer, Baijnath Singh, Ramdeo Singh,
Nagendranath and Baldeo and others whose name didn't remember in the crowd
taking an active part Later in the report he says that:
"as a result of the instigation as
aforesaid and perhaps as planned in advance, the 'go- slow' actually started
with the incoming shift. The abnormally slow running of the mill Engine and the
Cane Carrier came to my notice immediately. I personally checked up the stream
pressure and found that it was normal. Thereupon I called Dhannoo Mistry, Mill
House Fitter and expressed my resentment at a low speed, after all my
persuasions and directions to them not to resort to goslow.
Dhannoo Mistry had the impudence to tell me
that it shall remain low as they had gone on go slow and the question of
restoring the normal speed did not arise. Finding Dhannoo Mistry's attitude as
it was, I went with the Shift Engineer Mr. Mukherji to Swarath Singh who was at
the Mill Engine and Hardeo Singh who was at the Cane Carrier Clutch, and asked
them to restore normal speed immediately.................. They paid no heed to
my orders and were determined to continue the go slow." It is important to
notice that of the persons named by this witness as having taken an active
part-by which he obviously meant an active part in moving about the factory
announcing the commencement of the go slow-Baijnath Singh 1 and Ramdeo Singh
695 were both engaged in the Evaporator section, Baijnath being an Evaporator
Cooly while Ramdeo Singh being an Evaporator Reliever; Harikishan Kuer was an Assistant
Panman while Baldeo and Nagendranath Prasad were Engine men, Baldeo being an
Assistant Fitter and Nagendranath being a Pitter.
We have no hesitation in believing as correct
these statements made by the Chief Engineer in his report made on February 13.
There can be no doubt therefore that Swarath Singh, Hardeo Singh and Dhannoo
actually participated in the go slow. As regards Harikishan Kuer, Baijnath,
Ramdeo and Nagendranath and Baldeo we have to remember that it is not disputed
that there was in fact a go slow in the different jobs on which these men were
engaged. If they had not been proved to have taken an active part in promoting
the go slow, there may have been some scope for saying that the go slow in
their jobs was the consequence of the go slow at the Donga and not deliberate
go slow on their part. When however we find that these persons were active in
asking other workmen to go slow, they cannot be reasonably heard to say that
the go slow in their own jobs was not deliberate on their part. The Tribunal
was in our opinion clearly in error in thinking that the go slow in the jobs
where these persons were engaged was merely the result of the go slow at the
Donga end and not deliberate go slow on their part. In our opinion, the
evidence of Ishwari Dayal definitely establishes that these several persons,
Harikishan Kuer, Baijnath Singh, Ramdeo Singh, Nagendranath Prasad, Baldeo,-
Dhannoo Mistry, Sawarath Singh and Hardeo Singh did actually participate in
The Chief Chemist, A. N. Kapur, submitted to
the Secretary one report on February 12, 1955 and ,two more reports on February
13. In the first report he said that having received information at about 9.30
A. m. that Gulab Singh, Evaporatorman, 696 was inciting persons who were doing
periodical cleaning of the Evaporators that day that they should do the
cleaning slowly as if the "go-slow" had already started in their
case, he immediately went to the Evaporators and questioned Gulab Singh about
his alleged conduct and that Gulab Singh ultimately admitted that it was true
but that he had merely been saying what others had decided.
In the second report marked Ex. 4 (b) the
Chief Chemist states that trouble started on the midnight of February 12 after
"C" shift was over and that he noticed "Baijnath Singh, Hira
Sukul, Harikishan Kuer, Ramdeo Singh, Ramayan Singh and Golla among others
asking other workers to stay on and see that the go slow was actually started.
He says also that the noticed Kawalpati and Bachan, Centrifugal Coolies and a
few others taking a prominent part in proclaiming that go slow must be started.
In the third report the Chief Chemist stated
that after 8 A. M. on February 13 he noticed Kawalpati and Bachan and Amar
Mahto, Jai Singh and Gulab Singh and others going round the factory and openly
saying that as the go slow had started any workman who sided with the factory
will be severely dealt with. We can see no reason to doubt the truth of the
statements made by the Chief Chemist. Of the persons named by him, Baijnath
Singh, Harikishan Kuer and Ramdeo Singh were also named by Isbawari Dayal as we
have already pointed out above. In addition to these Hira Sukul, Ramayan Singh,
Golla, Jai Singh Amar Mahto and Gulab Singh must be held to have actually asked
others to go slow and when this fact is taken with the admitted fact that
"go slow" was actually practiced at the stages of production where
these workmen were engaged there can be no escape from the conclusion that they
were guilty of active participation in go slow, 697 As regards Kawalpati and
Bachan we have, apart from this evidence of the Chief Chemist that they were
going round the factory saying that go slow must be continued, the evidence of
Bhikari Rout that on February 14 he found these two, not operating the machine,
and sitting there on a gunny bag and sugar was falling down from the Pugmill.
From this evidence of Bhikari Rout taken with the evidence of the Chief
Chemist, it appears clear beyond any reasonable doubt that these two workmen,
Bachan and Kawalpati did also actively participate in "go slow".
We are therefore of opinion that the evidence
adduced before the Tribunal clearly establishes that the following respondents,
Harikishan Kuer, Baijnath Singh, Ramdeo Singh, Nagendra-nath Prasad, Baldeo,
Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati, Bachan, Ramayan Singh,
Jai Singh, Hira Sukul, Golla and Gulab Singh were guilty of misconduct within
the meaning of paragraph M el. (1) sub-el. (u) of the Standing Orders. Of these
Ramdeo Singh and Golla are reported to be dead.
Before however permission can be granted to
dismiss them for this misconduct we have to see whether the charge of mala fide
and victimisation brought against the management is true. The workmen's
suggestion which found favor with the Tribunal was that it was because of the
Union activities of these 21 workmen that the management decided to take action
against them and that the allegation that they had taken part in the go slow
was merely a sham excuse. As regards the above workmen who it is established by
the evidence were in fact guilty of go slow, can it be said that though the
management takes action against them for this misconduct the real reason for
the managements proposal is these people's Union activities ? We are unable to see
justification .for this view. If the
misconduct had not been 698 serious and still the management sought to dismiss
them, taking advantage of the fact that under the Standing Orders a punishment
of dismissal could be given, there might have been some scope for an argument
that the apparent reason for the management's action was not the real reason.
It is not possible however to consider actual participation in go slow as
anything but very serious misconduct and no management can be accused reasonably
of mala fide or of revengefulness if, it proposes punishment of dismissal for
The Industrial Tribunal appears to have been
impressed by the fact that 13 other workmen who were suspended were pardoned
and taken back while 21 ,were not allowed to join duty. It appears clear that
several at least of the 13 who had been taken back were also active members of
There is no ground for saying therefore that
the management discriminated against these 21 workmen because of the fact that they
were active members of the Union. It may very well be that they have been taken
back as their active participation in the go slow was not established. Without
knowing fully the circumstances under which those other 13 were taken back to
work it is not proper to hold that there has been any discrimination against
these 2 1.
Learned Counsel for the respondents next
contended that mala fide and victimisation were 'writ large on the conduct of
the management 'in preventing the holding of a meeting for conciliation which
was attempted by the Assistant Labour Commissioner. It is also urged that by
this conduct the company provoked the workmen to resort to go slow. Even if it
were' found that the company had deliberately avoided the proposed meeting
there would be no ground for saying that the workmen had been
"provoked" to go slow. Inspite of the recommendation of the go slow
committee and the resolution of Bihar Government ,go slow" continued to be
a misconduct under the Standing Orders "-and 699 a mere refusal of the
company to attend the conciliation meeting cannot be considered such
provocation as would compel or justify the commission of misconduct. Nor can we
find-even assuming for the present that the company did deliberately prevent
the conciliation meeting before the 12th February-that this showed an intention
Before an industrial adjudication can find an
employer guilty of an intention to victimise there must be reason to think that
the employer was intending to punish workmen for their Union activities while
purporting to take action ostensibly for some other activity. It would-be
unreasonable to think, that the appellant, expected that if the meeting was not
held on the date as proposed the workmen were surer to start go slow and that would
give the management an opportunity of proceeding against the Union workers. It
was not unreasonable for the management to expect better sense from workmen and
to hope that they would not commit misconduct too readily. While we do not wish
to say that no unfair conduct on the part of the management in negotiations
over the workers' threat to go slow would ever justify a finding of mala fides
on the employer's part, we must clearly say that the mere asking for
adjournment of a conciliation meeting is not such conduct on which mala fides
or an intention to victimise can be reasonably based.
Apart from this, we are not satisfied that in
the present case the management was guilty of any deliberate attempt to delay
the conciliation meeting. The reasons for asking an adjournment of the meeting
were clearly mentioned in the several telegrams sent by the management to the
Labour Commissioner and there is nothing on the record to justify a conclusion
that these reasons were not true or honestly given.
Our attention was drawn to the delay in
holding the enquiry and the subsequent delay in filing the application for
permission to dismiss.
700 That there has been great and indeed
unusual delay is clear.
The charge-sheets were served on the workmen
in March 1955 and the explanations were received about the middle of March, but
the domestic enquiry took place in September 1955. Trying to explain this delay
of several, months, Sarda, the General Secretary, has stated thus :-"The
enquiry into the charge sheets could not be commenced before the beginning of
September, 1955, because of my continued ill health which necessitated complete
rest for several weeks at a time and also because of my multifarious
Assignments which took me many a time to Patna and outside the State of Bihar.
I could not assign the matter of holding the
enquiries to other officers namely Chief Engineer or the Chief Chemist because
they were themselves complainants against the workmen concerned." We are
unable to consider this explanation wholly satisfactory and are inclined to
think that the management showed lamentable callousness in this matter of
proceeding with the enquiry .In cases of this nature the enquiry should be held
as early as possible, specially when the management takes the step of putting
the workmen under suspension.
No application for permission to dismiss was
filed immediately. It was only in August 1956 that such an application was
filed under s. 22 of the Industrial Disputes Appellate Tribunal Act before the
Labour Appellate Tribunal, Calcutta. But that was rendered infructuous on
account of the disposal of the matter before the Labour Appellate Tribunal. The
present application was made as late as December 30, 1956, after an application
by the workmen themselves under section 23 of the Industrial Disputes.
Appellate Tribunal Act had been withdrawn. We
do not find any satisfactory explanation for the management's delay in applying
for-permission to dismiss. At the same time, it is not possible to say that
these delays show even remotely that in making the application for per- 701
minion to dismiss the management was guilty of mala fides or an intention to
We have therefore come, to the conclusion
that the Tribunal's order in refusing permission to dismiss these workmen,
viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo
Mistry, Swarath Singh, Hardeo Singh, Kawalpati Bachan, Ramayan Singh, Jai
Singh, Hira Sukul and Gulab Singh was entirely wrong and unjust and cannot be
allowed to stand. As however even though no stay of the Tribunal's order was
granted when special leave was allowed by thins Court and still the workmen
concerned have not been allowed to work or paid their wages the permission
should not be granted to dismiss them before the date of this judgment.
As the two respondents Ramdeo and Golla are
dead, there is no question of granting permission now to dismiss them, even
though on the evidence on the record, the appellant might have been entitled to
permission to dismiss these, two with effect from this date, if they were
living. These two will be entitled to wages till the date of their death.
As regards the other respondents we are of
opinion that the application was rightly refused inasmuch as the evidence
adduced before the Industrial Tribunal does not establish the charge of
misconduct against them.
We accordingly allow the appeal in part and
set aside the order of the Industrial Tribunal in respect of these 13 workmen
named above and order that the management is granted permission to dismiss them
with effect from the date of this judgment. There will be no order as to costs.
Appeal allowed in part.