Workmen of Motipur Sugar Factory
(Private) Limited Vs. Motipur Sugar Factory [1965] INSC 87 (30 March 1965)
30/03/1965 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
RAMASWAMI, V.
CITATION: 1965 AIR 1803 1965 SCR (3) 588
CITATOR INFO:
R 1972 SC 136 (33) R 1972 SC 277 (11) R 1972
SC1031 (51,57) R 1973 SC1227 (22,42) R 1975 SC1900 (7) R 1978 SC1380 (8) R 1979
SC1652 (18) RF 1980 SC1896 (68) R 1984 SC 289 (15)
ACT:
Industrial Disputes--Discharge of workmen on
account of go slow--Reference as to whether discharge justified--Tribunal, if
could decide go-slow--No enquiry before discharge--if discharge could be
justified before Tribunal.
HEADNOTE:
The workers of the respondent started a
go-slow in its sugar factory. Therefore, the respondent issued a general notice
to those workmen and individually to each workman notifying that unless he
recorded his willingness to discharge his duties faithfully and diligently so
as to give a certain minimum output, he will be no longer employed; and that he
must record his willingness in the office by a certain time, failing which he
shall stand discharged from the service of the respondent without any further
notice. Because the appellants, who were 119 of such workmen. failed to record
their willingness, the respondent issued a notice discharging their services.
The respondent held no enquiry as required by the Standing Orders before
dispensing with the, services of the appellants. A general strike followed
resulting in a joint application by both the parties to the Government and the
Government referred the question to the Tribunal, whether the discharge of the
workmen was justified. The Tribunal came to the conclusion that there was
go-slow during the period, and consequently held that the discharge of the
workmen was fully justified. In appeal by Special Leave the appellant contended
that (i) all that the Tribunal was concerned with was to decide whether the
discharge of the workmen for not giving an undertaking was justified or not,
and that it was no part of the duty of the Tribunal to decide whether there was
go-slow which would justify the order of discharge; (ii) Since the respondent
held no enquiry as required by the Standing Orders, it could not justify the
discharge before the Tribunal and (iii) the finding of the Tribunal that
go-slow, had been proved was perverse and the Tribunal had ignored relevant
evidence in coming to the conclusion.
HELD: The contentions must be rejected.
(i) Taking into account the wide terms of
reference, the manner in which it was understood before the Tribunal, and the
fact that it must be read along with the two notices, particularly because it
was made soon thereafter at the joint application of the parties, the Tribunal
was entitled to go into the real dispute between the parties, namely whether
the discharge was justified on the ground that there was misconduct in the form
of go-slow by the workmen concerned. [596D] (ii) No distinction can be made
between cases when the domestic enquiry is invalid and those where no enquiry
has in fact been held.
This Court has consistently held that if the
domestic enquiry is irregular, invalid or improper, the Tribunal may give an
opportunity 589 to the employer to prove his case and in doing so the Tribunal
tries the merits itself. [598A-C] Case law referred to.
(iii) As the case involved the discharge of
119 workmen, this Court went into the evidence, and the evidence showed that
the decision of the Tribunal was not wrong that there Was go-slow and that the
discharge was fully justified.
[598E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 108 of 1964.
Appeal by special leave from the Award dated
May 11, 1962, of the Industrial Tribunal, Bihar, Patna in Reference No. 4 of
1961.
Ranen Roy, Jai Krishan, G.S. Chatterjee, E.
Udayarathnam for A.K. Nag, for the appellants.
Niren De, Addl. Solicitor-General and Naunit
Lal, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the award of the
Industrial Tribunal, Bihar. It relates to the discharge of 119 workmen of the
respondent who were employed as cane carrier mazdoors or as cane carrier
supervisors or jamadars. All these were seasonal workmen. It is necessary to
set out in some detail the circumstances leading to the discharge. The
respondent is a sugar factory and the crushing season starts usually in the
first half of November each year. We are concerned in the present appeal with
November and December 1960. It appears that from the season 1956-57, the respondent
introduced an incentive bonus scheme in the factory. The scheme continued
thereafter from season to season with certain changes. It also appears that in
the beginning of each season, the respondent used to put forward the incentive
bonus scheme and consult the workmen. The same thing was done when the season
1960-61 was about to start in November 1960. But the scheme for this season
proposed by the respondent contained certain changes which were apparently not
acceptable to the workmen. One of the features in the scheme was that the
crushing of sugar cane per day should be 32,000 maunds. The general secretary
of the union of the workmen suggested certain alterations for the consideration
of the respondent on November 7, 1960, and one of the main alterations
suggested was that the norm for per day's crushing should be 125,000 maunds of
cane and thereafter incentive bonus should be given at a certain rate. No
agreement seems to have reached on the incentive bonus scheme, and the
complaint of the respondent was that the secretary incited the workmen to go
slow in consequence of the change in the scheme. Consequently mild go-slow in
cane the carrier department which is the basic department in a sugar mill began
from the very start of the season on November 10, 1960. The L/P(N)4SCI 590
respondent's case further was that on November 27, 1960, the workmen in the
cane carrier department started in combination with one another to go-slow
deliberately and wilfully and in a planned manner and thus reduced the average
daily crushing to 26,000 maunds cane which was much less than the average
crushing in previous seasons. This conduct of the workmen was said to be highly
prejudicial to the respondent and besides being technically unsafe, had brought
into existence an acute shortage in the fuel position which might have resulted
in the complete stoppage of the mill and a major breakdown of the machinery.
When the position became serious the respondent issued a general notice on
December 15, 1960 inviting the attention of the workmen concerned to this state
of affairs which had been continuing of any rate since November 27, 1960. This
notice was in the following terms:-- "At the instigation of Shri J.
Krishna, the General Secretary of your Union, you since the very beginning of
this season, have been failing in your duty to ensure adequate and regular
loading of the cane carrier, and with effect from the 27th November, 1960, you,
in combination with each other, have deliberately and wilfully resorted to a
clear 'go-slow' tactics, a fact openly admitted by the above- named General
Secretary of your Union in presence of the Labour Superintendent and Labour
Officer Muzzffarpur, in course of discussions held on the subject in the office
of the Assistant Labour Commissioner on the 6th December, 1960. You have
deliberately reduced the average daily crushing to more or less 26,000 maunds
out of which more than 2,000 maunds is due to the newly introduced device of
direct feeding of the cane carrier by cane carts weighed during nights and not
attributable to any effort on your part. Thus the actual crushing given by you
is practically something between 23,000 and 24,000 maunds only which is highly
uneconomical and technically unsafe for this factory with the installed
crushing capacity of more than 1,200 tons a day.
"About 14,000 bales of extra bagasse
kept in stock as reserve have already been consumed in the past 12 days or so
and now the factory is faced with a situation when at any moment its boilers
may go out of steam for want of bagasse-fuel leading to an abrupt stoppage of
the mills and finally resulting into a major breakdown of machineries.
"It is therefore hereby notified that
unless you voluntarily record your willingness individually to discharge your
duties faithfully and diligently by feeding the cane carrier so as to give a
minimum average daily crush of 32,000 maunds, excluding stoppages other than
those 591 due to overloading or under loading of the cane carrier, you will be
considered to be no longer employed by the company. You must record your
willingness in the office of the Factory Manager on or before 4 P.M. of
Saturday the 17th December, 1960, failing which you shall stand discharged from
the service of the company without any further notice with effect from 18-12-1960
and your place will be filled by recruiting other labour to man the cane
carrier station." This notice was put on the notice-board along with
translations in Hindi and Urdu and it was also sent individually to the workmen
in cane carrier department. A copy was also sent to the Secretary of the union
with the workmen concerned to submit their willingness as desired by the
respondent in the notice in question either individually or even collectively
through the union. The secretary of the union replied to this notice on the
same day and said that it was "full of maliciously false and mischievous
statements". The secretary also denied that the workmen had adopted
go-slow tactics or that he had advised the workmen to adopt such tactics. Finally
the secretary said that it was simply fantastic to ask a worker to give an
undertaking to crush at least 32,000 maunds per day and if the service of any
workman was terminated on his not giving the undertaking, the responsibility
would be that of the respondent itself. The respondent's case was that three
workmen gave undertakings as required in the notice while the rest did not.
Thereafter the situation in the factory deteriorated and the workmen grew more
and more unruly and even started entering the factory without taking their
attendance token. In consequence of this attitude of the workmen, the
respondent issued a notice at 5 p.m. on December 17, 1960 which was in the
following terms:
"The following workers of the cane
carrier station who failed to record their willingness in factory manager's
office by 4 p.m. this day the 17th December, 1960, to work faithfully and
diligently in accordance with the management's notice dated 15-12-1960, stand
discharged from the company's service and their names have been struck off the
rolls with effect from 18th December 1960. From now on, the workers concerned
have forfeited their right to go to and occupy their former place of work and
any action contrary to this on their part will make them liable to prosecution
for criminal trespass.
"Their final account will be ready for
payment by 4 p.m. on the 19th December 1960, when, or whereafter, they may
present themselves at the company's Office for receiving payment of their wages
and other dues, if any, during working hours", and then mentions the names
of 119 workmen of the cane carriers department.
592 Thus the services of the workmen
concerned stood discharged from December 18, 1960 under this notice. This was
followed by a general strike in pursuance of the notice served on the
respondent by the union on December 17, 1960. The strike continued upto
December 22, 1960 when as a result of an agreement it was decided that the case
of the discharged workmen and the question of wages for the strike period be
referred to adjudication. Consequently a joint application by both parties was
made to Government on December 21, 1960. The Government then made a reference
of the following two questions to the tribunal on January 25, 1961:--
1. Whether the discharge of workmen mentioned
in the Appendix was justified. If not, whether they should be re-instated
and/or they are entitled to any other relief?
2. Whether the workmen be paid wages for the
period 16-00 hrs. on December 18, 1960 to 8-00 hours on December 22, 1960? It
may be mentioned that the respondent had held no enquiry as required by the
standing Orders before dispensing with the services of the workmen concerned.
Therefore, when the matter went before the tribunal, the question that was
tried was whether there was go-slow between November 27, 1960 and December. 15,
1960. The respondent led evidence, which was mainly documentary and based on
the past performance of the factory to show that there was in fact go-slow by
the workmen concerned during this period. The appellants on the other hand also
relying on the record of the respondent tried to prove that the cane carrier
department had been giving normal work in accordance with what had happened in
the past in connection with cane crushing. That is how the tribunal considered
the question on the basis of the relevant statistics supplied by both parties
and also oral evidence whether there was go-slow during this period or not.
After considering all the evidence it came to the conclusion that there was go
slow during this period.
Consequently it held that the discharge of
the workmen was fully justified. It therefore answered the first question
referred to it in favour of the respondent. The second question with respect to
wages for the strike period was not pressed 9n behalf of the appellants and was
therefore decided against them. Thereafter the appellants came to this Court
and obtained special leave; and that is how the matter has come up before us.
We are concerned in the present appeal only
with the first question which was referred to the tribunal. Learned counsel for
the appellants has raised three main contentions before us in support of the
appeal. In the first place it is contended that the tribunal misdirected itself
as to the Scope of the reference and that all that the tribunal was concerned
with was to decide whether the discharge of the workmen for not giving an
undertaking was justified 593 or not, and that it was no part of the duty of
the tribunal to decide whether there was go-slow between the relevant dates
which would justify the order of discharge. Secondly, it is urged that the
respondent had given no charge-sheets to the workmen concerned and had held no
enquiry as required by the Standing Orders. Therefore, it was not' open to the
respondent to justify the discharge before the tribunal, and the tribunal had
no jurisdiction to go into the merits of the question relating to go-slow.
Lastly it is urged that the finding of the tribunal that go-slow had been
proved was perverse and the tribunal had ignored relevant evidence in coming to
that conclusion. We shall deal with these contentions seriatim.
Re. (1)..
We have already set out the relevant term of
reference and it will be seen that 'it is wide and general in terms and asks
the tribunal to decide whether the discharge of the workmen concerned was
justified or not. It does not mention the grounds on which the discharge was
based and it is for the tribunal to investigate the grounds and decide whether
those grounds justify discharge or not. So if the tribunal finds that the
discharge was due to the use of go-slow tactics by the workmen concerned it
will be entitled to investigate the question whether the use of go-slow tactics
by the workmen had been proved or not.
But the argument on behalf of the appellants
is that the notice of December 17 gives the reason for the discharge and the
tribunal confined only to that notice and has to consider whether the reason
given in that notice for discharge is justified. We have already set
out-that,notice and it certainly says that the workmen mentioned at the foot of
the notice had failed to record their willingness to work faithfully and
diligently in accordance with the respondent's notice of December 15, 1960, and
therefore they stood discharged from the respondent's services and their names
had been struck off the rolls from December 18, 1960.
So it is argued that the reason for the
discharge of the workmen concerned was not go-slow but their failure to record
their willingness to work faithfully and diligently..
The tribunal had therefore to see whether
this reason for the discharge of the workmen was justifiable, and that it had
no jurisdiction to go beyond this and to investigate the question of go-slow.
We are of opinion that there is no force in
this argument. Apart from the question that both parties before the tribunal
went into the question of go-slow and voluminous evidence was led from both
sides either to prove that there was go-slow or to disprove the same, it
appears to us that it would be taking much too technical a view to hold that
the discharge was due merely to the failure of the workmen to give the
undertaking and that the go-slow had nothing to do with the discharge. We are
of opinion that the two notices of December 15 and December 17 have to be read
together and it may be pointed out that the notice of December 17th does refer
to the earlier notice of December 15th. If we read the two 594 notices
together, there can be in our opinion be no doubt that though the discharge is
worded as if it was due to the failure to record their willingness to work
faithfully and diligently, it was really due to the workmen concerned using
go-slow tactics. Notice of December 15, is in two parts. The first part sets
out the facts and states what the workmen had been doing from the very
beginning of the season and particularly from November 27, 1960. It states that
on the instigation of the secretary of the union, the workmen had been failing
in their duty to ensure adequate and regular loading of the cane carrier from
the very beginning of the season. It further charges that with effect from
November 27 they had in combination with one another deliberately and wilfully
resorted to a clear go-slow, a fact said to have been openly admitted by the
secretary in the presence of the Labour Superintendent and Labour Officer,
Muzaffarpur, in course of discussions held in the office of the Assistant
Labour Commissioner on December 6, 1960. The notice then says that the average
daily crushing is 26,000 maunds out of which more than 2,000 was due to the
newly introduced device of direct feeding of the cane carrier by cane carts
weighed during nights and not attributable to any effort on the workmen's
parts; thus the actual crushing had been practically reduced to something
between 23,000 to 24,000 maunds per day, which was highly uneconomical and
technically unsafe for the factory which had an installed crushing capacity of
more than 1,200 tons a day i.e. over 32,000 maunds a day. The notice also says
that about 14,000 bales of extra bagasse kept in stock as reserve and already
been consumed in the last twelve days and the factory was faced with a
situation when at any moment its boilers might go out of steam for want of
bagasse-fuel leading to an abrupt stoppage of the mill and finally resulting in
a major break-down of machinery.
These facts which were given in the first
part of the notice dated December 15, 1960 really show the charge which the
respondent was making against the workmen concerned.
Having made this charge of go-slow in the
manner indicated in the first part of the notice (and it may be mentioned that
this notice was not only put on the notice-board but was given to each workmen
individually), the respondent then indicated in the second part what action it
intended to take. In this part the respondent told the workmen concerned that
unless they voluntarily recorded their willingness individually to discharge
their duties faithfully and diligently by feeding the cane carrier so as to
give a minimum average daily crush of 32,000 maunds, excluding stoppages other
than those due to over-loading or under-loading of the cane carrier, they would
be considered to be no longer employed by the respondent. They were given time
up to 4 p.m. on December 17, 1960 to record their willingness failing which
they would stand discharged from the respondent's service without any further
notice with effect from December 18, 1960. The second part of the notice thus
indicated to the workmen concerned how much they had to crush every 595 day to
avoid the charge of go-slow. It further indicated that the respondent was
prepared to let bygones be bygones if the workmen concerned were prepared to
give an undertaking in the manner desired. Assuming that this course adopted by
the respondent was unjust and even improper, reading of the two parts of the
notice of December 15, 1960 shows that in the opinion of the respondent was the
normal cane crushing per day and what was the charge of the respondent against
the workmen concerned in the matter of go-slow and what the respondent was
prepared to accept if the workmen were agreeable to the claim of the
respondent.
It is clear therefore from the notice which
was given on December 15, 1960 that the respondent thought that 32,000 maunds
should be the normal crush every day excluding stoppages other than those due
to over-loading or under- loading of the cane carrier. It also charged the
workmen with producing much less than this for the period from November 27,
1960 to December 15, 1960, though it was prepared to 1st bygones be bygones,
provided the workmen in future undertook to give normal production. It is in
the background of this charge contained in the notice of December 15, 1960 that
we have to read the notice of December 17, 1960. That notice says that the workmen
had failed to record their willingness to work faithfully and diligently in
accordance with the notice of December 15, 1960 and therefore they stood
discharged, meaning thereby that the respondent was charging the workmen with
go slow as indicated in the notice of December 15, 1960 and that as they were
not prepared to give normal production even in future they were being
discharged. Therefore, though in form the notice of December 17, 1960 reads as
if the workmen were being discharged for not giving the undertaking as desired,
the real basis of the notice of discharge of December 17, 1960 is the use of
goslow which had already been indicated in the notice of December 15 given to
each workman individually also.
The reference was made on the joint application
of both parties. If all that the workmen desired in their joint application for
reference was that it should only be considered whether the discharge of the
workmen for refusing to give an undertaking was justified, there was nothing to
prevent the workmen to insist that in the joint application this matter should
be specifically mentioned. In the joint application the first matter which was
specified was in these terms:
"Whether the discharge of workmen
mentioned in the appendix was justified? If not, whether they should be
reinstated and/or they are entitled to any other relief?" Now if all that
was desired was that the tribunal should go into the question whether the
discharge of the workmen on the ground that they had failed to give the undertaking
should be investigated, it would have been easy to put this term only in the
reference in the joint application thus;
"Whether the discharges of the workmen
mentioned in the appendix on the 596 ground of their failure to give an
undertaking was justified?" The very fact that the matter specified as in
dispute was put in the wide words already quoted above shows that the parties
did not wish to confine their dispute only to the question whether the
discharge on the ground of failure to give an undertaking was justified.
Further we have already indicated that both parties understood the dispute to
be whether go-slow was justified or not and that is why voluminous evidence was
led before the tribunal. The wide terms in which the reference was made along with
the notice of December 17th read with the notice of December 15th leave no
doubt in our mind that the reference included investigation of any cause which
might have led to the discharge of the workmen. There is no doubt in this case
that even though notice of discharge was pharsed as if the discharge was being
made on account of the failure to give an undertaking the real reason for the
discharge was that the workmen had been guilty of go-slow between November 27
and December 15 and were not prepared in spite of the respondent's giving them
a chance to improve to show better results. Therefore taking into account the
wide terms of reference, the manner in which it was understood before the
tribunal, and the fact that it must be read along with the two notices of
December 15 and 17, 1960, particularly because it was made soon thereafter at
the joint application of the parties, we have no doubt that the tribunal was
entitled to go into the real dispute between the parties, namely whether the
discharge was justified on the ground that there was misconduct in the form of
go-slow by the workmen concerned between November 27, 1950 workmen therefore on
this head must be rejected.
Re. 11).
Then we come to the question whether it was
open to the tribunal when there was no enquiry whatsoever by the respondent to
hold an enquiry itself into the question of go-slow. It was urged on behalf of
the appellants that not only there was no enquiry in the present case but there
was no charge either. We do not agree that there was no charge by the
respondent against the workmen concerned. The first part of the notice of
December 15, 1960 which was served on each individual workmen was certainly a
charge by the respondent telling the workmen concerned that they were guilty of
go-slow for the period between November 27 and December 15, 1960. It is true
that the notice was not headed as a charge and it did not specify that an
enquiry would follow, which is the usual procedure when a formal charge is
given. Even so, there can be no doubt that the workmen concerned knew what was
the charge against them which was really responsible for their discharge from
December 18, 1960.
It is now well-settled by a number of
decisions of this Court that where an employer has failed to make an enquiry
before dismissing or discharging a workman it is open to him to justify the
action before the tribunal by leading all relevant evidence before it, 597 In
such a case the employer would not have the benefit which he had in cases where
domestic inquiries have been held. The entire matter would be open before the
tribunal which will have jurisdiction not only to go into the limited questions
open to a tribunal where domestic inquiry has been properly held (see Indian
Iron & Steel Co. v. Their workmen(1) but also to satisfy itself on the
facts adduced before it by the employer whether the dismissal or discharge was
justified, We may in this connection refer to M/s Sasa Musa Sugar Works (P)
Limited v. Shobrati Khan(2), Phulbari Tea Estate v. Its Workmen(3) and the
Punjab National Bank Limited v. Its Workman(4) There three cases were further
considered by this court in Bharat Sugar Mills Limited. v. Shri Jai Singh(5),
and reference was also made to the decision of the Labour Appellate Tribunal in
Shri Ram Swarath Sinha v. Belaund Sugar Co. (6) It was pointed out that
"the import effect of commission to hold an enquiry was 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". It is true that three of these cases, except
Phulbari Tea Estate's case(3), were on applications under s. 33 of the Industrial
Disputes Act, 1947. But in principle we see no difference whether the matter
comes before the tribunal for approval under s. 33 or on a reference under s.
10 of the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing Orders, the
entire case would be open before the tribunal and the employer would have to
justify on facts as well that its order of dismissal or discharge was proper.
Phulbari Tea Estate's(9) was on: a reference under s. 10, and the same
principle was applied there also, the only difference being.
that in that case, there was an enquiry
though it was defective. A defective enquiry in our opinion stands on the same
footing as no enquiry and in either case the tribunal would have jurisdiction
to go into the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper.
If it is held that in cases where the
employer dismisses his employee without holding an enquiry, the dismissal must
be set aside by the industrial tribunal only on that ground, it would
inevitably mean that the employer will immediately proceed to hold the enquiry
and pass an order dismissing the employee once again. In that case, another
industrial dispute would arise and the employer would be entitled to rely upon
the enquiry which he had held in the mean-time. This course would mean delay
and on the second occasion it will entitle the employer to claim the benefit of
the domestic enquiry given. On the other hand, if in such cases the employer is
given an opportunity to justify the (1) [1958] S.C.R. 667.
(2) [1959] Supp. S.C.R. 836.
(3) [1960] IS.C.R. 32.
(4) [1960] I.S.C.R.806.
(5) [1962] 3 S.C.R.684.
(6) [1954] L.A.C.697.
598 impugned dismissal on the merits of his
case being considered by the tribunal for itself and that clearly would be to
the benefit of the employee. That is why this Court has consistently held that
if the domestic enquiry is irregular, invalid or improper, the tribunal give an
opportunity to the employer to prove his case and in doing so the tribunal
tries the merits itself. This view is consistent with the approach which
industrial adjudication generally adopts with a view to do justice between the
parties without relying too much on technical considerations and with the
object of avoiding delay in the disposal of industrial disputes. Therefore, we
are satisfied that no distinction can be made between cases where the domestic
enquiry is invalid and those where no enquiry has in fact been held. We must
therefore reject the contention that as there was no enquiry in this case it
was not open to the respondent to justify the discharge before the tribunal.
Re. (iii) The question whether there was
go-slow during the period from November 27 to December 15, 1960 is a question
of fact and the tribunal has come to the conclusion that there was go-slow
during this period. Ordinarily this Court does not go into findings of fact
recorded by a tribunal unless there are special reasons, as, for example, where
the finding is based on no evidence,--which of course is not the case here.
Learned counsel for the appellants however
urges that the finding of the tribunal that the workmen concerned were guilty
of go-slow is perverse and that evidence which was relevant and material has
been ignored. As the case involves the discharge of as many as 119 workmen we
have decided to go broadly into the evidence to see whether the finding of the
tribunal is patently wrong.
For this purpose we may first refer to the
past history of the working of the respondent factory. It appears that till
this court condemned the practice of go-slow in the case of Bharat Sugar
Mills(1). It was not unusual in the State of Bihar for workmen to give notice
of go-slow to employers as if it was a legitimate weapon to be used in matters
of dispute between the employers and the workmen. In the present case the
respondent had complained as far back at 1950 that go-slow was being resorted
to. In 1950 a court of enquiry was constituted to enquire into this question
and it made a report that there was a slow-down on the part of the workman for
several days in February-March 1950. It also came to the conclusion that the
slow-down was instigated and sponsored by union leaders. In 1951, the workmen
gave notice of go-slow in case their demands were not fulfilled (vide Ex. A-1)
Similar notices were given in 1952 (vide Ex. A-2), In 1954 (vide Ex. A-3 and
A-4) and in 1955 (vide Exs.
A-5, A-6 and A-7 and on some occasions
threats of go-slow did actually materialise. Besides these notices the
management had occasion to complain in 1955. 1957, and 1958 more than once that
go-slow was being (x) [1962] 3 S.C.R,. 684.
599 resorted to at the cane carrier. Thus it
appears that resorting to go-slow was a common practice in this factory.
It is in the background of this persistent
attitude of the workmen that we have to see what happened in November 1960.
We have already referred to the fact that the
workmen were dissatisfied with the new incentive bonus scheme proposed by the
respondent. It is not necessary to go into the merits of this new scheme which
was proposed in September 1960.
But it appears that when there was dispute in
the 1959-60 season on the question of how much cane should be crushed, the
secretary of the union had accepted in a conference with the Assistant Labour
Commissioner that there had been a drop in the amount of cane crushed, though
he maintained that it was still the average crush. He had also stated then that
the workmen were dissatisfied with the incentive bonus scheme in that season
and had withdrawn the extra efforts they were putting in after the introduction
of the incentive scheme for the first time in 1956-57. Further it was admitted
by the secretary in his evidence that when the bonus scheme was proposed in 1960-61,
it was considered by the workmen in a meeting and it was decided that if the
new system was introduced without the consent of the workmen they would not put
in any extra effort for giving more than what was the normal crush in the mill.
The evidence also shows that there were conferences about the new scheme and at
one stage the respondent suggested that the norm should be 30,000 maunds crush
per day while the union was agreeable to 29,500 maunds per day. But there was
no agreement in this behalf and so that workmen carried out their resolve not
to put in extra efforts to give more than the average normal crushing per day.
Thus the season which began in November 1960 started with the withdrawal of
extra efforts by the workmen which in plain terms means that the workman were
not prepared to do what they had been doing in this previous season 1959-60 and
were slowing down production as compared to what it was in 1959-60. It is in
the background of this history and this admission that we have to look broadly
into the evidence to see whether the tribunal's conclusion that there was
go-slow is justified.
The main contention on behalf of the
respondent in this connection is that one has to see is that is called crushing
speed for a day of 24 hours and it is this crushing speed which would determine
whether there was go-slow during the period in dispute. It has been urged that
crushing speed per 24 hours is different from the actual crushing per day or
the average crushing for a period, for the actual crushing per day from which
the crushing speed is arrived at depends on a number of factors, particularly
it depends on the amount of stoppages that take place during the day and if
there are more stoppages the actual crushing on a particular day would necessarily
go down. Crushing speed per twenty- four hours on the other hand is arrived at
by excluding the stoppages and then working out what would be the amount of
cane 600 crushed in 24 hours if there had been no stoppages. The case of the
respondent further is that when it gave the notice on December 15, 1960 asking
for a crush of 32,000 maunds per day it really meant that the workmen should
work in such a way as to give a crushing speed of 32,000 maunds per day, though
the words "crushing speed" were not actually used in the notice. It
is however pointed out that the notice when it mentions 32,000 maunds as the
normal crush expected per day excluded stoppages other than those due to
over-loading or under-loading of the cane carrier.
Therefore, the respondent wanted the workmen
to give a crushing speed of 32,000 maunds per day which would exclude
stoppages, the only exception being stoppages due to over- loading or
underloading, which, according to the respondent, is due to the deliberate
action of the cane carrier workmen to cause stoppages, We think that this
explanation of what the respondent meant when it gave the notice of average
daily crush of 32.000 maunds is reasonable, for it is impossible to accept that
32,000 maunds were required to be crushed irrespective of stoppages, beyond the
control of the workmen. Further it is not in dispute that the labour force was
more or less the same throughout these years, and therefore we have to see
whether during the period from November 27 to December 15, 1960 there was any
significant drop in the crushing speed. If there was such a significant drop
that could only be due to go-slow tactics which have been euphemistically
called withdrawal of extra efforts.
It is necessary therefore to took at the
charts produced in this case to determine this question. The appellants mainly
relay on chart Ex. W-3. That is however a chart of actual crushing per day
during the period from 1954-55 to 1960-61 and has nothing to do with crushing
speed which in our opinion would be the determining factor in finding out
whether there was go-slow. The actual crush may vary as we have already said
due to so many factors, particularly due to stoppages for one reason or the
other. The respondent produced another chart Ex. W-4 which shows the crushing
speed for the entire season from 1954-55 to 1959-60. We consider that it would
not be proper to take the figures for the years 1956-57 to 1959-60 in which
years incentive bonus schemes were in force and which according to the workmen
resulted in extra efforts on their part. But the figures of 1954-55 and 1955-56
would be relevant because in these years there was no incentive bonus scheme
and no night weighment 'of carts. The workmen have also produced a chart
showing cane crushed, actual crushing days and crushing per day; but this chart
does not show the crushing speed and does not take into account the stoppages.
It merely shows the actual number of working days and the average per day. That
however would not be an accurate way of finding out whether in fact there was
go-slow during the period with which we are concerned. The respondent's chart
Ex. W-4 while showing the same amount of actual crushing also shows what would
be the crushing 601 speed per 24 hours after excluding stoppages. This chart in
our opinion is the proper chart for determining whether there was go slow
during the revelant period. Now according to this chart (Ex. W-4) the daily
average crushing speed in 1954-55 was 29,784 maunds and in 1955-56, 30,520
maunds without incentive bonus and without night weighment of carts. It appears
that from the middle of 1959-60 season night weighment of carts started and it
is not in dispute that resulted in an increase in the daily crushing and this
increase is put at over 2,000' maunds per day by the respondent; the secretary
of the union admitted that this would result in an increase of about 2,500
maunds per day.
We have already said that in the years 1954
and 1955 there was no incentive bonus and if these figures are accepted as
giving the average crushing speed per day (when there was no incentive bonus
and no weighment of carts at night) it would in our opinion be not improper to
accept that the crushing speed with night weighment of carts would be in the
neighbourhood of 32,000 maunds per day in view of the admission that night
weighment of carts resulted in an increase of crushing by about-2,000 maunds to
2,500 maunds per day. Therefore, when the respondent gave notice on December
15, 1960 that the average crushing per day should be 32,000 maunds excluding
stoppages (except those due to over-loading or underloading of the cane
carrier, for which the workmen would be responsible) it Cannot be said that the
respondent had fixed something which was abnormal. It is true that when
negotiations were taking place in connection with the incentive bonus scheme
for the year 1960-61, the respondent was prepared to accept a crushing speed of
30,000 maunds per day above which the incentive bonus scheme would apply. That
is however easily understood for a proper incentive bonus scheme always fixes a
norm which is slightly lower than the average in order that there may be
greater incentive to labour to produce more than the average. Even so, when the
incentive bonus scheme for 1960-61, was not acceptable to the workmen and they
had already decided to withdraw what they called extra effort, the respondent
would not be unjustified in asking for the full average crushing speed based on
the production of the years 1954-55 and 1955- 56, when there was no incentive
bonus scheme and no night weighment of carts.
It has been urged on behalf of the appellants
that the crushing speed of 32,000 maunds per 24 hours is not correctly arrived
at for it does not take into account half hour's rest per shift which is
permissible under s. 55(1) of the Factories Act, No. 63 of 1948. Thus,
according to the appellants, crushing speed should be worked out on 22 1/2
hours per day and the crushing will then be less by 1/16th and will only come
to 30,000 maunds per day. Reliance in this connection is placed on s. 55(2) of
the Factories Act, which lays down that "the State Government ...... may
by written order and for the reasons specified therein, exempt any factory from
the provisions of sub-section (1) so however that the total number of hours
worked by a worker without an interval does not exceed 602 six. It is therefore
urged that the workmen were entitled to half an hour's rest per shift in any
case because the shift was for eight hours. The respondent on the other hand
relies on s. 64(2) (d) for the Factories Act and its case is that the State
Government had made rules under that provision in connection with sugar
factories, which apply to it. Section 64(2) (d) is in these terms:-- "The
State Government may make rules in respect of adult workers in factories
providing for the exemption, to such extent and subject to such conditions as
may be prescribed-- (d) of workers engaged in any work which for technical
reasons must be carried on continuously from the provisions of sections 51, 52,
54, 55 and 56;
We are of opinion that this provision in s.
64(2) (d) being a special provision will over-ride both sub-ss. (1) and (2) of
s. 55, for it gives power to the State Government by making rules to exempt
certain types of factories from the application of the whole of s. 55, subject
to such conditions and to such extent as the rules may provide. It appears that
rules were framed in this behalf by the Government of Bihar in 1950 by which
sugar factories were exempted from the application of s. 55 for purposes of
handling and crushing of cane, among others. subject to the condition that the
workers concerned shall be allowed to take light refreshment or meals at the
place of their employment, or in a room specially reserved for the purposes or
in a canteen provided in the factory, once during any period exceeding four
hours. Thus cane crushing operations are exempt from s. 55(1) and s. 55(2)
subject to the condition mentioned above. We may also refer to s. 64(5) which
lays down that the rules made under this section shall remain in force for not
more than three years. The rules to which reference has been made are of 1950;
but there is nothing to show that these rules were not continued after every
interval of three years and the position that the exemption applies to sugar
factories even now as provided in these rules was not disputed. We shall
therefore proceed on the basis that the exemption applied to sugar factories in
Bihar. In view of this, the workmen cannot claim half an hour's rest per shift as
urged on their behalf, though sometime must be allowed for refreshment or light
meals as provided in the provision granting exemption. This means that a few
minutes would be allowed to each individual in turn in each shift for light
refreshment or meals in such a way that the work does not stop. If we make a
total allowance of half an hour or so in this connection the average crushing
speed would be reduced to slightly over 31,000 maunds per day and that is all
the adjustment that the appellants can claim in view of the exemption under s. 64(2)
(d).
Let us now turn to the actual position
between November 27 and December 15, 1960. This will appear from chart Ex. W-7.
603 That chart shows a crushing speed of
29,859 maunds per day from November 10 to 26, when, according to the
respondent, there was only mild go-slow. We are however concerned with the
period from November 27 to December 15, 1960 and the crushing speed for 24
hours during that period was 27,830.
Now if we take the average crushing speed as
32,000 maunds per 24 hours without any adjustment or even a little over 31,000
maunds with adjustment following upon the rule relating to exemption from s.
55, there is certainly a significant drop in average crushing speed during this
period. Further we find that there is a significant drop even as compared to
the period between November 10 to 26, 1960, inasmuch as the drop was over 2,000
maunds per day.
Therefore it cannot be said that the tribunal
was incorrect in its conclusion that there had been go-slow during the period
from November 27 to December 15. It may be added that when comparisons are made
on the basis of crushing speed and labour force is more or less constant, as is
the ease here, other minor factors to which our attention was drawn on behalf
of the appellants during argument do not matter at all. Even if we take the
figure of 30,000 maunds as the crushing speed which the respondent had put
forward at the time of the discussion on the incentive bonus scheme, we find
that though there was not much difference during the period from November 10 to
November 26, there was a significant drop of over 2,000 maunds per day from
November 27 to December 15. Looking at the matter in this broad way--and that
is all that we are prepared to do, for we are examining a finding of fact of
the tribunal--we cannot say that its conclusion that there was go-slow between
November 27 and December 15 is not justified.
Finally, it is urged that notice was given to
the workmen on December 15 and they were discharged on December 17, 1960 without giving them a change to give the necessary production as desired in the
notice. But as we have already indicated, the charge in the notice of December
15 was that the workmen had been going slow from November 27 and they were asked
to give an undertaking to improve and the respondent was apparently willing to
overlook the earlier lapse. Even assuming that the demand of an undertaking was
unjustified, it does appear that the attitude of the workmen was that they
would do no better; and in those circumstances they were discharged on December 17, 1960 on the basis of misconduct consisting of go-slow between November 27 and
December 16, 1960. That misconduct has been held proved by the tribunal and in
our opinion that decision of the tribunal cannot be said to be wrong. In the
circumstances the tribunal was justified in coming to the conclusion that the
discharge was fully justified In this view of the matter, the appeal fails and
is hereby dismissed. In the circumstances we order parties to bear their own
costs.
Appeal dismissed.
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