ORDER
Nikhil Nath Bhattacharjee, J.
1. In this writ application the petitioner, the workmen of Food Corporation of India representing the workers of FCI, Calcutta has challenged an award dated December 7, 1983 passed by the Presiding Officer, Central Government Industrial Tribunal, Calcutta in Reference No. 1 of 1978 and Reference No. 8 of 1979, heard together and published by the Central Government by a notification dated January 4, 1984.
2. It appears that in Reference No. 1 of 1978 involving 19 workers of the FCI, Calcutta the Government of India in the Ministry of Labour by order dated August 5, 1977 made the reference with the issue as mentioned below;-
“Whether the action of the management of the Food Corporation of India, Calcutta in dismissing the undermentioned 10 workmen from service is justified? If not, to what relief are the said workmen entitled?” The names and particulars of the 19 workmen are noted. In the Reference No. 8 of 1979 in respect of 27 workmen including the 19 workmen as aforesaid, the issue involved is as follows:-
” Whether the action of the management of the Food Corporation of India, Calcutta in reappointing the workers whose names are given below as fresh entrants instead of treating them as reinstated in service is justified? If not, to what relief are these workers entitled?”
The names and particulars of the 27 workmen are noted.
3. The learned Tribunal Judge took up both the references together and passed his award dated December 7, 1983 covering the two. In respect of Reference No. 1 of 1978 the award is that the action of the Management of the F.C.I., Calcutta in dismissing the concerned workmen from service is not challengeable and is therefore, justified. So far as Reference No. 8 of 1979 is concerned the award is that the action of the management of the F.C.I., Calcutta in reappointing the 27 workmen including the former 19 workmen as fresh entrants instead of treating ] them as reinstated in service, is not challenge-able and is justified. The learned Tribunal Judge noted, “It follows that the concerned workmen in either reference are not entitled to any relief.”
4. The writ petitioners’ case is that the Union of Workmen called a strike on and from January 27, 1975 which lasted upto March 8, 1975, in support of and to press its various long standing demands after bipartite negotiations failed. It has been stated that about 12000 handling mazdoors all over India participated in the strike and they included 5000 workmen of F.C.I, posted in the State of West Bengal. The strike was declared illegal. The petitioners were suspended by letters dated January 7, 1975 and March 6, 1975. Some of the workmen were arrested by the police and were put under MISA at the instance of the management during the period of the strike and were released subsequently. They were also charge-sheeted individually in identical and stereo-typed manner. Replies were filed against the charges. Without considering the reply of the individual workman, a number of Deputy Managers and Senior Assistant Managers of the F.C.I. were appointed as Enquiring Authorities to enquire into the charges. There was a show of enquiry and no opportunity was given to the petitioners to cross-examine any of the management witnesses. After such fake enquiry the workers concerned were found guilty of the charges framed by the Enquiry Officer concerned. It has been stated that the enquiry report and finding of guilt were erroneous, perverse, arbitrary,
mala fide and vitiated by the principle of natural justice. The management served second show cause notice upon the workers. Representations against the second show cause notice were submitted but dismissal orders were passed in September, October, and November 1976. The workers thereafter raised an industrial dispute and after an abortive attempt for conciliation the first reference was made on August 5, 1977. It is the petitioner’s case that in between April 1977 and Feb. 1978 the F.C.I. issued fresh appointment letters to all the concerned workmen who accepted the same. Signatures of acceptance were taken from most of the workmen. The workmen joined and thereafter the union raised further industrial dispute and the second reference dated December 31, 1977 was made.
5. Before the Tribunal the writ petitioner challenged the fairness and validity of the domestic enquiry and the learned Tribunal Judge after hearing the parties by an order dated August 11, 1983 held, “The whole enquiry in respect of the concerned workmen is vitiated because of non-observance of the principle of natural justice and hence all the enquiry proceedings are set aside.” The enquiry proceedings were set aside and the learned Judge called upon the management to adduce evidence before the Tribunal to support the action of dismissal and reappointment. The management did not, however, adduce any evidence before the Tribunal, nor did they even file a petition by ; way of justifying their action. In spite of the stand of the management, the learned Tribunal Judge fixed dates for the employer to prove the charges but no evidence was adduced by the management. As the F.C.I. authority did not adduce any evidence to sustain the charge, the position in law is clear that no charge against the concerned workmen was established and accordingly all the concerned workmen were entitled to reinstatement with continuity of service and full back wages. But in the impugned award the Tribunal held that as the concerned workman accepted the fresh appointments with full knowledge of the nature of appointment, there were fresh agreements between the parties as regards service and accordingly in the opinion of the learned Tribunal Judge, in such a situ-
ation, the doctrine of estoppel will apply. The Tribunal held that the workman took advantage of getting fresh appointments and all benefits thereunder and thereby creating the impression or causing the belief in the management that they would not challenge the dismissal orders any further. “This Tribunal will compel them to adhere to the assumption upon which they acted. A man must honour his promise.” “The acceptance of fresh appointment creates new legal relations between the parties and doctrine of estoppel being applicable, the workers should be estopped from challenging the order of reapp ointment. The workers concerned cannot challenge the dismissal orders nor the fresh appointments.” With these observations the learned Judge refused to grant any relief to the workmen concerned,
6. Being aggrieved and dissatisfied with the said award the union of the workmen had come up with the present writ application.
7. In the affidavit-in-opposition filed on behalf of the FCI authority it has been stated that the enquiry proceedings were not vitiated by the non-observance of the principle of natural justice as inspite of repeated notices the workmen did not attend the enquiry, that most of the workmen submitted mercy petitions wherein they prayed for fresh appointment and accordingly, fresh appointments were given on humanitarian ground, that in such circumstances it has to be held that the concerned workmen waived their other right of questioning the order of dismissal. It has been stated that the worker at serial No. 18, Baldeo Paswan, expired on January 16, 1993; serial No. 23 Gunai Choud-hury expired on July 28, 1993; serial No. STulsi Singh, retired on medical ground on November 30, 1992;; serial No. 8 Bhagirath Das superannuated on May 16, 1993; Serial No 9 Jatadhari Bhal Superannuated on May 18, 1993serial No. 11, Rabi Roy retired on medical ground on March 30, 1992; serial No. 16 Panchanan Sardar retired on medical ground on February 29, 1992 and serial No. 22 Ramji Sahani retired on medical ground on January 31, 1986 and they are not the workmen of the FCI now.
8. Mr. P.S. Sengupta, learned Advocate,
appearing for the writ petitioners submitted that under Section 11A of the Industrial Disputes Act, which was inserted by the Act 45 of 1971 w.e.f. December 15, 1971, incase of discharge or dismissal of a workman, the Tribunal, upon a reference to adjudicate the dispute, acts as an independent authority to consider whether the discharge or dismissal that was effected was in accordance with law and also whether the pun-ishment of dismissal or discharge is commensurate with the misconduct charged for. This duty of the Tribunal, Mr. Sengupta submitted, extends not only to cases where there has been defective enquiry or no enquiry at all but also to cases where the enquiry has been held to be valid and fair and that in any case either side is entitled to adduce evidence and it is the duty of the Tribunal to consider the evidence, if any of the domestic enquiry as also those adduced be-fore it for coming to its conclusion. His further submission is that the Industrial Disputes Act being a beneficial piece of legislation for the workmen, there cannot be a question of waiver or estoppel against the workmen. In this connection he relied upon the Supreme Court judgments in the Workmen of Firestone Tyre & Rubber Co. of India Pvt. Ltd. v. The Management, (1973-I-LLJ-278), Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, K1980-I-LLJ-137).
9. In the decision in Workmen of Firestone Tyre and Rubber Co. of India Pvt. Ltd.(supra) the Supreme Court made it clear that if the en- quiry held by the management is found to have been unfair and unjustified by the Tribunal or where there has been no enquiry at all by the management before the order of discharge or dismissal was passed, the Tribunal shall have to
ask the employer to adduce evidence to prove the misconduct. The concerned workman or its union may adduce evidence contrary. Where the enquiry held by the management has been found to be fair and justified, in that case also
the Tribunal may ask the parties to adduce further evidence if they so desire. The proviso does not restrict Tribunal’s power to consider further evidences along with the evidence already on record in its reappraisal of the evidences for the purpose of making its own finding as to whether the misconduct had been brought home to the employee. And whether or not evidence is adduced by other side, it is the duty of the Tribunal to also consider the question of punishment and it is within its jurisdiction to alter the punishment.
10. Mr. Sengupta argued that in the instant case the Tribunal held that the enquiry was vitiated by non-observance of the principle of natural justice and it also set aside the domestic enquiry. Thereafter the Tribunal called the management to adduce evidence to prove the misconduct. But the management declined to adduce any evidence. That being so, what should have followed is that the Tribunal should have held that there was no evidence to sustain the charge and accordingly the order of dismissal should have been held to be illegal and inoperative. And the Award failed accordingly.
But instead of doing so, the Tribunal proceeded on to justify the dismissal by invoicing the doctrine of estoppel and waiver, which the Tribunal could not do as the doctrine cannot be invoked in any industrial dispute.
11. In the Gujarat Steel Tubes Mazdoor Sabha (supra), the Supreme Court held that mere participation in a strike which has been declared illegal cannot by itself be said to be a misconduct to justify an order of dismissal. In this decision the Supreme Court quoted with approval its earlier decision in Indian General Navigation and Railway Co. Ltd. v. Their Workmen, (1960-I-LLM 3) wherein it was held that even in case where the strike was declared illegal affecting a public utility service, the “only question of practical importance which may arise would be the kind or quantum of punishment and that, of course, has to be modulated in accordance with the facts and circumstances of each case …… there may be reasons for distinguishing of the case of those who may have acted as mere dumb-driven cattle from those who have taken an active part in fomenting the trouble and instigating the workmen to join such a strike, or have taken recourse to violence.”
12. To determine the question of punishment a clear distinction has to be made between those workmen who not only joined in such a strike,
but also took part in obstructing the loyal workmen from carrying on their work, or took part in violent demonstration, or acted in defiance of law and order, on the one hand and those workmen who are more or less silent participators in such a strike, on the other. It is not in the interest of industry that there should be a wholesale dismissal of all the workmen who merely participated in such a strike. It is certainly not in the
interest of the workmen themselves. An Industrial Tribunal, therefore, has to consider the question of punishment keeping in view the overriding consideration of the full and efficient working of the industry as a whole. Section 11A of the Industrial Disputes Act, 1947 lays down that where an Industrial Dispute relating to discharge or dismissal has been referred to a Tribunal for adjudication and in the course of the adjudication proceeding the Tribunal is sat-
isfied that the order of the discharge or dismissal was not justified, it may by its award set aside the order of the discharge or dismissal and direct reinstatement of the workman on certain terms, if any as it may think or may give such other relief to the workman including awarding a lesser punishment in lieu of discharge or dismissal as the circumstances may require. Mr. Sengupta pointed out that in the instant case the Tribunal did not enter into the question of pun-
ishment at all to find for itself whether the dismissal order that was passed was commensurate with the offence committed. No doubt the strike had been declared illegal and mere participation may amount to a misconduct but as the Supreme Court has laid down that there may be cases where a worker may be forced to participate in the illegal strike in which case his offence cannot be equated with those who were violent participators. But neither is there a whisper of
evidence as to relative liability or quality of participation in the illegal strike by the individual workman nor the Tribunal….(sic) workman and confirm or vary the extreme penalty of dismissal. That being the position, Mr. Sengupta submitted, the award suffers from perversity and error of law on the face of it and hence is liable to be set aside and quashed.
13. Mr. Mukul Prakash Banerjee, learned Advocate, appearing for the FCI authority had practically no answer, to the said submissions of
Mr. Sengupta and in his usual fairness Mr. Banerjee submitted that the management committed an error in not adducing any evidence before the Tribunal to establish tine misconduct.
14. The strike was called on from January 27, 1975 and it continued upto March 8, 1975. Enquiries were initiated in May, 1975 and dismissal orders were passed in September/November 1975 and September / October 1976. Fresh appointment letters were issued in April to October 1977 and February. 1978. It is obvious that-these matters are pending for about last 20 years and if at this stage the award is set aside and the matter is remanded back for a fresh decision to the Tribunal, or to the management for reconsideration as to the punishment to be imposed, there will be inordinate delay in the disposal of the Industrial disputes much to the harassment of both the sides. From the affidavit-in-opposition it appears that some of the concerned workmen have already died or superannuated. Order of remand for them, in particular, would be highly prejudicial to the next of kin as well.
In such circumstances and for the ends of justice I dispose of this writ application by passing the following order :
The impugned award of the Tribunal is set aside and quashed. The orders of dismissal are also set aside and quashed. There shall be an or-der of reinstatement instead of reappointment, without any back wages but with continuity in service in each case for other service benefits as may be available.