PETITIONER:
G.E.C. (P) LTD. NAINI, ALLAHABAD
Vs.
RESPONDENT:
THE LABOUR COURT, ALLAHABAD
DATE OF JUDGMENT:
05/08/1968
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION:
1969 AIR 235 1969 SCR (1) 543
ACT:
Misconduct--Illegal strike--Dismissal of workmen who had
been given warning about an earlier strike--Warning held
wrongly given-Punishment after taking into account such
warning cannot be upheld.
HEADNOTE:
There was a strike in the establishment of the appellant
company betseen 18th and 30th March, 1964, and again a
token strike on 10th April, 1964. For the misconduct of
going on the first strike some of the workmen were charged
and given a warning. The second strike was held to be
illegal by an enquiry officer and six of the workmen who had
been given a warning in respect of the first strike were
dismissed for taking part in the second strike also. The
Labour Court held that in the compromise that had ended the
first strike the company had given the undertaking that it
would not take any action by way of punishment against the
workmen, and therefore the warning in respect of the first
strike which was given only after the enquiry report
relating to the second strike had been already received, was
not only not bona fide but illegal. Because this warning
was taken into account against the six workmen who were
dismissed, the Labour Court set aside the order of
dismissal, although holding that the second strike was
ille.gal because of want of notice under subs. 4 of s. 6-S
of the U.P. Industrial Disputes Act, 1947. The company
appealed to this Court.
HELD: (i) The Labour Court rightly held on the facts
that the warning given to the workmen in respect of the.
first strike was not only not bona fide but also. against
the terms of the settlement by which the first strike was
ended. [548 G]
(ii) The second strike was, as held by the Labour Court,
illegal and therefore 'misconduct' under sub-cl. (2) of cl.
21 of the Standing Orders of the company. Any punishment
imposed under el. 22 of the said Orders in respect of an
illegal strike after a fair enquiry, being a managerial
function would not normally be interfered with. But in the
present case the management was not entitled to take into.
account the warning given in respect of the first strike in
view of the settlement it had entered into with the workers
to end that strike. The Labour Court was therefore again
right in holding the punishment of dismissal of the six
respondents as vindictive and unjustified. [548 H-549E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 958 of 1966.
Appeal by special leave from the Award dated September
16, 1965 of the Labour Court, Allahabad in Adjudication Case
No. 78 of 1965.
G.R. Gokhale, O.P. Malhotra and 1. B. Dadachanji, for
the appellant.
R. Vasudev Pillai and Subodh Markandeya, for respondents
Nos. 2(a) to 2(k).
541
The Judgment of the Court was delivered by
Vaidialingam, J. In this appeal, by special leave, the
question, that arises for consideration, is as to whether
the award of the Labour Court, Allahabad, dated September
16, 1965, directing the reinstatement of six workmen,
referred to in the order of reference, is justified.
The facts leading up to the award may be referred to.
There was a strike, in the establishment of the appellant
company, from March 18, 1964. There was a meeting, of the
District Industrial Relations Advisory Committee, on March
29, 1964, presided over by the District Magistrate of the
area. Representatives of the management and the workmen,
attended the said meeting. The proceedings of the meeting
show that the Advisory Committee, decided to appeal to the
appellant not to take any action, against the workers, on
the gro.und that they had on strike, from March 18 1964.
There was an appeal, to the District Magistrate, Allahabad,
to release, as a gesture of goodwill, the arrested employees
of the company, who were not involved in violence. The
Union, representing the workers of the appellant, in turn,
decided to call off the strike and directed the workmen to
resume work with effect from the morning of March 30, 1964.
There is no controversy that the strike was called off, and
certain workers, who had been arrested in connection with
the strike, were also released from ia’il, on March 29,
1964 itself. This strike will be referred to, as the first
strike, in the course of this judgment.
On March 20, 1964, the respondent-Union had given to the
appellant, another notice, stating that the workmen of the
appellant company would be going on a token strike, for one
day, after fourteen days of the receipt of the notice, in
sympathy with the workers of the Swadeshi Cotton Mills,
Nalni. The exact date, on which the strike was to take
place, was not given in the notice, as required under sub-s.
(4) of s. 6S of the U.P. Industrial Disputes Act, 1947
(hereinafter referred to as the Act). On April 9, 1964, the
respondent Union again intimated to the management about the
workmen’s intention to go on strike on April 10, 1964, and
offered to work on a Sunday, so that there would be no loss
of production; but the management intimated the Union that
the factory would work on April 10, 1964. A token strike
actually took place, on April 10, 1964. This strike will be
termed as the second strike, in these proceedings.
In respect of the first strike, the Management had, on
March 28, 1964, charge-sheeted, for going on an illegal
strike, some of the workmen, including the workmen, whose
dismissal had been set aside by the present award. A joint
reply was sent, by the concerned workmen, on April 9, 1964,
to the management, drawing their attention to the decision
of the District Industrial Rela-
545
tions Advisory Committee, dated March 29, 1964, and the
settlement, arrived at, therein, between the management and
the Union. The workmen also requested the management, not
‘to disobey the decision of the Committee. The appellant
sent a communication, on April 10, 1964, to the workmen,
stating that they had not made any commitment, at the
meeting on March 29, 1964, that the management would not
proceed with the taking of disciplinarY action, against an
employee, who committed a mis-conduct, according to the
Standing. Orders of the Company. The work-men were again
directed to furnish, within 24 hours, their reply, if any,
to the charge-sheet, dated March 28, 1964.
On May 8, 1964, the Acting Works Manager, of the appellant
company, passed orders, warning the concerned workmen, for
having mis-conducted themselves, as s’tated in the
chargesheet, dated March 28, 1964. It is further stated, in
this order, that, after hearing the explanation, furnished
by the workmen, the management holds the workmen guilty of
mis-conduct, for which they could have been dismissed; but
the management has taken a lenient view and, hoping that the
mis-conduct will not be repeated, administers an earnest
warning.
In respect of the second strike, which took place on April
10,1964, the management charge-sheeted, on April 16, 1964,
thirteen wo.rkmen, for going on illegal strike which is a
mis-conduct, under sub-cl. (2) of el. 21, of the Certified
Standing Orders of the company, and as the strike was in
violation of sub-s. (4) of s. 6-S of the Act. There was a
further charge that the workmen, concerned, had intimidated
and prevented other willing workers, from going to work.
The workmen were directed to offer their explanation, as to
why disciplinary action need not be taken for their conduct.
On April 17, 1964, the thirteen workmen, jointly sent a
reply saying that the strike, on April 10, 1964, was legal,
and due notice had been given, under the provisions of the
Act. They also denied having intimidated, or restrained,
any willing worker from going to work. They further stated
that they had not committed any mis-conduct. The management
proceeded to conduct an inquiry, against the thirteen
workmen, and Sri K. ‘D. Gupta, an officer of the company,
was entrusted with the conduct of the said inquirY. Shri
Gupta accordingly conducted an enquirY on April 20, 1964,
and sent his report to the Acting Works Manager, .on April
24, 1964. After referring to the conduct of the inquiry
proceedings, Shri Gupta has stated that the thirteen workmen
are’ guilty of participation in an illegal strike, on April
10, 1964, and, as participation in an illegal strike, is a
mis-conduct under el. 21 (2 ) of the Certfied Standing
Orders of the Company, the workmen, concerned, are guilty.
of mis-conduct, but, regarding the
546
charge of intimidation and incitement, the inquiry officer
found that the said charge was not established.
On May 22, 1964, the Acting Works Manager of the
appellant accepted the report of Shri Gupta and passed
orders, administering a warning, to seven, out of the
thirteen, workmen, but, regarding the remaining six workmen,
the Works Manager, after taking into account the warning
that had been administered to them, on May 8, 1964, for
go.ing on an illegal strike (referring to the first strike),
passed orders dismissing them from service.
The Union raised a dispute, regarding the dismissal of
the six workmen and, accordingly, the said dispute was
referred to the Labour Court, Allahabad, for adjudication.
The case of the workmen was that the strike, on April
10, 1964, was legal, and that the domestic inquiry,
conducted by Shri Gupta, was neither bona fide, not fair.
They also contended that in view of the settlement, arrived
at on March 29, 1964, in respect of the first strike, the
management had no right to take any action, by way of
warning the workmen, as it purported to do, on May 8, 1964.
Taking the said warning into account, for the purpose of
imposing the punishment of dismissal, amounted to a
vindictive conduct, on the part of the management and,
therefore, the order of dismissal was illegal.
The management, on the other hand, contended that the
strike, that took place on April 10, 1964, was illegal, as
it was not in accordance with the provisions of the Act and
participation, in such illegal strike, was a mis-conduct,
under el. 21 (2) of the Standing Orders of the Company
and, such mis-conduct could be punished by dismissal, under
cl. 22. According to the management, the inquiry
proceedings, conducted by Shri Gupta, were quite fair, and
bona fide, and the workmen were given full opportunity to
participate in the inquiry proceedings. They also pleaded
that the management was entitled, to impose punishment for
mis-conduct, by taking into account the previous conduct of
the worlcmen, concerned; and, in this case, the warning,
recorded against them on May 8, 1964, was legitimately and
properly taken into account, inasmuch as the management had
not agreed to withdraw the proceedings, against the
workmen.
The Labour Court has upheld the plea of the management, that
the second strike, on April 10, 1964, being contrary to sub-
s. (4) of s. 6-S, was illegal under s. 6-T of the Act; but
it has further held that, notwithstanding the infirmity in
the notice, issued by the workmen regarding the second
strike, all the managements in the area, including the
appellant, were fully aware of the fact of the intended
token strike on April 10, 1964. The Labour Court has
further held that the inquiry proceedings, conducted by
Shri Gupta, were bona fide and fair, and they suffered from
no. infirmity,
547
whatsoever. The Labour Court further holds that, though
normally imposing of a punishment, for mis-conduct, under
the Standing Orders, is a managerial function, in this case,
the appellant was not justified in taking into account the
warning, recorded on May 8, 1964, in respect of the first
strike. It is the further view, of the Labour Court, that
the continuance of disciplinary proceedings, and recording
of warnings, on May 8, 1964, by the appellant, against the
six concerned workmen, in respect of the first strike, was
with a view to create a ground for punishment and
dismissal, in the subsequent proceedings, relating to the
second strike, and, as such, the action of the management
was not bona fide. The Labour Court, in this connection,
refers to the proceedings of the District Industrial
Relations Advisory Committee, that took place on March 29,
1964, in the presence of the representatives of the
appellant, and the Union, and the Labour Court is of the
view that a settlement had been arrived at, by which the
management has agreed, not to take any disciplinary
action, against the workers, in connection with the first
strike: Ultimately, the Labour Court holds that the
punishment of dismissal, inflicted on the six workmen, by
the appellant, on May 22, 1964, is unconscionable and
unjustified, and not recorded in a bona fide manner. In
consequence, the order of dismissal, passed against the six
concerned workmen, named in the annexure to the order of
reference, was set aside and the workmen were directed to be
reinstated, with 50% back wages.
We have fairly elaborately referred to the various
circumstances, leading to the passing of the order of
dismissal, bY the management, in order to appreciate the
contentions, urged on behalf of the management, that the
Labour Court had committed a serious illegality, in
interfering with an order, passed by the management, for
mis-conduct, as provided under the standing orders of the
company.
Mr. H.R. Gokhale, learned counsel, for the appellant,
raised two contentions before us:.(1)that’the finding of the
Labour Court, that at the meeting of the District
Industrial Relations Committee, held on March 29, 1964, the
appellant agreed not to take disciplinary action, against
its’ workmen, in respect of the first strike, is erroneous;
and (ii) that having held that the second strike was illegal
as being contrary to sub-s. (4) of s. 6-S of the Act, the
Labour Court has committed an error in interfering with the
act of the management, when it imposed a punishment, for
mis-conduct, under the standing orders of the company.
Mr. R. Vasudeva Pillai, learned counsel for the Union,
has supported, in full, the award of the Labour Court.
We are not impressed with either of the contentions,
of the learned counsel for the appellant. We have already
referred to
LI3Sup. CI/68–4
548
the proceedings, of the District Industrial Relations
Committee, March 29, 1964. No doubt, a day prior to
that, the appellant had issued notices to the workmen,
asking them to show cause as to why disciplinary action
should not be taken against them, for going on strike from
March 18, 1964. There was a joint reply given by the
workmen, on April 9, 1964, to the effect that, at the
meeting held on March 29, 1964, the managem.ent had agreed,
not to take any disciplinary action, against the workmen,
and that, it was on that’basis that the strike itself was
called off, and the workmen, arrested, were also released by
the Government. There was no doubt an attempt, by the
management, in their reply of April 10, 1964, to make it
appear that they had not committed themselves, at the
meeting of March 29, 1964, as mentioned by the workmen. But
it is rather surprising that, when the President of the
Union, WWI, gave evidence to the effect that there was a
settlement, on March 29, 1964, whereby the management had
agreed not to take any disciplinary action, against the
workmen, there was absolutely no cross-examination, by the
appellant, of that witness. There is no dispute that Mr.
Wright represented the management, at the said meeting, and
no suggestion even has been made to WWI that the evidence,
given by him, is not correct. No doubt, the appellant, in
their letter of April 10, 1964, had taken the stand that the
company had not committed itself, not to take any action
against the workmen, in respect. of the first strike. The
inquiry report of Shri Gupta, in respect of the second
strike, was already in the hands of the management, on April
24, 1964. It is really after the receipt ‘of this report,
that the Acting Works Manager of the appellant-company
recorded warnings, as against the concerned workmen, on May
8, 1964,I in res’peet of the first strike. This warning has
been taken into account, by the Works Manager, when he
passed the order of dismissal, in respect of the Second
strike, on May 23, 1964. Having due regard to these
circumstances, the finding of the Labour Court, that the
continuance of the disciplinary proceedings, and recording
of punishments of warnings, as against the six concerned
workmen, on May 8, 1964, in respect of the fixst strike, by
the management was to create a ground for punishment and
dismissal, in respect of the second strike, is perfectly
justified. The further finding of the Labour Court, that
‘the action of the management, in recording warnings in
respect of the first strike, is not only not bona fide, but
also against the settlement,’arrived at, on March 29, 1964,
is. also correct. The first contention, on behalf of the
management, therefore fails.
There is the finding of the Labour Court, that the
second strike, on April 10, 1964 is illegal. Going on
illegal strike, is certainly ‘mis-conduct’ under sub-el. (2)
of el. 21, of the Standing Orders of the company. Under el.
22 of the Standing Orders, the
549
punishment for mis-conduct is dismissal, or, in the
alternative, suspension, for a period not exceeding four
days. If the management had, without any regard to what
happened, in respect of the first strike, imposed punishment
under cl. 22, in respect of an illegal strike, which is
‘mis-conduct’ under cl. 21 (2)of the Standing Orders, after
a fair inquiry, the punishment, meted out being a managerial
function, would not be normally interfered with. But in
this case, even the order of dismissal clearly shows that
the management has taken into account the previous conduct
of the workmen, in having gone on the first strike, and the
punishment of warning, administered on May 8, 1964. It is
because of this past conduct, it is further stated in the
order, that the six workmen were being dismissed from
service. The finding of the Labour Court is that the
management was not entitled to take into account the
warning, given on May 8, 1964, in respect of the first
strike, in view of the settlement, on March 29, 1964. In
view of the fact that the warning has been taken into
account, by the management, which it is not entitled to, the
punishment of dismissal has been rightly considered, by the
Labour Court, to be not bona fide, and vindictive. In fact,
the Labour Court is also of the view that the punishment is
unconscionable, and unjustified. It is on these grounds,
that the Labour Court has interfered with the order of
dismissal, passed by the management. The second
co.ntention, of learned counsel for the appellant, also
fails, as we are in agreement with the reasons, given by the
Labour Court, ‘on this aspect of the matter.
The result is that this appeal fails, and is dismissed.
There will be no order as to costs.
G.C. Appeal dismissed.
550