PETITIONER:
INDIA GENERAL NAVIGATION AND RAILWAY CO. LTD.
Vs.
RESPONDENT:
THEIR WORKMEN
DATE OF JUDGMENT:
14/10/1959
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
CITATION:
1960 AIR 219 1960 SCR (2) 1
CITATOR INFO :
D 1961 SC1158 (10)
F 1961 SC1168 (7)
R 1972 SC 277 (9)
RF 1980 SC1896 (148)
ACT:
Industrial Dispute-Illegal strike in Public utility service-
Lock out-Dismissal of workmen-Legality-Function of
Industrial Tribunal-Measure of punishment-Award, finality
of-Power of Supreme Court-Industrial Disputes Act, 1947 (14
of 1947), ss. 17, 17A, 22, 24(3)-Constitution of India, Art.
136.
HEADNOTE:
It was a contradiction in terms to say that a strike in a
public utility service, which was clearly illegal, could
also be justified. The law does not contemplate such a
position nor is it warranted by any distinction made by the
Industrial Disputes Act, 1947. It should be clearly
understood by workmen who participate in such a strike that
they cannot escape their liability for such participation
and any tendency to condone such a strike must be
deprecated.
The only question of practical importance, that arises in
such a strike is, what should be the kind and quantum of the
punishment to be meted out to the participants and that
question has to be decided on the charge-sheet served on
each individual workman and modulated accordingly.
In determining the question of punishment, distinction has
to be made between those who merely participated in such a
strike and those who were guilty of obstructing others or
violent demonstrations or defiance of law, for a wholesale
dismissal of all the workmen must be detrimental to the
industry itself.
If the employer, before dismissing a workman, gives him
Sufficient opportunity of explaining his conduct, and no
question of mala fides or victimisation arises, it is not
for the Tribunal, in adjudicating the propriety of such
dismissal, to look into the sufficiency or otherwise of the
evidence led before the enquiring officer or insist on the
same degree of proof as is required in a Court of Law, as if
it was sitting in appeal over the decision of the employer.
In such a case it is the duty of the Tribunal to uphold the
order of dismissal.
Consequently, in the present case, where the appellants, who
were carrying on business in water transport service,
notified as a public utility service, dismissed their
workmen for joining an illegal strike, on enquiry but
without serving a charge-sheet oil
2
each individual workman and the Industrial Tribunal directed
their reinstatement, excluding only those who had been
convicted under s. 143 of the Indian Penal
Code but including those convicted under s. 188 of the Code,
with full back wages and allowances,-
Held, that the decision of the Tribunal to reinstate those
who had been convicted under s. 188 of the' Code must be set
aside and the wages and allowances allowed to those
reinstated must be reduced by half and the award modified
accordingly.
Held, further, that the Industrial Disputes Act, 1947, Must
be read as subject to the paramount law of the land, namely,
the Constitution, and the finality attaching to an award
under ss. 17 and 17A of the Act, must, therefore, yield to
the overriding powers of this Court under Art. 136 of the
Constitution.
As the award in the instant case did not fall within the
Provisos to s. 17 of the Act, it was not correct to contend
that the appellants had any other remedies thereunder to
exhaust before they could come up in appeal to this Court.
Nor was it correct to contend that the Government of Assam
was a necessary party in the appeal inasmuch as it had acted
by virtue of delegated powers of legislation under the Act
in making the award enforceable as law. A State Government
plays no part in such a proceeding except to make the
reference under s. 10 of the Act, nor has it anything to do
with regard to the publication of the award, which is
automatic under s. 17 of the Act, or its operation, unless
the case falls within the provisos to s. 17A of the Act.
A lock-out lawfully declared under S. 24(3) of the Act, does
not cease to be legal by its continuance beyond the strike,
although such continuance may be unjustified.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.86 of 1958.
Appeal by special leave from the Award dated November 15,
1956, of the Industrial Tribunal, Assam, at Dhubri.
M. C. Setalvad, Attorney-General for India, S. N.
Mukherjee and B. N. Ghose, for the appellants.
Niharendu Dutt Mazumdar and Dipak Dutta Choudhri, for the
respondents.
1959. October 14. The Judgment of the Court was delivered
by
SINHA C. J.-This is an appeal by special leave from the
Award dated November 15, 1956, made by the Industrial
Tribunal, Assam. The dispute arose between the employers,
the Indian General Navigation
3
& Railway Company Limited, carrying on business at No. 4,
Fairlie Place, Calcutta, and the Rivers Steam Navigation
Company Limited, carrying on business at No. 2, Fairlie
Place, Calcutta, which will be referred to, in the course of
this judgment, as the appellants’, and their workmen at
Dhubri Ghat, represented by the Dhubri Transshipment Labour
Union and Dhubri Local Ghat Transhipment Labour Union,
Dhubri, which will be referred to hereinafter as the
respondents’. The Award aforesaid was published in the
Assam Gazette on December 19, 1956.
It is necessary to state the following, facts in order to
appreciate the points arising for decision in this case: The
appellants carry on business of inland water transport in
North East India and in Pakistan, in association with each
other, and are commonly known as the Joint Steamer
Companies. The appellants jointly maintain a large number
of wharves, jetties, godowns, etc., at different river
stations in India and in Pakistan, for the purposes of their
business. One such station is at Dhubri in Assam. At that
station, a large number of workmen are employed for the
purpose of loading and unloading the appellant’s vessels and
for transshipping goods from railway wagons to the
appellants’ vessels and vice versa. Before May, 1954, such
workmen were employed by a contractor called the Assam
Labour Supply Syndicate which will hereinafter be referred
to as ‘the Syndicate’. Those workmen were organized under
two labour unions, called (1) the Dhubri Transhipment
Labour Union which was affiliated to the Indian
National Trade Union Congress -which is, a Federation of
Trade Unions, and (2) the Dhubri Local Ghat Transhipment
Labour Union. There were differences between the Syndicate
and its employees who made certain demands, and has
threatened to go on strike to enforce their demands.
Conciliation proceedings under the industrial Disputes Act,
1947 (which will hereinafter be referred to as the Act),
took place, in the course of which certain agreements to be
referred to in greater detail hereinafter, were reached
between the Syndicate and the respondents on
4
February 23, 1953, and March 30, 1953. On May 3, 1954, by
virtue of a Memorandum of that date, an agreement
was arrived ‘at between the appellants and the respondents,
whereby the appellants agreed that instead of
employing a contractor to handle the work of loading and
unloading and transhipment of goods, the appellants
would employ supervisors and agents to handle the work ”
pending the proposed Tripartite Conference to decide the
issue of permanent direct employment of employees for the
future “. The appellants also agreed to maintain continuity
of service of the workmen and the existing terms and
conditions of their service. The Tripartite Conference
contemplated by the Agreement, was to consist of the
represent. natives of the appellants, the workmen and the
Government of Assam. As a result of the Tripartite Con-
ference held on July 9 & 10, 1954, an agreement was reached
between the appellants and the Indian National Trade Union
Congress, which was incorporated in the form of a letter
dated July 16, 1954, from the General Secretary of the
Congress, Assam Branch, Dhubri Ghat, to the several Unions
at different stations, including Dhubri. As a result of
this agreement, the appellants agreed, inter alia, to
introduce permanent direct employment at all the
transhipment ghats of Assam, progressively, without
prejudicing the agreement of May 3, 1954. It will be
necessary hereinafter to consider some of the terms of this
agreement in detail, when dealing with the several points in
controversy between the parties.
After the agreement aforesaid, there arose certain
differences amongst the workmen represented by the two
Unions aforesaid, in respect of the election of their
office-bearers. As a result of those internal dissensions
amongst the employees, two rival groups, each claiming to
represent a section of the workmen, came into existence.
The appellants, thereupon, notified the Indian National
Trade Unions’ Congress, that recognition to the Dhubri
Transhipment Labour Union, was being withdrawn pending
satisfactory settlement of the internal differences. Thus,
came into existence, a new Trade Union known as the
5
Dhubri Transhipment Workers’ Union, in or about July, 1955.
Meanwhile, between May 2, 1955, and July 31, 1955, the
appellant’s, on five different occasions and on different
charges, dismissed eight of their employees, after making
such inquiries as they thought necessary against those
workmen, and after giving them each an opportunity of
explaining their conduct.
On July 21, 1955, one B. Chakravarty, Secretary, Dhubri
Transhipment Labour Union, served a notice on the appellants
under sub-s. (i) of s. 22 of the Act, that ” I propose to
call a strike on the 11th August, 1955, from zero hours, if
the following demands be not fulfilled within fourteen days
on receipt of this notice”. Then followed an annexure
containing ten demands which need not be set out here. A
similar notice was also served by the Secretary Dhubri Local
Ghat Transhipment Labour Union on the same date’ the
annexure in this case containing eleven demands. On July
26, 1955, the Conciliation Officer of the Government of
Assam, received the notice of the strike. He held
conciliation proceedings on August 6, 1955, but those
proceedings ended abruptly without arriving at any
settlement. On August 8, 1955, the said Conciliation
Officer, who was the Labour Officer of Gauhati, by his
letter bearing the same date, informed the Labour
Commissioner, Assam, about the failure of the conciliation
proceedings, and forwarded copies of that letter to the
appellants and the workmen’s Union at Dhubri. Without
waiting for the statutory period of seven days from the date
of failure of the conciliation proceedings, a large number
of workmen concerned went on strike with effect from the
mid-night of August 10, 1953, in pursuance of the notices of
strike aforesaid. They were alleged by the appellants not
only to have gone on strike, but also to have forcibly
entered the appellants’ jetties and other working places and
prevented the loyal workmen, who were willing to carry on
the transhipment work, from carrying on their normal work.
The strike is, therefore, alleged to have been illegal. On
August 11, 1955, the District Magistrate, Goal para,
promulgated an ‘order under
6
s. 144 of the Code of Criminal Procedure, prohibiting the
“holding of any meetings, demonstrations, pro
cessions, or causing threat, obstructions, annoyance or
injury directed against the persons lawfully employed
in the following areas in the Dhabri Town and its suburbs”.
Then followed a specification of the ghats to which
the prohibition applied This order was to remain in force
till September 10, 1955, In consequence of the aforesaid
strike which was treated by the appellants as illegal, they
declared a lock-out on August 11, 1955, in respect of 91
workmen named in the notice issued to them. Another lock-
out notice was issued on August 13, 1955, in respect of a
much larger number of workmen in different groups described
as belonging to a particular Sardar’s gang. The legality of
these lock-out notices, was seriously challenged by the
respondents. The Workers’ Union called off the strike with
effect from August 19, and the appellants lifted the lock-
out with effect from August 27. The appellants took
proceedings against those employees who had taken part in
the strike. They suspended those workmen who were alleged
to have not only taken part in the strike, but also had
obstructed those workmen who were willing to work. But
those workmen who were alleged to have only participated in
the strike, were not suspended during the inquiry. On
September 8, 1955, 37 of the employees were convicted under
s. 188 of the Indian Penal Code, for violation of the
aforesaid order under s. 144 of the Criminal Procedure,
Code, with the result that on September 9, they were
Dismissed by the appellants. Another batch of 52 employees
were convicted under a 143/188 of the Indian Penal Code, on
February 17,1956.
Meanwhile, on September 13, 1955, the Government of Assam
bad constituted a Board of Conciliation, consisting of three
persons, namely, (1) Labour Commissioner of Assam, as the
Chairman, (2) D. N. Sarma of Gauhati, as representing the
interest of the employees, and (3) P. J. Rayfield, as
representing the interest of the employers, with a view to
promoting settlement of the dispute between the appellants
and their workmen
7
at Dhubri. The appellants alleged that they had dismissed
their workmen as a result of the inquiry held by their
nominee into the conduct of the persons who had participated
in the alleged illegal strike and/ or had caused
obstruction, before they became aware of the constitution of
the Board of Conciliation, as aforesaid. On coming to know
of the constitution of the said Board of Conciliation, the
appellants subsequently passed orders, holding the order of
dismissal of the two hundred and twenty three employees in
abeyance, pending the disposal of their application to the
Board for permission to dismiss the said two hundred and
twenty three employees. The Board of Conciliation, by
majority, P. J. Rayfield dissenting, came to the conclusion
that as regard the dismissal of the thirty seven workmen,
the Management had violated s. 33 of the Act, because, in
their opinion, the proceedings of the Board of Conciliation
had commenced from August 26, and not from September 13. As
regards the permission sought by the Management to dismiss
the suspended two hundred and twenty three workmen, by a
similar majority, it was held that although the strike prima
facie was illegal, it was not unjustified. The dissenting
member, P. J. Rayfield, recorded his note of dissent to the
effect that the conciliation proceedings commenced on
September 13, 1955, and not earlier, as decided by the
majority, and consequently, the dismissal of the,thirty
seven workmen (‘discharge’ of 37 workmen, as stated in the
note of dissent), was not in contravention of s. 33 of the
Act, and that the permission to dismiss the two hundred and
twenty three workmen on the ground that they had been found
guilty, by a departmental inquiry, of participating in an
illegal strike and forcibly preventing others from attending
work, should have been granted. This conclusion was sought
to be based on the alleged legal position that the Board had
no power to withhold the permission applied for, and had not
the power to decide as to the kind of punishment to be
imposed upon the workmen who had admittedly taken part in a
strike which had unanimously been held to be illegal. The
dissenting note also sought to
8
show that the finding of the majority of the Board
that the strike was justified, was not based on a proper
appreciation of the facts of the case. The report of the
Board of Conciliation was published on Decem-
ber 5, 1955.
As the parties had come to a stalemate, the Government of
Assam, by its order dated December 7, 1955,as subsequently
amended by its order dated January 23, 1956, referred the
dispute to Shri Radhanath
Hazarika as an Industrial Tribunal, for the adjudication of
the dispute on the following issues:
” 1 (a) Are the Management of R.S.N. & I.G.N. Railway
Company Limited justified in dismissing the following eight
workers:
Manzoor Hussain, Sudam Singh, ldrish, Tazmal Hussain (S/o
S.K. Gaffur) Jahangir Sardar, Keayamat Hossain, Panchu Shah
and Ram Ekbal Singh?
(b) If not, what relief, if any, are they entitled to ?
(2) (a) Are the Management of R.S.N. & I.G.N. Railway
Company Limited justified in dismissing and/or suspending as
the case may be 260 workers at Dhubri Ghat on or about the
29th August, 1955?
(b) If not, to what relief, if any, are the workers
entitled ? ”
The parties to the dispute filed their written statement
before the Tribunal and tendered both oral and documentary
evidence before it. The Tribunal made its Award which was
published in the Assam Gazette on December 19, 1956, as
already stated. The Tribunal held that the strike, though
illegal, was justified, but that in the absence of standing
orders whereby participation in any illegal strike, could
justify a punishment of dismissal, the appellants were not
entitled to dismiss those workmen whose case was before the
Tribunal. The Tribunal, by its Award, directed
reinstatement of 208 out of 260 workmen whom the appellants
had dismissed, or had sought permission to dismiss. The
remaining 52 workmen were ordered to be refused
reinstatement on the ground that they had been convicted
under s. 143 of the Indian Penal Code, which implied an
offence involving
9
use of criminal force. It also directed the appellants to
pay full wages and allowances from August 20, 1955, till the
date of reinstatement of the workmen who had been directed
to be reinstated. The Tribunal also held that the dismissal
of the eight workmen who were the subject-matter of the
issue 1(a) aforesaid of the Reference, was bad, and
therefore, those 8 workmen were also ordered to be
reinstated with back wages. The present appeal by special
leave is directed against the said Award of the Tribunal.
Before we deal with the merits of the controversy between
the parties, it is convenient at this stage to deal with
certain arguments by way of preliminary objections to the
maintainability and competence of the appeal, raised on
behalf of the respondents. Those objections are of a three-
fold character, (1) no appeal lies, (2) the appellants did
not exhaust their statutory remedies under s. 17A of the
Act, and (3) the appeal is not competent also for the reason
that the Government of Assam has not been impleaded as
party-respondent to the appeal, In our opinion, there is no
substance in any one of these objections.
With reference to the first ground, the argument runs as
follows: The Tribunal made its Award on November 15, 1956,
and, submitted the same to the Assam Government under s. 15
of the Act. On December 8 of that year, the Government of
Assam directed the said Award to be published in the Assam
Gazette, and it was so published on December 19, 1956.
According to the order of the State Government, the Award
became enforceable under s. 17A, on the expiry of 30 days
from the date of publication, namely, December 19, 1956.
Accordingly, the Award became enforceable on January
18,1957, and acquired the force of law by the operation of
the statute. By virtue of s. 17(2) of the Act, the Award
became ” final and shall not be called in question by any
court in any manner whatsoever “, subject to the provisions
of s. 17A. It was, therefore, further contended that in the
events which had happened before January 18, 1957, the Award
had become enforceable and had
2
10
acquired the force of law by operation of the statute, had,
thus, passed beyond the pale of litigation and
adjudication by any court of law. This argument has only
to be stated to be rejected in view of the
provisions of the Constitution. It is manifest that the
provisions of the Act are subject to the paramount law as
laid down in the Constitution. Article 136 of the
Constitution, under which this Court grants special leave to
appeal (in this case, from a determination of the Tribunal),
cannot be read as subject to the provisions of the Act, as
the’ argument on behalf of the respondents would postulate.
The provisions of the Act must be read subject to the over-
riding provisions of the Constitution, in this case, Art.
136. Therefore, whatever finality may be claimed under the
provisions of the Act, in respect of the Award, by virtue of
ss. 17 and 17A of the Act, it must necessarily be subject to
the result of the determination of the appeal by special
leave.
It was further contended that the Award had merged in the
orders of the Government, on publication in the Official
Gazette, under s. 17 of the Act, but this is the same
argument stated in another form, and any argument based on
the provisions of the, Act, making the Award final and
enforceable, must always be read as being subject to the
decision of this Court, in the event of special leave being
granted against such determination by the Tribunal and as
adopted by the Government. The same argument was advanced
in still another form, namely, that the appellants should
have moved this Court before the lease of the time
contemplated by s. 17 and s. 17A of the Act, that is to say,
before January 18, 1957. Apart from the consideration that
this argument tends to curtail the period of limitation,
prescribed by this Court by statutory rules, the operation
of ss. 17 and 17A of the Act, is not automatically stayed by
making an application for special leave. It is only by
virtue of specific orders made by this Court, staying the
operation of the Award or some such order, that the
appellant becomes, for the time being, immune from the
operation of those provisions of the
11
Act, which impose penalties for the infringement of the
terms of the Award.
Adverting to the second branch of the preliminary objection,
it appears that the provisions of s. 17A, particularly, the
provisos, have been sought to be pressed in aid of the
respondents’ contention, without realizing that the Award in
question in this case, does not come within the purview of
either of those provisos. The State Government was not a
party to the Industrial dispute, nor was it an Award given
by a National Tribunal. Hence, there is no substance in the
contention that the appellants did not exhaust their
statutory remedies under s. 17A of the Act.
The third branch of the preliminary objection is based on
the contention that the Government of Assam was a necessary
and proper party, as it had acted under delegated powers of
legislation under the Act, in making the Award enforceable
and giving it the force of law. It is a little difficult to
appreciate how the State Government became a necessary or
proper party to this appeal. The State Government does not
play any part in the proceedings, except referring the
dispute to the Tribunal under s. 10 of the Act. The
publication of the Award under s. 17, is automatic on
receipt of the same by the Government. Its coining into
operation is also not subject to any action on the part of
the State Government, unless the case is brought within the
purview of either of the provisos to s. 17A. In view of
these considerations, it must be held that there is no merit
in the preliminary objection. The appeal must, therefore,,
be determined on its merits.
On the merits of the controversy between the parties, it has
been argued by the learned counsel for the appellants that
the Tribunal, having held the strike to be illegal, has
erred in holding that it was justified; that an illegal
strike could never be justified and that the Tribunal was
wholly in error in losing sight of the fact that the
appellants were carrying on what had been notified as a
public utility service. In this connection, it was further
argued that in view of
12
the proviso to s. 10(1) of the Act, the State Government was
bound to make a Reference of the dispute to an
Industrial Tribunal when notice of strike under s. 22 of
the Act had already been given, and that,
therefore, the failure of the employer to enter into direct
negotiations with the employees, upon receipt of the
strike ‘notice, could not be used by the Tribunal for coming
to the finding that the strike was justified. It was also
urged that the Tribunal had clearly erred in holding that
the lock-out declared by the appellants, was illegal, and
that, in coming that conclusion, it had over-looked the
provisions of s. 24(3) of the Act. The Tribunal, it was
further argued, had erred in holding that, in the absence of
standing orders to the effect that participation in an
illegal strike is a gross misconduct, an employer could not
dismiss its workmen for mere participation in an illegal
strike. Assuming that the last-stated argument was not
well-founded it was argued that the standing orders
governing the relations between the Syndicate and the
workmen, would also govern the relations between the
appellants and the workmen, as a result of the agreement
aforesaid whereby the appellants undertook all the
liabilities of the Syndicate in relation to the workmen, and
guaranteed to them the same conditions of service. In this
connection, it was also argued that the Tribunal bad made a
serious mistake of record in treating the standing orders of
the Syndicate as a mere draft and, therefore, of no binding
force as between the employers and the employees; that the
Tribunal erred, while considering the case of the eight
workmen dismissed before the commencement of the strike, in
proceeding upon an unfounded assumption that no charge-
sheets had been served upon those workmen during the inquiry
against them, and that, therefore, the Award, in so far as
it related to those 8 workmen, was entirely erroneous. As
against the two hundred and eight workmen ordered by the
Tribunal to be reinstated, it was argued that the
departmental inquiry held by the appellants had resulted in
the distinct finding that they bad not only participated in
the illegal strike, but had also instigated loyal workmen
13
to join in the illegal strike, and had obstructed tranship-
ment work by loyal workmen. In this connection, it was also
argued that in any view of the matter, the thirty seven
persons, who had been convicted by the criminal court under
s. 188 of the Indian Penal Code, for having transgressed the
prohibitions contained in the prohibitory order under s. 144
of the Code of Criminal Procedure, were clearly liable to be
dismissed on the findings of the criminal court itself,
apart from any other considerations bearing on the
regularity of the inquiry against them; that the Tribunal
was in error in holdidg that the inquiry against the
dismissed workmen was not in accordance with the prescribed
procedure; and lastly, that this was not a case of
reinstatement of the dismissed workmen, and that only
compensation should have been awarded to them.
On behalf of the respondents, their learned counsel, besides
raising the preliminary objection already dealt with, urged
that the Tribunal was fully justified in holding that the
strike, though illegal, was ” perfectly justified ” and
virtually provoked by the appellants. Though in the
statement of the case, the argument had been raised that the
strike could not be illegal, because the notification
declaring the service at the ghats to be public utility
service, was ultra vires, that argument was not persisted in
before us, but it was vehemently argued that there were no
standing orders either of the Syndicate or of the
appellants, which could govern the service conditions of the
workmen, and that in any event, mere participation in an
illegal strike would not entitle the employers to dismiss
those workmen who had joined the strike; that the dismissal
orders in all cases, were sheer acts of victimization and
unfair labour practice. It was also sought to be argued
that the lock-out was entirely illegal, and that in any view
of the matter, its continuance after the strike had been
called of, was wholly unjustified and against the principles
of ” social justice “. Further, it was urged that the
appellants had dismissed and/or suspended 260 workmen
without framing any specific charges against them; that the
dismissal of the eight workmen
14
in view of the incidents before the commencement of the
strike, was also illegal, and in any event, irregular,
because, it was urged, no specific charges had been framed
against them. It was also sought to be argued
that the notice’ inviting the workmen to join their work,
being unconditional without any reservations, amounted to a
condonation of the strike, and therefore, the dismissal
orders against the two hundred and sixty workmen were bad in
law. Some other arguments also were advanced on behalf the
respondents, but we do not propose to take notice of them,
because they were ultimately found to be without any
foundation in the record of the case. As a matter of fact,
the arguments on behalf of the respondents, were not marked
by that strict adherence to the record of the case, or the
case made out before the Tribunal, as ought to be the case
before courts of justice generally, and certainly, before
the highest Court in the land.
Now, turning to the merits, it is better to deal with the
first issue first, that is to say, whether the dismissal of
the eight workmen, named in the Issue as amended, was
justified, and if not, to what relief they were entitled.
The Tribunal dealt with the individual cases of those
workmen, and came to the conclusion that the dismissal of
none of them was justified, and that, therefore, all of them
were entitled to reinstatement with all their back wages and
other benefits accruing to them from the date of their
suspension and subsequent dismissal until the date of their
reinstatement, minus what had been paid to them. Thus, the
first issue in both the parts, was decided entirely in
favour of the workmen. We have, therefore, to examine how
far the determination of Tribunal on the first issue, is
open to question. The cases of Manzoor Hussain, Sudama
Singh, Idrish and Tazmal Hussain, have been dealt with
together by the Tribunal below. These four workmen had been
dismissed by the appellants, upon a report made by Rayfield,
the enquiring officer under the appellants, on the
allegation that they had assaulted their Labour Supervisor
S. P. Tevari on May 2, 1955. This charge against those four
workmen, was examined by
15
a Magistrate who tried them for the alleged assault on
Tewari. The Magistrate found them not guilty and acquitted
them by his judgment given in April, 1956. The departmental
inquiry by Rayfield was held on May 17, 1955, when a member
of witnesses were examined by him on behalf of the
appellants. In their joint written statement, these four
workmen stated that as the police case was pending against
them in regard to these very charges, they were not in a
position to make any further statement in their defence.
The Tribunal came to the conclusion that, on the material
before it had not been made out that Tewari had been
actually assaulted, while on duty, and that the dismissal
order was passed ” possibly with a view to frighten the
other workmen and to satisfy the whims of Tewari “. We have
examined the record, and we do not find any justification
for differing from the conclusions of the Tribunal.
With reference to the case against Panchu Shah and Ram Ekbal
Singh, it appears that the Tribunal definitely came to the
conclusion that their dismissal order was vitiated because
it was an act of victimization and was mala fide. In the
face of this clear finding,we do not think that we can
interfere with the determination of the Tribunal in respect
of these two workmen.
But the case against Jahangir Sardar and Keayamat Hussain,
stands on a different footing. The charge against Jahangir
was two-fold, namely, (1) wilful insubordination and
disobedience, and (2) conduct prejudicial to good order and
discipline. To these charges, Jahangir demurred and
objected, saying he could not ” understand the reasons for
the charge-sheet “. On this demurrer, a letter dated May 7,
1955, was issued to him, giving him the details of the acts
charged against him, with reference to the time, date and
place. The charge against Keayamat was similarly, a two-
fold one, namely, (1) disorderly behaviour and inciting
others to disturbance and violence, and (2) conduct
prejudicial to good order and discipline. Keayamat also
demurred to the charge in the same way that it was vague,
and that
16
he was not aware of anything wrong having been done by him.
On May 7, Keayamat was also given a similar
letter, explaining to him the details of the charge
aforesaid, with reference to the time, place and
date of the acts which formed the gravamen of the charge
against him. A number of witnesses were examined by
Raymond who held the inquiry. In both these cases, the
Tribunal refused to accept the result of the inquiry,
chiefly on the ground that no specific charge had been laid
against them, and that the allegations were much too vague.
In recording this finding, the Tribunal has fallen into a
grievous error of record. It has completely omitted to
consider the letter issued to both these workmen on May 7,
giving full particulars of the charges against them. If it
had considered that letter issued to both these workmen, it
would not have fallen into this serious error which has
vitiated its award in respect of them. The Tribunal further
proceeded to comment on the evidence led before the
inquiring officer and remarked that the evidence was meager
or insufficient. It also observed that the ” degree of
proof, even in the departmental enquiry, is the same as
required in a Court of Law “. In our opinion, the Tribunal
misdirected itself in looking into the sufficiency of proof
led before the inquiring officer, as if it was sitting in
appeal on the decision of the employers. In the case of
these two employees, there is no finding by the Tribunal
that the order of dismissal against them, was actuated by
any mala fides, or was an act of victimization. In view of
these considerations, the dismissal order made by the
appellants on a proper inquiry, after giving the workmen
concerned sufficient opportunity of explaining their
conduct, must be upheld. The appeal in respect of these two
workmen, must, therefore, be allowed, and the order of the
Tribunal in respect of them, accordingly, set aside. The
order of the Tribunal in respect of the other six workmen,
is confirmed.
Having dealt with the orders of dismissal in respect of the
incidents before the strike of August 11, 1955,
17
we now turn to the strike itself The first question that
arises in this connection, is whether the strike was illegal
as alleged by the appellants and as found by the Tribunal.
The learned counsel for the respondents sought to reopen the
finding about the illegality of the strike, basing his
submissions mainly on the contention that there were no
conciliation proceedings pending either in fact or in law on
the date of the strike, and that, therefore, the finding of
the Tribunal was not correct. It was not disputed on behalf
of the respondents that the notices of the strike given by
the workmen on July 21, 1955, had been duly received by the
Conciliation Officer on July 26, 1955, and that the
conciliation proceedings were commenced on August 6, 1955.
What was contended on their behalf, was that the proceedings
had to be stopped, as it appears from the record of those
proceedings, without any settlement of the dispute as the
“workers’ representative expressed their inability to take
further part in the proceedings, on a question of leave to
their other representatives”. We shall examine the question
later as to which party was to blame for the break-down of
the conciliation proceedings at the very outset. It is
enough to observe that under s. 20 of the Act, the
conciliation proceedings must be deemed to have commenced on
July 26, 1955, when the notice of the strike was received by
the Conciliation Officer, and those proceedings shall be
deemed to have concluded when the report of the Conciliation
Officer is received by the Government. In this case, the
report to the Government was made by the Conciliation
Officer on August 8, 1955. It is not absolutely clear as to
when this report of the Conciliation Officer was actually
received by the Government. It is clear, therefore, that
the conciliation proceedings certainly lasted between July
26 and August 8, 1955. The strike, having commenced on
August 11, was clearly illegal in view of the provisions of
s. 22 of the Act. We must, therefore, hold in agreement
with the Tribunal, that the strike was clearly illegal.
The Tribunal, having held that the strike was illegal,
proceeded to discuss the question whether it
3
18
was justified, and came to the conclusion that it was
“perfectly justified”. In the first place, it is a little
difficult to understand how a strike in respect of a public
utility service, which is clearly, illegal, could at
the same time be characterized as “perfectly justified”.
These two conclusions cannot in law co-exist. The law has
made a distinction between a strike which is illegal and one
which is not, but it has not made any distinction between an
illegal strike which may be said to be justifiable and one
which is not justifiable. This distinction is not warranted
by the Act, and is wholly misconceived, specially in the
case of employees in a public utility service. Every one
participating in an illegal strike, is liable to be dealt
with departmentally, of course, subject to the action of the
Department being questioned before an Industrial Tribunal,
but it is not permissible to characterize an illegal strike
as justifiable. The only question of practical importance
which may arise in the case of an illegal strike, 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. Therefore, the tendency to
condone what has been declared to be illegal by statute,
must be deprecated, and it must be clearly understood by
those who take part in an illegal strike that thereby they
make themselves liable to be dealt with by their employers.
There may be reasons for distinguishing 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 workmen to join such a strike, or have taken
recourse to violence.
Apart from the basic error of treating the illegal strike to
be perfectly justified, the Tribunal has indulged in
language which is not characteristic of a judicial approach.
The following observations by the Tribunal, in the course of
its inordinately long Award, covering about 42 pages in
print, are illustrative of the attitude of the Tribunal
towards the appellants :-
” By this letter the Company’s Joint Agent at Dhubri instead
of taking a friendly attitude approached the District
Magistrate asking for police help.
19
If the Company’s Agent at Dhubri had the honest intention he
could have immediately moved the appropriate authority to
come immediately to the spot to stop the proposed strike.
But instead of that he has provoked the Union by adopting
this back door policy to suppress the demands of the
workers. It was really unfair on the part of the Agent. It
seems that he bad mala fide intention.”
For this outburst of the Tribunal, justification is sought
in the letter which D. J. Milner, the Joint Agent of the
appellants, wrote to the Secretary to the Government of
Assam, Transport and Industries Department, Labour
Commissioner, Government of Assam, Superintendent of Police,
Goalpara District, Labour Officer, Lower Assam, and General
Secretary, I.N.T.U.C., Assam Branch, on August 9, 1955,
informing them of the threatened strike. The last paragraph
of the letter explained the reasons for the long letter
addressed by the Joint Agent: ” In the interest of
maintaining this vital link in Assam’s flood-stricken
communications and protecting our property,, and that of the
Railway, as well as our own staff, Railway Staff and loyal
laborers, we have to request that adequate police be
available at each of our Ghats from shortly prior to
midnight on the 10th instant in order that unlawful damage
may not be caused by these illegal strikers who will be
acting in defiance of Government regulations, and accepted
industrial dispute procedure”. We see nothing sinister in
this letter, justifying the remarks by the Tribunal, quoted
above. It was the usual ,request for the maintenance of
public peace and for the prevention of acts of violence by
misguided persons. It was also addressed to the I.N.T.U.C.,
the guardian of Labour.
On the same date, that is, August 9,1955, B. Chakravarty,
the Secretary of the Dhubri Transhipment Labour Union,
addressed a letter to the Superintendent of Police,
Goalpara, and Deputy Commissioner, Goalpara, alleging that
the Joint Agent of the appellants had instructed the
officers in-charge of the jetties at the Ghats to raise a ”
hallah ” after the zero hour of August 11, 1955, that the
labourers of the
20
Transhipment Department were looting the goods of
the ship, when they would go for picketing purposes
to strengthen their strike. Those allegations of the
Secretary, the Tribunal has taken as proof of those
allegations, and has observed:
“… it is clear that Mr. Milner hatched a plan to
create a trouble and the Secretary of the Union got scent of
all the secret arrangements made by the Company to create
disturbance at the Ghats just immediately after the strike
is declared.”
This is the first reason assigned by the Tribunal for coming
to the conclusion that the strike was “perfectly justified”.
The second reason for coming to this conclusion, according
to the Tribunal, is to be found in the Conciliation
Officer’s report that the appellants did not agree to grant
leave to the labour representatives to sit in the
conciliation proceedings which were held on August 6, 1955.
The Tribunal has observed that it appeared also from the
appellant’s attitude in refusing to grant leave to the five
representatives of the Union, that the appellants were not
inclined to give facilities for the conciliation
proceedings. Is this observation justified on the record as
it stands ? As already indicated, the Conciliation Officer
received a copy of the strike notice on July 26, 1955. He
fixed August 6, 1955, 10 a.m., at Dhubri, for the
conciliation proceedings. The parties to the dispute were
apprised of this meeting of August 6, 1955, on August 1,
1955 (ext. O, p. 119). From the proceedings of the
Conciliation Officer, it appears that the Union applied to
the appellants for leave to five workmen, officials of the
Union, to enable them to represent the workmen in the
conciliation proceedings. The attitude of the appellants
was that they were agreeable to grant leave even on a verbal
request, if the request came from those individual workmen,
either direct or through the Union, but the appellants were
not prepared to grant leave on a petition from the Union
alone. On the other hand, the Union was not agreeable that
the petition for leave should be made by the workmen
themselves, and the Union insisted that it had the right to
apply for leave on behalf of those workmen. Upon this, the
Union
21
did not take any further part in the proceedings. It would
be a travesty of facts to suggest that the appellants were
not prepared to grant leave to those five workmen. In the
first instance, leave should have been applied for before
the date fixed for the commencement of the conciliation
proceedings. Secondly, the application should have been
made by the workmen concerned, either direct or through the
Union. The Tribunal seems to have been under the impression
that this attitude of the appellants amounted to a breach of
one of the terms of the agreement as a result of the
Tripartite Conference aforesaid. That, again, is an
assumption which is not justified by the terms of the
Agreement. Secondly, the five workmen selected for
representing the workmen in the conciliation proceedings,
should have applied in good time to their employers for
leave for the purpose, but what we find is that an
application (ext. M at p. 118) was made on August 6, 1955,
not by those workmen themselves, but by the Secretary of the
Union, and a copy of the application was forwarded to the
Labour Officer and to the Deputy Commissioner, for
information. Apparently, the Union was treating the matter
as of sufficient importance, but they did not think it
necessary to put in the application in time on behalf of the
workmen themselves, even though the application might have
been made through the Union. That the appellants were not
to blame for the attitude they took in the matter of the
procedure for application for leave to particular workmen,
becomes clear on a reference to the terms of the Agreement
dated February 23, 1953, between the Syndicate and their
workmen represented by the Dhubri Transhipment Labour Union,
at p. 75, Part 1 of the record. The Demand 5(f) was agreed
to in these terms :-
” All leave applications be submitted by a representative of
the Union on Tuesday or Friday in a week before the
Management, and the decision be communicated to the Union
the next day of submission of the application.”
On the other band, in respect of leave, the terms of the
Agreement reached between the Syndicate and the
22
Dhubri Local Ghat Transhipment Labour Union, on March 13,
1953, are as follows:-
” It is agreed that the workers will submit leave
applications to the management who will communic
ate their decision to the workers direct within three days
of receipt of the applications and a copy thereof will he
sent to the Union for information”.
It is clear, therefore,that the conciliation proceedings
stopped abruptly not because the Management was to blame for
not granting leave to the five chosen representatives of the
workmen, but because B. Chakravarty insisted that the leave
application would not be made by individual workmen but only
by the Union. Even that application was made too late, and
in the teeth of the terms of the Agreement, quoted above.
If the Secretary had not taken this unreasonable attitude,
and if he had been anxious that the conciliation proceedings
should continue, the easiest thing for him to have done, was
to get those five workmen to make their applications for
leave, which the Management was prepared to grant even at
that late hour. In our opinion, the conciliation
proceedings failed because the Secretary took an
unreasonable attitude. The Tribunal, therefore, was in
error in throwing the blame for the failure of the
conciliation proceedings on the Management.
The third ground of attack on the bona fides of the
appellants, was said to have been the attempt of the
Management to interfere in the internal affairs of the
Unions. The following remarks of the Tribunal are another
instance of its intemperate language with which the Award
bristles:-
” Curiously enough it appears that the Company’s Joint Agent
at Dhubri dabbled in politics and meddled in internal
administration of the Unions.
He propped up another Union and backed it up to stand as a
rival Union.”
On an examination of the record of the case, it appears that
the Indian National Trade Unions’ Congress, to which the
Unions were affiliated, was not in favour of the strike.
That would be an indication of the fact that the relation
between the employers
23
and the employees had not come to the breaking point, and
that the Congress, naturally, expected that conditions of
service of the employees, could be improved more effectively
by peaceful negotiations than by taking recourse to a strike
in respect of a service which had been declared by the
Government to be a public utility service . But the
Secretary of one of the Unions, B. Chakravarty aforesaid,
appears to have brought matters to a head without giving the
Conciliation Officer a reasonable chance, as already
indicated, of bringing about a reconciliation between the
view-points of the employers and the employees. The
appellants had only- recently taken over the workmen under
their direct employment, and the Tripartite Conference
between them, the representatives of the employees, and the
Government, was yet to settle all the outstanding Questions
between the parties. Hence, the fact that two rival Unions
had come into existence, could not be laid at the door of
the appellants as an act of unfair labour practice. The
Tribunal was not, therefore, in our opinion, justified in
holding that the Management had either meddled in the
internal administration of the Unions, or dabbled in
politics, and had, thus, been guilty of unfair labour
practice. The Tribunal has been rather generous to the
workmen without being just to the appellants. This is also
shown by the fact that, after having held the strike to be
illegal, the Tribunal considered the legality of the lock-
out declared by the appellants on August 11, 1955, in
respect of one Ghat, and on August 13, 1955, in respect of
the other Ghat. In this connection, the conclusion of the
Tribunal may best be stated in its own words to demonstrate
its attitude to the appellants:-
” In this case the Company used the weapon of lock-out just
to intimidate and put pressure on the employees to withdraw
the demands. The lock-out is also prohibited under Section
22(2)(d) of the Act. Therefore, both lock-out and strike
are illegal. The Company had no justification whatsoever to
declare a lock-out.”
24
Apparently, the Tribunal ignored the provisions of
s. 24(3) of the Act. The lock-out was clearly not
illegal. It is another question whether there was a
justification for the appellants to continue the lockout
even after the strike had been called off on August 19. The
Joint Agent of the appellants, by his letter dated August
17, 1955, to the two Unions, had intimated to them that in
view of the illegal strikes, lockout had been declared at
the local Ghat on August 11, and at the Transhipment Ghat on
August 13, and that the lock-out ” will remain in force
until disciplinary action can be instituted against those of
our employees chiefly responsible for leading and continuing
the illegal strikes “. The continuance of the lock-out after
August 19, may be unjustified; but that does not make the
lock-out itself illegal.
It was in pursuance of that order of the Joint, Agent, that
proceedings were taken against the socalled leading
strikers, leading upto their dismissal. Those orders of
dismissal, to be presently discussed, are the main points in
controversy between the parties in this Court. But before
those orders of dismissal were passed, the Management issued
a notice on August 26, 1955, lifting the lock-out with
effect from the next day. It required the employees to
report for duty to the Joint Agent personally, at his office
between the hours of 9 and 10 a.m. It also contained the
threat that any employee who did not report for duty on
August 30, ” will in the absence of a letter of explanation
and good reason, be treated as having voluntarily terminated
his services.” R. N. Biswas was then appointed the Inquiry
Officer by the appellants, and he held the inquiry in
batches, the first batch consisting of 26 workmen, the
second, of 114, the third, of 68, the fourth, of 17 and the
fifth, of 7. These inquiries related to different incidents
in connection with the strikes. Biswas appears from the
record as placed before us, to have recorded the statements
of Milner, Rayfield, C. R. Das and S. P. Tewari-officers of
the appellants -in proof of the allegations against the
strikers. We do not think any useful purpose will be served
by
25
going into the details of the evidence given by those
witnesses, because we have come to the conclusion that those
several inquiries suffer from the fundamental defect that
there is no satisfactory evidence on the record that
charges, giving the details of the acts of violence or
obstruction, against the strikers, were served upon the
workmen against whom those inquiries had been instituted.
As a result of each one of these inquiries, the Inquiry
Officer, R. N. Biswas, reported that the charge against each
one of the workmen, had been proved to his satisfaction.
But before the inquiry was held, the Joint Agent on
September 9, 1955, informed the thirty seven workmen who had
been convicted as aforesaid, of the criminal charge under
section 188 of the Indian Penal Code, that their services
were terminated from that date, and that they were to call
at his office by the 15th of the month to collect their dues
and to vacate the quarters of the appellants. As regards
the remaining two hundred and twenty three workmen, orders
were passed on September 16, to the effect that as the
departmental inquiry made against them, had resulted in the
charges against them being proved, they were dismissed from
the service of the appellants with effect from August 29,
1955. They were called upon to call at the Labour Office on
September 18, to collect their dues, and to vacate the
quarters of the appellants. Realising that as the
Government had appointed a Board of Conciliation on the 13th
instant, to resolve the dispute between the parties, the
orders aforesaid of dismissal or termination of services of
the thirty seven workmen and of the two hundred and twenty
three workmen, as aforesaid, would be illegal, the Joint
Agent informed the workmen on September 20, 1955, that those
orders would be held in abeyance, pending permission from
the Board to dismiss them, and they would be deemed to be
under suspension. It may be recalled that the Government
had constituted a Board of Conciliation, consisting of three
persons, viz., H. P. Duara, the Labour Commissioner of
Assam, as the Chairman, and D. N. Sarma and P. J. Rayfield
as members, representing the interests of the employees and
the employers
4
26
respectively. The Board of Conciliation considered the
question of the dismissal or suspension of those
thirty seven plus 223 workmen, along with the application,
of the Management, asking permission to dismiss
223 workmen for their having taken part in the illegal
strike, and forcibly preventing willing workmen from
attending work. Two of the three persons constituting the
Board, namely, the Chairman and D. N. Sarma, came to the
conclusion that as regards the dismissal of the thirty seven
workmen the order of dismissal was illegal, as in their
opinion, the conciliation proceedings had commenced from
August 26, and not from September 13. On the question of
suspension of 223 workmen, the Board was of the opinion that
suspension without pay, pending the permission of the Board
to dismiss the workmen, was no punishment, and therefore, no
action was called for. As regards the permission sought by
the Management to dismiss the suspended two hundred and
twenty three workmen, again by a majority, those two members
were of the opinion that although the strike was prima facie
illegal, it was not unjustified and therefore, the
permission sought, could not be given. Rayfield, the other
member of the Board, as already stated, submitted his Minute
of dissent. He pointed out that the conciliation
proceedings commenced on September 13, and therefore, the
discharge of the thirty seven workmen, was not in
contravention of s. 33 of the Act. He further held that the
Board had no power to withhold the permission asked for to
dismiss 223 workmen on the ground that they had been found
guilty, on a departmental inquiry, of having participated in
an illegal strike, and of having forcibly prevented workmen
from attending work. He added that the grant of the
permission would not debar the Union from raising an
industrial dispute in that matter. It may be added that the
Board unanimously agreed that dismissal ” is an appropriate
punishment for participation in an illegal and unjustified
strike.” The Tribunal also took the same view of the legal
position, when it observed, ” If the strike is not justified
and at the same time it contravenes the provisions of
27
Section 22 of the Act, ordinarily the workmen participating
in it are not entitled to any relief.” As a matter of fact,
the Tribunal has closely followed the findings of the
majority of the Board of Conciliation. But as we have
already pointed out, there can be no question of an illegal
strike being justified. We have further held, in agreement
with the Tribunal, that the strike was illegal, and that it
was not even justified-in disagreement with the Tribunal-
assuming that such a situation could be envisaged, in
accordance with the provisions of the Act. We have,
therefore, to determine the question what punishment, if
any, should be meted out to those workmen who took part in
the illegal strike.
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
demonstrations, or acted in defiance of law and order, on
the one hand, and those workmen who were more or less silent
participators in such a strike, on the other hand. It is
not in the interest of the 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 over-riding consideration of the full
and efficient working of the Industry as a whole. The
punishment of dismissal or termination of services, has,
therefore, to be imposed on such workmen as had not only
participated in the illegal strike, but had fomented it, and
had been guilty of violence or doing acts detrimental to the
maintenance of law and order in the locality where work had
to be carried on. While dealing with this part of the case,
we are assuming, without deciding, that it is open to the
Management to dismiss a workman who has taken part in an
illegal strike. There was a great deal of argument at the
Bar on the question whether the Management, in this case,
was entitled to dismiss the workmen who had taken part, in
the illegal strike.
28
A good deal of argument was devoted to the further question
whether there were certified standing orders as between
the Syndicate and the workmen, or later, as between the
appellants and the workmen, and Whether, even apart from
such standing orders, it was open to the employers to deal
so drastically with their employees who had taken part
in the illegal strike. In our opinion, it is not necessary
to decide those general questions, in view of our
conclusion, to be presently stated, on the question of the
regularity of the inquiry held in different batches, as
indicated above, by Biswas, the officer appointed by the
appellants to hold the departmental inquiry.
In order to find out which of the workmen, who had
participated in the illegal strike, belong to one of the two
categories of strikers who may, for the sake of convenience,
be classified as (1) peaceful strikers, and (2) violent
strikers, we have to enquire into the part played by them.
That can only be done if a regular inquiry has been held,
after furnishing a charge-sheet to each one of the workmen
sought to be dealt with, for his participation in the
strike. Both the types of workmen may have been equally
guilty of participation in the illegal strike, but it
is manifest that both are not liable to the same kind of
punishment. We have,therefore, to look into the nature of
the inquiry alleged to have been held by or on behalf
of the appellants. On the one hand, the workmen took the
extreme position that no inquiry had at all been held, and
on the other hand, the employers took up the position
that the Inquiring Officer had held a regular inquiry,
after furnishing a charge-sheet to each one of the
workmen against whom the inquiry was held. That there was an
inquiry held by Biswas, admits of no doubt. The proceedings
before him and the evidence recorded by him, have been
placed on record. But the most serious question that
we have to determine is whether a charge-sheet, giving
notice to each workman concerned, as to what the gravamen of
the charge against him was, had or had not been furnished
to him. On this part of the case, the record is admittedly
incomplete.The appellants relied upon the following
observations
29
of the Tribunal in support of their case that the inquiry
had been entirely regular:
” The charges are for fomenting and participating in an
illegal strike from the 11th August, 1955 and forcibly
preventing other labourers from working on the same day.”
On the other hand, reliance was placed on behalf of the
workmen on the following passage in the Award of the
Tribunal:-
” In this case the Company has not framed any specific
charge against those 260 workers alleging that they indulged
in violence or acts subversive of discipline.”
The finding of the Tribunal is that no such individual
charge-sheet was delivered to the workmen. This conclusion
of the Tribunal was assailed on behalf of the appellants on
the ground that as this point had not been specifically made
in the written statement of the workmen, the appellants did
not put in those charge-sheets in evidence, and had
contented themselves with only producing the record of
proceedings before the Inquiring Officer. As we, naturally,
attached a great deal of importance to this question, we
were inclined to give another opportunity to the appellants
to remove the lacunas in the evidence bearing upon that
question, even at this late stage. More than once, during
the course of the arguments by the learned Attorney-General,
we suggested that he might put in those charge-sheets, if
they were in existence, as additional evidence in this
Court, so that we might be satisfied that there had been a
regular inquiry according to the requirements of natural
justice. After making the necessary investigation, the
learned Attorney-General informed us on the last day of the
arguments, that no such documents were in existence. It was
alleged that the entire bundle of documents, containing
those individual charges, had been lost, and that,
therefore, there were no means of satisfying this Court by
documentary evidence, that there were in fact such
individual charge-sheets delivered to the workmen concerned.
We find, therefore, no good reasons for displacing the
finding of the
30
Tribunal that there were no such individual charges,in spite
of apparently conflicting observations made by it, as
quoted above.
The position, therefore, is that the strikes were illegal,
that there was no question of those strikes being justified,
and that, assuming that the strikers were liable to
be punished, the degree and kind of punishment had to be
modulated according to the gravity of their guilt. Hence,
it is necessary to distinguish between the two categories of
strikers. The Tribunal attempted to make such a
distinction by directing that the 52 workmen, who had
been convicted under s. 143, read with s. 188 of the Indian
Penal Code, were not entitled to reinstatement, and the
remaining 208 workmen were so entitled. Dealing with the
case of the thirty seven workmen, who had been
convicted only under s. 188 of the Indian Penal Code, for
transgression of the prohibitory orders under s. 144 of
the Code of Criminal Procedure, the Tribunal put those
workmen on the same footing as the rest of the workmen.
But, in our opinion, those 37 workmen do not stand on the
same footing as the others. Those 37 workmen, who were
convicted under s. 188 of the Indian Penal Code, had
been found to have violated the prohibitory orders passed
by the public authorities to keep the public peace.
Those convictions were based upon evidence adduced before
the Magistrate, showing that the workmen had
proceeded to the steamer flat through the jetty, in defiance
of the orders promulgated under s. 144. We have examined the
record and we find that there is sufficient indication
that those 37 workmen were among the violent strikers, and
could not be placed in the category of peaceful strikers.
Hence, it is clear that those workmen not only joined the
illegal-strike by abstaining from their assigned duty, but
also violated regularly promulgated orders for
maintaining peace and order. Such persons,apparently,cannot
be said to be peaceful strikers, and cannot,therefore, be
dealt with as lightly as the Tribunal has done. The
Tribunal, in our opinion, is wrong in taking the view that
the appellants had nothing to do with the violation of the
order under s. 144 of the
31
Code of Criminal Procedure, promulgated by the District
Magistrate, with a view to maintaining peace and order at
the site of work. These 37 workmen, therefore, should not
have been ordered to be reinstated. As regards the
remaining workmen, the question is whether the Tribunal was
entirely correct in ordering their reinstatement with full
back wages and allowances on and from August 20, 1955, till
reinstatement. This would amount to wholly condoning the
illegal act of the strikers. On the findings arrived at
before us, the workmen were guilty of having participated in
an illegal strike, for which they were liable to ‘be dealt
with by their employers. It is also clear that the inquiry
held by the appellants, was not wholly regular, as
individual charge sheets had not been delivered to the
workmen proceeded against. When the blame attaches to both
the parties, we think that they should divide the loss half
and half between them. We, therefore, direct that those
workmen whose reinstatement by the Tribunal is upheld by us,
should be entitled only to half of their wages during the
period between the date of the cessation of the illegal
strike (i.e. from August 20, 1955) and the date the Award
became enforceable. After that date they will be entitled
to their full wages, on reinstatement. In this connection,
it has also got to be borne in mind that those workmen, as
observed in the judgments of the criminal courts which
inflicted nominal fines on them on their conviction, were ”
day labourers who earned their livelihoods by day-to-day
labour “. It is only natural that during all these years
that the workmen have not been employed by the appellants,
the workmen should have been earning their living by doing
day -to-day labour. It must, therefore be assumed that they
were working for their living, and were not wholly
unemployed. Therefore, the burden of the back wages for the
long period that has elapsed between the date of the end of
the strike and the date of the Award, ordering their
reinstatement, should be divided half and half between the
parties.
The appeal is, therefore, allowed in part, as indicated
above, that is to say, (1) the order of reinstatement
32
in respect of Jahangir Sardar and Keayamat Hussain,is set
aside, (2) similarly, the order of reinstatement in respect
of the thirty seven workmen, who had been convicted under S.
188 of the Indian Penal Code, is also Set aside, and
(3) the order for payment of full back wages, etc., is
modified by reducing those amounts by half, for the
period aforesaid. As success between the parties has been
divided, they are directed to bear their own costs in this
Court.
Appeal allowed in part.