PETITIONER: LAXMI DEVI SUGAR MILLS Vs. RESPONDENT: NAND KISHORE SINGH. DATE OF JUDGMENT: 04/10/1956 BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA DAS, S.K. MENON, P. GOVINDA CITATION: 1957 AIR 7 1956 SCR 746 ACT: Industrial Dispute-Application for permission to dismiss a workman-Resolution passed at a meeting of the Labour Union for removal of the General Manager-Vice President of the Union addressing the meeting to instigate the workers, if guilty of misconduct and indiscipline-Refusal to answer queries by the General Manager, if an act of insubordination-Theory of dual capacity, if tenable- Dismissal, if can be permitted on a ground not included in the charge -Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950) -U. P. Industrial Disputes Act, 1947 (U. P. Act XXVIII of 1947),a. 3, Standing Orders, cl. L(1)(j). HEADNOTE: The respondent, a stenotypist and the Vice-President of the Labour Union, was charged by the appellant with misconduct and indiscipline under clause L(1)(j) of the Standing Orders of the Government of Uttar Pradesh for instigating the workmen to pass a resolution for the removal of the General Manager by a defamatory speech delivered at a meeting of the Union. The question in issue was whether the respondent by doing so had committed "any act subversive of discipline" within the meaning of that clause. In course of the correspondence with the General Manager over the matter, as also during the enquiry made by him, the respondent took up the attitude that he, as a stenotypist, was not answerable to his employers for his activities as Vice-President of the Union outside the factory area and persistently refused to answer questions categorically put to him by the General Manager. The appellant applied to the Labour Appellate Tribunal under s. 22 of the Industrial Disputes (Appellate Tribunal) Act of 1960 for permission to dismiss the respondent. That application having been refused the appellant obtained Special Leave to appeal to the Supreme Court and it was contended that the passing of the resolution and the refusal to answer questions in course of the correspondence,and the enquiry amounted to acts subversive of discipline and the respondent was liable to be dismissed. Hold, that it was perfectly legitimate for the Union to pass the, resolution they did and no guilt either of a breach of the Standing Orders or of committing an act subversive of discipline could attach to the respondent for what part he took in the meeting as Vice President of the Union and the order of dismissal passed by the Labour Appellate Tribunal must be affirmed. That where, as in the present case, the members of the Union were of opinion that the circumstances warranted the resolution, it 747 was not for the court to scrutinies the correctness or otherwise the reasons for it. Held further, that the respondent was primarily an employ of the appellant before he could be anything else and was in dut bound to answer such queries as were put to him by the Gener Manager and his persistent refusal to do so, on the pretext of a dual capacity, amounted to insubordination which would have justifie his dismissal but the appellant having omitted to include this as ground in the charge- sheet, which was served on the responds and formed the basis of the enquiry, could not be allowed to rel on it. JUDGMENT:
CiviL APPELLATE JURISDICTION: Civil Appeal No. 162 of 1954.
Appeal by special leave from the judgment and order dated
the 21st day of July 1953 of the Labour Appellate Tribunal
of India, Lucknow in Miscellane ous Case No. C-III-33 of
1952.
H.J. Umrigar and R. A. Govind for the appellant
B.P. Maheshwari for the respondent.
1956. October 4. The Judgment of the Court was delivered by
BHAGWATI J.-The Labour Appellate Tribunal of India at
Lucknow dismissed the application of the appellant made
under section 22 of the Industrial Disputes (Appellate
Tribunal) Act, 1950, for permission to dismiss the
respondent, its workman, and the appellant obtained from
this Court Special Leave to Appeal against that order.
The respondent has been working as a Steno-typist with the
appellant since 3rd December, 1946, and is also the Vice-
President of the Union of workers which is affiliated to the
Indian National Trade Union Congress and is known as Chini
Mills Mazdoor Sangh One M. P. Singh has at all relevant
times been and is still the General Manager of the
appellant.
The relations between the appellant and its work men are
governed by the Standing Orders framed by mutual agreement
between the Labour and the Sugar Mills in Uttar Pradesh
which have been approved by
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the Government of Uttar Pradesh. ClauseL(1)(j)of the said
Standing Orders runs as under:-
“Drunkenness or gambling or riotous or disorderly behaviour
while on duty in factory premises, or in quarters provided
by the mills or elsewhere or any act subversive of
discipline”.
These are among the items of misconduct which would entitle
the appellant, after due enquiry, to dismiss a workman from
its employ.
There were longstanding disputes between the appellant and
its workmen since October, 1946, and on the 23rd February,
1949, Kedar Nath Khetan, one of the partners of the
appellant, wrote to Shri Kashi Nath Pandey, General
Secretary, Indian National Sugar Workers Federation,
promising to remove the General Manager as soon as the
season of the Chhitauni factory was over. There was,
however, an agreement arrived at between the partners of the
factory and the Chini Mills Mazdoor Sangh on the 13th
September, 1949, under which the demand for the removal of
the General Manager was withdrawn by the workers. The
disputes, however, continued and matters came to a head in
1952. In May, 1952, the management charged 76 members of
the Union for participation in a ‘Tools-down’strike. The
matter went up to the Labour Appellate Tribunal which, by
its award, reinstated all the 76 workmen. The management
preferred writ petitions Nos. 402 and 409 in the Allahabad
High Court but the same also were dismissed. Special Leave
was obtained from this Court against those decisions of the
Allahabad High Court and the same are pending.
During the pendency of the application of the management for
the discharge of the said 76 workmen before the Labour
Appellate Tribunal., the workers held a meeting on the 10th
June, 1952, near an old mosque outside the factory area
to consider the situation arising out of the suspension of
the 76 workmen and the ways and means of meeting the same.
The respondent participated in the said meeting as the Vice-
President of the Union and made a speech criticising the
attitude of the General Manager in terms
749
which were set out in the report dated the 10th June, 1952
submitted by two workers by name Ganga Dhar Tewari and
Jamuna Prasad to the General Manager. The speech of the
respondent as reported there was to the following effect:-
“The General Manager of this factory wants to crush the
Labour movement from the very beginning. He allowed some of
his intermediaries to join strike when Shri Shibban. Lal
Saxena had served a strike notice. His men had also
persuaded some of our members to join the strike. As a
result of this we had decided to launch a strike. On the
other hand, the Manager Sahib was sitting on the phone for
the permission of the Collector to dismiss all our fellow
workers. Shri Moti Lal Singh was able to discover this
conspiracy and he at once prevented us from going on strike.
Then Manager Sahib could not succeed in his plan.
This time he has falsely accused 76 of our workers of
resorting to Tools-down strike. These workers will surely
be reinstated. But our efforts are rendered useless due to
the acts of the Government Officers; the Collector of this
District is getting some thing secretly from the Manager
Sahib. We have only one alternative open to us, let us
again agitate for his dismissal. Many of the proprietors
have written to me against him”.
A resolution was moved at that meeting for the reinstatement
of the 76 workers and dismissal of Shri Madan Pal Singh, the
General Manager and the same was passed.
As stated above, the two workers Ganga Dhar Tewari and
Jamuna Prasad reported the proceedings of the said meeting
to the General Manager on the very same day. The General
Manager thereafter addressed a letter to the respondent on-
the 16th July, 1952 stating that he, the respondent, was
present in and addressed a meeting held on the 10th June,
1952, wherein, among other matters, a resolution for the
reinstatement of the 76 suspended workers and the removal of
the General Manager was passed. He asked the respondent to
give him information regard-
750
ing the above-mentiond facts within 24 hours of the receipt
of the letter. The respondent replied on the 17th July,
1952, stating that he never attended any meeting whatever in
his capacity as the Steno-typist of the factory and
expressed his inability, therefore, to say anything in the
capacity in which the letter dated the 16th July, 1952, had
been addressed by the General Manager to him. Not being
content with bypassing the whole issue in this manner, he
proceeded to observe that it was none of the factory’s
business to seek information from him for his personal,
social or political activities outside the factory area. He
stated that as a matter of courtesy any information asked
for would have been supplied by him, but, as the things
stood, he very much regretted his inability to comply with
the wishes of the General Manager. The General Manager
again addressed a letter to the respondent on the 17th July,
1952, stating that he was entitled to seek the information
from him even in his personal capacity and asked him to let
him have the reply to the queries contained in the letter
dated the 16th July, 1952. The respondent, in his letter
dated the 17th July, 1952 in reply, observed that some of
the conclusions drawn by the General Manager were “simply
out of self-complacency” and he respectfully begged- to
differ from the General Manager. He stated that he had
nothing further to add to his earlier reply dated the 17th
July, 1952.
The General Manager waited for a while and on the 1st
August, 1952, served upon the respondent a chargesheet
calling upon the respondent to show cause why action should
not be taken against him under clause L(1)(j) of the
Standing Orders for making a speech in a meeting held near
the local mosque on the 10th June, 1952, ‘wherein, among
other defamatory remarks he, the respondent, instigated the
workers to take steps for the removal of the General
Manager. The respondent was asked to submit his explanation
latest by 10 a.m. on the 2nd August, 1952. The respondent
submitted his written statement accordingly wherein he
stated that there was absolutely no justification whatsoever
for charging him with broach of
751
the Standing Orders under clause L(1)(j). He denied the
allegations contained in the charge-sheet and wound up by
asking the General Manager to enlighten him as to under what
rules of the Factories Act, Commercial Establishments Act or
the Standing Orders, written replies in the matters other
than one’s daily routine work of the factory were demanded
at such short notice.
The General Manager fixed 10 a.m. on Monday the 4th August,
1952, for the holding of the enquiry and the respondent was
called upon to present himself in time and he was also
intimated that he would be at liberty to produce oral or
documentary evidence in defence against the charges framed
against him.
An enquiry was accordingly (held by the General Manager on
the 4th August, 1952. The proceedings thereat were recorded
in the form of questions and answers. The respondent
adopted an attitude which was consistent with the one which
he had adopted in the course of the correspondence above
referred to. He refused to answer the questions which were
categorically put by the General Manager to him and stated
that he had nothing -to add to his written statement. He
also took up the attitude that if he had taken part in any
meeting held under the auspices of the Chini Mills Mazdoor
Sangh outside the factory, the General Manager should write
to the officials of the Sangh for necessary information.
When it was specifically put to him that no confidential
work was taken from him as he had been taking active
interest in the anti-management activities maliciously and
had been exploiting the poor labour to force himself being
confirmed by the management, he said that he did not agree
with it and it was not a question which needed any reply.
As a result of the enquiry, the General Manager made his
report on the 24th October, 1952, wherein he found that the
respondent had made a speech exhorting the workmen of the
factory to pass a resotion for the removal of the General
Manager, that the management was bound to lose confidence if
a worker who had excited other workers against the General
752
Manager of the concern refused to give a direct reply to
direct questions, that, in the absence of a Stenotypist who
could enjoy the confidence of the management, it was
impossible to run the factory without the risk of any
trouble and that the respondent was thus guilty of
misconduct and acts subversive of discipline. As, however,
there was a pendency of a proceeding before the Labour
Appellate Tribunal, an application should be made to that
authority for permitting his dismissal.
This report was accepted by the management and the appellant
made the application under section 22 of the Industrial
Disputes (Appellate Tribunal) Act, 1950, for permission to
dismiss the respondent from its employ.
The Labour Appellate Tribunal embarked on the freedom of
speech vouchsafed to the citizens of India under article
19(1)(a) of the Constitution, observed that the making of
the speech in question at the meeting held by the respondent
as the Vice-President of the Union was within the scope of
the legitimate activities of the Union and held that the
speech said to have been made by the respondent at the
meeting could not be said to be an act subversive of
discipline. The application of the appellant was
accordingly dismissed. Hence this appeal before us.
The only question for determination before us is whether the
speech made by the respondent at the meeting held on the
10th June, 1952, was an act subversive of discipline. The
respondent was the Vice President of the Union and, prima
facie, any resolution passed by the Union asking for the
removal of the General Manager would be perfectly legitimate
if the members of the Union thought that there were circum-
stances warranting the same. The correctness or otherwise
of the reasons given for such removal would not be liable to
scrutiny by the Court, the only thing requisite being that
the Union was not acting mala fide or was not actuated by
any malice or illwill against the General Manager in passing
such resolution. The resolution by itself would not have
the effect of harming the General Manager at all,
753
It would have to be forwarded to the management and the
management would take such steps as it may be advised on
receipt of the resolution. It would then be for the
management to find for itself whether the reasons given for
the removal of the General Manager were such as to warrant
his removal. The management would then, if it thought
necessary, institute proper enquiries and come to his own
conclusion as to the desirability or otherwise of the re-
moval of the General Manager. So far as the Union is
concerned, apart from mala fides or malice or illwill, the
act of its passing the resolution would be innocuous and
would not be liable to be visited with any punishment and
the members of the Union would no be committing any breach
of the Standing Orders nor would they be guilty of any act
subversive of discipline. The gravamen of the charge made
by the management against the respondent, however, was that
the latter was not merely responsible for the passing of
such resolution, but, in the speech which he made in
support, he gave vent to such expressions as were quite
false and defamatory and was actuated by malice against the
General Manager. He Edited the members of the Union who
were there assembled against the General Manager with the
result that his act was thus subversive of discipline. The
speech had the effect of lowering the General Manager in the
esteem of the workmen and subjecting him to hatred or
ridicule and the necessary effect of making such speech
before the workmen would be that they would look down upon
the General Manager and would not be amenable to discipline
and it would be impossible to conduct the management with
efficiency with such disgruntled workmen in the factory.
The words used by the respondent were, therefore, it was
urged, calculated to undermine the discipline in the factory
and his act was, therefore, subversive of discipline bring-
ing him well within the mischief of clause L(1) (j). of the
Standing Orders.
It was further urged that the conduct of the respondent in
the course of the correspondence which took place between
the General Manager and himself
754
was, to say the least, impudent. He relied upon his dual
personality distinguishing between his capacity as the
Steno-typist and his capacity as the Vice-President of the
Union. The act complained of was attributed to his capacity
as the Vice-President of the Union and he refused to give
any reply to the queries addressed to him-because in the
letter; addressed by the General Manager to him he was
described as the Steno-typist. He refused to give any
information to the General Manager and asked him to
communicate with the Sangh or the Union if any information
was required by the General Manager in the matter of what
took place at the meeting of the Union on the 10th June,
1952. In the enquiry also, he adopted a similar attitude
and refused to answer the direct questions addressed to him
by the General Manager in regard to the proceedings of that
meeting.
It was strenuously urged before us by the learned counsel
for the appellant that this conductor the respondent was
subversive of discipline and amounted to such misconduct as
would entitle the appellant to dismiss him from its employ.
There is considerable force in this argument and we are of
the opinion that the respondent adopted an attitude
unbecoming an employee of the appellant. He adopted a
truculent attitude in the course of the correspondence and
resorted to the theory of his dual personality refusing to
answer the queries addressed to him by the General Manager.
This attitude was, to say the least, reprehensible. Even
though he happened to occupy what he considered to be the
august position of the Vice President of the Union he did
not cease to be an emPloyee of the appellant and the attempt
to distinguish between his capacity as the Steno-typist and
his capacity as the Vice-President of the Union was
absolutely puerile. He ought to have realised that he was
first-and foremost an employee of the appellant and owed a
duty to the appellant to answer all the queries which had
been addressed to him by the General Manager. His evasion
to give such replies on the pretext of shielding himself
under his capacity as the Vice-President of the Union was
absolutely
755
unjustifiable and if such insubordination and breach of
discipline had been the subject-‘Matter of the charges made
against him, we do not see how the respondent could have
escaped the punishment of dismissal.
Similar is the position in regard to the attitude which the
respondent adopted at the enquiry. He refused to answer the
direct questions which were addressed to him and had the
temerity to ask the General Manager to see his written
statement and find out for himself the answers to the same.
To say the least, the respondent was guilty of insubordina-
tion and if his attitude was such as would not conduce to
the maintenance of discipline in the factory, here also we
would have found it difficult to resist the appellant’s
claim for his dismissal if he had been charged with having
been guilty of such misconduct.
The charge-sheet, however, only complained about the speech
which he had made on the 10th June, 1952, wherein, among
other defamatory remarks, he, the respondent, had instigated
the workers to take steps for the removal of the General
Manager. The enquiry which was held on the 4th August,
1952, also concentrated on this particular charge and the
report which was made by the General Manager on the 24th
October, 1952, also found that the respondent had made a
speech exhorting the workers to pass the resolution for the
removal of the General Manager. The acts of insubordination
calculated to undermine the discipline in the factory which
we have adverted to above were neither the subject-matters
of the charge nor were they relied upon by the General
Manager in his report as the grounds of misconduct entitling
the management to dismiss the respondent’ from its employ.
The passing of the resolution for the removal of the General
Manager by itself was not, as already stated, an act
subversive of discipline and would not entitle the
management to dismiss him and we are of the opinion that, on
the record as it stood, the Labour Appellate Tribunal was
justified in refusing to the appellant the permission to
dismiss the respondent from its employ.
The charge-sheet which was furnished by the appel-
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756
lant to the respondent formed the basis of the enquiry which
was held by the General Manager and the appellant could not
be allowed to justify its action on any other grounds than
those contained in the chargesheet. The respondent not
having been charged with the acts of insubordination which
would have really justified the appellant in dismissing him
from its employ, the appellant could not take advantage of
the same even though these acts could be brought home to
him. We have, therefore, come to the conclusion’that the
order made by the’ Labour Appellate Tribunal was correct
even though we have done so on grounds other than those
which commended themselves to it.
We accordingly dismiss this appeal but having regard to the
conduct of the respondent which We have characterised above
as reprehensible we feel that the ends of justice will be
met if we ordered that each party do bear and pay its own
costs of this appeal.
Appeal dismissed.
