JUDGMENT
1. This is a petition by the workmen of the Mysore Lamp Works Ltd., Bangalore, represented by the General Secretary, Mysore Lamp Works Employees Association (hereinafter referred to as the Employees’ Association). The petitioners have prayed for quashing the award of the Additional Industrial Tribunal, hereinafter referred to as the Tribunal) in an industrial dispute between the said workmen and the management of the Mysore Lamp Works Ltd., Bangalore (hereinafter referred to as the management). The Tribunal upheld the dismissal of M. L. Janakiram Naidu, who was the General Secretary of the Employees’ Association, by the management. The Tribunal also held that the workmen were not entitled to wages for the period commencing from 22-8-67.
2. We may state certain material facts which are not in dispute. In May 1967 a printed Kannada pamphlet, styled as a letter addressed to the Chief Minister of Mysore, was issued in the name of M. L. Janakiram Naidu, purporting to be on behalf of the Employees’ Association. This pamphlet contained many allegations against the management. The material allegations (as translated by the Enquiry Officer who held the domestic enquiry) read :-
“To make the company borrow more and make it incur loss”.
“They have the idea of owning the company entering on the excuse of technical collaboration”.
“Good lamps go to the market in the name G.E. and II Grade lamps go to the market in the name of Mysore Lamps. New type lamps are in G.E. name. But new type lamps are not in the name of Mysore Lamp. From all this it is apparent that the idea is to spoil the name of Mysore Lamp”.
3. After exchange of notices between the management and Janakiram Naidu, the former issued a notice dated 17-5-67 to the latter charging him (M. L. Janakiram Naidu) with making, in the said Kannada pamphlet, unwarranted, unjustified and false statements which affected the fair name and prestige of the company and the products manufactured by it, which act was subversive of discipline and constituted misconduct under Model Standing Order 15(3)(h), the maximum punishment for which was dismissal from service. The management appointed Mr. B. R. Puttananjappa, Hon. Secretary, Mysore State Employers’ Association, Bangalore, to conduct an enquiry into the above charge against Janakiram Naidu. Janakiram Naidu appeared in that enquiry through his counsel and raised the following two preliminary objections :
(i) No disciplinary proceedings could be instituted against an individual workman in regard to the statement in the pamphlet which had been issued by him as the General Secretary of the Employees’ Association in pursuance of the resolution of the General body of that Association;
(ii) The management had taken contrary stand in respect of the Standing Orders applicable to the establishment, namely the Mysore Lamp works.
4. After hearing the arguments of the parties, the Enquiry Officer, by his order dated 18-7-1967, overruled these preliminary objections and directed the parties to adduce evidence on merits.
5. Janakiram, Naidu addressed a letter dated 20-7-67 to the Enquiry Officer stating that the Executive Committee of the Employees’ Association considered the order of the Enquiry Officer on the preliminary objection and resolved that an industrial dispute in regard to the said order should be raised before the conciliation officer and that no useful purpose would be served in participating in the further proceedings of the said enquiry. In that letter a request was also made that further proceedings in that enquiry should be dropped. But, the Enquiry Officer declined to stop further proceedings and adjourned the enquiry to 24-7-67.
6. On 24-7-67 Janakiram Naidu did not turn up; but he sent a letter purporting to be signed in his capacity as the General Secretary of the Employees’ Association. In that letter he stated that the matter had been referred for conciliation and therefore he was not attending the enquiry. The Enquiry Officer declined to treat the Employees’ Association as a party to the enquiry proceedings before him and called upon the management to adduce evidence in support of the charge. The management examined four witnesses.
7. The Enquiry Officer made a report in which he held that the allegations made by Janakiram Naidu in the said pamphlet, were made without regard for truth and that making such statements affected the prestige of the company and its products, and was highly subversive of discipline and amounted to misconduct under the Model Standing Order 15(3)(h), and merited the extreme punishment of dismissal from service.
8. On the report of the Enquiry Officer the management passed an order on 17-8-67 dismissing Janakiram Naidu from service of the company.
9. On 22-8-67 a number of workmen took up the cause of Janakiram Naidu and resorted to a stay-in strike. On the same day conciliation proceedings were initiated by the Deputy Commissioner of Labour. On 26-8-67 the Government issued an order prohibiting continuance of the strike. The workmen resumed work on that day. Thereafter the Government referred under S. 10(1)(b) of the Industrial Disputes Act, 1947 to the Tribunal for adjudication the dispute between the management and its workmen. The points of dispute so referred were as follows :
(i) Is the management of Mysore Lamp Works, Bangalore justified in terminating the services of Sri M. L. Janakiram Naidu, General Secretary of the Mysore Lamp Works Employees’ Association ? If not, is he entitled to reinstatement and or for any other relief ?
(ii) Are the workmen of Mysore Lamp Works justified in demanding wages for the strike period in the above factory with effect from 22-8-67 ?
10. Before the Tribunal, the parties filed their statements. The workmen examined a number of witnesses. The Tribunal held that Janakiram Naidu was given every opportunity to put in his defence but he failed to avail himself of that opportunity, that the conclusion in the domestic enquiry, though ex parte, was fair and reasonable, and that his dismissal was therefore justified. On the second point, the Tribunal held that the strike by the workmen was illegal and that they were not entitled to any wages during the period of such strike.
11. In this petition, Mr. G. S. Ullal learned counsel for the petitioners Employees’ Association urged the following contentions :
(i) The publication of the pamphlet by Janakiram Naidu was not an act subversive of discipline;
(ii) Principles of natural justice were violated in the domestic enquiry;
(iii) The disciplinary action against Janakiram Naidu was mala fide, discriminatory and amounted to victimisation and unfair labour practice;
(iv) The conclusion of the Tribunal that the strike was illegal and the workmen were not entitled to wages during that period of strike, is manifestly erroneous; and
(v) The award of the Tribunal is vitiated on account of the Tribunal taking into consideration irrelevant and extraneous matters.
12. Elucidating the first contention, Mr. Ullal argued that the object of issuing pamphlet addressed to the Chief Minister was to put an end to mismanagement of the company which affected not only the capacity of the company to pay adequate emoluments to its workmen but also the future of the company in which the workmen were vitally interested, and that there was justification for making the statements contained in that pamphlet. Mr. Ullal maintained that as the Government held a considerable proportion of shares in the company and had the power to appoint the Chairman and one other Director of the company, the workmen had reason to believe that the Chief Minister would set right the affairs of the company.
13. It may be mentioned here that the charge against Janakiram Naidu was not that he gave undue publicity, i.e., needlessly wide publicity, to the pamphlet; but the charge was that the allegations contained in that pamphlet were false, unwarranted, unjustified and affected the reputation of the company and its products, Before the Enquiry Officer, Janakiram Naidu made no attempt to show that these statements were true. The Enquiry Officer considered the evidence of witnesses examined on behalf of the management and came to the conclusion that these statements were false and were made with no regard for truth. The Tribunal held that there were no reasons to interfere with that findings of the domestic enquiry.
14. Making statements which are false cannot be justified as being necessary to safeguard the legitimate interest of workmen. Mr. Ullal had not been able to show how there was any violation of principles of natural justice in the enquiry before the domestic enquiry. Nor was he able to point out any other grounds which would justify our interference with the said finding of the domestic enquiry which has been upheld by the Tribunal.
15. However, Mr. Ullal argued that even if the statements contained in the pamphlet were false and affected the fair name and prestige of the company and its products, making such statements would not amount to an act subversive of discipline and cannot be regarded as misconduct justifying disciplinary action.
16. Mr. Ullal sought to derive support for his contention from certain observations of the Supreme Court in Lakshmi Devi Sugar Mills Ltd. v. Nandakishore Singh . There, the respondent who as a steno-typist in the appellant-mills and also the Vice-President of the union of workmen therein made a speech at the meeting of the workmen, criticising the attitude of the General Manager of the mills towards the workmen. At that meeting a resolution was also passed demanding the dismissal of the General Manager. Thereafter the General Manager addressed a letter to him asking him to give information as to what happened in that meeting. The respondent sent a reply that he never attended any meeting whatever in his capacity as the steno-typist of the mills and expressed his inability to comply with the wishes of the General Manager. After some letter were exchanged between the respondent and the General Manager, the letter held an enquiry against the respondent and found that he was guilty of misconduct and acts subversive of discipline. As, however, there was a pendancy of a proceeding before the Labour Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) an application was made to that Tribunal for permitting his (the respondent’s) dismissal. The Appellate Tribunal declined to grant such permission.
17. The management went up in appeal before the Supreme Court by special leave to appeal. The Supreme Court observed that though the respondent was the Vice-President of the union, he did not cease to be an employee of the appellant, that he owed a duty to the appellant to answer all the queries addressed to him by the General Manager, and that such refusal to reply was absolutely unjustifiable and amounted to an act of insubordination calculated to undermine discipline. However, the Supreme Court held that the passing of the resolution for the removal of the General Manager, by itself, was not an act subversive of discipline and would not entitle the management to dismiss the respondent.
18. In that case, the charge-sheet complained only about the speech he had made, wherein among other defamatory remarks, he had instigated the workers to take steps for the removal of the General Manager. But he had not been charged with the acts of insubordination undermining discipline, which would have really justified dismissing him from service. It is on account of that absence of such charge that the Supreme Court did not disturb the order of the Appellate Tribunal refusing permission to dismiss him from service.
19. However, Mr. Ullal strongly relied on the following passage in the judgment of the Supreme Court :-
“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”.
20. From the underlined portions of the above passage, Mr. Ullal sought to make out that the specific question before the Supreme Court was whether making a false and defamatory speech was subversive of discipline and that the Supreme Court held that it was not.
21. Though the Supreme Court has stated in the above passage that the gravamen of the charge was whether the respondent gave vent to such expressions as were quite false and defamatory, the Supreme Court has nowhere stated in its judgment that making false and defamatory statements would not amount to an act subversive of discipline and would not amount to misconduct. Thus, no part of the said decision of the Supreme Court is of any assistance to Mr. Ullal.
22. On the other hand, the observations of the Supreme Court, that an employee does not cease to be so, merely because he happens to be the office bearer of the union of the workmen and that he is an much amenable to the discipline as any other employee, are against petitioners.
23. Mr. Ullal next sought to derive aid from the decision of the Supreme Court in Orissa Cement Ltd. v. Habibullah [1960 – I L.L.J. 522]. There a workman of the appellant mills who had complained to the management against another workmen, went back upon his allegations in the complaint when he gave evidence before the Industrial Tribunal. The management sought to dismiss the former workman because he gave false evidence before that Tribunal and had filed a false complaint against the latter workman. In the appeal preferred by the management, the Supreme Court affirmed the decision of the Tribunal and observed :
“In our opinion, it would be difficult to accede to the argument that if the evidence given by an employee in an industrial adjudication is disbelieved, that itself without any-thing more would constitute misconduct …….. It is unnecessary to say that it would not be proper for employees to make serious allegations against their employers, and if it appears that the complaints made were known to be false to the employees, that would be a serious matter.”
24. In the above decision, far from saying that making false and defamatory statement against the management would not be subversive of discipline and would not amount to misconduct, the Supreme Court has stated that making false allegations knowing them to be false, is a serious matter. We do not see how this decision also can be of any assistance to Mr. Ullal.
25. Thus, we see no reason to differ from the view taken in the domestic enquiry and by the Tribunal that the publication of the said pamphlet by Janakiram Naidu was an act subversive of discipline and amounted to misconduct.
26. Though in the affidavit in support of the petition, it was alleged that Mr. B. R. Puttananjappa who held the domestic enquiry was biased, Mr. Ullal did not urge that plea in his arguments. As stated earlier Janakiram Naidu did not choose to participate in the domestic enquiry after his preliminary objections were overruled. He cannot complain that he was denied an opportunity of defending himself in the enquiry. Mr. Ullal has not been able to show how principles of natural justice were violated in the domestic enquiry, and hence his attack on the finding of the domestic tribunal, on this ground, should fail.
27. It was next contended by Mr. Ullal that as Janakiram Naidu published the pamphlet on behalf of the Employees’ Association, he did not individually incur any liability for any statement contained therein.
28. As stated earlier, the Supreme Court has pointed out in Laxmi Devi Sugar Mills’ case , that an employee does not cease to be so merely because he holds an important position in the union of workmen and that he has as much duty and responsibility as any other workman not to do any act subversive of discipline. If the act of Janakiram Naidu in making false statements affecting the fair name and prestige of the company, is, per se, an act subversive of discipline, we are unable to see how that act can assume a different complexion merely because it is done on behalf of the Employees’ Association.
29. In P. K. Nair v. Labour Appellate Tribunal [1957 – I L.L.J. 216] a Bench of the Bombay High Court held that any distinction between misconduct committed by a workman in his individual capacity and misconduct committed by him as a member of Labour Union, is entirely untenable.
30. In Jai Chand Bansal v. The Industrial Tribunal, Maharashtra [1966 – I L.L.J. 289] the facts were very similar to those of the present case. The petitioner therein had written a letter containing offensive remarks against the Chairman of the company. It was contended by the petitioner that as the letter was signed by him in his capacity as the Vice-President of the Labour Union no action could be taken against him. After referring to the decisions of the Supreme Court in Laxmi Devi Sugar Mills’ case the Bombay High Court repelled that contention.
31. In the light of the above decisions, we see no good grounds to differ from the view taken by the Tribunal that Janakiram Naidu could not escape the liability for publishing the pamphlet containing false statements, merely because he purported to do so on behalf of the Employees’ Association.
32. Mr. Ullal complained that though the pamphlet was published on behalf of the Employees’ Association, the management took action only against Janakiram Naidu and that singling him out for such disciplinary action was mala fide and discriminatory and amounted to victimisation and unfair labour practice.
33. After examining the minutes book of the Employees’ Association the Tribunal has held that the three specific statements in the pamphlet which formed the subject matter of the charge against Janakiram Naidu were supported by any resolution at the meeting of the workmen of the company.
34. While it was certain that Janakiram Naidu issued this pamphlet subscribing his name thereto it was doubtful whether any other workman was also responsible for so doing. At any rate, the part played by Janakiram Naidu in issuing that pamphlet subscribing his name, was much greater than that of any other workman who might have authorised or assented to issuing such pamphlet. Hence the action of the management in taking disciplinary action against Janakiram Naidu only cannot be said to be mala fide or discriminatory.
35. Dealing with the contention of victimisation and unfair labour practice, the Tribunal has observed that such argument will not be available where grave misconduct has been proved against an employee. The Tribunal has relied on the following passage in the decision of the Calcutta High Court in National Tabacco Co. Ltd. v. Fourth Industrial Tribunal [1960 – II L.L.J. 175] :
“Victimisation means one of two things. The first is when the workman concerned is innocent and yet he is being punished because he has in some way displeased the employer, for example by being an active member of an union of workmen who were acting prejudicially to the employer’s interest. The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence, simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct then there cannot be any question of victimisation because it merits dismissal by itself.”
36. The view taken by the Tribunal is also supported by the following observations of the Supreme Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh [1963 – I L.L.J. 291];
“The fact that the relations between an employer and the union were not happy and the workmen concerned were office bearers or active workers of the union would by itself be no evidence to prove victimisation, for if that were so, it would mean that the office bearers and active workers of a union with which the employer is not on good terms would have a carteblanche to commit any misconduct and get away with it on the ground that relations between the employer and the union were not happy”.
37. Nor can the penalty of dismissal of Janakiram Naidu from service be said to be out of proportion to the gravity of the misconduct. We see no good ground to differ from the view taken by the Tribunal that the workmen have not established that the disciplinary action taken against Janakiram Naidu alone amounted to victimisation or unfair labour practice.
38. The second question referred to the Tribunal was whether the workmen of the Mysore Lamp Works were justified in demanding wages for the period of strike commencing from 22-8-67. In dealing with this question, the Tribunal held that the strike was illegal and therefore the striking workmen would not legitimately be entitled to any wages for that period. Mr. Ullal urged that the finding of the Tribunal that the strike was illegal, is manifestly erroneous.
39. Under S. 24 of the Industrial Disputes Act, 1947, a strike is illegal if.
(i) it is continued or declared in contravention of S. 22 or S. 23; or
(ii) it is continued in contravention of an order made under sub-s. (3) of S. 10 or sub-s. (4A) of S. 10A.
40. Section 22 which deals with strikes and lock outs in a public utility service is not relevant for the present case because the Mysore Lamp Works is not a public utility service.
41. Section 23 provides, inter alia, that no workman who is an employee in any industrial establishment shall go on strike in breach of contract during the pendancy of the conciliation or arbitration proceedings, or proceedings before the Labour Court or Tribunal and for certain period after the conclusion of such proceedings or during any period in which a settlement or award is in operation in respect of any of the matters covered by the settlement or award.
42. In the present case, when the strike commenced on 22-8-1967 no proceedings were pending before any Board of Conciliation, Labour Court, Tribunal or Arbitrator, nor has it been shown that there was any settlement or award in operation in respect of dismissal of Janakiram Naidu. We think Mr. Ullal is right in contending that the view taken by the Tribunal that the strike was illegal is clearly unsustainable. Though the Tribunal disallowed the workmen’s claim for wages during the period of strike, proceeding on this erroneous view, we do not consider it necessary to quash that part of the award of the Tribunal, because it appears to us that the workmen’s claim for wages for the period of strike has to fail on other grounds also, as we shall presently show.
43. We shall now examine whether on the facts and circumstances of the case, the strike in question was justified or not, and consequently, whether the striking workmen can justifiably claim wages for the strike period.
44. Explaining when a strike can be considered to be justified the Supreme Court said thus in Swadeshi Industries Ltd. v. Its Workmen :
“The collective bargain for securing improvement of matters like these, viz., basic pay, dearness allowance, bonus, provident fund, gratuity, leave and holiday, is the primary object of trade union and when demands like these are put forward and thereafter a strike is resorted to in an attempt to induce the company to agree to the demands or at least to open negotiations, the strike must, prima facie, be considered justified”.
45. The further observations of the Supreme Court in Management of Chandramalai Estate v. Its Workmen , are apposite :
“After all it is not the employer only who suffers if production is stopped by strikes. While on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour, it is equally important to remember that indiscriminate and hastily use of this weapon should not be encouraged. It will not be right for the labour to think that in any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects …….”.
46. In the present case, the strike was resorted to, not for securing any improvement in the conditions of service of workmen like, pay, dearness allowance, bonus, etc. but to compel the management to reinstate Janakiram Naidu. As we have held earlier Janakiram Naidu was dismissed for misconduct, after holding a proper enquiry in which such misconduct, was established. Before resorting to strike to enforce their demand to reinstate him, no attempt was made by the workmen to negotiate with the management in the regard, nor did the workmen approach the Government for making a reference to the Industrial Tribunal of the dispute relating to dismissal of Janakiram Naidu. The workmen resorted to strike hastily. In the circumstance, we think the strike, though not illegal, was not justified and this is not a case in which the workmen could justifiably claim wages for the period of strike.
47. Lastly, it was contended by Mr. Ullal that the Tribunal has taken into consideration irrelevant and extraneous matters and that hence its award is vitiated. Mr. Ullal drew our attention to para 23 of the impugned award in which the Tribunal has referred to the protest week organised by the union and has observed that these activities of Janakiram Naidu might have made the management to realise that in him they had a difficult person to deal.
48. No doubt, there are a few references in the award to certain activities of the Employees’ Association and certain controversies between it and the management. These matters have strictly no relevance to the questions for determination before the Tribunal. But the decision of the Tribunal on the several questions before it has not been rested on such irrelevant matters. Hence, a mere reference to such matters and certain comments made thereon by the Tribunal cannot be regarded as having vitiated its award which is really based on relevant grounds.
49. All the contentions of Mr. Ullal fail and we dismiss the petition. But in the circumstances of the case, we direct the parties to bear their own costs.
