{"id":195080,"date":"1959-10-14T00:00:00","date_gmt":"1959-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/india-general-navigation-and-vs-their-workmen-on-14-october-1959"},"modified":"2019-01-27T08:24:15","modified_gmt":"2019-01-27T02:54:15","slug":"india-general-navigation-and-vs-their-workmen-on-14-october-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/india-general-navigation-and-vs-their-workmen-on-14-october-1959","title":{"rendered":"India General Navigation And … vs Their Workmen on 14 October, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
India General Navigation And … vs Their Workmen on 14 October, 1959<\/div>\n
Equivalent citations: 1960 AIR 219, \t\t 1960 SCR (2)\t 1<\/div>\n
Author: B P Sinha<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj)<\/div>\n
           PETITIONER:\nINDIA GENERAL NAVIGATION AND RAILWAY CO. LTD.\n\n\tVs.\n\nRESPONDENT:\nTHEIR WORKMEN\n\nDATE OF JUDGMENT:\n14\/10\/1959\n\nBENCH:\nSINHA, BHUVNESHWAR P.(CJ)\nBENCH:\nSINHA, BHUVNESHWAR P.(CJ)\nGAJENDRAGADKAR, P.B.\nSUBBARAO, K.\n\nCITATION:\n 1960 AIR  219\t\t  1960 SCR  (2)\t  1\n CITATOR INFO :\n D\t    1961 SC1158\t (10)\n F\t    1961 SC1168\t (7)\n R\t    1972 SC 277\t (9)\n RF\t    1980 SC1896\t (148)\n\n\nACT:\n       Industrial Dispute-Illegal strike in Public utility service-\n       Lock    out-Dismissal   of   workmen-Legality-Function\t of\n       Industrial  Tribunal-Measure of\tpunishment-Award,  finality\n       of-Power of Supreme Court-Industrial Disputes Act, 1947\t(14\n       of 1947), ss. 17, 17A, 22, 24(3)-Constitution of India, Art.\n       136.\n\n\n\nHEADNOTE:\nIt  was a contradiction in terms to say that a strike  in  a\npublic\tutility\t service, which was clearly  illegal,  could\nalso  be  justified.  The law does not\tcontemplate  such  a\nposition nor is it warranted by any distinction made by\t the\nIndustrial  Disputes  Act,  1947.   It\tshould\tbe   clearly\nunderstood by workmen who participate in such a strike\tthat\nthey  cannot escape their liability for\t such  participation\nand   any  tendency  to\t condone  such\ta  strike  must\t  be\ndeprecated.\nThe  only question of practical importance, that  arises  in\nsuch a strike is, what should be the kind and quantum of the\npunishment  to\tbe meted out to the  participants  and\tthat\nquestion  has  to be decided on the charge-sheet  served  on\neach individual workman and modulated accordingly.\nIn  determining the question of punishment, distinction\t has\nto  be made between those who merely participated in such  a\nstrike\tand those who were guilty of obstructing  others  or\nviolent\t demonstrations or defiance of law, for a  wholesale\ndismissal  of  all the workmen must be\tdetrimental  to\t the\nindustry itself.\nIf  the\t employer, before dismissing a\tworkman,  gives\t him\nSufficient  opportunity\t of explaining his conduct,  and  no\nquestion  of mala fides or victimisation arises, it  is\t not\nfor  the  Tribunal, in adjudicating the\t propriety  of\tsuch\ndismissal, to look into the sufficiency or otherwise of\t the\nevidence  led before the enquiring officer or insist on\t the\nsame degree of proof as is required in a Court of Law, as if\nit was sitting in appeal over the decision of the  employer.\nIn such a case it is the duty of the Tribunal to uphold\t the\norder of dismissal.\nConsequently, in the present case, where the appellants, who\nwere  carrying\ton  business  in  water\t transport  service,\nnotified  as  a\t public\t utility  service,  dismissed  their\nworkmen\t for  joining  an illegal  strike,  on\tenquiry\t but\nwithout serving a charge-sheet oil\n\t\t\t     2\neach individual workman and the Industrial Tribunal directed\ntheir  reinstatement,  excluding  only those  who  had\tbeen\nconvicted\t\t under\ts. 143 of the  Indian  Penal\nCode but including those convicted under s. 188 of the Code,\nwith full back wages and allowances,-\nHeld,  that the decision of the Tribunal to reinstate  those\nwho had been convicted under s. 188 of the' Code must be set\naside  and  the\t wages\tand  allowances\t allowed  to   those\nreinstated  must be reduced by half and the  award  modified\naccordingly.\nHeld, further, that the Industrial Disputes Act, 1947,\tMust\nbe read as subject to the paramount law of the land, namely,\nthe  Constitution,  and the finality attaching to  an  award\nunder  ss. 17 and 17A of the Act, must, therefore, yield  to\nthe  overriding powers of this Court under Art.\t 136 of\t the\nConstitution.\nAs  the\t award in the instant case did not fall\t within\t the\nProvisos to s. 17 of the Act, it was not correct to  contend\nthat  the  appellants had any other remedies  thereunder  to\nexhaust before they could come up in appeal to this Court.\nNor  was it correct to contend that the Government of  Assam\nwas a necessary party in the appeal inasmuch as it had acted\nby  virtue of delegated powers of legislation under the\t Act\nin making the award enforceable as law.\t A State  Government\nplays  no  part\t in such a proceeding  except  to  make\t the\nreference under s. 10 of the Act, nor has it anything to  do\nwith  regard  to  the publication of  the  award,  which  is\nautomatic  under s. 17 of the Act, or its operation,  unless\nthe case falls within the provisos to s.     17A of the Act.\nA lock-out lawfully declared under S. 24(3) of the Act, does\nnot cease to be legal by its continuance beyond the  strike,\nalthough such continuance may be unjustified.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.86 of 1958.
\n       Appeal  by special leave from the Award dated  November\t15,
\n       1956, of the Industrial Tribunal, Assam, at Dhubri.
\n       M.   C.\t Setalvad,  Attorney-General  for  India,   S.\t N.
\n       Mukherjee and B. N. Ghose, for the appellants.
\n       Niharendu  Dutt Mazumdar and Dipak Dutta Choudhri,  for\tthe
\n       respondents.\n<\/p>\n
       1959.  October 14.  The Judgment of the Court was  delivered
\n       by
\n       SINHA  C.  J.-This is an appeal by special  leave  from\tthe
\n       Award  dated  November  15, 1956,  made\tby  the\t Industrial
\n       Tribunal,  Assam.  The dispute arose between the\t employers,
\n       the Indian General Navigation
\n       3<\/span>
\n       &  Railway Company Limited, carrying on business at  No.\t 4,
\n       Fairlie\tPlace,\tCalcutta, and the Rivers  Steam\t Navigation
\n       Company\tLimited,  carrying on business at  No.\t2,  Fairlie
\n       Place, Calcutta, which will be referred to, in the course of
\n       this  judgment,\tas the appellants’, and\t their\tworkmen\t at
\n       Dhubri Ghat, represented by the Dhubri Transshipment  Labour
\n       Union  and  Dhubri  Local Ghat  Transhipment  Labour  Union,
\n       Dhubri,\twhich  will  be\t referred  to  hereinafter  as\tthe
\n       respondents’.   The  Award aforesaid was\t published  in\tthe
\n       Assam Gazette on December 19, 1956.\n<\/p>\n
       It  is necessary to state the following, facts in  order\t to
\n       appreciate the points arising for decision in this case: The
\n       appellants  carry on business of inland water  transport\t in
\n       North  East India and in Pakistan, in association with  each
\n       other,\tand  are  commonly  known  as  the  Joint   Steamer
\n       Companies.   The appellants jointly maintain a large  number
\n       of  wharves,  jetties,  godowns, etc.,  at  different  river
\n       stations in India and in Pakistan, for the purposes of their
\n       business.  One such station is at Dhubri in Assam.  At  that
\n       station,\t a  large number of workmen are\t employed  for\tthe
\n       purpose of loading and unloading the appellant’s vessels and
\n       for   transshipping  goods  from\t railway  wagons   to\tthe
\n       appellants’ vessels and vice versa.  Before May, 1954,  such
\n       workmen\twere  employed\tby a contractor\t called\t the  Assam
\n       Labour  Supply Syndicate which will hereinafter be  referred
\n       to  as ‘the Syndicate’. Those workmen were  organized  under
\n       two  labour  unions,  called  (1)  the  Dhubri  Transhipment
\n       Labour\tUnion\twhich\twas  affiliated\t  to   the   Indian
\n       National\t Trade\tUnion Congress -which is, a  Federation\t of
\n       Trade  Unions,  and (2) the Dhubri Local\t Ghat  Transhipment
\n       Labour Union.  There were differences between the  Syndicate
\n       and  its\t employees  who\t made  certain\tdemands,  and\thas
\n       threatened  to  go  on  strike  to  enforce  their  demands.
\n       Conciliation proceedings under the industrial Disputes  Act,
\n       1947  (which  will hereinafter be referred to as\t the  Act),
\n       took place, in the course of which certain agreements to\t be
\n       referred\t to  in greater detail\thereinafter,  were  reached
\n       between the Syndicate and the respondents on
\n       4<\/span>
\n\tFebruary 23, 1953, and March 30, 1953.\tOn May 3, 1954,\t by
\n       virtue of a Memorandum of that date, an\t\t  agreement
\n       was arrived ‘at between the appellants and  the respondents,
\n       whereby\tthe  appellants agreed that\t\tinstead\t of
\n       employing  a  contractor to handle the work of  loading\tand
\n       unloading and transhipment of goods,\t    the\t appellants
\n       would  employ  supervisors and agents to handle the  work  ”
\n       pending\tthe  proposed Tripartite Conference to\tdecide\tthe
\n       issue  of permanent direct employment of employees  for\tthe
\n       future “. The appellants also agreed to maintain\t continuity
\n       of  service  of\tthe  workmen and  the  existing\t terms\tand
\n       conditions  of  their service.\tThe  Tripartite\t Conference
\n       contemplated  by\t the  Agreement,  was  to  consist  of\tthe
\n       represent.  natives of the appellants, the workmen  and\tthe
\n       Government  of  Assam.  As a result of the  Tripartite  Con-
\n       ference held on July 9 & 10, 1954, an agreement was  reached
\n       between\tthe appellants and the Indian National Trade  Union
\n       Congress,  which\t was incorporated in the form of  a  letter
\n       dated  July  16,\t 1954, from the General\t Secretary  of\tthe
\n       Congress,  Assam Branch, Dhubri Ghat, to the several  Unions
\n       at  different  stations, including Dhubri.  As a\t result\t of
\n       this  agreement,\t the  appellants  agreed,  inter  alia,\t to
\n       introduce   permanent   direct\temployment   at\t  all\tthe
\n       transhipment   ghats   of  Assam,   progressively,   without
\n       prejudicing  the\t agreement  of May 3,  1954.   It  will\t be
\n       necessary hereinafter to consider some of the terms of  this
\n       agreement in detail, when dealing with the several points in
\n       controversy between the parties.\n<\/p>\n
       After   the   agreement\taforesaid,  there   arose   certain
\n       differences  amongst  the  workmen represented  by  the\ttwo
\n       Unions  aforesaid,  in  respect of  the\telection  of  their
\n       office-bearers.\t As a result of those internal\tdissensions
\n       amongst\tthe employees, two rival groups, each  claiming\t to
\n       represent  a  section of the workmen, came  into\t existence.
\n       The  appellants,\t thereupon, notified  the  Indian  National
\n       Trade  Unions’  Congress,  that recognition  to\tthe  Dhubri
\n       Transhipment  Labour  Union,  was  being\t withdrawn  pending
\n       satisfactory settlement of the internal differences.   Thus,
\n       came into existence, a new Trade Union known as the
\n       5<\/span>
\n       Dhubri Transhipment Workers’ Union, in or about July,  1955.
\n       Meanwhile,  between  May\t 2, 1955, and July  31,\t 1955,\tthe
\n       appellant’s,  on five different occasions and  on  different
\n       charges,\t dismissed eight of their employees,  after  making
\n       such  inquiries\tas  they thought  necessary  against  those
\n       workmen,\t and  after  giving them  each\tan  opportunity\t of
\n       explaining their conduct.\n<\/p>\n
       On  July\t 21, 1955, one B.  Chakravarty,\t Secretary,  Dhubri
\n       Transhipment Labour Union, served a notice on the appellants
\n       under  sub-s. (i) of s. 22 of the Act, that ” I\tpropose\t to
\n       call a strike on the 11th August, 1955, from zero hours,\t if
\n       the following demands be not fulfilled within fourteen  days
\n       on  receipt  of\tthis notice”.  Then  followed  an  annexure
\n       containing  ten demands which need not be set out  here.\t  A
\n       similar notice was also served by the Secretary Dhubri Local
\n       Ghat  Transhipment  Labour  Union  on  the  same\t date’\tthe
\n       annexure\t in this case containing eleven demands.   On  July
\n       26,  1955,  the Conciliation Officer of\tthe  Government\t of
\n       Assam,\treceived  the  notice  of  the\tstrike.\t  He   held
\n       conciliation  proceedings  on  August  6,  1955,\t but  those
\n       proceedings   ended   abruptly  without\tarriving   at\tany
\n       settlement.   On\t August\t 8,  1955,  the\t said  Conciliation
\n       Officer,\t who  was  the Labour Officer of  Gauhati,  by\this
\n       letter\tbearing\t  the  same  date,  informed   the   Labour
\n       Commissioner,  Assam, about the failure of the  conciliation
\n       proceedings,  and  forwarded copies of that  letter  to\tthe
\n       appellants  and\tthe  workmen’s Union  at  Dhubri.   Without
\n       waiting for the statutory period of seven days from the date
\n       of  failure of the conciliation proceedings, a large  number
\n       of  workmen  concerned went on strike with effect  from\tthe
\n       mid-night of August 10, 1953, in pursuance of the notices of
\n       strike  aforesaid.  They were alleged by the appellants\tnot
\n       only  to\t have  gone on strike, but also\t to  have  forcibly
\n       entered the appellants’ jetties and other working places and
\n       prevented  the loyal workmen, who were willing to  carry\t on
\n       the  transhipment work, from carrying on their normal  work.
\n       The strike is, therefore, alleged to have been illegal.\t On
\n       August  11,  1955,  the\tDistrict  Magistrate,  Goal   para,
\n       promulgated an ‘order under
\n       6<\/span>
\n       s.   144 of the Code of Criminal Procedure, prohibiting\tthe
\n       “holding\t   of\t any\tmeetings,    demonstrations,\tpro
\n       cessions,  or  causing threat, obstructions,  annoyance\tor
\n       injury  directed\t against  the  persons\tlawfully   employed
\n       in the following areas in the Dhabri Town and its  suburbs”.
\n       Then followed a specification of the ghats\t  to  which
\n       the  prohibition applied This order was to remain  in  force
\n       till  September\t10, 1955, In consequence of  the  aforesaid
\n       strike which was treated by the appellants as illegal,  they
\n       declared\t a  lock-out on August 11, 1955, in respect  of\t 91
\n       workmen\tnamed in the notice issued to them.  Another  lock-
\n       out  notice was issued on August 13, 1955, in respect  of  a
\n       much larger number of workmen in different groups  described
\n       as belonging to a particular Sardar’s gang.  The legality of
\n       these  lock-out\tnotices, was seriously\tchallenged  by\tthe
\n       respondents.  The Workers’ Union called off the strike  with
\n       effect  from August 19, and the appellants lifted the  lock-
\n       out  with  effect  from\tAugust\t27.   The  appellants  took
\n       proceedings  against those employees who had taken  part\t in
\n       the  strike.  They suspended those workmen who were  alleged
\n       to  have\t not only taken part in the strike,  but  also\thad
\n       obstructed  those  workmen who were willing  to\twork.\tBut
\n       those workmen who were alleged to have only participated\t in
\n       the  strike,  were  not suspended during\t the  inquiry.\t On
\n       September 8, 1955, 37 of the employees were convicted  under
\n       s.  188\tof  the Indian Penal Code,  for\t violation  of\tthe
\n       aforesaid  order\t under s. 144 of  the  Criminal\t Procedure,
\n       Code,  with  the\t result\t that on  September  9,\t they  were
\n       Dismissed by the appellants.  Another batch of 52  employees
\n       were convicted under a 143\/188 of the Indian Penal Code,\t on
\n       February 17,1956.\n<\/p>\n
       Meanwhile,  on September 13, 1955, the Government  of  Assam
\n       bad constituted a Board of Conciliation, consisting of three
\n       persons,\t namely, (1) Labour Commissioner of Assam,  as\tthe
\n       Chairman,  (2) D. N. Sarma of Gauhati, as  representing\tthe
\n       interest\t of  the  employees, and (3)  P.  J.  Rayfield,\t as
\n       representing  the interest of the employers, with a view\t to
\n       promoting  settlement of the dispute between the\t appellants
\n       and their workmen
\n       7<\/span>
\n       at  Dhubri.  The appellants alleged that they had  dismissed
\n       their  workmen  as  a result of the inquiry  held  by  their
\n       nominee into the conduct of the persons who had participated
\n       in   the\t  alleged  illegal  strike  and\/  or   had   caused
\n       obstruction, before they became aware of the constitution of
\n       the Board of Conciliation, as aforesaid.\t On coming to  know
\n       of  the constitution of the said Board of Conciliation,\tthe
\n       appellants subsequently passed orders, holding the order\t of
\n       dismissal  of the two hundred and twenty three employees\t in
\n       abeyance,  pending the disposal of their application to\tthe
\n       Board  for  permission to dismiss the said two  hundred\tand
\n       twenty  three  employees.   The Board  of  Conciliation,\t by
\n       majority, P. J. Rayfield dissenting, came to the\t conclusion
\n       that  as regard the dismissal of the thirty  seven  workmen,
\n       the  Management had violated s. 33 of the Act,  because,\t in
\n       their opinion, the proceedings of the Board of  Conciliation
\n       had commenced from August 26, and not from September 13.\t As
\n       regards\tthe permission sought by the Management to  dismiss
\n       the  suspended  two hundred and twenty three workmen,  by  a
\n       similar majority, it was held that although the strike prima
\n       facie  was illegal, it was not unjustified.  The\t dissenting
\n       member, P. J. Rayfield, recorded his note of dissent to\tthe
\n       effect  that  the  conciliation\tproceedings  commenced\t on
\n       September  13,  1955,  and not earlier, as  decided  by\tthe
\n       majority,  and  consequently, the  dismissal  of\t the,thirty
\n       seven  workmen (‘discharge’ of 37 workmen, as stated in\tthe
\n       note  of dissent), was not in contravention of s. 33 of\tthe
\n       Act, and that the permission to dismiss the two hundred\tand
\n       twenty three workmen on the ground that they had been  found
\n       guilty,\tby a departmental inquiry, of participating  in\t an
\n       illegal strike and forcibly preventing others from attending
\n       work, should have been granted.\tThis conclusion was  sought
\n       to be based on the alleged legal position that the Board had
\n       no power to withhold the permission applied for, and had not
\n       the  power  to  decide as to the kind of\t punishment  to\t be
\n       imposed upon the workmen who had admittedly taken part in  a
\n       strike  which had unanimously been held to be illegal.\tThe
\n       dissenting note also sought to
\n       8<\/span>
\n       show  that  the\tfinding\t of  the  majority  of\tthe   Board
\n       that  the  strike was justified, was not based on  a  proper
\n       appreciation  of the facts of the case.\tThe report of\tthe
\n       Board\tof   Conciliation   was\t  published    on    Decem-
\n       ber 5, 1955.\n<\/p>\n
       As  the parties had come to a stalemate, the  Government\t of
\n       Assam,  by its order dated December 7, 1955,as  subsequently
\n       amended\tby its order dated January 23, 1956,  referred\tthe
\n       dispute to Shri Radhanath
\n       Hazarika as an Industrial Tribunal, for the adjudication\t of
\n       the dispute on the following issues:\n<\/p>\n
       ”  1  (a)  Are the Management of\t R.S.N.\t &  I.G.N.  Railway
\n       Company Limited justified in dismissing the following  eight
\n       workers:\n<\/p>\n
       Manzoor\tHussain, Sudam Singh, ldrish, Tazmal  Hussain  (S\/o
\n       S.K. Gaffur) Jahangir Sardar, Keayamat Hossain, Panchu  Shah
\n       and Ram Ekbal Singh?\n<\/p>\n
       (b)  If not, what relief, if any, are they entitled to ?
\n       (2)  (a)\t Are  the  Management of R.S.N.\t &  I.G.N.  Railway
\n       Company Limited justified in dismissing and\/or suspending as
\n       the  case may be 260 workers at Dhubri Ghat on or about\tthe
\n       29th August, 1955?\n<\/p>\n
       (b)  If\tnot,  to  what\trelief, if  any,  are  the  workers
\n       entitled ? ”\n<\/p>\n
       The  parties  to the dispute filed their\t written  statement
\n       before  the Tribunal and tendered both oral and\tdocumentary
\n       evidence\t before it.  The Tribunal made its Award which\twas
\n       published  in  the Assam Gazette on December  19,  1956,\t as
\n       already\tstated.\t The Tribunal held that the strike,  though
\n       illegal, was justified, but that in the absence of  standing
\n       orders  whereby participation in any illegal  strike,  could
\n       justify\ta punishment of dismissal, the appellants were\tnot
\n       entitled to dismiss those workmen whose case was before\tthe
\n       Tribunal.    The\t  Tribunal,   by   its\t Award,\t   directed
\n       reinstatement of 208 out of 260 workmen whom the\t appellants
\n       had  dismissed,\tor had sought permission to  dismiss.\tThe
\n       remaining   52\tworkmen\t  were\tordered\t  to   be   refused
\n       reinstatement  on  the ground that they had  been  convicted
\n       under  s.  143 of the Indian Penal Code,\t which\timplied\t an
\n       offence involving
\n\t\t\t\t    9<\/span>
\n       use  of criminal force.\tIt also directed the appellants\t to
\n       pay full wages and allowances from August 20, 1955, till the
\n       date  of reinstatement of the workmen who had been  directed
\n       to be reinstated.  The Tribunal also held that the dismissal
\n       of  the\teight workmen who were the  subject-matter  of\tthe
\n       issue  1(a)  aforesaid  of  the\tReference,  was\t bad,\tand
\n       therefore,   those  8  workmen  were  also  ordered  to\t be
\n       reinstated  with back wages.  The present appeal by  special
\n       leave is directed against the said Award of the Tribunal.
\n       Before  we deal with the merits of the  controversy  between
\n       the  parties,  it is convenient at this stage to\t deal  with
\n       certain\targuments by way of preliminary objections  to\tthe
\n       maintainability\tand  competence of the\tappeal,\t raised\t on
\n       behalf of the respondents.  Those objections are of a three-
\n       fold  character, (1) no appeal lies, (2) the appellants\tdid
\n       not  exhaust  their statutory remedies under s. 17A  of\tthe
\n       Act, and (3) the appeal is not competent also for the reason
\n       that  the  Government  of Assam has not\tbeen  impleaded\t as
\n       party-respondent to the appeal, In our opinion, there is\t no
\n       substance in any one of these objections.\n<\/p>\n
       With  reference\tto the first ground, the argument  runs\t as
\n       follows:\t The Tribunal made its Award on November 15,  1956,
\n       and, submitted the same to the Assam Government under s.\t 15
\n       of  the Act.  On December 8 of that year, the Government\t of
\n       Assam  directed the said Award to be published in the  Assam
\n       Gazette,\t and  it  was so published on  December\t 19,  1956.
\n       According  to the order of the State Government,\t the  Award
\n       became  enforceable under s. 17A, on the expiry of  30  days
\n       from  the  date of publication, namely, December\t 19,  1956.
\n       Accordingly,   the  Award  became  enforceable  on   January
\n       18,1957,\t and acquired the force of law by the operation\t of
\n       the  statute.  By virtue of s. 17(2) of the Act,\t the  Award
\n       became  ” final and shall not be called in question  by\tany
\n       court in any manner whatsoever “, subject to the\t provisions
\n       of s. 17A.  It was, therefore, further contended that in the
\n       events which had happened before January 18, 1957, the Award
\n       had become enforceable and had
\n       2<\/span>
\n       10<\/span>
\n       acquired the force of law by operation of the statute,  had,
\n       thus,   passed\tbeyond\t the   pale   of   litigation\tand
\n       adjudication  by any court of law.  This argument  has  only
\n       to   be\t stated\t  to   be   rejected   in   view   of\tthe
\n       provisions  of  the Constitution.  It is manifest  that\tthe
\n       provisions  of the Act are subject to the paramount  law\t as
\n       laid   down  in\tthe  Constitution.   Article  136  of\tthe
\n       Constitution, under which this Court grants special leave to
\n       appeal (in this case, from a determination of the Tribunal),
\n       cannot  be read as subject to the provisions of the Act,\t as
\n       the’ argument on behalf of the respondents would\t postulate.
\n       The provisions of the Act must be read subject to the  over-
\n       riding  provisions of the Constitution, in this\tcase,  Art.\n<\/p>\n
       136.  Therefore, whatever finality may be claimed under\tthe
\n       provisions of the Act, in respect of the Award, by virtue of
\n       ss. 17 and 17A of the Act, it must necessarily be subject to
\n       the  result  of the determination of the appeal\tby  special
\n       leave.\n<\/p>\n
       It  was further contended that the Award had merged  in\tthe
\n       orders  of  the Government, on publication in  the  Official
\n       Gazette,\t under\ts.  17 of the Act, but\tthis  is  the  same
\n       argument\t stated in another form, and any argument based\t on
\n       the  provisions\tof  the, Act, making the  Award\t final\tand
\n       enforceable,  must  always be read as being subject  to\tthe
\n       decision of this Court, in the event of special leave  being
\n       granted\tagainst such determination by the Tribunal  and\t as
\n       adopted\tby the Government.  The same argument was  advanced
\n       in  still another form, namely, that the\t appellants  should
\n       have  moved  this  Court\t before\t the  lease  of\t the   time
\n       contemplated by s. 17 and s. 17A of the Act, that is to say,
\n       before January 18, 1957.\t Apart from the consideration  that
\n       this  argument  tends to curtail the period  of\tlimitation,
\n       prescribed  by this Court by statutory rules, the  operation
\n       of ss. 17 and 17A of the Act, is not automatically stayed by
\n       making  an  application for special leave.  It  is  only\t by
\n       virtue  of specific orders made by this Court,  staying\tthe
\n       operation  of  the  Award  or  some  such  order,  that\tthe
\n       appellant  becomes,  for\t the time being,  immune  from\tthe
\n       operation of those provisions of the
\n       11<\/span>
\n       Act,  which  impose penalties for the  infringement  of\tthe
\n       terms of the Award.\n<\/p>\n
       Adverting to the second branch of the preliminary objection,
\n       it appears that the provisions of s. 17A, particularly,\tthe
\n       provisos,  have\tbeen  sought to be pressed in  aid  of\tthe
\n       respondents’ contention, without realizing that the Award in
\n       question\t in this case, does not come within the purview\t of
\n       either  of those provisos.  The State Government was  not  a
\n       party  to the Industrial dispute, nor was it an Award  given
\n       by a National Tribunal.\tHence, there is no substance in the
\n       contention  that\t the  appellants  did  not  exhaust   their
\n       statutory remedies under s. 17A of the Act.
\n       The  third branch of the preliminary objection is  based\t on
\n       the contention that the Government of Assam was a  necessary
\n       and proper party, as it had acted under delegated powers\t of
\n       legislation  under the Act, in making the Award\tenforceable
\n       and giving it the force of law.\tIt is a little difficult to
\n       appreciate  how the State Government became a  necessary\t or
\n       proper party to this appeal.  The State Government does\tnot
\n       play  any  part\tin the proceedings,  except  referring\tthe
\n       dispute\tto  the\t Tribunal  under s. 10\tof  the\t Act.\tThe
\n       publication  of\tthe  Award under s.  17,  is  automatic\t on
\n       receipt\tof  the same by the Government.\t Its  coining  into
\n       operation  is also not subject to any action on the part\t of
\n       the State Government, unless the case is brought within\tthe
\n       purview\tof  either of the provisos to s. 17A.  In  view\t of
\n       these considerations, it must be held that there is no merit
\n       in the preliminary objection.  The appeal must,\ttherefore,,
\n       be determined on its merits.\n<\/p>\n
       On the merits of the controversy between the parties, it has
\n       been  argued by the learned counsel for the appellants  that
\n       the  Tribunal,  having held the strike to  be  illegal,\thas
\n       erred  in  holding that it was justified;  that\tan  illegal
\n       strike  could never be justified and that the  Tribunal\twas
\n       wholly  in  error  in  losing sight of  the  fact  that\tthe
\n       appellants  were\t carrying on what had been  notified  as  a
\n       public utility service.\tIn this connection, it was  further
\n       argued that in view of
\n       12<\/span>
\n       the proviso to s. 10(1) of the Act, the State Government was
\n       bound  to  make\ta Reference of the  dispute\t     to\t an
\n       Industrial  Tribunal when notice of strike under\t s.  22\t of
\n       the    Act    had   already   been    given,    and    that,
\n       therefore, the failure of the employer to enter into  direct
\n       negotiations with the employees, upon receipt of\t\tthe
\n       strike ‘notice, could not be used by the Tribunal for coming
\n       to  the finding that the strike was justified.  It was  also
\n       urged  that the Tribunal had clearly erred in  holding  that
\n       the  lock-out declared by the appellants, was  illegal,\tand
\n       that,  in  coming that conclusion, it  had  over-looked\tthe
\n       provisions  of  s. 24(3) of the Act.  The Tribunal,  it\twas
\n       further argued, had erred in holding that, in the absence of
\n       standing\t orders\t to  the effect that  participation  in\t an
\n       illegal strike is a gross misconduct, an employer could\tnot
\n       dismiss\tits  workmen for mere participation in\tan  illegal
\n       strike.\t Assuming  that the last-stated\t argument  was\tnot
\n       well-founded   it  was  argued  that  the  standing   orders
\n       governing  the  relations  between  the\tSyndicate  and\tthe
\n       workmen,\t would\talso  govern  the  relations  between\tthe
\n       appellants  and\tthe workmen, as a result of  the  agreement
\n       aforesaid   whereby   the  appellants  undertook\t  all\tthe
\n       liabilities of the Syndicate in relation to the workmen, and
\n       guaranteed to them the same conditions of service.  In  this
\n       connection, it was also argued that the Tribunal bad made  a
\n       serious mistake of record in treating the standing orders of
\n       the Syndicate as a mere draft and, therefore, of no  binding
\n       force  as between the employers and the employees; that\tthe
\n       Tribunal\t erred,\t while considering the case  of\t the  eight
\n       workmen dismissed before the commencement of the strike,\t in
\n       proceeding  upon\t an unfounded assumption  that\tno  charge-
\n       sheets had been served upon those workmen during the inquiry
\n       against\tthem, and that, therefore, the Award, in so far\t as
\n       it  related to those 8 workmen, was entirely erroneous.\t As
\n       against\tthe  two hundred and eight workmen ordered  by\tthe
\n       Tribunal\t  to  be  reinstated,  it  was\targued\t that\tthe
\n       departmental inquiry held by the appellants had resulted\t in
\n       the distinct finding that they bad not only participated\t in
\n       the illegal strike, but had also instigated loyal workmen
\n       13<\/span>
\n       to join in the illegal strike, and had obstructed  tranship-
\n       ment work by loyal workmen.  In this connection, it was also
\n       argued  that  in any view of the matter,\t the  thirty  seven
\n       persons, who had been convicted by the criminal court  under
\n       s. 188 of the Indian Penal Code, for having transgressed the
\n       prohibitions contained in the prohibitory order under s. 144
\n       of the Code of Criminal Procedure, were clearly liable to be
\n       dismissed  on  the findings of the  criminal  court  itself,
\n       apart   from  any  other\t considerations\t bearing   on\tthe
\n       regularity  of the inquiry against them; that  the  Tribunal
\n       was  in\terror  in  holdidg that\t the  inquiry  against\tthe
\n       dismissed workmen was not in accordance with the\t prescribed
\n       procedure;  and\tlastly,\t that  this  was  not  a  case\t of
\n       reinstatement  of  the  dismissed  workmen,  and\t that  only
\n       compensation should have been awarded to them.
\n       On behalf of the respondents, their learned counsel, besides
\n       raising the preliminary objection already dealt with,  urged
\n       that  the Tribunal was fully justified in holding  that\tthe
\n       strike,\tthough\tillegal, was ” perfectly  justified  ”\tand
\n       virtually  provoked  by\tthe  appellants.   Though  in\tthe
\n       statement of the case, the argument had been raised that the
\n       strike  could  not  be  illegal,\t because  the  notification
\n       declaring  the  service at the ghats to\tbe  public  utility
\n       service, was ultra vires, that argument was not persisted in
\n       before  us, but it was vehemently argued that there were\t no
\n       standing\t  orders  either  of  the  Syndicate  or   of\tthe
\n       appellants, which could govern the service conditions of the
\n       workmen,\t and  that in any event, mere participation  in\t an
\n       illegal\tstrike would not entitle the employers\tto  dismiss
\n       those workmen who had joined the strike; that the  dismissal
\n       orders  in all cases, were sheer acts of\t victimization\tand
\n       unfair  labour  practice.  It was also sought to\t be  argued
\n       that the lock-out was entirely illegal, and that in any view
\n       of  the\tmatter, its continuance after the strike  had  been
\n       called of, was wholly unjustified and against the principles
\n       of  ”  social  justice “. Further, it  was  urged  that\tthe
\n       appellants  had\tdismissed  and\/or  suspended  260   workmen
\n       without framing any specific charges against them; that\tthe
\n       dismissal of the eight workmen
\n       14<\/span>
\n\tin  view of the incidents before the commencement  of\tthe
\n       strike,\twas  also  illegal, and in  any\t event,\t irregular,
\n       because, it was urged, no specific charges had been   framed
\n       against\t them.\t  It   was  also  sought   to\tbe   argued
\n       that  the notice’ inviting the workmen to join  their  work,
\n       being unconditional without any reservations,  amounted to a
\n       condonation  of\tthe strike, and\t therefore,  the  dismissal
\n       orders against the two hundred and sixty workmen were bad in
\n       law.  Some other arguments also were advanced on behalf\tthe
\n       respondents,  but we do not propose to take notice of  them,
\n       because\tthey  were  ultimately\tfound  to  be  without\tany
\n       foundation in the record of the case.  As a matter of  fact,
\n       the arguments on behalf of the respondents, were not  marked
\n       by  that strict adherence to the record of the case, or\tthe
\n       case  made out before the Tribunal, as ought to be the  case
\n       before  courts of justice generally, and\t certainly,  before
\n       the highest Court in the land.\n<\/p>\n
       Now,  turning to the merits, it is better to deal  with\tthe
\n       first issue first, that is to say, whether the dismissal\t of
\n       the  eight  workmen,  named in the  Issue  as  amended,\twas
\n       justified,  and if not, to what relief they  were  entitled.
\n       The  Tribunal  dealt  with the  individual  cases  of  those
\n       workmen,\t and came to the conclusion that the  dismissal\t of
\n       none of them was justified, and that, therefore, all of them
\n       were entitled to reinstatement with all their back wages and
\n       other  benefits\taccruing  to them from the  date  of  their
\n       suspension and subsequent dismissal until the date of  their
\n       reinstatement, minus what had been paid to them.\t Thus,\tthe
\n       first  issue  in\t both the parts, was  decided  entirely\t in
\n       favour  of the workmen.\tWe have, therefore, to examine\thow
\n       far  the\t determination of Tribunal on the first\t issue,\t is
\n       open  to\t question.  The cases of  Manzoor  Hussain,  Sudama
\n       Singh,  Idrish  and  Tazmal Hussain, have  been\tdealt  with
\n       together by the Tribunal below.\tThese four workmen had been
\n       dismissed by the appellants, upon a report made by Rayfield,
\n       the   enquiring\tofficer\t under\tthe  appellants,   on\tthe
\n       allegation  that they had assaulted their Labour\t Supervisor
\n       S. P. Tevari on May 2, 1955.  This charge against those four
\n       workmen, was examined by
\n\t\t\t\t    15<\/span>
\n       a  Magistrate  who  tried them for the  alleged\tassault\t on
\n       Tewari.\tThe Magistrate found them not guilty and  acquitted
\n       them by his judgment given in April, 1956.  The departmental
\n       inquiry by Rayfield was held on May 17, 1955, when a  member
\n       of  witnesses  were  examined  by  him  on  behalf  of\tthe
\n       appellants.   In their joint written statement,\tthese  four
\n       workmen\tstated that as the police case was pending  against
\n       them  in\t regard to these very charges, they were not  in  a
\n       position\t to  make any further statement in  their  defence.
\n       The  Tribunal came to the conclusion that, on  the  material
\n       before  it  had\tnot  been made out  that  Tewari  had  been
\n       actually\t assaulted, while on duty, and that  the  dismissal
\n       order  was  passed ” possibly with a view  to  frighten\tthe
\n       other workmen and to satisfy the whims of Tewari “. We  have
\n       examined\t the record, and we do not find\t any  justification
\n       for differing from the conclusions of the Tribunal.
\n       With reference to the case against Panchu Shah and Ram Ekbal
\n       Singh,  it appears that the Tribunal definitely came to\tthe
\n       conclusion  that their dismissal order was vitiated  because
\n       it  was an act of victimization and was mala fide.   In\tthe
\n       face  of\t this  clear finding,we do not think  that  we\tcan
\n       interfere with the determination of the Tribunal in  respect
\n       of these two workmen.\n<\/p>\n
       But  the case against Jahangir Sardar and Keayamat  Hussain,
\n       stands on a different footing.  The charge against  Jahangir
\n       was   two-fold,\tnamely,\t (1)  wilful  insubordination\tand
\n       disobedience, and (2) conduct prejudicial to good order\tand
\n       discipline.    To  these\t charges,  Jahangir  demurred\tand
\n       objected,  saying he could not ” understand the reasons\tfor
\n       the charge-sheet “. On this demurrer, a letter dated May\t 7,
\n       1955, was issued to him, giving him the details of the  acts
\n       charged\tagainst him, with reference to the time,  date\tand
\n       place.\tThe charge against Keayamat was similarly,  a  two-
\n       fold  one,  namely, (1) disorderly  behaviour  and  inciting
\n       others\tto  disturbance\t and  violence,\t and  (2)   conduct
\n       prejudicial  to\tgood order and discipline.   Keayamat  also
\n       demurred\t to the charge in the same way that it\twas  vague,
\n       and that
\n       16<\/span>
\n\the was not aware of anything wrong having been done by him.\n<\/p>\n
       On  May\t7,  Keayamat was also  given\t\t a  similar
\n       letter,\texplaining  to\thim  the  details  of  the   charge
\n       aforesaid,   with   reference  to  the\ttime,\tplace\tand
\n       date  of\t the acts which formed the gravamen of\tthe  charge
\n       against him.  A number of witnesses were\t\texamined by
\n       Raymond\twho  held the inquiry.\tIn both\t these\tcases,\tthe
\n       Tribunal\t refused  to  accept the  result  of  the  inquiry,
\n       chiefly on the ground that no specific charge had been  laid
\n       against them, and that the allegations were much too  vague.
\n       In  recording this finding, the Tribunal has fallen  into  a
\n       grievous\t error\tof record.  It has  completely\tomitted\t to
\n       consider\t the letter issued to both these workmen on May\t 7,
\n       giving full particulars of the charges against them.  If\t it
\n       had considered that letter issued to both these workmen,\t it
\n       would  not  have fallen into this serious  error\t which\thas
\n       vitiated its award in respect of them.  The Tribunal further
\n       proceeded  to  comment  on  the\tevidence  led  before\tthe
\n       inquiring officer and remarked that the evidence was  meager
\n       or  insufficient.   It also observed that the  ”\t degree\t of
\n       proof,  even  in the departmental enquiry, is  the  same\t as
\n       required\t in a Court of Law “. In our opinion, the  Tribunal
\n       misdirected itself in looking into the sufficiency of  proof
\n       led  before the inquiring officer, as if it was\tsitting\t in
\n       appeal  on  the decision of the employers.  In the  case\t of
\n       these  two  employees, there is no finding by  the  Tribunal
\n       that  the order of dismissal against them, was  actuated\t by
\n       any mala fides, or was an act of victimization.\tIn view\t of
\n       these  considerations,  the  dismissal  order  made  by\tthe
\n       appellants  on  a proper inquiry, after giving  the  workmen
\n       concerned   sufficient  opportunity  of\t explaining   their
\n       conduct, must be upheld.\t The appeal in respect of these two
\n       workmen,\t must, therefore, be allowed, and the order of\tthe
\n       Tribunal\t in respect of them, accordingly, set  aside.\tThe
\n       order  of the Tribunal in respect of the other six  workmen,
\n       is confirmed.\n<\/p>\n
       Having dealt with the orders of dismissal in respect of\tthe
\n       incidents before the strike of August 11, 1955,
\n\t\t\t\t    17<\/span>
\n       we  now\tturn to the strike itself The first  question  that
\n       arises in this connection, is whether the strike was illegal
\n       as  alleged by the appellants and as found by the  Tribunal.
\n       The learned counsel for the respondents sought to reopen the
\n       finding\tabout  the  illegality of the  strike,\tbasing\this
\n       submissions  mainly  on the contention that  there  were\t no
\n       conciliation proceedings pending either in fact or in law on
\n       the date of the strike, and that, therefore, the finding\t of
\n       the Tribunal was not correct.  It was not disputed on behalf
\n       of  the respondents that the notices of the strike given\t by
\n       the workmen on July 21, 1955, had been duly received by\tthe
\n       Conciliation  Officer  on  July\t26,  1955,  and\t that\tthe
\n       conciliation  proceedings were commenced on August 6,  1955.
\n       What was contended on their behalf, was that the proceedings
\n       had  to be stopped, as it appears from the record  of  those
\n       proceedings,  without any settlement of the dispute  as\tthe
\n       “workers’  representative expressed their inability to  take
\n       further\tpart in the proceedings, on a question of leave\t to
\n       their other representatives”.  We shall examine the question
\n       later  as to which party was to blame for the break-down\t of
\n       the  conciliation  proceedings at the very  outset.   It\t is
\n       enough  to  observe  that  under\t s.  20\t of  the  Act,\tthe
\n       conciliation proceedings must be deemed to have commenced on
\n       July 26, 1955, when the notice of the strike was received by
\n       the  Conciliation  Officer, and those proceedings  shall\t be
\n       deemed to have concluded when the report of the Conciliation
\n       Officer\tis received by the Government.\tIn this\t case,\tthe
\n       report  to  the\tGovernment was\tmade  by  the  Conciliation
\n       Officer on August 8, 1955.  It is not absolutely clear as to
\n       when  this report of the Conciliation Officer  was  actually
\n       received\t by the Government.  It is clear,  therefore,  that
\n       the  conciliation proceedings certainly lasted between  July
\n       26  and\tAugust 8, 1955.\t The strike,  having  commenced\t on
\n       August 11, was clearly illegal in view of the provisions\t of
\n       s.  22  of the Act.  We must, therefore, hold  in  agreement
\n       with the Tribunal, that the strike was clearly illegal.
\n       The  Tribunal,  having  held that the  strike  was  illegal,
\n       proceeded to discuss the question whether it
\n       3<\/span>
\n       18<\/span>
\n\twas  justified,\t and  came to the conclusion  that  it\twas
\n       “perfectly  justified”.\tIn the first place, it is a  little
\n       difficult to understand how a strike in respect of a  public
\n       utility\tservice,  which\t is  clearly,  illegal,\t could\t at
\n       the  same  time be characterized as  “perfectly\tjustified”.
\n       These  two conclusions cannot in law co-exist.  The law\thas
\n       made a distinction between a strike which is illegal and one
\n       which is not, but it has not made any distinction between an
\n       illegal\tstrike which may be said to be justifiable and\tone
\n       which is not justifiable.  This distinction is not warranted
\n       by  the\tAct, and is wholly misconceived, specially  in\tthe
\n       case  of employees in a public utility service.\t Every\tone
\n       participating  in an illegal strike, is liable to  be  dealt
\n       with departmentally, of course, subject to the action of the
\n       Department  being questioned before an Industrial  Tribunal,
\n       but it is not permissible to characterize an illegal  strike
\n       as  justifiable.\t The only question of practical\t importance
\n       which  may arise in the case of an illegal strike, would\t be
\n       the kind or quantum of punishment, and that, of course,\thas
\n       to   be\t modulated  in\taccordance  with  the\tfacts\tand
\n       circumstances  of  each case.  Therefore,  the  tendency\t to
\n       condone\twhat  has been declared to be illegal  by  statute,
\n       must  be\t deprecated, and it must be clearly  understood\t by
\n       those  who take part in an illegal strike that thereby  they
\n       make themselves liable to be dealt with by their\t employers.
\n       There  may be reasons for distinguishing the case  of  those
\n       who may have acted as mere dumb driven cattle from those who
\n       have  taken  an\tactive part in fomenting  the  trouble\tand
\n       instigating  workmen  to join such a strike, or\thave  taken
\n       recourse to violence.\n<\/p>\n
       Apart from the basic error of treating the illegal strike to
\n       be  perfectly  justified,  the  Tribunal\t has  indulged\t in
\n       language which is not characteristic of a judicial approach.
\n       The following observations by the Tribunal, in the course of
\n       its  inordinately  long Award, covering about  42  pages\t in
\n       print,  are  illustrative of the attitude  of  the  Tribunal
\n       towards the appellants :-\n<\/p>\n
       ” By this letter the Company’s Joint Agent at Dhubri instead
\n       of  taking  a  friendly\tattitude  approached  the  District
\n       Magistrate asking for police help.\n<\/p>\n
\t\t\t\t    19<\/span><\/p>\n
       If the Company’s Agent at Dhubri had the honest intention he
\n       could  have immediately moved the appropriate  authority\t to
\n       come  immediately to the spot to stop the  proposed  strike.
\n       But  instead of that he has provoked the Union  by  adopting
\n       this  back  door\t policy\t to suppress  the  demands  of\tthe
\n       workers.\t It was really unfair on the part of the Agent.\t It
\n       seems that he bad mala fide intention.”\n<\/p>\n
       For  this outburst of the Tribunal, justification is  sought
\n       in  the\tletter which D. J. Milner, the Joint Agent  of\tthe
\n       appellants,  wrote  to the Secretary to\tthe  Government\t of
\n       Assam,\tTransport   and\t  Industries   Department,   Labour
\n       Commissioner, Government of Assam, Superintendent of Police,
\n       Goalpara District, Labour Officer, Lower Assam, and  General
\n       Secretary,  I.N.T.U.C.,\tAssam Branch, on  August  9,  1955,
\n       informing them of the threatened strike.\t The last paragraph
\n       of  the\tletter explained the reasons for  the  long  letter
\n       addressed  by  the  Joint  Agent:  ”  In\t the  interest\t of
\n       maintaining  this  vital\t link  in  Assam’s   flood-stricken
\n       communications and protecting our property,, and that of the
\n       Railway,\t as well as our own staff, Railway Staff and  loyal
\n       laborers,  we  have  to\trequest\t that  adequate\t police\t be
\n       available  at  each  of\tour Ghats  from\t shortly  prior\t to
\n       midnight\t on the 10th instant in order that unlawful  damage
\n       may  not\t be caused by these illegal strikers  who  will\t be
\n       acting  in defiance of Government regulations, and  accepted
\n       industrial  dispute procedure”.\tWe see nothing sinister\t in
\n       this letter, justifying the remarks by the Tribunal,  quoted
\n       above.\tIt  was the usual ,request for the  maintenance\t of
\n       public  peace and for the prevention of acts of violence\t by
\n       misguided persons.  It was also addressed to the I.N.T.U.C.,
\n       the guardian of Labour.\n<\/p>\n
       On  the same date, that is, August 9,1955,  B.  Chakravarty,
\n       the  Secretary  of  the Dhubri  Transhipment  Labour  Union,
\n       addressed   a  letter  to  the  Superintendent  of   Police,
\n       Goalpara,  and Deputy Commissioner, Goalpara, alleging  that
\n       the  Joint  Agent  of  the  appellants  had  instructed\tthe
\n       officers in-charge of the jetties at the Ghats to raise a  ”
\n       hallah  ” after the zero hour of August 11, 1955,  that\tthe
\n       labourers of the
\n       20<\/span>
\n\tTranshipment   Department   were  looting  the\t goods\t of
\n       the  ship,  when\t they  would  go  for  picketing   purposes
\n       to  strengthen  their  strike.\tThose  allegations  of\tthe
\n       Secretary,  the\tTribunal  has  taken  as  proof\t of   those
\n       allegations, and has observed:\n<\/p>\n
       “…  it\t is  clear  that  Mr.  Milner  hatched\ta  plan\t to
\n       create a trouble and the Secretary of the Union got scent of
\n       all  the secret arrangements made by the Company\t to  create
\n       disturbance  at the Ghats just immediately after the  strike
\n       is declared.”\n<\/p>\n
       This is the first reason assigned by the Tribunal for coming
\n       to the conclusion that the strike was “perfectly justified”.
\n       The  second reason for coming to this conclusion,  according
\n       to  the\tTribunal,  is  to  be  found  in  the  Conciliation
\n       Officer’s report that the appellants did not agree to  grant
\n       leave   to  the\tlabour\trepresentatives\t to  sit   in\tthe
\n       conciliation proceedings which were held on August 6,  1955.
\n       The  Tribunal  has observed that it appeared also  from\tthe
\n       appellant’s attitude in refusing to grant leave to the  five
\n       representatives\tof the Union, that the appellants were\tnot
\n       inclined\t  to   give   facilities   for\t the   conciliation
\n       proceedings.  Is this observation justified on the record as
\n       it  stands ? As already indicated, the Conciliation  Officer
\n       received\t a copy of the strike notice on July 26, 1955.\t He
\n       fixed   August  6,  1955,  10  a.m.,  at\t Dhubri,  for\tthe
\n       conciliation  proceedings.  The parties to the dispute  were
\n       apprised\t of  this meeting of August 6, 1955, on\t August\t 1,
\n       1955  (ext.  O,\tp.  119).   From  the  proceedings  of\tthe
\n       Conciliation  Officer, it appears that the Union applied\t to
\n       the  appellants for leave to five workmen, officials of\tthe
\n       Union,  to  enable  them to represent  the  workmen  in\tthe
\n       conciliation  proceedings.  The attitude of  the\t appellants
\n       was that they were agreeable to grant leave even on a verbal
\n       request, if the request came from those individual  workmen,
\n       either direct or through the Union, but the appellants  were
\n       not  prepared  to grant leave on a petition from\t the  Union
\n       alone.  On the other hand, the Union was not agreeable  that
\n       the  petition  for  leave  should be  made  by  the  workmen
\n       themselves, and the Union insisted that it had the right\t to
\n       apply for leave on behalf of those workmen.  Upon this,\tthe
\n       Union
\n       21<\/span>
\n       did not take any further part in the proceedings.  It  would
\n       be  a travesty of facts to suggest that the appellants  were
\n       not  prepared to grant leave to those five workmen.  In\tthe
\n       first  instance, leave should have been applied\tfor  before
\n       the  date  fixed for the commencement  of  the  conciliation
\n       proceedings.   Secondly,\t the application should\t have  been
\n       made by the workmen concerned, either direct or through\tthe
\n       Union.  The Tribunal seems to have been under the impression
\n       that this attitude of the appellants amounted to a breach of
\n       one  of\tthe  terms  of the agreement as\t a  result  of\tthe
\n       Tripartite   Conference\taforesaid.   That,  again,  is\t an
\n       assumption  which  is  not justified by\tthe  terms  of\tthe
\n       Agreement.    Secondly,\tthe  five  workmen   selected\tfor
\n       representing  the workmen in the\t conciliation  proceedings,
\n       should  have  applied in good time to  their  employers\tfor
\n       leave  for  the\tpurpose,  but  what  we\t find  is  that\t an
\n       application (ext.  M at p. 118) was made on August 6,  1955,
\n       not by those workmen themselves, but by the Secretary of the
\n       Union,  and a copy of the application was forwarded  to\tthe
\n       Labour\tOfficer\t and  to  the  Deputy\tCommissioner,\tfor
\n       information.  Apparently, the Union was treating the  matter
\n       as  of  sufficient  importance, but they did  not  think\t it
\n       necessary to put in the application in time on behalf of the
\n       workmen\tthemselves, even though the application might  have
\n       been  made through the Union.  That the appellants were\tnot
\n       to  blame  for the attitude they took in the matter  of\tthe
\n       procedure  for application for leave to particular  workmen,
\n       becomes\tclear on a reference to the terms of the  Agreement
\n       dated  February\t23, 1953, between the Syndicate\t and  their
\n       workmen represented by the Dhubri Transhipment Labour Union,
\n       at p. 75, Part 1 of the record.\tThe Demand 5(f) was  agreed
\n       to in these terms :-\n<\/p>\n
       ” All leave applications be submitted by a representative of
\n       the  Union  on  Tuesday\tor Friday  in  a  week\tbefore\tthe
\n       Management,  and the decision be communicated to\t the  Union
\n       the next day of submission of the application.”
\n       On  the\tother band, in respect of leave, the terms  of\tthe
\n       Agreement reached between the Syndicate and the
\n\t\t\t\t    22<\/span>
\n\tDhubri\tLocal Ghat Transhipment Labour Union, on March\t13,
\n       1953, are as follows:-\n<\/p>\n
       ”   It  is  agreed  that\t the  workers  will  submit   leave
\n       applications   to   the\t management   who   will   communic
\n       ate  their decision to the workers direct within three  days
\n       of  receipt of the applications and a copy  thereof will\t he
\n       sent to the Union for information”.\n<\/p>\n
\tIt  is clear, therefore,that the  conciliation\tproceedings
\n       stopped abruptly not because the Management was to blame for
\n       not granting leave to the five chosen representatives of the
\n       workmen, but because B. Chakravarty insisted that the  leave
\n       application would not be made by individual workmen but only
\n       by the Union.  Even that application was made too late,\tand
\n       in  the teeth of the terms of the Agreement,  quoted  above.
\n       If  the Secretary had not taken this unreasonable  attitude,
\n       and if he had been anxious that the conciliation proceedings
\n       should continue, the easiest thing for him to have done, was
\n       to  get\tthose five workmen to make their  applications\tfor
\n       leave,  which the Management was prepared to grant  even\t at
\n       that   late   hour.   In\t our  opinion,\t the   conciliation
\n       proceedings   failed   because\tthe   Secretary\t  took\t an
\n       unreasonable  attitude.\t The Tribunal,\ttherefore,  was\t in
\n       error  in  throwing  the\t blame\tfor  the  failure  of\tthe
\n       conciliation proceedings on the Management.
\n       The  third  ground  of  attack on  the  bona  fides  of\tthe
\n       appellants,  was\t said  to  have been  the  attempt  of\tthe
\n       Management  to  interfere  in the internal  affairs  of\tthe
\n       Unions.\t The following remarks of the Tribunal are  another
\n       instance\t of its intemperate language with which\t the  Award
\n       bristles:-\n<\/p>\n
       ” Curiously enough it appears that the Company’s Joint Agent
\n       at  Dhubri  dabbled  in politics\t and  meddled  in  internal
\n       administration of the Unions.\n<\/p>\n
       He  propped up another Union and backed it up to stand as  a
\n       rival Union.”\n<\/p>\n
       On an examination of the record of the case, it appears that
\n       the  Indian  National Trade Unions’ Congress, to\t which\tthe
\n       Unions  were  affiliated, was not in favour of  the  strike.
\n       That  would be an indication of the fact that  the  relation
\n       between the employers
\n\t\t\t\t    23<\/span>
\n       and  the employees had not come to the breaking\tpoint,\tand
\n       that  the Congress, naturally, expected that  conditions\t of
\n       service of the employees, could be improved more effectively
\n       by peaceful negotiations than by taking recourse to a strike
\n       in  respect  of\ta service which had been  declared  by\tthe
\n       Government  to  be  a  public  utility  service\t.  But\tthe
\n       Secretary  of one of the Unions, B.  Chakravarty\t aforesaid,
\n       appears to have brought matters to a head without giving the
\n       Conciliation   Officer  a  reasonable  chance,  as   already
\n       indicated,  of bringing about a reconciliation  between\tthe
\n       view-points  of\tthe  employers\tand  the  employees.\tThe
\n       appellants  had only- recently taken over the workmen  under
\n       their  direct  employment,  and\tthe  Tripartite\t Conference
\n       between them, the representatives of the employees, and\tthe
\n       Government, was yet to settle all the outstanding  Questions
\n       between the parties.  Hence, the fact that two rival  Unions
\n       had  come into existence, could not be laid at the  door\t of
\n       the  appellants\tas an act of unfair labour  practice.\tThe
\n       Tribunal\t was not, therefore, in our opinion,  justified\t in
\n       holding\tthat  the  Management had  either  meddled  in\tthe
\n       internal\t administration\t of  the  Unions,  or  dabbled\t in
\n       politics,  and  had,  thus, been\t guilty\t of  unfair  labour
\n       practice.   The\tTribunal has been rather  generous  to\tthe
\n       workmen without being just to the appellants.  This is  also
\n       shown  by the fact that, after having held the strike to\t be
\n       illegal,\t the Tribunal considered the legality of the  lock-
\n       out  declared  by  the appellants on  August  11,  1955,\t in
\n       respect\tof one Ghat, and on August 13, 1955, in respect\t of
\n       the  other Ghat.\t In this connection, the conclusion of\tthe
\n       Tribunal may best be stated in its own words to\tdemonstrate
\n       its attitude to the appellants:-\n<\/p>\n
       ” In this case the Company used the weapon of lock-out  just
\n       to intimidate and put pressure on the employees to  withdraw
\n       the demands.  The lock-out is also prohibited under  Section
\n       22(2)(d)\t of the Act.  Therefore, both lock-out\tand  strike
\n       are illegal.  The Company had no justification whatsoever to
\n       declare a lock-out.”\n<\/p>\n
       24<\/span><\/p>\n
\tApparently,   the  Tribunal  ignored  the   provisions\t of
\n       s.  24(3)  of  the  Act.\t  The  lock-out\t was  clearly\tnot
\n       illegal.\t  It  is  another  question  whether  there  was  a
\n       justification  for  the appellants to continue  the  lockout
\n       even after the strike had been called off on August 19.\tThe
\n       Joint  Agent of the appellants, by his letter  dated  August
\n       17,  1955, to the two Unions, had intimated to them that\t in
\n       view  of the illegal strikes, lockout had been  declared\t at
\n       the local Ghat on August 11, and at the Transhipment Ghat on
\n       August  13,  and that the lock-out ” will  remain  in  force
\n       until disciplinary action can be instituted against those of
\n       our employees chiefly responsible for leading and continuing
\n       the illegal strikes “. The continuance of the lock-out after
\n       August  19, may be unjustified; but that does not  make\tthe
\n       lock-out itself illegal.\n<\/p>\n
       It was in pursuance of that order of the Joint, Agent,  that
\n       proceedings   were  taken  against  the\t socalled   leading
\n       strikers,  leading  upto their dismissal.  Those\t orders\t of
\n       dismissal, to be presently discussed, are the main points in
\n       controversy  between the parties in this Court.\tBut  before
\n       those orders of dismissal were passed, the Management issued
\n       a  notice  on  August 26, 1955, lifting\tthe  lock-out  with
\n       effect  from  the next day.  It required\t the  employees\t to
\n       report for duty to the Joint Agent personally, at his office
\n       between\tthe  hours of 9 and 10 a.m. It also  contained\tthe
\n       threat  that  any employee who did not report  for  duty\t on
\n       August 30, ” will in the absence of a letter of\texplanation
\n       and good reason, be treated as having voluntarily terminated
\n       his  services.” R. N. Biswas was then appointed the  Inquiry
\n       Officer\tby  the\t appellants, and he  held  the\tinquiry\t in
\n       batches,\t the  first  batch consisting of  26  workmen,\tthe
\n       second, of 114, the third, of 68, the fourth, of 17 and\tthe
\n       fifth, of 7. These inquiries related to different  incidents
\n       in  connection  with the strikes.  Biswas appears  from\tthe
\n       record as placed before us, to have recorded the\t statements
\n       of Milner, Rayfield, C. R. Das and S. P. Tewari-officers\t of
\n       the  appellants\t-in proof of the  allegations  against\tthe
\n       strikers.  We do not think any useful purpose will be served
\n       by
\n\t\t\t\t    25<\/span>
\n       going  into  the\t details of the\t evidence  given  by  those
\n       witnesses, because we have come to the conclusion that those
\n       several\tinquiries suffer from the fundamental  defect  that
\n       there  is  no  satisfactory  evidence  on  the  record  that
\n       charges,\t giving\t the  details of the acts  of  violence\t or
\n       obstruction,  against  the strikers, were  served  upon\tthe
\n       workmen\tagainst whom those inquiries had  been\tinstituted.
\n       As  a  result of each one of these  inquiries,  the  Inquiry
\n       Officer, R. N. Biswas, reported that the charge against each
\n       one  of\tthe workmen, had been proved to\t his  satisfaction.
\n       But  before  the\t inquiry  was  held,  the  Joint  Agent\t on
\n       September 9, 1955, informed the thirty seven workmen who had
\n       been  convicted as aforesaid, of the criminal  charge  under
\n       section\t188 of the Indian Penal Code, that  their  services
\n       were  terminated from that date, and that they were to  call
\n       at his office by the 15th of the month to collect their dues
\n       and  to vacate the quarters of the appellants.\tAs  regards
\n       the  remaining two hundred and twenty three workmen,  orders
\n       were  passed  on\t September 16, to the effect  that  as\tthe
\n       departmental inquiry made against them, had resulted in\tthe
\n       charges against them being proved, they were dismissed  from
\n       the  service of the appellants with effect from\tAugust\t29,
\n       1955.  They were called upon to call at the Labour Office on
\n       September  18,  to  collect their dues, and  to\tvacate\tthe
\n       quarters\t  of  the  appellants.\t Realising  that   as\tthe
\n       Government had appointed a Board of Conciliation on the 13th
\n       instant,\t to  resolve the dispute between the  parties,\tthe
\n       orders aforesaid of dismissal or termination of services\t of
\n       the  thirty seven workmen and of the two hundred and  twenty
\n       three  workmen,\tas aforesaid, would be illegal,\t the  Joint
\n       Agent informed the workmen on September 20, 1955, that those
\n       orders  would be held in abeyance, pending  permission  from
\n       the  Board to dismiss them, and they would be deemed  to\t be
\n       under  suspension.  It may be recalled that  the\t Government
\n       had constituted a Board of Conciliation, consisting of three
\n       persons,\t viz.,\tH.  P. Duara, the  Labour  Commissioner\t of
\n       Assam,  as the Chairman, and D. N. Sarma and P. J.  Rayfield
\n       as members, representing the interests of the employees\tand
\n       the employers
\n       4<\/span>
\n       26<\/span>
\n\trespectively.  The  Board of Conciliation  considered\tthe
\n       question\t  of   the  dismissal  or   suspension\t of   those
\n       thirty  seven plus 223 workmen, along with the  application,
\n       of the Management, asking permission to\t\t    dismiss
\n       223  workmen  for  their having taken part  in  the  illegal
\n       strike, and forcibly preventing willing\t       workmen from
\n       attending  work.\t Two of the three persons constituting\tthe
\n       Board,  namely,\tthe Chairman and D. N. Sarma, came  to\tthe
\n       conclusion that as regards the dismissal of the thirty seven
\n       workmen\tthe  order of dismissal was illegal,  as  in  their
\n       opinion,\t the  conciliation proceedings had  commenced  from
\n       August  26, and not from September 13.  On the  question\t of
\n       suspension of 223 workmen, the Board was of the opinion that
\n       suspension without pay, pending the permission of the  Board
\n       to dismiss the workmen, was no punishment, and therefore, no
\n       action was called for.  As regards the permission sought\t by
\n       the  Management\tto dismiss the suspended  two  hundred\tand
\n       twenty three workmen, again by a majority, those two members
\n       were of the opinion that although the strike was prima facie
\n       illegal,\t  it  was  not\tunjustified  and   therefore,\tthe
\n       permission sought, could not be given.  Rayfield, the  other
\n       member of the Board, as already stated, submitted his Minute
\n       of   dissent.\tHe  pointed  out  that\t the   conciliation
\n       proceedings  commenced on September 13, and  therefore,\tthe
\n       discharge   of  the  thirty  seven  workmen,  was   not\t in
\n       contravention of s. 33 of the Act.  He further held that the
\n       Board  had no power to withhold the permission asked for\t to
\n       dismiss\t223 workmen on the ground that they had been  found
\n       guilty, on a departmental inquiry, of having participated in
\n       an illegal strike, and of having forcibly prevented  workmen
\n       from  attending\twork.\tHe  added that\tthe  grant  of\tthe
\n       permission  would  not  debar  the  Union  from\traising\t an
\n       industrial dispute in that matter.  It may be added that the
\n       Board unanimously agreed that dismissal ” is an\tappropriate
\n       punishment  for participation in an illegal and\tunjustified
\n       strike.”\t The Tribunal also took the same view of the  legal
\n       position, when it observed, ” If the strike is not justified
\n       and at the same time it contravenes the provisions of
\n\t\t\t\t    27<\/span>
\n       Section 22 of the Act, ordinarily the workmen  participating
\n       in it are not entitled to any relief.” As a matter of  fact,
\n       the  Tribunal  has  closely followed  the  findings  of\tthe
\n       majority\t of  the  Board of Conciliation.  But  as  we  have
\n       already pointed out, there can be no question of an  illegal
\n       strike being justified.\tWe have further held, in  agreement
\n       with the Tribunal, that the strike was illegal, and that\t it
\n       was  not even justified-in disagreement with  the  Tribunal-
\n       assuming\t that  such  a situation  could\t be  envisaged,\t in
\n       accordance  with\t the  provisions  of  the  Act.\t  We  have,
\n       therefore,  to  determine the question what  punishment,\t if
\n       any,  should be meted out to those workmen who took part\t in
\n       the illegal strike.\n<\/p>\n
       To determine the question of punishment, a clear distinction
\n       has to be made between those workmen who not only joined\t in
\n       such  a strike, but also took part in obstructing the  loyal
\n       workmen from carrying on their work, or took part in violent
\n       demonstrations,\tor acted in defiance of law and\t order,\t on
\n       the one hand, and those workmen who were more or less silent
\n       participators  in such a strike, on the other hand.   It\t is
\n       not  in the interest of the Industry that there should be  a
\n       wholesale   dismissal   of  all\tthe  workmen   who   merely
\n       participated  in such a strike.\tIt is certainly not in\tthe
\n       interest of the workmen themselves.  An Industrial Tribunal,
\n       therefore,  has\tto  consider the  question  of\tpunishment,
\n       keeping\tin view the over-riding consideration of  the  full
\n       and  efficient  working\tof the Industry as  a  whole.\tThe
\n       punishment  of  dismissal or termination of  services,  has,
\n       therefore,  to  be imposed on such workmen as had  not  only
\n       participated in the illegal strike, but had fomented it, and
\n       had been guilty of violence or doing acts detrimental to the
\n       maintenance of law and order in the locality where work\thad
\n       to be carried on.  While dealing with this part of the case,
\n       we  are assuming, without deciding, that it is open  to\tthe
\n       Management  to  dismiss a workman who has taken part  in\t an
\n       illegal\tstrike.\t There was a great deal of argument at\tthe
\n       Bar  on the question whether the Management, in\tthis  case,
\n       was  entitled to dismiss the workmen who had taken part,\t in
\n       the illegal strike.\n<\/p>\n
\t\t 28<\/span><\/p>\n
       A good deal of argument was devoted to the further  question
\n       whether there were certified standing orders\t as between
\n       the Syndicate and the workmen, or later,\t    as between\tthe
\n       appellants and the workmen, and\t  Whether, even apart  from
\n       such  standing orders, it was open to the employers to  deal
\n       so  drastically with their     employees who had taken  part
\n       in the illegal strike.\tIn our opinion, it is not necessary
\n       to   decide  those  general  questions,\tin  view   of\tour
\n       conclusion,  to be presently stated, on the question of\tthe
\n       regularity  of  the inquiry held in  different  batches,\t as
\n       indicated  above,  by Biswas, the officer appointed  by\tthe
\n       appellants to hold the departmental inquiry.
\n\t    In\torder  to find out which of the\t workmen,  who\thad
\n       participated in the illegal strike, belong to one of the two
\n       categories of strikers who may, for the sake of convenience,
\n       be  classified  as (1) peaceful strikers,  and  (2)  violent
\n       strikers,  we have to enquire into the part played by  them.
\n       That  can only be done if a regular inquiry has\tbeen  held,
\n       after  furnishing a charge-sheet to each one of the  workmen
\n       sought to be dealt with, for   his  participation   in\tthe
\n       strike.\tBoth  the types of workmen may\thave  been  equally
\n       guilty of participation\t     in the illegal strike, but\t it
\n       is manifest that both are     not liable to the same kind of
\n       punishment.  We have,therefore, to look into the\t nature\t of
\n       the inquiry alleged\tto  have been held by or on  behalf
\n       of the appellants.  On  the one hand, the workmen  took\tthe
\n       extreme\tposition that no inquiry had at all been held,\tand
\n       on the\t other\thand,  the employers took up  the  position
\n       that\t the Inquiring Officer had held a regular  inquiry,
\n       after\t furnishing  a\tcharge-sheet  to each  one  of\tthe
\n       workmen against whom the inquiry was held. That there was an
\n       inquiry held by Biswas, admits of no doubt. The\t proceedings
\n       before him and the evidence recorded by\t    him, have  been
\n       placed on record. But the most serious\t    question   that
\n       we have to determine is whether a       charge-sheet, giving
\n       notice to each workman concerned, as to what the gravamen of
\n       the charge against him\twas, had or had not been  furnished
\n       to  him. On this part of the case, the record is\t admittedly
\n       incomplete.The\tappellants   relied  upon   the\t  following
\n       observations
\n       29<\/span>
\n       of  the Tribunal in support of their case that  the  inquiry
\n       had been entirely regular:\n<\/p>\n
       ”  The  charges are for fomenting and  participating  in\t an
\n       illegal\tstrike\tfrom  the 11th August,\t1955  and  forcibly
\n       preventing other labourers from working on the same day.”
\n       On  the\tother hand, reliance was placed on  behalf  of\tthe
\n       workmen\ton  the\t following  passage in\tthe  Award  of\tthe
\n       Tribunal:-\n<\/p>\n
       ”  In  this  case the Company has not  framed  any  specific
\n       charge against those 260 workers alleging that they indulged
\n       in violence or acts subversive of discipline.”
\n       The  finding  of\t the Tribunal is that  no  such\t individual
\n       charge-sheet was delivered to the workmen.  This\t conclusion
\n       of the Tribunal was assailed on behalf of the appellants\t on
\n       the ground that as this point had not been specifically made
\n       in the written statement of the workmen, the appellants\tdid
\n       not  put\t in  those  charge-sheets  in  evidence,  and\thad
\n       contented  themselves  with  only producing  the\t record\t of
\n       proceedings before the Inquiring Officer.  As we, naturally,
\n       attached\t a  great deal of importance to this  question,\t we
\n       were inclined to give another opportunity to the\t appellants
\n       to  remove  the lacunas in the evidence\tbearing\t upon  that
\n       question,  even at this late stage.  More than once,  during
\n       the course of the arguments by the learned Attorney-General,
\n       we  suggested that he might put in those\t charge-sheets,\t if
\n       they  were  in  existence, as additional\t evidence  in  this
\n       Court,  so that we might be satisfied that there had been  a
\n       regular\tinquiry\t according to the requirements\tof  natural
\n       justice.\t  After\t making the  necessary\tinvestigation,\tthe
\n       learned Attorney-General informed us on the last day of\tthe
\n       arguments, that no such documents were in existence.  It was
\n       alleged\tthat  the entire bundle\t of  documents,\t containing
\n       those   individual  charges,  had  been\tlost,\tand   that,
\n       therefore,  there were no means of satisfying this Court\t by
\n       documentary   evidence,\tthat  there  were  in\tfact   such
\n       individual charge-sheets delivered to the workmen concerned.
\n       We  find,  therefore,  no good reasons  for  displacing\tthe
\n       finding of the
\n\t\t 30<\/span>
\n       Tribunal that there were no such individual charges,in spite
\n       of apparently conflicting observations made\t by it,\t as
\n       quoted above.\n<\/p>\n
       The  position, therefore, is that the strikes were  illegal,
\n       that there was no question of those strikes being justified,
\n       and that, assuming that the strikers\t    were liable\t to
\n       be punished, the degree and kind of     punishment had to be
\n       modulated according to the gravity of their guilt.    Hence,
\n       it is necessary to distinguish between the two categories of
\n       strikers.      The   Tribunal  attempted\t to  make  such\t  a
\n       distinction by\t   directing  that the 52 workmen, who\thad
\n       been convicted under s. 143, read with s. 188 of the  Indian
\n       Penal  Code,  were not entitled to  reinstatement,  and\tthe
\n       remaining 208 workmen were so entitled. Dealing\t with\tthe
\n       case of the thirty seven workmen, who had\t been
\n       convicted only under s. 188 of the Indian Penal\t Code,\tfor
\n       transgression of the prohibitory orders under\t s. 144\t of
\n       the Code of Criminal Procedure, the Tribunal\t put  those
\n       workmen on the same footing as the rest of   the\t   workmen.
\n       But, in our opinion, those 37 workmen   do not stand on\tthe
\n       same footing as the others. Those  37   workmen,\t who   were
\n       convicted under s. 188 of the\t  Indian  Penal\t Code,\thad
\n       been found to have violated   the prohibitory orders  passed
\n       by the public authorities\t  to keep the public peace.
\n       Those convictions were\tbased upon evidence adduced  before
\n       the Magistrate,\t\tshowing\t  that\tthe   workmen\thad
\n       proceeded to the steamer flat through the jetty, in defiance
\n       of the orders promulgated under s. 144. We have examined the
\n       record\t and  we find that there is  sufficient\t indication
\n       that   those 37 workmen were among the violent strikers, and
\n       could  not be placed in the category of\tpeaceful  strikers.
\n       Hence,  it is clear that those workmen not only\tjoined\tthe
\n       illegal-strike  by abstaining from their assigned duty,\tbut
\n       also violated regularly promulgated     orders\t\tfor
\n       maintaining peace and order. Such  persons,apparently,cannot
\n       be  said to be peaceful strikers, and  cannot,therefore,\t be
\n       dealt  with  as\tlightly\t as  the  Tribunal  has\t done.\tThe
\n       Tribunal,  in our opinion, is wrong in taking the view  that
\n       the  appellants had nothing to do with the violation of\tthe
\n       order under s. 144 of the
\n       31<\/span>
\n       Code  of\t Criminal Procedure, promulgated  by  the  District
\n       Magistrate,  with a view to maintaining peace and  order\t at
\n       the  site of work.  These 37 workmen, therefore, should\tnot
\n       have  been  ordered  to\tbe  reinstated.\t  As  regards\tthe
\n       remaining workmen, the question is whether the Tribunal\twas
\n       entirely\t correct in ordering their reinstatement with  full
\n       back wages and allowances on and from August 20, 1955,  till
\n       reinstatement.\tThis would amount to wholly  condoning\tthe
\n       illegal\tact  of the strikers.  On the findings\tarrived\t at
\n       before us, the workmen were guilty of having participated in
\n       an  illegal strike, for which they were liable to ‘be  dealt
\n       with by their employers.\t It is also clear that the  inquiry
\n       held   by  the  appellants,  was\t not  wholly  regular,\t as
\n       individual  charge  sheets  had not been\t delivered  to\tthe
\n       workmen proceeded against.  When the blame attaches to  both
\n       the parties, we think that they should divide the loss  half
\n       and  half  between them.\t We, therefore, direct\tthat  those
\n       workmen whose reinstatement by the Tribunal is upheld by us,
\n       should  be entitled only to half of their wages\tduring\tthe
\n       period  between\tthe date of the cessation  of  the  illegal
\n       strike  (i.e. from August 20, 1955) and the date\t the  Award
\n       became  enforceable.  After that date they will be  entitled
\n       to their full wages, on reinstatement.  In this\tconnection,
\n       it  has also got to be borne in mind that those workmen,\t as
\n       observed\t in  the  judgments of the  criminal  courts  which
\n       inflicted nominal fines on them on their conviction, were  ”
\n       day  labourers  who earned their livelihoods  by\t day-to-day
\n       labour  “.  It is only natural that during all  these  years
\n       that  the workmen have not been employed by the\tappellants,
\n       the  workmen should have been earning their living by  doing
\n       day -to-day labour.  It must, therefore be assumed that they
\n       were   working  for  their  living,  and\t were  not   wholly
\n       unemployed.  Therefore, the burden of the back wages for the
\n       long period that has elapsed between the date of the end\t of
\n       the  strike  and\t the  date of  the  Award,  ordering  their
\n       reinstatement,  should be divided half and half between\tthe
\n       parties.\n<\/p>\n
       The  appeal  is, therefore, allowed in  part,  as  indicated
\n       above, that is to say, (1) the order of reinstatement
\n       32<\/span>
\n       in  respect of Jahangir Sardar and Keayamat  Hussain,is\tset
\n       aside, (2) similarly, the order of reinstatement in  respect
\n       of the thirty seven workmen, who had been convicted under S.
\n       188 of the Indian Penal Code, is also\t    Set aside,\tand
\n       (3)  the\t order\tfor payment of full back  wages,  etc.,\t is
\n       modified by reducing those amounts by\t    half,  for\tthe
\n       period  aforesaid.  As success between the parties has  been
\n       divided,\t they are directed to bear their own costs in  this
\n       Court.\n<\/p>\n
       Appeal allowed in part.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India India General Navigation And … vs Their Workmen on 14 October, 1959 Equivalent citations: 1960 AIR 219, 1960 SCR (2) 1 Author: B P Sinha Bench: Sinha, Bhuvneshwar P.(Cj) 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-195080","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndia General Navigation And ... vs Their Workmen on 14 October, 1959 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/india-general-navigation-and-vs-their-workmen-on-14-october-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"India General Navigation And ... vs Their Workmen on 14 October, 1959 - 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