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PETITIONER: B.R. SINGH & ORS. ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA &-ORS.

DATE OF JUDGMENT26/09/1989

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SHETTY, K.J. (J)

CITATION:  1990 AIR    1            1989 SCR  Supl. (1) 257  1989 SCC  (4) 710        JT 1989 (4)    21  1989 SCALE  (2)697

ACT:     Constitution of India---Articles 19(1)(c) and  32--Work- men of Trade Fair Authority of India----Dismissal of--Wheth- er legal.     Industrial Disputes Act 1947--Sections 10(3), 10A  (4A), 22 & 23--Whether attracted.     Trade Fair Authority of India Employees (Conduct, Disci- pline and Appeal) Rule 32--Whether properly applied.

HEADNOTE:     Trade Fair Authority of India Employees’ Union had  been demanding from the management (i) housing facilities for the employees; (ii) regularisation of at least 50% of casual  or daily  rated  employees  and (iii) upward  revision  of  the salaries  and allowances of the workers. These demands  were discussed by the Union with the management from time to time but  nothing concrete except assurances emerged. On  October 29,  1986,  the Union wrote to the General  Manager  seeking implementation of the assurances not later than November 15, 1986.  It was also communicated that the workers would  pro- ceed on one day’s token strike on 13.11.86, if no action was taken. In response thereto the General Manager only  assured the Union representatives that the Standing Committee  which was seized of the matter, would be requested to take up  the matter on priority basis but things remained standstill till the  end of November 1986 and the reminders sent  thereafter also did not yeild the desired result. Thereupon on  January 15,  1987  the Union sought permission to hold  the  general body meeting on 19.1.87 during lunch interval and in antici- pation of the grant of such permission issued notices of the meeting to the members. The General Manager however declined to  grant  the necessary permission. But  the  General  Body Meeting  of the Union was held as scheduled and  a  decision was  taken  to strike work on 21.1.1987 aS  a  protest.  The management  was put on notice, which reacted  by  suspending the  President, Vice President & other Executive Members  of the  Union. WOrkers’ demand for withdrawal of the orders  of suspension  was rejected. Instead all the  remaining  office bearers & leading activists were suspended. These  suspended employees have filed a writ petition 258

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challenging their suspension.     During the strike some workers attended duty while  some others  gave  undertaking in the prescribed form;  all  such workers were allowed to work but others who refused to  sign the  Undertaking but reported for work were  denied  employ- ment-  Efforts  to solve the unemployment  problem  of  such employees having failed, they too have filed a writ petition seeking necessary relief.     By its order of March 3, 1987 the management  terminated the  services of all the 12 office bearers under Rule 32  of the Trade Fair Authority of India Employees (Conduct, Disci- pline and Appeal) Rules 1977 without holding a  departmental inquiry  as  contemplated by Rules 27 to 29  of  the  Rules. According  to the management the reason for not holding  the inquiry  was that the workers had terrorised  &  intimidated not  only the Disciplinary Authority but also the  witnesses and  an  atmosphere of violence, general in  discipline  and insubordination was created, as a result of which it was not practicable  to hold the inquiry. These dismissed  employees have also filed a Writ Petition.     One  Raju,  a  casual laborer of TFAI  since  1982,  was selected on July 4, 1986 as a Mini-stiller Driver. He joined the  new post on the same day but his appointment  was  can- celled without assigning any reason and he was reverted as a daily wager. He too had joined the others for regularisation of  his service and has taken part in the strike. His  serv- ices  were  terminated on December 1, 1986 without  any  in- quiry.  He  too has filed a Writ  Petition  challenging  the action of the management.      Another Writ Petition has been filed by two daily-rated Security Guards of TFAI whose services were terminated, even though  they had remained on duty during the  strike.  Their contention  is that they were dismissed as they  refused  to falsely  implicate their co-workers who had  espoused  their cause. They urge their’s was a case of victimisation.      In the counter affidavit filed on behalf of the manage- ment, it was urged that as the petitions require  collection and  adjudication of facts, the petitioners should be  rele- gated  to  the  Industrial Tribunal or  the  concerned  High Court.  On merits, it was contended that the office  bearers of  the Union had created an atmosphere of violence and  had paralysed the smooth running of the TFAI from November  1986 onwards; the officials being terrified were unable to  func- tion; that the union held the meeting even though permission was  refused  for  the purpose;  that  provocative  speeches undermining discipline were made 259 at  the  meeting, and that the ultimate termination  of  the services was motivated, nor coercive. As the strike  neither was prolonged, the management was forced to make alternative arrangements  including those of the security as the  Presi- dent  of India was to inaugurate AHARA-1987 on  January  25, 1987  and  foreign VIPs were expected to visit  the  Pragati Maidan.  To ensure proper security, the management was  even forced to file a suit and obtain an injuction from the  High Court  restraining  the union members  from  preventing  and obstructing  the  entry of delegates, guests  &  dignitaries into Pragati Maidan.     Likewise  the management sought to defend its action  in regard to casual labour by saying that 85 posts were consid- ered necessary for regularisation and the matter was pending with the Standing Committee. It was denied that the  manage- ment  was  not sympathetic. On similar  grounds  the  action taken  by the management against Raju and the  two  security guards were sought to be justified.

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   When  the Petitions reached hearing, the Court  directed the Delhi Administration to spare the services of a Judge of the  Labour Court to look into the facts of these cases  and transmit  his  report  to this Court.  The  concerned  Judge considered the facts of each case after giving full opportu- nity  of  hearing and leading evidence to  the  parties  and thereafter  submitted his report to this Court. On  most  of the  issues involved the Judge found in favour of the  work- men. Allowing the Writ Petitions with directions this Court,     HELD:  The  right  to form association or  Unions  is  a fundamental  right under Article 19(1)(c) of  the  Constitu- tion. The necessity to form unions is obviously for  voicing the  demands and grievances of labour. The  trade  unionists act as mouthpieces of labour, [270A-B]     Strike in a given situation is only a form of demonstra- tion,  e.g.  go-slow.  sit-in-work to  rule  absentism  etc. Strike  is  one such mode of demonstration  by  workers  for their  rights. The right to demonstrate and, therefore,  the right to strike is an important weapon in the armoury of the workers.  This right is recognised by almost all  Democratic Countries. But the right to strike is not absolute under our industrial  jurisprudence and restrictions have been  placed on  it by section 10(3), 10A (4A), 22 and 23 the  Industrial Disputes Act. These provisions, however, have no application to  the present case since it is no body’s  contention  that the Union’s demands had been referred to any forum under the statute. Though there were angry protests and 260 efforts to obstruct the officers from entering the precincts of TFAI there was no convincing evidence of use of force  of violence. [270C-F]     Although  TFAI  was  sympathetic  to  regularisation  of service  of  the casual workers, since the proposal  had  to pass  through various levels it was not possible to take  an early  decision in the matter. In their frustration  workers decided to put pressure by proceeding on strike. During  the strike  certain  events happened which  were  avoidable  but nothing destructive meaning thereby damaging the property of TFAI took place. [271H; 272A]     So  far  as the case of security guard  Vipti  Singh  is concerned,  we are constrained to say that the  material  on record  does  disclose  that he had  signed  the  attendance register  showing his presence from March 23, 1987 to  March 29,  1987, even though he was in fact absent on those  days. His  explanation in this behalf is far from convincing.  The ends  of justice would be met if his re-instatement  without back wages is directed. [273B-C]     In  the case of Raju, the action of the management  must be held to be penal in nature and cannot be sustained as  it was taken without hearing the delinquent, [273D]     Keeping in view the interest both of the labour and  the institution,  the  Court directed that the  management  will prepare  a list of casual-daily-rated workers who  were  its employees prior to the strike on January 21. 1987 in accord- ance  with their seniority, if such a list does  not  exist. TFAI will provide them work on the same basis on which  they were  given  work prior to the strike. After  the  seniority list  is  prepared  TFAI will absorb 85  of  the  seniormost casual workers in regular employment pending finalisation of the regularisation scheme. TFAI will complete the  regulari- sation process within a period of 3 months from to-day. TFAI will determine the number of casual employees who would have been  employed had they not proceeded on strike.  The  wages payable to such casual employees had they been employed  for

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the  period  of 6 months immediately preceding the  date  of this order will be worked out on the basis of actual  labour employed  and the amount so worked out will  be  distributed amongst the casual employees who report for work in the next three months after TFAI resumes work to casual labour.  Peon Umed  Singh, Security Guard Bansi Dhar and Driver Raju  will also  be re-instated in service forthwith. They too will  be paid  back wages (less suspension allowance, if any)  for  a period  of six months immediately preceding this  order.  So far as Driver Raju is concerned he 261 will be absorbed in regular service as per the offer made in the letter of July 25, 1987. The Security Guard Vipti  Singh will also be re-instated in service but without back  wages. In  the case of the 12 dismissed workers  the  circumstances did not exist for the exercise of extraordinary powers under Rule 32 of the Rules. The orders terminating the service  of the  12  union representatives are therefore set  aside  and they  are ordered to be retained in service  forthwith  with hack  wages  covering  a period of  six  months  immediately preceding the date of this order. They should be  reinstated forthwith. [273E-H; 274A-B] TFAI to pay Rs.5,000 by way of costs to the Union. [274C]

JUDGMENT:     CIVIL  ORIGINAL JURISDICTION: Writ Petitions  Nos.  627, 662,296, 27 1 & 452 of 1987.    (Under Article 32 of the Constitution of India).                      WITH Civil Miscellaneous Petition No. 12733 of 1988.     M.K.  Ramamurthy,  M.A. Krishnamurthy  and  Mrs.  Indira Sawhney for the Petitioners.     Ram  Panjwani, Raj Panjwani and Vijay Panjwani  for  the Respondents. The Judgment of the Court was delivered by      AHMADI, J. This batch of petitions brought under  Arti- cle  32 of the Constitution of India challenge  certain  ac- tions  taken by the officers of the Trade Fair Authority  of India (TFAI) in exercise of their disciplinary  jurisdiction whereby  the services of certain regular workmen  have  been terminated  and  several casual or daily rated  workers  are rendered  jobless.  Put briefly, the facts  giving  rise  to these petitions are as under:      The ’Trade Fair Authority Employees’ Union (Union here- after)  was demanding housing facilities, regularisation  of atleast  50% of casual or daily rated employees  and  upward revision  of the salaries and allowances of the  workers  of TFAI.  These demands were discussed with the  Chief  General Manager of TFAI on August 29, 1986 and thereafter from  time to time but nothing concrete emerged. The case 262 of  the Union is that the Chief General Manager had  assured the Union representatives that although it may not be possi- ble  to  regularise  the service of casual  labour  to.  the extent Of 50% some posts had already been identified and the Standing  Committee of TFAI which was seized of  the  matter would  take a decision at an early date. On the question  of upward revision of wages and allowances the Union’s case  is that  the Chief General Manager had given an assurance  that pending  final  decision by the High  Powered  Committee  of TFAI, the scales prevailing in MMTC and STC could be  adopt- ed. The grievance of the Union is that despite these  assur- ances  no action to implement the same was  taken  whereupon

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the Union wrote to the Chief General Manager on October  29, 1986  seeking implementation of the assurances at  an  early date and not later than November 15, 1986.It was also commu- nicated that the workers belonging to the Union had  decided to  proceed  on a token strike of one day  on  November  13, 1986.  At a subsequent meeting held on November 3, 1986  the General Manager of TFAI is stated to have assured the  Union representatives that the Standing Committee will be request- ed  to take up the issue on priority basis so that the  out- come  becomes  known by the end of November, 1986.  No  such decision  was taken by the end of November, 1986;  not  even after the Union’s reminders of December 18, 1986 and January 9, 1987 whereupon the Union wrote a letter dated January 15, 1987  to  the Chief General Manager to permit the  Union  to hold a General Body Meeting of the Union on January 19, 1987 during lunch hours. In anticipation of such permission being granted,  which  had always been granted in  the  past,  the Union despatched notices to its members to attend the  meet- ing.  However, the Chief General Manager informed the  Union representatives  that  the permission  was  refused.  Within minutes of the receipt of this communication, the  President of  the Union sent a reply stating that it was not  possible to cancel the meeting at such short notice. The General Body Meeting  was  held as schedule and a decision was  taken  to strike  work  on  January 21, 1987 to  protest  against  the management’s  failure  to implement the  assurances  already given.  On the same day, January 19, 1987, the Union  served the management with a notice informing it about the decision to  strike work on January 21, 1987. The management  reacted by placing the President, Vice President and Executive  Mem- bers  of the Union under suspension with  immediate  effect, i.e.  with  effect from January 20, 1987. This  angered  the striking  workmen who had gathered outside the precincts  of TFAI on January 21, 1987. They demanded the immediate  with- drawal  of the suspension orders failing which they  threat- ened that the strike would continue indefinitely. Intimation to this effect was served on the Chief General Manager.  The management however suspended all the re- 263 maming  office  bearers, the executive members  and  leading activists  of the Union w.e.f. January 23, 1987. The  strike was, however, called off w.e.f. January 24, 1987,  according to the Union in the larger interest of .TFAI and in national interest  as  the President of India was to  inaugurate  the AHARA  ’87 on January 25, 1987, while according to the  man- agement it continued for almost two weeks. Writ Petition No. 296/1987 is by those 42 suspended workers.     Now,  during the strike some of the casual  workers  at- tended  duty  and their services remained  unaffected,  some others  who  reported  for duty after the  strike  and  were prepared to sign an undertaking in the prescribed form  were given  work while the remaining casual workers who  did  not sign such an undertaking or were late in reporting for  work were  denied employment. The Union’s case is that out  of  a total  work-force of about 500 casual workers, 160  did  not participate in the strike and about 90 signed the  undertak- ing  and they have since been employed while  the  remaining casual workers are denied work. The Union sought the  inter- vention of the Union Commerce Minister and also invoked  the jurisdiction  of the Labour Commissioner, Delhi  Administra- tion,  with a view to finding an amicable settlement as  the discharged  workers  were facing untold  miseries.  However, contends  the Union, the response of the management was  not positive  and hence the Union was left with  no  alternative but  to invoke this court’s jurisdiction for an early  solu-

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tion of the unemployment problem faced by the workers.  Writ Petition No. 271/87 is by 243 casual laborers who have  thus been rendered jobless.     Thereafter  the management by their orders of  March  3, 1987  terminated the services of all the 12  office  bearers and  Executive  Committee  Members who  had  been  suspended earlier in exercise of their power under the special  proce- dure  outlined  in Rule 32 of the TFAI  Employees  (Conduct, Discipline and Appeal) Rules, 1977 (’The Rules’  hereafter). This  rule inter alia empowers the Board of TFAI  to  impose any  of the penalties specified in Rule 25  (which  includes penalties  from  Censure to Dismissal), without  holding  an inquiry  if the Board is satisfied for reasons to be  stated in  writing that it is not practicable to hold such  inquiry or  in the interest of the security of the Authority  it  is not expedient to hold such inquiry. This provision overrides the need to hold a departmental inquiry under Rules 27 to 29 of the Rules. The Board in the impugned orders of  dismissal has  assigned three reasons in support of its decision  that is  not practicable to hold an inquiry, namely "(i)  you  by yourself and together with and through other associates have threatened, intimidated and terrorised the Disci- 264 plinary Authority so that he is afraid to direct the inquiry to be held; (ii) you the employee of Trade Fair Authority of India particularly through and together with your associates have terrorised and threatened and intimidated witnesses who are likely to give evidence against you with fear of repris- al as to prevent them from doing so; and (iii) as an  atmos- phere of violence and of general indiscipline and insubordi- nation has been created by a group of suspended  employees". The  board has also stated in the impugned order that it  is not  expedient  in the interest of security of the  TFAI  to hold an enquiry in the manner provided by the Rules.  Annex- ure I to each order sets out the reasons which impelled  the Board to visit the 12 employees with the extreme penalty  of dismissal.  These 12 dismissed workers have  challenged  the orders of dismissal by their writ petition No. 267 of 1987.     Writ Petition No. 452 of 1987 is by one Raju, an employ- ee  of TFAI. He was a casual laborer of TFAI since 1982  and was selected on July 4, 1986 as a Mini-Stiller Driver in the scale of Rs.260-400. He joined the new post on the same  day but  his  appointment was cancelled  without  assigning  any valid reason on July 25, 1986 and he was reverted as a daily wager.  He too had joined the others for  regularisation  of his service and had taken part in the strike. The management by  office order dated March 2, 1987 terminated his  service w.e.f.  December  1, 1986. No enquiry was held nor  was  any opportunity  to explain his conduct given to the  delinquent before  his services came to be terminated. He  has,  there- fore,  challenged  the  order dated July 25,  1986  and  the subsequent  order  dated March 2, 1987 as violative  of  the principles of natural justice.     Writ  Petition No. 662 of 1987 concerns two daily  rated Security Guards of TFAI whose services came to be terminated by TFAI. The service of Bansi Dhar came to be terminated  on April  2, 1987 while that of his companion Vipti Singh  came to be terminated on April 8, 1987. Their allegation is  that their  services were dispensed with because they refused  to give false evidence against their co-workers who were active members  of  the  Union and who had filed  W.P.  No.  271/87 challenging  the  mala fide action of TFAI  terminating  the services  of  243 casual daily rated workers.  They  contend that  even  though  they had remained  on  duty  during  the strike, their services were terminated because they  refused

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to falsely implicate their coworkers who had espoused  their cause.  They,  therefore,  contend  that  their  termination smacks of victimisation. In  all  the writ petitions Mr. N.N. Kesar,  Manager  (Admn) TFAI 265 has  filed  his counter contending that  as  the.  petitions require  collection  of facts this Court  should  refuse  to entertain these petitions and should relegate the  petition- ers to the industrial tribunal or the concerned High  Court. According  to the deponent TFAI had to take  action  against the  office  bearers  of the Union as they  had  created  an atmosphere  of violence and had paralysed the  smooth  func- tioning  of TFAI from November, 1986 onwards.  Instances  of insubordination,  threats, violence and lack  of  discipline have been enumerated to show that officers of TFAI found  it difficult to carry out their functions and duties because of constant  fear  to themselves and their kith and  kin.  Even though  permission  for holding a General  Body  meeting  on January  19, 1987 within the precints of TFAI  was  refused, the  meeting was held at which inflammatory and  provocative speeches  were made by the Union leaders. Extracts from  the speeches  of the various Union leaders have been set out  in the counter to acquaint the court to the type of  atmosphere that  prevailed  at a point of time when  several  important foreign delegates and VIPs were attending the  International Fair  held by TFAI. The secret reports which  were  received from the officers of TFAI at different levels also suggested that  trouble  was  brewing and immediate  firm  action  was necessary.  Therefore, when the management learned that  the employees had decided to go on a token strike on January 21, 1987 it took action of suspending some of the office bearers of  the Union. After the strike was prolonged  upto  January 23, 1987, TFAI had to make alternative arrangements  includ- ing  security arrangements to ensure that no untoward  inci- dent  occurred  during the visit of foreign  VIPs  and  more particularly during the visit of the President of India  who was  to inaugurate the AHARA 1987 on January 25, 1987.  Even during  the visit of the President certain employees  posted themselves  at  the  main gates along  with  the  President, Vice-President, General Secretary and Secretary of the Union for  picketing.  Since certain other inaugurations  by  VIPs were to take place between January 28, 1987 and February  2, 1987, TFAI was constrained to file a suit No. 263 of 1987 in the  Delhi  High Court against the Union  and  seven  office bearers to restrain them from preventing and obstructing the entry  of delegates, guest, dignitaries, etc. into the  Pra- gati  Maidan  where TFAI was having its  fair.  An  ex-parte injunction was granted prohibiting picketing, slogan  shout- ing, etc. within 75 meters of all gates leading to the  Fair as  shown in the map appended to the suit. It will  thus  be seen that according to TFAI the workers’ agitation was not a peaceful one as is alleged by the petitioners. It was in the backdrop of these facts that the Board decided to  terminate the  services  of the 12 employees by virtue  of  the  power conferred  on it by Rule 32 of the Rules. The reasons  which impelled 266 the  Board to take this drastic action have been set out  in the  annexure  appended to each order  of  dismissal.  TFAI, therefore,  contends  that the action taken against  the  12 erring  workers  is just, legal and proper  and  this  Court should  refuse  to interfere with the same. So  far  as  the suspended employees are concerned TFAI contends that it  has power  under Rule 22 of the Rules to suspend  erring  delin-

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quents  pending inquiry. Such suspended employees are  enti- tled  to  suspension  allowance paid at 50%  of  salary  and allowances.  It  is denied that TFAI has used the  power  of suspension as a coercive measure. It is however stated  that the correct number of suspended employees is 34 as named  in the Counter. Out of these 34 employees, the suspension order of 33 workmen have since been revoked on acceptance of their explanation.  Hence  the suspension order that  survives  is against  Peon Umed Singh only, who is  receiving  suspension allowance as per rules.     Insofar  as the casual labour is concerned, it  is  con- tended  that TFAI had taken over the maintenance  of  Pragti Maidan  from C.P.W.D.w.e.f. January 1983. The Standing  Com- mittee had, therefore, sanctioned a certain number of  posts of the Engineering staff for this purpose. A number of daily wage posts on muster roll were created from time to time and were  filled  in  by both skilled and  unskilled  labour.  A proposal for regularising such employees was pending  before the Standing Committee which had called for information.  It was however tentatively decided that 85 posts may be consid- ered urgently for regularisation. This proposal was  cleared in  January, 1987. The matter was pending with the  Internal Works  Study  Unit  in the Ministry of  Commerce  and  their report  was awaited. It was, therefore, contended that  TFAI was  always  sympathetic in its approach and yet  the  Union gave  a  call  for a strike on January 19,  1987.  The  TFAI denies  that it did not provide work to casual  labour  when they reported on January 24, 1987 or thereafter or that they demanded any such undertaking as alleged.     As  regards  the  termination of Raju’s  service  it  is contended  by TFAI that he was given a provisional  appoint- ment  on July 4, 1986 but the same had to be  terminated  on July 25, 1986 firstly because it subsequently came to  light that he was convicted on June 30, 1987 under Sections 87 and 113 of the Motor Vehicles Act and fined Rs.300 and  secondly because of his outrageous behaviour with his dealing assist- ant  on July 22, 1986. These two reasons ’formed  the  basis and  the grounds and the administrative reasons’  for  with- drawal  of the provisional offer made in the letter of  July 4, 1986. However, the letter of July 25, 1986 uses the words ’some administrative reasons’ for cancel- 267 lation  of  the order and impugned order of  March  2,  1987 gives  no  reason whatsoever. It is,’  therefore,  contended that  since the offer was only provisional,  the  petitioner had no right to the post and hence the petition deserves  to be dismissed.     So far as the termination of service of the two Security Guards is concerned it is contended that the allegation that their  services were dispensed with because they refused  to co-operate  with  the management and give  evidence  against their co-workers is denied. It is, therefore, contended that their petition is without merit.     When  these petitions reached hearing before this  Court on  October 13, 1987, this Court passed a common  order  di- recting the Chief Secretary of Delhi Administration to spare the services of a Judge of the Labour Court to look into the facts of these cases and finalise its report so as to  reach the  Registry of this Court on or before December 18,  1987. Since  the  inquiry could not be finalised within  the  time allowed  the time was extended upto October 31,  1988.  Shri Bhola Dutt, Presiding Officer, Labour Court (VII)  submitted his report on October 29, 1988. Before finalising its report the  Labour  Court  gave an opportunity  to  the  contesting parties to file their pleadings. Issues were framed thereaf-

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ter,  parties  were permitted to lead oral  and  documentary evidence,  counsel were heard on the evidence  tendered  and only  thereafter the Labour Court recorded its findings.  It came  to  the conclusion that the 243 casual  labourers  had been  doing conservancy work since several years and all  of them were denied work when they reported for duty on January 24,  1987 and thereafter because the work of  Safai  Kamdars was handed over to M.C.D.w.e.f. January 22, 1987. It, howev- er came to the conclusion that denial of work to all the 243 casual  workers was not justified. So far as the  only  sus- pended  employee--Peon Umed Singh--is concerned, the  Labour Court opined that mere participation in the strike called by the  Union  would not furnish a sufficient  cause  to  order large scale suspension of employees much less termination of their  employment.  Since  33 of  his  colleagues  similarly suspended were taken back in service there was no justifica- tion to single out Umed Singh for different treatment,  more so when no disciplinary action is initiated or  contemplated against him. With regard to the termination of Raju driver’s service,  the Labour Court came to the conclusion  that  the management  had  acted in an illegal manner.  In  the  first place  it was not possible to accept the reason that  during the  summer  season there is paucity of work and  hence  the provisional  offer made on July 4, 1987 had to be  cancelled within  twenty days on July 25, 1987. It would it  difficult to believe that 268 within such a short period there was a slump in work  neces- sitating cancellation of the order. As to the second  reason regarding  his  conviction under the Motor Vehicles  Act  it pointed  out  that the allegation that he  had  abused  Amar Singh was not inquired into and the delinquent was not given an opportunity to explain his conduct. Certain other allega- tions by the management regarding his behaviour e.g. absence without prior intimation, etc., all amount to misconduct for which  a departmental enquiry was necessary and in  the  ab- sence  of  such an enquiry the order was  unsustainable.  It therefore,  held that the termination of Raju’s service  was illegal.     The case of the two security guards has been dealt  with in  detail by the Labour Court. The Labour Court points  out that the management decided to refuse work to Bansi Dhar  as his  performance  was not found to be satisfactory.  He  was served with memos dated December 25, 1984, February 10, 1986 and February 20, 1987 with a warning to improve his perform- ance  failing which the management would be  constrained  to refuse work to him. The note submitted by the Chief Security Officer on March 3, 1987 that his termination may be consid- ered  if  he is found absent or indisciplined in  future  is indicative  of the fact that the management desired to  give him an opportunity to improve. Nothing had happened  between March  3, 1987 and April 2, 1987 to warrant the  termination of  his service. The Labour Court, therefore, held that  the termination of his employment by the order of April 2,  1987 was  not sustainable. As regards his companion  Vipti  Singh the management pointed out that apart from the fact that his service was not satisfactory as is reflected by the memos of August  14, 1985 and October 20, 1986, he was found to  have signed the attendance register from March 23, 1987 to  March 29, 1987 even though he was admittedly absent on those days. The Labour Court examined this ground in detail and came  to the  conclusion that even though the workmen had signed  his presence  on  those dates, some doubt arose  on  account  of absence  of cross marks in the register. The  Labour  Court, therefore,  came to the conclusion that the  termination  of

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the service was also not justified.     Taking note of the fact that the Union was demanding the upward  revision  of wages of non-executive  staff,  housing facility and regularisation of casual labour and the manage- ment’s failure to accede to the demands notwithstanding  the meetings  held  on  August 29, 1986, November  3,  1986  and January  19, 1987, the Labour Court came to  the  conclusion that the strike was legal and justified, peaceful and nonvi- olent  and  for a duration of only three  days.  The  Labour Court also 269 came  to the conclusion that there was no justification  for resorting to the exercise of extraordinary powers under Rule 32 of the Rules. In the view of the Labour Court  participa- tion in strikes and slogan shouting are part of trade  union activity and hence it was not legal and proper to visit  the twelve Union leaders with the extreme punishment of dismiss- al  from service. It, therefore, held that  their  dismissal was illegal, unjustified and wholly arbitrary.     All  the  above findings of the Labour Court  have  been assailed by the TFAI in the objections to the report. It  is not necessary for us to indicate in detail the nature of the objections but suffice it to say that according to the  TFAI the  findings  reached by the Labour Court  are  one  sided, perverse  and  contrary to the evidence on record.  We  have perused the objections as well as the reply filed thereto by the petitioners.     From the above resume it clearly emerges that the  char- ter of demands put forth by the Union was pending considera- tion. The main demands were three in number, namely, (i) for upward revision of wages (ii) for regularisation of services of casual labour and (iii) for providing housing  facilities to  the  employees. Efforts to settle these  pending  issues through  negotiations  were made at the level of  the  Chief General  Manager and it appears that this response  was  not negative. It appears that the question of regularisation  of casual and daily rated workers was referred to the  Standing Committee  of the Board which had taken the tentative  deci- sion  to  create 85 posts on the regular  establishment  for regularisation.  This proposal was forwarded to  the  I.W.S. unit  of the concerned Ministry for approval. However  since the  final  decision was delayed the  union  leaders  become restive.  The Union representatives, therefore,  decided  to call  a General Body Meeting to decide on the future  course of action. On January 15, 1987 it wrote to the management to permit  it to hold a meeting on January 19,  1987.  Notwith- standing  the refusal of the permission the Union  was  com- pelled  to hold the meeting as it had informed  its  members and it was not possible to shift the venue at short  notice. The angered leaders who addressed the workers condemned  the management’s  action  in refusing to solve  the  outstanding problems of the workers in strong language. We have  perused the  extracts from their speeches on which TFAI relies.  The language  used  is  no doubt harsh and it  would  have  been proper if such language had been avoided.     Counsel for TFAI also strongly contended that since  the strike  was  illegal  the workers are not  entitled  to  any relief. We see no merit 270 in this submission. The right to form association or  unions is a fundamental right under Article 19(1)(c) of the Consti- tution.  Section  8  of the Trade Unions  Act  provides  for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognised

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obviously for conferring certain rights on trade unions. The necessity  to form unions is obviously for voicing  the  de- mands  and  grievances  of labour. Trade  unionists  act  as mouthpieces of labour. The strength of a trade union depends on  its membership. Therefore, trade unions with  sufficient membership  strength  are able to bargain  more  effectively with the managements. This bargaining power would be consid- erably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration.  There are  different modes of demonstrations, e.g., go-slow,  sit- in,  work-to-rule, absentism, etc., and strike is  one  such mode of demonstration by workers for their rights. The right to  demonstrate  and, therefore, the right to strike  is  an important  weapon in the armoury of the workers. This  right has  been  recognised by almost  all  democratic  countries. Though  not  raised to the high pedestal  of  a  fundamental right,  it is recognised as a mode of redress for  resolving the  grievances of workers. But the right to strike  is  not absolute under our industrial jurisprudence and restrictions have  been placed on it. These are to be found  in  sections 10(3),  10A(4A), 22 and 23 of the Industrial  Disputes  Act, 1947  (‘I.D.  Act’ for short). Section  10(3)  empowers  the appropriate  Government  to prohibit the  continuance  of  a strike if it is in connection with a dispute referred to one of the fora created under the said statute. Section  10A(4A) confers  similar power on the appropriate  Government  where the  industrial dispute which is the cause of the strike  is referred to Arbitration and a notification in that behalf is issued  under Section 10(3A). These two provisions  have  no application  to the present case since it is no body’s  con- tention  that the union’s demands have been referred to  any forum under the statute.     The field of operation of Sections 22 and 23 is  differ- ent. While Section 10(3) and Section 10A(4A) confer power to prohibit  continuance of strike which is in  progress,  Sec- tions  22 and 23 seek to prohibit strike at  the  threshold. Section  22  provides that no person employed  in  a  public utility service shall proceed on strike unless the  require- ments  of clauses (a) to (d) of sub-section (1) thereof  are fulfilled.  The expression ’public utility service’  is  de- fined  in Section 2(n) and indisputably TFAI does  not  fall within  that expression. Section 23 next imposes  a  general restriction  on  declaring  strikes in  breach  of  contract during  pendency of (i) conciliation proceedings. (ii)  pro- ceed- 271 ings  before  Labour Court, Tribunal or  National  Tribunal, (iii)  arbitration proceedings & (iv) during the  period  of operation of any settlement or award. In the present case no proceedings  were pending before any of  the  aforementioned fora  nor  was  it contended that any  settlement  or  award touching  these workmen was in operation during  the  strike period and hence this provision too can have no application. Under  Section  24 a strike will be illegal only  if  it  is commenced  or declared in contravention of Section 22 or  23 or  is  continued in contravention of an  order  made  under Section  10(3) or 10A(4A) of the I.D. Act. Except the  above provisions, no other provision was brought to our  attention to  support the contention that the strike was illegal.  We, therefore, reject this contention.     The  next  question is whether the  material  on  record reveals  that  the  office bearers of the  union  had  given threats  to officials of TFAI as alleged. The  Labour  Court has negatived the involvement of office bearers of the union in giving threats either in person or on telephone. We  have

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perused  the  evidence on record in this behalf and  we  are inclined to think that there were angry protests and efforts to obstruct the officers from entering the precints of  TFAI but  there  is  no convincing evidence of use  of  force  or violence.     From  what  we have discussed above we are of  the  view that  although  TFAI was sympathetic  to  regularisation  of service  of  the casual workers, since the proposal  had  to pass  through various levels it was not possible to take  an early decision in the matter. It was held up in the Ministry for which TFAI could not be blamed. So also the proposal  to revise the wages of non-executive staff was under considera- tion  since some time. However, the Union leaders  lost  pa- tience  and took a decision to proceed on strike on the  eve of  the President’s visit to TFAI. This action of the  Union impelled  TFAI to make alternative arrangements. It,  there- fore, dismissed the 12 union leaders invoking Rule 32 of the Rules.     On  going through the material placed before the  Labour Court,  we feel that the criticism levelled by TFAI that  it exceeded  its  brief and has betrayed a  somewhat  one-sided approach  cannot  be said to be wholly misplaced.  We  have, however, looked to the bare facts found by it. We are howev- er  disinclined  to analyse the evidence before  the  Labour Court  because we are of the view that even though TFAI  was not  averse  to the demands of labour it could  not  take  a final  decision at an early date for want of  approval  from the  concerned Ministry. This angered the Union  representa- tives more particularly because the 272 executive  staff  was  granted upward  revision  of  salary, allowances,  etc., and hence they decided to call a  meeting of  the general body to decide on the future course  of  ac- tion.  In their frustration they decided to put pressure  by proceeding  on  strike.  During the  strike  period  certain events happened which we wish were avoided. But  fortunately nothing destructive, meaning thereby damaging to the proper- ty of TFAI, took place. A few brushes and exchange of strong words  appear  to have taken place which  are  described  as threats by the management. The vast mass of labour was  only responding  to the call of the Union. Even the union  repre- sentatives  were  acting out of frustration and not  out  of animoisity for the officers. The facts of this case,  there- fore,  demand that we appreciate the conduct of  both  sides keeping in mind the prevailing overall situation. While  the workers  were frustrated for want of an early solution,  the management was worried because of the impending visit of the President on January 25, 1987. Instead of trying to lay  the blame at the door of either party, which would only leave  a bitter taste for long, we think we should resolve the crisis in the larger interest of the institution.     Taking  an overall view of the facts  and  circumstances which  emerge from the oral as well as documentary  evidence placed  on record, we are of the opinion that while some  of the Union leaders acted in haste, they do not appear to have been  actuated  by any oblique motive. The  management  also took action against the workmen not because it was  unsympa- thetic  towards  their demands but because  of  the  anxiety caused  to them on account of untimely action taken  by  the Union only a few days before the President’s scheduled visit to the fare. The management also felt hurt as its reputation was  at  stake since several dignitaries  from  abroad  were participating  in the fare. Its action must,  therefore,  be appreciated in this background.     The interest of the institution must be paramount to all

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concerned including the workmen. At the same time this Court cannot  be oblivious to the economic hardship faced  by  la- bour.  We have already pointed out earlier how both  parties reacted to the tense atmosphere that built up over a  period of  time. The facts found by the labour court  clearly  show that  while  the labour was frustrated as its  demands  were outstanding since long and they were finding it difficult to combat  the inflation without an upward revision  in  wages, etc.,  the  management was worried about  TFAI’s  reputation likely  to  be lowered in the eyes of  visiting  dignitaries because  of  certain events that were happening due  to  the workers’  agitation.  In  these circumstances  it  would  be unwise and futile to embark upon a fault finding mission. 273     Keeping  the  interest of the institution  in  mind  and bearing in mind the economic hardships that the labour would suffer  if the impugned orders are not set aside,  we  think that it would be desirable to restore the peace by directing the  re-instatement of the workers. However, so far  as  the case of the security guard Vipti Singh is concerned, we  are constrained to say that the material on record does disclose that  he  had  signed the attendance  register  showing  his presence  from March 23, 1987 to March 29, 1987 even  though he was in fact absent on those days. His explanation in this behalf  is  far from convincing. We are, therefore,  of  the opinion  that  he deserves punishment, but not  the  extreme punishment of dismissal from service. We think that the ends of  justice  would  be met if we  direct  his  reinstatement without back wages.     So far as the case of driver Raju is concerned, it  must be  pointed out that the management cancelled the  offer  of July  4, 1986 by the letter of July 25, 1986 because of  his conviction  under Sections 87 and 113 of the Motor  Vehicles Act and his so-called outrageous behaviour with the  dealing assistant  on  July 22, 1986. These being  clearly  acts  of misconduct, the action of the management must be held to  be penal  in  nature and cannot be sustained as  it  was  taken without  hearing the delinquent. To hold an enquiry  against him at this late stage is not desirable.     In the result all the writ petitions are allowed and the rule  is made absolute in each case to the extent  indicated hereinafter.  The management will prepare a list of  casual- daily  rated  workers who were its employees  prior  to  the strike on January 21, 1987 in accordance with their seniori- ty,  if such a list does not exist. TFAI will  provide  them work  on the same basis on which they were given work  prior to  the  strike. After the seniority list is  prepared  TFAI will  absorb 85 of the seniormost casual workers in  regular employment   pending  finalisation  of  the   regularisation scheme. TFAI will complete the regularisation process within a  period  of  3  months from  today.  TFAI  will  determine the .umber of casual employees who would have been  employed had they not proceeded on strike. The wages payable to  such casual employees had they been employed for the period of  6 months immediately preceding the date of this order will  be worked  out on the basis of actual labour employed  and  the amount so worked out will be distributed amongst the  casual employees who report for work in the next three months after TFAI resumes work to casual labour. Peon Umed Singh, Securi- ty Guard Bansi Dhar and Driver Raiu will also be  reinstated in service forthwith. They too will be paid 274 back wages (less suspension allowance, if any) for a  period of  6  months immediately preceding this order.  So  far  as Driver  Raju  is concerned he will be  absorbed  in  regular

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service as per the offer made in the letter of July 4,  1987 disregarding the subsequent communication of July 25,  1987. The  security guard Vipti Singh will also be  reinstated  in service  but without back wages. In the case of the 12  dis- missed workers we are, on the facts placed before us, of the view  the  circumstances did not exist for the  exercise  of extraordinary powers under Rule 32 of the Rules. The  orders terminating the services of the 12 union representatives are therefore set aside and they are ordered to be reinstated in service  forthwith  with back wages coveting a period  of  6 months  immediately preceding the date of this  order.  They should be reinstated forthwith. In view of the above  direc- tions  no further order is required on the C.M.P- TFAI  will pay Rs.5,000 in all by way of costs to the Union. Y.   Lal                                            Petition allowed. 275