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PETITIONER: G.E.C. (P) LTD. NAINI, ALLAHABAD

       Vs.

RESPONDENT: THE LABOUR COURT, ALLAHABAD

DATE OF JUDGMENT: 05/08/1968

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1969 AIR  235            1969 SCR  (1) 543

ACT: Misconduct--Illegal  strike--Dismissal of workmen   who  had been  given  warning about an earlier  strike--Warning  held wrongly   given-Punishment  after taking into  account  such warning cannot be upheld.

HEADNOTE:     There was a strike in the establishment of the appellant company   betseen  18th and 30th March, 1964,  and  again  a token  strike  on 10th April, 1964.  For the  misconduct  of going  on the first strike some of the workmen were  charged and  given  a  warning.  The second strike was  held  to  be illegal by an enquiry officer and six of the workmen who had been  given  a warning in respect of the first  strike  were dismissed  for taking part in the second strike  also.   The Labour Court held that in the compromise that had ended  the first  strike the company had given the undertaking that  it would  not take any action by way of punishment against  the workmen,  and therefore the warning in respect of the  first strike  which  was  given  only  after  the  enquiry  report relating to the second strike had been already received, was not  only not bona fide but illegal.  Because  this  warning was  taken  into account against the six  workmen  who  were dismissed,   the  Labour  Court  set  aside  the  order   of dismissal,  although  holding  that the  second  strike  was ille.gal  because of want of notice under subs. 4 of s.  6-S of  the  U.P. Industrial Disputes Act,  1947.   The  company appealed to this Court.     HELD:   (i) The Labour Court rightly held on  the  facts that  the  warning given to the workmen in respect  of  the. first  strike was not only not bona fide but  also.  against the  terms of the settlement by which the first  strike  was ended. [548 G]     (ii) The second strike was, as held by the Labour Court, illegal and therefore ’misconduct’ under sub-cl. (2) of  cl. 21  of the Standing Orders of the company.   Any  punishment imposed  under  el. 22 of the said Orders in respect  of  an illegal  strike  after a fair enquiry,  being  a  managerial function would not normally be interfered with.  But in  the present  case the management was not entitled to take  into. account the warning given in respect of the first strike  in

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view of the settlement it had entered into with the  workers to  end that strike.  The Labour Court was  therefore  again right  in  holding the punishment of dismissal  of  the  six respondents as vindictive and unjustified. [548 H-549E]

JUDGMENT: CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 958 of 1966.     Appeal  by special leave from the Award dated  September 16, 1965 of the Labour Court, Allahabad in Adjudication Case No. 78 of 1965.     G.R.  Gokhale, O.P. Malhotra and 1. B.  Dadachanji,  for the appellant.     R. Vasudev Pillai and Subodh Markandeya, for respondents Nos. 2(a) to 2(k). 541 The Judgment of the Court was delivered by     Vaidialingam, J.  In this appeal, by special leave,  the question,  that arises for consideration, is as  to  whether the  award of the Labour Court, Allahabad,  dated  September 16,  1965,  directing  the  reinstatement  of  six  workmen, referred to in the order of reference, is justified.     The  facts leading up to the award may be  referred  to. There  was a strike, in the establishment of  the  appellant company,  from March 18, 1964.  There was a meeting, of  the District  Industrial Relations Advisory Committee, on  March 29,  1964, presided over by the District Magistrate  of  the area.  Representatives  of  the management and the  workmen, attended the said meeting.   The proceedings of the  meeting show that  the Advisory Committee, decided to appeal to  the appellant  not to take any action, against the  workers,  on the  gro.und  that they had on strike, from March  18  1964. There was an appeal, to the District Magistrate,  Allahabad, to release, as a gesture of goodwill, the arrested employees of  the  company, who were not involved  in  violence.   The Union,  representing the workers of the appellant, in  turn, decided  to call off the strike and directed the workmen  to resume work with effect from the morning of March 30,  1964. There is no controversy that the strike was called off,  and certain workers,  who  had  been arrested in connection with the  strike,  were also released  from ia’il, on  March  29, 1964 itself.  This strike will be referred to, as the  first strike, in the course of this judgment.     On March 20, 1964, the respondent-Union had given to the appellant,  another notice, stating that the workmen of  the appellant company would be going on a token strike, for  one day,  after fourteen days of the receipt of the  notice,  in sympathy  with  the workers of the  Swadeshi  Cotton  Mills, Nalni.   The  exact date, on which the strike  was  to  take place, was not given in the notice, as required under sub-s. (4)  of  s.  6S of the U.P. Industrial  Disputes  Act,  1947 (hereinafter referred to as the Act).  On April 9, 1964, the respondent Union again intimated to the management about the workmen’s  intention to go on strike on April 10, 1964,  and offered to work on a Sunday, so that there would be no  loss of  production; but the management intimated the Union  that the  factory would work on April 10, 1964.  A  token  strike actually took place, on April 10, 1964.  This strike will be termed as the second strike, in these proceedings.     In  respect of the first strike, the Management had,  on March  28,  1964, charge-sheeted, for going  on  an  illegal strike,  some of the workmen, including the  workmen,  whose dismissal had been set aside by the present award.  A  joint reply was sent, by the concerned workmen, on April 9,  1964,

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to  the management, drawing their attention to the  decision of the District Industrial Rela- 545 tions  Advisory  Committee, dated March 29,  1964,  and  the settlement, arrived at, therein, between the management  and the  Union. The workmen also requested the  management,  not ’to  disobey the decision of the Committee.   The  appellant sent  a  communication, on April 10, 1964, to  the  workmen, stating  that  they  had not made  any  commitment,  at  the meeting on March 29, 1964,  that  the management  would  not proceed  with the taking of disciplinarY action, against  an employee,  who  committed  a  mis-conduct, according to  the Standing.  Orders of the Company.  The work-men  were  again directed  to furnish, within 24 hours, their reply, if  any, to the charge-sheet, dated March 28, 1964.   On May 8, 1964, the Acting Works Manager, of the appellant company, passed orders, warning the concerned  workmen,  for having   mis-conducted   themselves,   as  s’tated  in   the chargesheet, dated March 28, 1964.  It is further stated, in this  order, that, after hearing the explanation,  furnished by the workmen,  the management holds the workmen guilty  of mis-conduct,  for which they could have been dismissed;  but the management has taken a lenient view and, hoping that the mis-conduct  will  not be repeated, administers  an  earnest warning.   In respect of the second strike, which took place on April 10,1964,  the management charge-sheeted, on April 16,  1964, thirteen  wo.rkmen, for going on illegal strike which  is  a mis-conduct,  under sub-cl. (2) of el. 21, of the  Certified Standing  Orders  of the company, and as the strike  was  in violation  of sub-s. (4) of s. 6-S of the Act.  There was  a further charge that the workmen, concerned, had  intimidated and  prevented  other willing workers, from going  to  work. The workmen were directed to offer their explanation, as  to why disciplinary action need not be taken for their conduct. On  April   17, 1964, the thirteen workmen, jointly  sent  a reply saying that the strike, on April 10, 1964, was  legal, and due notice had been given, under the provisions  of  the Act.   They  also denied having intimidated, or  restrained, any willing worker from going to work.  They further  stated that they had not committed any mis-conduct.  The management proceeded   to  conduct  an inquiry,  against  the  thirteen workmen,  and Sri K. ’D. Gupta, an officer of  the  company, was  entrusted with the conduct of the said  inquirY.   Shri Gupta  accordingly conducted an enquirY on April  20,  1964, and  sent his report to the Acting Works Manager, .on  April 24,  1964.  After referring to the conduct  of  the  inquiry proceedings, Shri Gupta has stated that the thirteen workmen are’ guilty of participation in an illegal strike, on  April 10,  1964, and, as participation in an illegal strike, is  a mis-conduct   under   el. 21 (2 ) of the  Certfied  Standing Orders  of the Company, the workmen, concerned, are  guilty. of mis-conduct,  but,  regarding the 546 charge  of intimidation and incitement, the inquiry  officer found that the said charge was not established.     On  May  22,  1964,  the Acting  Works  Manager  of  the appellant  accepted  the  report of Shri  Gupta  and  passed orders,  administering  a  warning, to  seven,  out  of  the thirteen, workmen, but, regarding the remaining six workmen, the  Works  Manager, after taking into account  the  warning that  had been  administered  to them, on May 8,  1964,  for go.ing on an illegal strike (referring to the first strike), passed orders dismissing them from service.     The  Union raised a dispute, regarding the dismissal  of

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the  six  workmen  and, accordingly, the  said  dispute  was referred to the Labour Court, Allahabad, for adjudication.     The  case of the workmen was that the strike,  on  April 10,  1964,  was  legal,  and  that  the  domestic   inquiry, conducted  by Shri Gupta, was neither bona fide,  not  fair. They also contended that in view of the settlement,  arrived at  on March 29, 1964, in respect of the first  strike,  the management  had  no  right to take any  action,  by  way  of warning the workmen, as it purported to do, on May 8,  1964. Taking  the said warning into account,  for  the purpose  of imposing   the  punishment  of  dismissal,  amounted  to   a vindictive  conduct,  on  the part of  the  management  and, therefore, the order of dismissal was illegal.     The  management, on the other hand, contended  that  the strike,  that took place on April 10, 1964, was illegal,  as it was not in accordance with the provisions of the Act  and participation,   in such illegal strike, was a  mis-conduct, under  el.  21 (2)  of  the Standing Orders of  the  Company and, such mis-conduct could be punished by dismissal,  under cl.   22.    According  to  the  management,   the   inquiry proceedings, conducted by Shri Gupta,  were quite fair,  and bona  fide, and the workmen were given full  opportunity  to participate  in the inquiry proceedings.  They also  pleaded that  the management was entitled, to impose punishment  for mis-conduct, by taking into account the previous conduct  of the  worlcmen, concerned; and, in this case,  the   warning, recorded  against them on May 8, 1964, was legitimately  and properly taken into account, inasmuch as the management  had not   agreed  to  withdraw  the  proceedings,  against   the workmen. The Labour Court has upheld the plea of the management, that the second strike, on April 10, 1964, being contrary to sub- s.  (4) of s. 6-S, was illegal under s. 6-T of the Act;  but it  has further held that, notwithstanding the infirmity  in the  notice,  issued  by the workmen  regarding  the  second strike,  all  the  managements in the  area,  including  the appellant,  were  fully aware of the fact  of  the  intended token  strike  on  April 10, 1964.   The  Labour  Court  has further  held that the inquiry proceedings,   conducted   by Shri Gupta, were bona fide and fair, and they suffered  from no. infirmity, 547 whatsoever.   The  Labour Court further holds  that,  though normally imposing of a punishment, for  mis-conduct,   under the Standing Orders, is a managerial function, in this case, the  appellant was not justified in taking into account  the warning,  recorded on May 8, 1964, in respect of  the  first strike.  It is the further view, of the Labour Court,   that the  continuance of disciplinary proceedings, and  recording of  warnings, on May 8, 1964, by the appellant, against  the six concerned workmen, in respect  of the first strike,  was with  a  view   to  create  a  ground   for  punishment  and dismissal,  in the subsequent proceedings, relating  to  the second  strike, and, as such, the action of  the  management was  not bona fide.  The Labour Court, in  this  connection, refers  to  the   proceedings  of  the  District  Industrial Relations  Advisory Committee, that took place on March  29, 1964,  in  the  presence  of  the  representatives  of   the appellant,  and  the Union, and the Labour Court is  of  the view  that  a settlement had been arrived at, by  which  the management  has  agreed,  not  to  take   any   disciplinary action,  against the workers, in connection with  the  first strike:   Ultimately,  the  Labour  Court  holds  that   the punishment  of dismissal, inflicted on the six  workmen,  by the  appellant,  on  May 22,  1964,  is  unconscionable  and

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unjustified,  and  not recorded in a bona  fide  manner.  In consequence, the order of dismissal, passed against the  six concerned  workmen,  named in the annexure to the  order  of reference, was set aside and the workmen were directed to be reinstated, with 50% back wages.     We  have  fairly elaborately referred  to   the  various circumstances,  leading  to  the passing  of  the  order  of dismissal,  bY  the management, in order to  appreciate  the contentions,   urged  on behalf of the management, that  the Labour   Court  had  committed  a  serious  illegality,   in interfering  with  an order, passed by the  management,  for mis-conduct, as provided under  the  standing orders of  the company.     Mr.  H.R. Gokhale, learned counsel, for  the  appellant, raised two contentions before us:.(1)that’the finding of the Labour   Court,  that  at  the  meeting  of   the   District Industrial  Relations Committee, held on March 29, 1964, the appellant  agreed not to take disciplinary  action,  against its’ workmen, in respect  of the first strike, is erroneous; and (ii) that having held that the second strike was illegal as  being contrary to sub-s. (4) of s. 6-S of the  Act,  the Labour Court has committed an error in interfering with  the act  of  the management, when it imposed a  punishment,  for mis-conduct, under the standing orders of the company.      Mr. R. Vasudeva Pillai, learned counsel for the  Union, has supported, in full, the award of the Labour Court.      We  are not impressed with either of  the  contentions, of  the learned counsel for the appellant.  We have  already referred to LI3Sup. CI/68--4 548 the  proceedings,  of  the  District  Industrial   Relations Committee,     March  29, 1964.  No doubt, a  day  prior  to that,  the  appellant  had issued notices  to  the  workmen, asking  them  to show cause as to  why  disciplinary  action should  not be taken against them, for going on strike  from March  18,  1964.    There was a joint reply  given  by  the workmen,  on  April  9, 1964, to the  effect  that,  at  the meeting held on March 29, 1964, the managem.ent had  agreed, not  to take any disciplinary action, against  the  workmen, and  that, it was on that’basis that the strike  itself  was called off, and the workmen, arrested, were also released by the  Government.  There  was no doubt  an  attempt,  by  the management,  in  their reply of April 10, 1964, to  make  it appear  that  they  had not  committed  themselves,  at  the meeting of March 29, 1964, as mentioned by the workmen.  But it  is  rather surprising that, when the  President  of  the Union,  WWI,  gave evidence to the effect that there  was  a settlement,  on March 29, 1964, whereby the management   had agreed  not  to take any disciplinary  action,  against  the workmen, there was absolutely no cross-examination,  by  the appellant,  of that witness.  There is no dispute  that  Mr. Wright represented the management, at the said meeting,  and no  suggestion even has been made to WWI that the  evidence, given  by him, is not correct.  No doubt, the appellant,  in their letter of April 10, 1964, had taken the stand that the company  had  not committed itself, not to take  any  action against  the workmen, in respect. of the first strike.   The inquiry  report  of  Shri Gupta, in respect  of  the  second strike, was already in the hands of the management, on April 24,  1964. It is really after the receipt ’of  this  report, that  the  Acting  Works Manager  of  the  appellant-company recorded warnings, as against the concerned workmen, on  May 8, 1964,I in res’peet of the first strike. This warning  has been  taken  into  account, by the Works  Manager,  when  he

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passed  the  order of dismissal, in respect  of  the  Second strike,  on  May  23,  1964.  Having  due  regard  to  these circumstances,  the  finding of the Labour Court,  that  the continuance of the disciplinary proceedings,  and  recording of  punishments  of warnings, as against the  six  concerned workmen, on May 8, 1964, in respect of the fixst strike,  by the  management  was to create a ground for  punishment  and dismissal,  in  respect of the second strike,  is  perfectly justified.   The further finding of the Labour  Court,  that ’the  action  of the management, in  recording  warnings  in respect of the first strike, is not only not bona fide,  but also against the settlement,’arrived at, on March 29,  1964, is.  also correct.  The first contention, on behalf  of  the management, therefore fails.      There  is  the finding of the Labour  Court,  that  the second  strike,  on  April 10, 1964 is  illegal.   Going  on illegal strike, is certainly ’mis-conduct’ under sub-el. (2) of el. 21, of the Standing Orders of the company. Under  el. 22 of the Standing Orders, the 549 punishment   for  mis-conduct  is  dismissal,  or,  in   the alternative,  suspension,  for a period not  exceeding  four days.   If  the management had, without any regard  to  what happened, in respect of the first strike, imposed punishment under  cl.  22, in respect of an illegal  strike,  which  is ’mis-conduct’ under cl. 21 (2)of the Standing Orders,  after a fair inquiry, the punishment, meted out being a managerial function,  would  not be normally interfered with.   But  in this  case, even the order of dismissal clearly  shows  that the  management has taken into account the previous  conduct of the workmen, in having gone on the first strike, and  the punishment  of warning, administered on May 8, 1964.  It  is because  of this past conduct, it is further stated  in  the order,  that  the  six workmen  were  being  dismissed  from service.   The  finding  of the Labour  Court  is  that  the management  was  not  entitled  to  take  into  account  the warning,  given  on  May 8, 1964, in respect  of  the  first strike,  in  view of the settlement, on March 29,  1964.  In view  of  the  fact that the warning  has  been  taken  into account, by the management, which it is not entitled to, the punishment of dismissal has been rightly considered, by  the Labour Court, to be not bona fide, and vindictive.  In fact, the Labour Court is also of the view that the punishment  is unconscionable,  and unjustified.  It is on  these  grounds, that  the  Labour  Court has interfered with  the  order  of dismissal,   passed   by  the   management.     The   second co.ntention,  of  learned counsel for  the  appellant,  also fails, as we are in agreement with the reasons, given by the Labour Court, ’on this aspect of the matter.     The result is that this appeal fails, and is  dismissed. There will be no order as to costs. G.C.                                     Appeal dismissed. 550