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PETITIONER: GUJARAT STEEL TUBES LTD.

       Vs.

RESPONDENT: GUJARAT STEEL TUBES MAZDOOR SABHA

DATE OF JUDGMENT19/11/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. KOSHAL, A.D.

CITATION:  1980 AIR 1896            1980 SCR  (2) 146  1980 SCC  (2) 593  CITATOR INFO :  E          1984 SC1805  (16)  R          1992 SC  96  (14)

ACT:      Industrial Disputes  Act,  1947-Section  11A-Scope  of- Whether the arbitrator could exercise the power conferred on a Tribunal  under section  11A of the Act and interfere with the punishment awarded by the management to the workmen.      Constitution of  India, 1950,  Article 227-Power of the High Court  to interfere with the decision of the management and revise the punishment to the delinquent workmen.      Model Standing  orders made  under Section 15(2) of the Industrial Employment  (Standing Orders)  Act,  1946-M.S.Os. 23, 24  and 25  scope of-Whether  the discharge  en masse of workmen valid.      Value  vision   of  Indian   Industrial  Jurisprudence- Constitution of  India- Articles  39, 41, 42, 43 43A and the Golden Rule  for the  Judicial resolution  of an  industrial dispute.

HEADNOTE:      The appellant manufactures steel tubes in the outskirts of Ahmedabad  city. It  started its  business in  1960, went into production  since 1964  and  waggled  from  infancy  to adulthood  with   smiling  profits   and  growling  workers, punctuated by  smouldering demands,  strikes and  settlement until there  brewed a confrontation culminating in a head-on collision following upon certain unhappy happenings. A total strike  ensued   whose  chain   reaction  was  a  whole-sale termination of  all employees  followed by fresh recruitment of workmen  defacto breakdown of the strike and dispute over restoration of the removed workmen.      As per  the last  settlement between the management and the workmen  of 4th  August, 1972,  it was  not open  to the workmen to resort to a strike till the expiry of a period of five years; nor could the management declare a lock out till then. Any  dispute arising between the parties, according to the  terms   arrived  at  were  to  be  sorted  out  through negotiation or, failing that by recourse to arbitration. The matter was  therefore, referred  to an  arbitrator  and  the arbitrator by  his award  held the  action cf the management

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warranted. The  respondent challenged  the decision  of  the arbitrator under Article 226/227 of the Constitution and the High Court  of Gujarat  reversed the award and substantially directed  reinstatement.  Hence  the  appeals  both  by  the Management and the workmen.      Dismissing  the   appeals  and   modifying  the  awards substantially, the Court ^      HELD: (By Majority)      Per Iyer J. On behalf of D. A. Desai J. and himself.      (i) The  basic assumption  is that  the strike  was not only illegal but also unjustified. [210 H] 147      (ii) The  management did punish its 853 workmen when it discharged  them  for  reasons  of  misconduct  set  out  in separate but  integrated proceedings; even though with legal finesse, the formal order was phrased in harmless verbalism.      [211 A]      (iii) The  action taken  under the  general law  or the standing   orders,   was   illegal   in   the   absence   of individualised charge sheets, proper hearing and personalise punishment if  found guilty. None of these steps having been taken, the  discharge  orders  were  still  born.  But,  the management could,  as in this case it did, offer to make out the delinquency  of the employees and the arbitrator had, in such cases,  the full  jurisdiction to  adjudge de novo both guilt and punishment. [211 B-C]      (iv) Section  11A of  the Industrial Disputes Act, 1947 does take  in an  arbitrator too,  and  in  this  case,  the arbitral reference,  apart from  section 11A  is plenary  in scope. [211 C-D]      (v)  Article   226   of   the   Constitution,   however restrictive in  practice Is  a  power  wide  enough  in  all conscience, to be a friend in need when the summons comes in a crisis  from a  victim of  injustice; and more importantly this extra-ordinary  reserve power  is unsheathed  to  grant final relief  without necessary  recourse to  a remand. What the Tribunal  may in  its discretion  do the  High Court too under Article 226, can, if facts compel so. [211 D-E]      (vi) The  Award, in  the instant  case, suffers  from a fundamental flaw  that it equates an illegal and unjustified strike with  brozen misconduct  by every  workman without so much as  identification of  the charge  against each,  after adverting  to   the  gravamen  of  his  misconduct  meriting dismissal. Passive  participation in  a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive  discharge.  There  must  be  active  individual excess such as master-minding the unjustified aspects of the strike, e.g.,  violence,  sabotage  or  other  reprehensible role. Absent  such gravamen  in the  accusation, the extreme economic penalty  of discharge is wrong. An indicator of the absence of such grievous guilt is that the management, after stating in  strong terms  all the sins of workmen, took back over 400 of them as they trickled back slowly and beyond the time set,  with continuity  of service,  suggestive  of  the dubiety of  the inflated  accusations and  awareness of  the minor role  of the  mass of workmen in the lingering strike. Furthermore, even  though all  sanctions short  of  punitive discharge may  be employed  by a  Management, low  wages and high cost  of living,  dismissal of  several  hundreds  with disastrous impact  on numerous families is of such sensitive social concern that, save in exceptional situations, the law will inhibit  such a  lethal  step  for  the  peace  of  the industry, the welfare of the workmen and the broader justice that transcends  transcient disputes.  The human  dimensions

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have  decisional  relevance.  The  discharge  orders  though approved by the Arbitrator are invalid. [211 E-H, 212 A-B]      HELD FURTHER:  1. In  a society,  capital shall  be the brother  and   keeper  of  labour  and  cannot  disown  this obligation of  a partner  in management,  especially because social justice  and Articles  43 and  43A are constitutional mandates. The  policy directions  in Articles 39, 41, 42, 43 and  43A  speak  af  the  right  to  an  adequate  means  of livelihood, the  right to  work, humane  conditions of work, living  wages   ensuring  a  decent  standard  of  life  and enjoyment  of   leisure  and  participation  of  workers  in management of industries. De hors these 148 mandates, law  will fail  functionally. Suck  is  the  value vision of  Indian Industrial Jurisprudence. [155 B, G-H, 156 A]      2. Jural  resolution of  labour disputes must be sought in the  law life  complex beyond  the  factual  blinkers  of decided cases,  beneath the  lexical littleness of statutory tests, in  the economic  basics of  industrial justice which must enliven  the consciousness  of the Court and the corpus juris. [154 F-G]      The golden  rule for  the  judicial  resolution  of  an industrial dispute is first to persuade fighting parties, by judicious   suggestions,   into   the   peace-making   zone, disentangle the  differences, narrow  the mistrust  gap  and convert  them  through  consensual  steps,  into  negotiated justice. Law  is not  the last  word in  justice, especially social justice.  Moreover in  an  hierarchical  system,  the little man  lives in the short run but most litigation lives in the  long run.  So  it  is  that  negotiation  first  and adjudication next,  is a  welcome formula  for the Bench and the Bar, the Management and Union. [157 C-E]      The anatomy of a dismissal order is not a mystery, once it is  agreed that  substance, not  semblance,  governs  the decision. Legal  criteria are  not so  slippery that  verbal manipulations may outwit the Court. The fact is the index of the mind  and an  order fair on its face may be taken at its face value.  But there  is more  to it  than  that,  because sometimes words  are designed to conceal deeds by linguistic engineering. The  form of the order of the language in which it is  couched is  not conclusive.  The Court  will lift the veil to see the the nature of the order. [171 G-H. 172 A]      If two  factors-motive and  foundation of the order-co- exist, an  interference of  punishment is  reasonable though not inevitable.  If the severance of service is effected the first condition  is fulfilled and if the foundation or causa causans of  such severance  is the servant’s misconduct, the second is  fulfilled. If  the basis  or foundation  for  the order of  termination is clearly not turpitudes or stigmatic or rooted  in misconduct  or  visited  with  evil  pecuniary effects, then  the inference of dismissal stands negated and vice versa.  These canons run right through the disciplinary branch of  master  and  servant  jurisprudence,  both  under Article 311  and in  other  cases  including  workmen  under managements.  The   law  cannot   be  stultified  by  verbal haberdashery because  the  Court  will  lift  the  mask  and discover the true face. [172 C-E]      Masters and  servants cannot  be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are  not to be misdirected by terminological cover- ups or  by appeal  to psychic processes but must be grounded on the  substantive reason  for the order, whether disclosed or  undisclosed.   The  Court   will  find  out  from  other proceedings or  documents connected with the formal order of

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termination what  the true ground for the termination is. If thus scrutinised  the; order has a punitive flavour in cause or consequence,  it is  dismissal. If it falls short of this test, it  cannot  be  called  a  punishment.  A  termination effected because  the master  is satisfied of the misconduct and  of  the  consequent  desirability  of  terminating  the service of the delinquent servant, it is a dismissal even if he had  the right in law to terminate with an innocent order under the  standing order  or otherwise.  Whether, in such a case the grounds are recorded in a different proceeding from the formal  order does  not detract from its nature. Nor the fact that,  after being  satisfied of  the guilt, the master abandons the enquiry and proceeds to terminate. Given 149 an alleged  misconduct and  a live  nexus between it and the termination of  service the conclusion is dismissal, even if full benefits  as on  simple termination  are given and non- injurious terminology is used. [173 E-H, 174 A]      On  the   contrary,  even  if  there  is  suspicion  of misconduct, the  master may  say that  he does  not wish  to bother about  it and  may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate  nor take  the risk  of continuing  a dubious servant. There  it  is  not  n  dismissal,  but  termination simpliciter, if  no injurious  record of reasons or punitive pecuniary cut  back on  his full terminal benefits is found. For, in  fact, misconduct  is not  then the moving factor in the discharge,  What is decisive is the plain reason for the discharge, not  the strategy  of  a  non-enquiry  or  clever avoidance of  stigmatising epithets.  If the  basis  is  not misconduct, the order is saved.      [174 B-D]      Management of  Murugan  Mills  v.  Industrial  Tribunal [1965] 2  SCR 148; Chartered Bank v. Employees’ Union [1960] 3  SCR   441;  Western   India  Automobile   Association  v. Industrial Tribunal, Bombay [1949] S.C.R. 321; Assam Oil Co. v. Workmen, [1960] 3 SCR 457; Tata Oil Mills Co. v. Workmen, [1964] 2  SCR 125  @ 130;  Tata Engineering & Locomotive Co. Ltd. v.  S.C. Prasad & Anr. [1969] 3 SCR 372; L. Michael and Anr. v.  M/s. Johnson  Pumps India  Ltd., [1975]  3 SCR 372; Workmen of  Sudder Office, Cinnamore v. Management, [1970] 2 L.L.J. 620,  Municipal Corporation of Greater Bombay v. P.S. Malvankar, [1978] 3 SCR 1000; referred to.      Every wrong  order cannot  be righted merely because it was wrong.  It can  be quashed only if it is vitiated by the fundamental flaws  of gross  miscarriage of justice, absence of legal  evidence, perverse  misreading of  facts,  serious errors of  law on  the face  of  the  order,  jurisdictional failure and the like. [182 P-G]      While the remedy under Art. 226 is extraordinary and is of Anglosaxon  vintage, it  is not  a carbon copy of English processes. Article  226 is  a sparing surgery but the lancet operates  where   injustice  suppurates.  While  traditional restraints like availability of alternative remedy hold back the Court,  and judicial power should not ordinarily rush in where the  other two branches fear to tread. judicial daring is  not   daunted  where   glaring  injustice  demands  even affirmative action.  The  wide  words  of  Article  226  are designed  for   service  of   the  lowly  numbers  in  their grievances if  the subject  belongs to  the Court’s province and the remedy is appropriate to the judicial process. There is a native hue about article 226, without being anglophilic or anglophobic in attitude. Viewed from this jurisprudential perspective the  Court should  be cautious  both in not over stepping as  if Article  226 were  as large as an appeal and

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not failing  to intervene  where a grave error has crept in. And  an  appellate  power  interferes  not  when  the  order appealed is  not right but only when it is dearly wrong. The difference is real, though fine. [182 G-H, 183 A-B]      The principle  of law  is that  the jurisdiction of the High Court  under Article 226 of the Constitution is limited to holding  the judicial or quasi judicial powers within the leading sings of legality and to see that they do not exceed their statutory  jurisdiction and  correctly administer  the law laid  down by  the statute under the Act. So long as the hierarchy of  officers and  appellate authorities created by the statute  function within their ambit the manner in which they do  so can  be no ground for interference. The power of judicial supervision  of the High Court under Article 227 of tho Constitution (as it then stood) is not 150 greater than  those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority. The  writ power  is large,  given illegality  and injustice even  if its  use is  severely  disciplinary.  The amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a  complete misconception  of law  or it  is based  on no evidence, or  that no  reasonable  man  would  come  to  the conclusion to which the Arbitrator has arrived. [15 E-G 1 86 D-E]      Navinchandra Shanker  Chand Shah  v. Manager, Ahmedabad Cooperative Department  Stores Ltd., [1978] 19 Guj. L.R. 108 @ 140; approved.      Rohtas Industries  & Anr.  v. Rohtas  Industries  Staff Union and Ors. [1976] 3 SCR 12: followed.      Nagendranath Bata and Anr. v. The Commissioner of Hills Divisions and  Appeals,  Assam  &  Ors.,  [1958]  SCR  1240; Engineering Mazdoor Sabha v. Hind Cycle Lrd. [1963] Suppl. 1 SCR 625;  State of  A.P. v.  Sreeeama Rao, [1964] 3 SCR 25 @ 33; P.  H. Kalyani v. M/s Air France, Calcutta, [1964] 2 SCR 104; referred to.      "Tribunal" simpliciter has a sweeping signification and does not  exclude Arbitrator.  A tribunal  literally means a seat of  justice, may  be, a  commission, a  Court or  other adjudicatory organ  created by  the  State.  All  these  are tribunal and  naturally the  import of  the word, in Section 2(r) of the Industrial Disputes Act, embraces an arbitration tribunal. [188 E-F-H 189 A]      Dawking  v.  Rokely,  L.R.  8  Q.B.  255;  quoted  with approval.      An Arbitrator  has all  the powers  under the  terms of reference, to  which both  sides are  party, confer.  In the instant  case,   the  Arbitrator   had  the   authority   to investigate into  the propriety  of the  discharge  and  the veracity of  the mis  conduct. Even  if section  11A of  the Industrial Disputes  Act is  not applicable,  an  Arbitrator under Section  10A is  bound to  act in  the spirit  of  the legislation under  which he  is to  function.  A  commercial Arbitrator who  derives his  jurisdiction from  the terms of reference will  by necessary  implication be bound to decide according to  law and  when one  says "according to law", it only means existing law and the law laid down by the Supreme Court being the law of land, an Arbitrator under section 10A will have  to decide  keeping in  view the spirit of section 11A. [196 B-D]      Union of India v. Bungo Steel Furniture (P) Ltd. [1967] 1 SCR 324; referred to. Per Koshal J. (Contra)      1. The  orders of  discharge could  not be  regarded as

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orders of their dismissal and were on the other hand, orders of  discharge   simpliciter  properly   passed  under  Model Standing order 23. [235 C-D]      (a) Clauses  (3) and  (4) of  M.S.O.  25  speak  of  an inquiry only  in the  case of  an order  falling under  sub- clause (g)  of clause (1) of that M.S.O. The only sub clause of clause  (1) of  M.S.O. 25  to  which  the  provisions  of clauses (3) and (4) of that M.S.O. would be attracted is sub clause (g)  and if  an order of discharge falls under M.S.O. 23, an inquiry under clauses (3) and 151 (4) of  M.S.O. 25  would not be a pre-requisite thereto even though such an a older is mentioned in sub-clause (f) clause (1) of that M.S.O.  [222 H, 223 A]      (b) Under  M.S.O.s. 23  and 25,  the Management has the powers to  effect termination of the services of an employee by having  recourse to either or them. In action taken under M.S.O. 23,  no element  of punishment  is involved  and  the discharge is  a discharge  simpliciter; and  that is  why no opportunity to  the concerned employee to show cause against the termination  is provided  for. Dismissal, however, which an employer  may order  is in its very nature, a punishment, the infliction  of which  therefore has been made subject to the result of an inquiry (having the semblance of a trial in a criminal  proceeding). Exercise  of each of the two powers has the  effect of  the termination  of the  services of the concerned employee  but must  be regarded,  because  of  the manner in  which each  has been  dealt with by the M.S.O. as separate and distinct from the other. [223 C-E]      (c) To  contend that  once it was proved that the order of discharge  of  a  workman  was  passed  by  reason  of  a misconduct attributed  to him  by the  management, the order cannot but  amount to an order of dismissal is wrong for two reasons. For one thing, clause (1) of M.S.O. 25 specifically states  in   sub-clauses  (f)   that  a  workman  guilty  of misconduct may  be discharged  under M.S.O. 23. This clearly means that when the employer is satisfied that a workman has been guilty  of misconduct  he may  [apart from visiting the workman with any of the punishments specified in sub-clauses (a), (b),  (c), (d)  and (e)  of clause  (1) of  M.S.O.  25] either pass  against him  an order of discharge for which no inquiry precedent as, provided for in clauses (3) and (4) of M.S.O. 25  would be  necessary, or  may  dismiss  him  after holding such an inquiry which of the two kinds of order, the employer shall pass is left entirely to his discretion. [223 E-H]      It is  true that  the employer cannot pass a real order of dismissal  in the garb of one of discharge. But that only means that  if the  order of  termination of  services of an employee is  in reality intended to push an employee and not merely to  get rid  of him because he is considered useless, inconvenient or troublesome, the order even though specified to be  an order  of dismissal  covered by  sub clause (g) of clause (1)  of M.S.O.  25. On  the other  hand  if  no  such intention  is  made  out  the  order  would  remain  one  of discharge simpliciter even though it has been passed for the sole reason  that a  misconduct is  imputed to the employee. That is how M.S.Os. 23 and 25 have to be interpreted. M.S.O. 25 specifically  gives to  the employer the power to get rid of "a  workman guilty  of misconduct’ by passing an order of his discharge under M.S.O. 23. [224 A-D]      Secondly, the reasons for the termination of service of a permanent  workman under  M.S.O. 23 have to be recorded in writing and  communicated to  him if  he so  desires,  under clause (4-A) thereof. Such reasons must obviously consist of

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an opinion  derogatory to  the workman  in relation  to  the performance of  his duties, and whether such reasons consist of negligence,  work shirking  or of serious overt acts like theft or  embezzlement, they  would in  and case  amount  to misconduct for  which he  may be  punished under  M.S.O. 25. There being  no case  in which such reasons would not amount to misconduct,  the result is that M.S.O. 23 would be render otiose if  termination of  service thereunder for misconduct could be  regarded as  a dismissal and such a result strikes at the very root of accepted canons of interpretation. If it was open to the Court to. "lift 152 the veil"  and to  hold an  order of  discharge to amount to dismissal  merely   because  the  motive  behind  it  was  a misconduct attributed  to the  employee, the  services of an employee could  be terminated without holding against him an inquiry such  as is  contemplated by  clauses (3) and (4) of M.S.O. 25. [224 D-G]      Bombay Corporation  v. Malvankar  [1978]  3  SCR  1000; applied.      Merely because  it is the reason which weighed with the employer in  effective the termination of services would not male the  order  of  such  termination  as  one  founded  on misconduct, for  such a proposition would run counter to the plain meaning of clause (1) of M.S.O. 25. For an order to be "founded" an  misconduct, it  must be  intended to have been passed by way of punishment, that is, it must be intended to chastise, or  cause pain  in body or mind or harm or loss in reputation or  money to  the concerned  worker. If  such  an intention  cannot   be  spelled   out  of   the   prevailing circumstances, the  order of  discharge or  the reasons  for which it  was ostensibly passed, it cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge  or the  interests of the factory or of the general body of workers. [226 A-C]      Chartered Bank,  Bombay v. The Chartered Bank Employees Union, [1960]  3 SCR 441; The Tata Oil Mills Co. Ltd. [1964] 2 SCR  p. 123; The Tara Engineering and Locomotives Co. Ltd. v. S.C.  Prasad, [1969]  3 S.C.C.  372;  Workmen  of  Sudder Office,  Cinnamore   v.  Management,  [1970]  2  L.L.J.  620 followed.      The real  criterion which  formed the  touchstone of  a test  to  determine  whether  an  order  of  termination  of services is  an order of discharge simpliciter or amounts to dismissal is  the real  nature of  the order,  that is,  the intention with  which it was passed. If the intention was to punish, that is to chastise, the order may be regarded as an order of  dismissal; and  for  judging  the  intention,  the question  of   mala  fides  (which  is  the  same  thing  as colourable exercise  of power)  becomes all important. If no mala fides can be attributed to the management, the order of discharge must  be regarded  as one having been passed under M.S.O. 23  even though the reason for its passage is serious misconduct.      (2)  The   arbitrator  could  not  exercise  tho  power conferred on  a Tribunal  under section  11A of the 1947 Act and  could  not  therefore  interfere  with  the  punishment awarded by  the Management  to  the  workmen  (even  if  the discharge could be regarded a punishment). [235 D-E]      Throughout  the  I.D.  Act,  while  ’arbitrator’  would include  an   umpire,  a   Tribunal  would  not  include  an arbitrator  but  would  mean  only  an  Industrial  Tribunal constituted under  the  Act  unless  the  context  makes  it necessary to  give the  word a different connotation. In sub section (1) of section 11, the word ’Tribunal’ has been used

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in accordance  with the  definition appearing  in clause (r) section 2  because an  arbitrator is separately mentioned in that sub-section.  In  sub-sections  (2)  and  (3)  of  that section a  Board, a  Labour Court, a Tribunal and a National Tribunal have  been invested with certain powers. A Tribunal as contemplated  by sub-sections (2) and (3) then, would not include an arbitrator. [233 A-B]      It  is  a  well  settled  canon  of  interpretation  of statutes that  the language  used by the Legislature must be regarded as  the only  source of  its intention  unless such language is  ambiguous, in  which situation  the Preamble to the Act,  the  statement  of  objects  of  and  Reasons  for bringing it on the statute book and 153 the purpose  underlying the  legislation may  be taken  into consideration for  ascertaining  such  intention.  That  the purpose of  the legislation  is to  fulfil a  socio-economic need, or the express object underlying it does not come into the picture  till an  ambiguity is  detected in the language and the  Court must  steer clear  of the temptation to mould the written word according to its own concept of what should have been  enacted. It  is  thus  not  permissible  for  the Supreme Court  to take the statements of objects and Reasons or the  purpose underlying the enactment into consideration, while interpreting  section 11A  of the  I.D. Act. [231 F-G, 234 Cl      3.  The   High  Court   exceeded  the   limits  of  its jurisdiction in interfering with the said punishment, in the instant case,  purporting to  act in  the  exercise  of  its powers under  Article 227 of the Constitution of India. [235 E-F]      The High  Court, while  discharging  its  functions  as envisaged by that Article, does not sit as a Court of Appeal over the  Award of  the  Arbitrator  but  exercises  limited jurisdiction  which   extends  only   to  seeing   that  the arbitrator has  functioned within  the scope  of  his  legal authority. In this view of the matter it was not open to the High Court  to revise  the punishment  (if the  discharge is regarded as  such)  meted  out  by  the  Management  to  the delinquent workmen  and left  intact by the arbitrator whose authority in  doing so  has not  been  shown  to  have  been exercised beyond  the limits  of his jurisdiction. [234 G-E, 235 A-C]      Nagendra Nath  Bora and  Anr. v.  The  Commissioner  of Hills Division and Appeals, Assam and Ors., [1958] SCR 1240; P. H.  Kalyani v. M/s Air France, Calcutta, [1964] 3 SCR 25, of A.P.  v. Sree  Rama Rao,  [1964] 3  SCR 25;  Navinchandra Shakerchand   Shakerchand    Shah   v.   Manager   Ahmedabad Cooperative Stores  Ltd, [1978]  15 Guj.  L.R. 108; referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1212, 2089 and 2237 of 1978.      From the  Judgment and  order dated  15-6-1978  of  the Gujarat High  Court in Special Civil Application No. 1150 of 1976.      Y.S. Chitale, J.C. Bhatt, A.K. Sen, J.M. Nanavati, D.C. Gandhi, A.G.  Menses, K.J.  John and  K.K. Manchanda for the Appellants in C.A. 1212 and 2237/78 and RR. 1 in CA 2089.      V.M. Tarkunde, Y.S. Chitale, P.H. Parekh and N.J. Mehta for the Appellant in CA 2089 and R. 1 in CA 1212.      M.C. Bhandare  and B.  Datta for  the Intervener  in CA

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1212 (Ahmedabad Nagar Employee Union).      R.K. Garg,  Vimal Dave  and Miss  Kailash Mehta for the Intervener Gujarat Steel Tubes Mazdoor Sabha in CA 1212.      The Judgment  of V.R.  Krishna Iyer, and D.A. Desai, JJ was delivered  by Krishna  Iyer, J.A.D.  Koshal, J.  gave  a dissenting Opinion. 154      KRISHNA IYER,  J.-Every litigation  has  a  moral  and, these  appeals  have  many,  the  foremost  being  that  the economics of law is the essence of labour jurisprudence.      The case in a nutshell-      An affluent  Management and  an indigent work force are the  two  wings  of  the  Gujarat  Steel  Tubes  Ltd.  which manufactures steel  tubes in the outskirts of Ahmedabad city and is  scarred by  an industrial dispute resulting in these appeals.  This   industry,  started   in  1960,   went  into production since  1964 and waggled from infancy to adulthood with smiling  profits and  growing  workers,  punctuated  by smouldering demand,  strikes and  settlements,  until  there brewed a  confrontation culminating  in a  head-on collision following upon  certain unhappy  happenings. A  total strike ensued, whose  chain reaction was a wholesale termination of all the employees, followed by fresh recruitment of workmen, de  facto   breakdown  of   the  strike   and  dispute  over restoration of the removed workmen. This cataclysmic episode and its sequel formed the basis of a Section 10A arbitration and  award,   a  writ   petition  and  judgment,  inevitably spiralling up  to this  Court in  two  appeals  one  by  the Management and  the other by the Union-which have been heard together and  are being disposed of by this common judgment. The arbitrator  held the  action of the Management warranted while the  High Court  reversed the  Award and substantially directed reinstatement.      The Judge Perspective      A few  fundamental issues,  factual and legal, on which bitter controversy  raged at  the bar, settle the decisional fate of  this case.  A plethora of precedents has been cited and volumes  of evidence  read for our consideration by both sides. But  the jural  resolution of labour disputes must be sought in  the law-life complex, beyond the factual blinkers of  decided   cases,  beneath   the  lexical  littleness  of statutory  texts,  in  the  economic  basics  of  industrial justice which  must enliven  the consciousness  of the court and the corpus juris. This Court has developed Labour Law on this road  basis and what this Court has declared holds good for the  country. We  must first  fix the  founding faith in this juristic  branch before  unravelling the details of the particular case.      Viewing from this vantage point, it is relevant to note that the  ethical  roots  of  jurisprudence,  with  economic overtones, are the clan vital of any country’s legal system. So it  is that we begin with two quotations-one from the old Testament and  the  other  from  Gandhiji,  the  Indian  New Testament-as perspective-setters. After all, 155 industrial law  must set the moral-legal norms for the modus vivendi between  the partners in management, namely, Capital and Labour.  Cain reported,  when asked  by  God  about  his brother Abel,  in the  Old Testament:  ’Am  I  my  brother’s keeper ?’,  ’Yes’ was  the implicit answer in God’s curse of Cain. In  the fraternal  economics of  national  production, worker is  partner in  this biblical spirit. In our society, Capital shall be the brother and keeper of Labour and cannot disown this  obligation, especially  because Social  Justice and Articles 43 and 43A are constitutional mandates.

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    Gandhiji,  to  whom  the  Arbitrator  has  adverted  in passing in  his award,  way back  in March  1946,  wrote  on Capitalism and Strikes h the Harijan:      "How should  capital behave  when labour strikes ? This question is  in the  air and  has great  importance  at  the present moment.  One way  is that  of suppression  named  or nicknamed ’American’.  It consists  in suppression of labour through organised  goondaism. Everybody  would consider this as  wrong   and  destructive.   The  other  way,  right  and honorable, consists  in  considering  every  strike  on  its merits and  giving labour its due-not what capital considers as due,  but  what  labour  itself  would  so  consider  and enlightened public opinion acclaims as just.      In  my   opinion,  employers  and  employed  are  equal partners, even if employees are not considered superior. But what we  see today  is the  reverse. The  reason is that the employers harness  intelligence on their side. They have the superior advantage  which concentration  of  capital  brings with it,  and they  know how  to make use of it...... Whilst capital in  India is fairly organised, labour is strike in a more or  less disorganised  condition in spite of Unions and Federation.  Therefore,   it  lacks   the  power  that  true combination gives.      Hence, my  advice to the employers would be that should willingly regard  workers as the real owners of the concerns which they fancy they have created.      Tuned to  these values  are the  policy  directives  in Articles 39,  41, 42, 43 and 43A. They speak of the right to an adequate  means of  livelihood, the right to work, humane conditions of  work, living  wage ensuring a decent standard of life  and  enjoyment  of  leisure  and  participation  of workers in management of industries. De hors these man- 156 dates, law  will fail functionally. Such is the value-vision of Indian Industrial Jurisprudence. The Matrix of facts-A Pre-view      The nidus  of facts  which enwomb the issues of law may be elaborated  a little  more at this stage. In the vicinity of Ahmedabad City, the appellant is a prosperous engineering enterprise  which   enjoys  entrepreneureal  excellence  and employs over  800 workmen  knit together into the respondent Union called  the Gujarat  Steel Tubes  Mazdoor  Sabha  (the Sabha, for  short). Fortunately,  the industry  has  had  an innings of  escalating profits  but the  workmen have  had a running complaint  a raw  deal. Frequent  demands for better conditions, followed  by negotiated settlements, have been a lovely feature  of this establishment, although the poignant fact remains  that till the dawn of the seventies, the gross wages of  the workmen have hovered round a harrowing hundred rupees or more in this thriving Ahmedabad industry.      The course  of this  precarious co-existence  was often ruffled, and  there was, now and then, some flare-up leading to strike, conciliation and even reference under Section 10. When one  such reference  was  pending  another  unconnected dispute arose  which, alter some twists and turns, led to an industrial break-down  and  a  total  strike.  The  episodic stages of  this bitter  battle will  have to  be narrated at length a little later. Suffice it to say that the Management jettisoned all the 853 workman and recruited some fresher to take their  place and  to  keep  the  wheels  of  production moving. In the war of attrition that ensued, labour lost and capitulated to  Capital. At  long last,  between the  two, a reference to  arbitration of  the disputes  was agreed  upon under Section  10A of  the Industrial Disputes Act 1947 (the Act, for  short). The  highlight of the dispute referred for

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arbitration was whether the termination orders issued by the Management against  the workmen  whose names were set out in the annexure  to  the  reference  were  "legal,  proper  and justified"; if  not, whether  the workmen  were ’entitled to any reliefs  including  the  relief  of  reinstatement  with continuity of service and full back wages’. The arbitrator’s decision went  against the Sabha while, on a challenge under Article 226,  the High Court’s judgment virtually vindicated its stand.  This is  the hang  of the  case. The substantial appeal is  by the  Management while the Sabha has a marginal quarrel over  a portion  of the judgment as disclosed in its appeal. The  ’jetsam’ workmen, a few hundred in number, have been directed to be reinstated with full or partial back pay and this is the bitter bone of contention. 157      A stage-by-stage  recapitulation of the developments is important to get to grips with the core controversy.      Sri Ashok  Sen, for  the appellant-Management,  and Sri Tarkunde  for   the   respondent-Sabha,   have   extensively presented their  rival versions with forceful erudition. Sri R.K. Garg,  of course,  for some  workmen has  invoked  with passion the  socialist  thrust  of  the  Constitution  as  a substantive  submission   and,  as   justificatory  of   the workmen’s demands,  relied on  the glaring  contrast between the  soaring  profits  and  the  sagging  wages,  while  Sri Bhandare has  pressed the  lachrymose case  of  the  several hundreds  of  ’interregnal’  employees  whose  removal  from service, on reinstatement of the old, might spell iniquity.      Olive Branch  Approach: At  this stage we must disclose an  effort   at  settlement   we  made   with   the   hearty participation of Sri Ashok Sen and Sri Tarkunde at the early stages of the hearing.      The golden  rule for  the  judicial  resolution  of  an industrial dispute is first to persuade fighting parties, by judicious   suggestions,   into   the   peace-making   zone, disentangle the  differences, narrow  the mistrust  gap  and convert them,  through  consensual  steps,  into  negotiated justice. Law  is not  the last  word in  justice, especially social justice.  Moreover, in  our hierarchical court system the little  man lives  in the  short run but most litigation lives in  the long  run. So it is that negotiation first and adjudication next,  is a  welcome formula  for the Bench and the Bar,  Management and Union. This ’olive Branch’ approach brought the  parties closer  in our  court and  gave  use  a better understanding  of the  problem, although we could not clinch a  settlement. So we heard the case in depth and felt that some  of  the  legal  issues  did  merit  this  court’s declaratory  pronouncement,  settlement  or  no  settlement. Mercifully, counsel abbreviated their oral arguments into an eight-day exercise,  sparing us  the sparring marathon of 28 laborious days  through which  the case stretched out in the High Court.      Orality ad  libitem may  be the genius of Victorian era advocacy but  in our  ’needy’ Republic with crowded dockets, forensic brevity is a necessity. The Bench and the Bar. must fabricate a  new shorthand  form of  court methodology which will do  justice to  the pockets  of the poor who seek right and justice  and  to  the  limited  judicial  hours  humanly available to  the court if the delivery system of justice is not to suffer obsolescence.      The facts:  Back to  the central  facts. Proof  of  the ’efficient’ management  of the  Gujarat Steel  Tubes Ltd. is afforded by  the testimony  of larger  turnover and profits, year after year, from the beginning down 158

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to date.  The mill  was commissioned  in January 1964 but by the accounting  year 1971-72  the turnover  had leapt to Rs. 560 lakhs.  It scaled to Rs. 680 lakhs the next year, to Rs. 1136 lakhs  the year  after and to Rs. 20 crores in 1974-75. This enterprise  entered  the  export  trade  and  otherwise established itself  as a  premier manufactory  in the  line. Steel shortage  is the only shackle which hampers its higher productivity. But  its increasing shower of prosperity was a sharp contrast,  according to  Sri Garg, to the share of the wage bill.  The worker  star ted  on a  magnificent sum  per mensem of  Rs. 100/-  in toto even as late as 1970, although some workmen, with more service, were paid some what higher. The extenuatory  plea of  the Management,  justificatory  of this parsimony,  was that  other mill-hands  were  receiving more niggardly  wages in  comparable enterprises.  Probably, unionisation, under  these luridly  low-paid  circumstances, caught on  and a  workers’ union  was born  somewhere around 1966. A  sensible stroke of enlightened capitalism persuaded the Management  to enter  into agreements  with  the  Union, somewhat improving  emoluments and  ameliorating conditions. By 1968,  the Sabha,  a later  union, came  into  being  and commanded the  backing of  all or most of the mill-hands. By March 1969,  the  Sabha  presented  a  charter  of  demands, followed by resistance from the Management and strike by the workers. By  July 1969,  a settlement  with  the  Sabha  was reached. Agreements  relating to the various demands brought quiet  and  respite  to  the  industry  although  it  proved temporary.      A vivid close-up of the sequence and consequence of the dramatic and  traumatic events  culminating in the reference to arbitration  and  the  impugned  award  is  essential  as factual foundation  for the decision of the issues. Even so, we must  condense, since labyrinthine details are not needed in a  third tier  judgment. Broad lines with the brush bring out  the  effect,  not  minute  etches  which  encumber  the picture.      An agreement  of futuristic  import with  which we  may begin the  confrontational chronicle  is that of April 1970. Clause 6 thereof runs thus:           "Management of  the Company  agrees  to  implement      recommendations  of   the  Central   Wage   Board   for      Engineering Industries as and when finally declared and      all the increments granted to workmen from time to time      under this  agreement  shall  be  adjusted  with  those      recommendations provided that such adjustment shall not      adversely affect the wages of workman."      The engineering industry, where India is forging ahead, was apparently  exploitative towards  labour,  and  to  make amends for this un- 159 healthy position,  the Central  Wage Board  was appointed in 1964 although  it took  six long years to recommend revision of wages  to  be  implemented  with  effect  from  1-1-1969. Meanwhile, the  masses of  workers were  living  ’below  the broad line’  Saintly patience  in such a milieu was too much to  expect   from  hungry   demands  and  pressing  for  the recommendations of  the Wage  Board  to  be  converted  into immediate cash.  But, as  we will  presently  unravel,  Wage Board  expectations’  were  proving  teasing  illusions  and premises of  unreality because of non-implementation, viewed from the  Sabha’s angle.  The Management, on the other hand, had a  contrary version  which  we  will  briefly  consider. Luckily, agreed  mini-increases in  wages were  taking place during the  years 1970,  1971 and  1972. Likewise, bonus was also the  subject of bargain and agreement. But in September

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1971, an  allegedly  violent  episode  broke  up  the  truce between the two, spawned criminal cases against workers, led to charges  of go-slow  tactics and lock-outs and burst into suspension, discharge and dismissal of workmen.      The crisis  was tided  over by  continued conciliations and two  settlements. We are not directly concerned with the cluster of  clauses therein  save one.  64 workmen  had been discharged or dismissed, of whom half the number were agreed to be  reinstated. The  fate of  the other half (32 workers) was left  for arbitration  by the  Industrial Tribunal.  The dark clouds  cleared for  a while  but the  sky turned murky over again,  although the  previous agreement had promised a long spell  of normalcy. The Sabha, in October 1972, met and resolved to  raise demands  of which the principal ones were non-implementation of  the Wage Board recommendations, bonus for 1971  and wages  during the  lockout period. The primary pathology  of   industrial  friction   is  attitudinal.  The Management could  have (and,  indeed, did, with a new Union) solved  these  problems  had  they  regarded  the  Sabha  as partner, not  saboteur. Had  the bitter combativeness of the Sabha been  moderated, may  be the  showdown could have been averted.      Apportioning blame  does not  help now, but we refer to it here  because Sri Ashok Sen, with feeling fury, fell foul of the  criticism by  the High Court that the Management had acted improperly  in insisting  on arbitration,  and  argued that when parties disagreed, arbitral reference was the only answer and  the workers’  fanatical rejection of arbitration made no  sense We  need not  delve into  the details  of the correspondence relied  on by either side to reach the truth. For, the Unions case is that in the prior settlement between the  two   parties  arbitral   reference  came   only  after negotiations failed. That was why they 160 pressed  the   Management  to   reason  together,   avoiding wrestling with each other before a slow-moving umpire.      Sri Tarkunde,  for the  Sabha, urged  that the  workmen were not  intransigent  but  impatient  and  pleaded  for  a negotiated settlement  since  the  main  point  in  dispute, namely the  implementation of  the Central  Engineering Wage Board’s  recommendations,   was  too   plain  to   admit  of difference, given  good faith on both sides. We will examine the substance  of this  submission later  but it needs to be emphasised that  workmen, surviving  on starving  wages  and with notoriously  fragile staying  power, are in no mood for adjudicatory procedures,  arbitral or other, if the doors of negotiation are  still ajar.  The obvious  reason  for  this attitude is  that the  litigative length of the adjudicatory apparatus, be  it the tribunal, the court or the arbitrator, is too  lethargic and  long-winded for  workmen without  the wherewithal  to   survive  and   is  beset  with  protracted challenges either  by way  of appeal  upon appeal  or in the shape  of  writ  petitions  and,  thereafter,  appeals  upon appeals. The  present  case  illustrates  the  point.  Where workmen  on   hundred  rupees   a  month   demand  immediate negotiation the  reason is  that privations have no patience beyond a  point. Now  and here, by negotiation, is the shop- floor glamour. In this very matter, although the controversy before the arbitrator fell within a small compass, he took a year and ninety printed pages to decide, inevitably followed by a  few Years  and hundred  and thirty  printed  pages  of judgment in  the High Court and a longer spell in this Court with slightly lesser length of judgment. Which workman under Third World  Conditions can  withstand this  wasting disease while hunger  leaves no option save to do or die ? Raw life,

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not rigid logic, is the mother of law.      After the  demands were  raised by  the Union, the main issue   being    implementation   of    the    Wage    Board recommendations, a  stream of  correspondence, meetings  and inchoate settlements ensued, but the crucial question, which would have  meant ’cash  and carry’ for the workmen, baffled solution. Do  negotiate since  the application  of the  Wage Board recommendations  are beyond ambiguity, was the Sabha’s peremptory plea.  We differ;  therefore, go  to arbitration, was the Management’s firm response. A stalemate descended on the scene.      No breakthrough  being visible,  the Sabha  charged the Management by  its letter of January 25, 1973 with breach of clause 6 of the Agreement of August 4, 1972 which ran thus:           "That the  parties agree  that for  a period  of 5      years from  the date  of this  settlement all  disputes      will be solved by mutual negotiations or, failing that,      by joint arbitration under 161      Section 10A  of the I.D. Act, 1947. Neither party shall      take any  direct action  including go-slow,  strike and      lock-out for  a period of 5 years from the date of this      settlement." Various aspersions  of anti-labour  tactics were included in the Sabha’s  letter but  the most  money-loaded item was the grievance about  the Wage Board recommendations. The temper, by now, was tense.      The Management, on the same day, (January 25, 1973) set out its  version on  the notice  board and  the High Court’s summary of it runs thus .           "The notice  stated that  during the course of the      meeting with  the representatives  of the Sabha held on      January  20,   1973  the   Company  had  expressed  its      willingness to implement the Wage Board recommendations      according to its interpretation on and with effect from      January 1,  1969 without  prejudice to  the rights  and      contentions of  the workmen  and leaving it open to the      parties  to   take  the   matter  to   arbitration  for      resolution  of   the  points  of  dispute.  The  Sabha,      however, had turned down this suggestion and it came to      the notice  of the  Company  that  workmen  were  being      instigated by making false representations. The Company      clarified that  on and with effect from January 1, 1972      every workman would be entitled to the benefits of Wage      Board  recommendations,  irrespective  of  whether  the      concerned workman had put in 240 days attendance."      The Sabha’s  answer was  a strike  two days later. This event of  January 27 was countered quickly by the Management restating its  attitude on  the Wage  Board recommendations, asserting that  the strike  was illegal and in breach of the settlement of  August 4, 1972 and wholly unjustified because the offer of reference to arbitration, negotiations failing, had been  spurned by  the Sabha.  The notice wound up with a command and a caveat:           "If the  workmen do  not immediately  resume duty,      the Company  would  not  be  under  any  obligation  to      continue in  service those  32 workmen  who  have  been      taken back  in service pursuant to the settlement dated      August 4,  1972. Besides,  if  (the  workmen)  continue      causing loss  to the  Company from time to time in this      manner, the Company will not also be bound to implement      the Wage Board, recommendations on and with effect from      January 1,  1969, which  may also be noted. The Company      hereby withdraws  all its  proposals unless the Workmen      withdraw the strike and resume work within two days."

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162      This threat  was dismissed  by the  workmen as a brutum fulmen and  the strike continued. The Management, therefore, came up  on the  notice board  castigating  the  Sabha  with irresponsible obduracy  in waging an illegal and unjustified strike. A  warning of  the shape of things to come was given in this notice. The High Court has summed it up thus:           "The Company  gave an  intimation that  in view of      such obstinate  attitude on  the part  of the Sabha and      the workmen,  it had  decided to  withdraw its  earlier      offer to  implement the  Wage Board  recommendations on      and  with  effect  from  January  1,  1969  as  already      cautioned in  the notice  dated January  27, 1973.  The      said decision  must  be  taken  to  have  been  thereby      communicated to  the  workmen  and  Sabha.  The  notice      further stated  that having  regard  to  the  obdurate,      unreasonable  and   illegal  attitude  adopted  by  the      workmen and  Sabha, the  Company had  decided  to  take      disciplinary   proceedings   against   the   defaulting      workmen. In  this  connection,  the  attention  of  the      workmen was  drawn to  the fact  that  the  strike  was      illegal not only because of the terms of the settlement      dated August  4, 1972  but also because of the pendency      of  the  reference  relating  to  reinstatement  of  32      workmen  before   the  Industrial   Court  and,   that,      therefore,   the   Company   was   entitled   to   take      disciplinary action  against them. Finally, the Company      appealed to  the workmen  to withdraw their illegal and      unjustified strike forthwith and to resume work."      These  exercises   notwithstanding,  the  strike  raged undaunted, the  production was  paralysed and the Management retaliated by  an elaborate  notice  which  dilated  on  its preparedness to  negotiate  or  arbitrate  and  the  Sabha’s unreason in  rejecting the gesture and persisting on the war path. The  stern economic  sanction was  brought home  in  a critical paragraph:           "By this  final notice  the workmen  are  informed      that they  should withdraw  the strike  and resume work      before Thursday,  February 15,  1973.  If  the  workmen      resume duty  accordingly, the management would be still      willing to  pay salary according to the recommendations      of the  Wage Board  on and  with effect from January 1,      1969. Furthermore, the management is  ready and willing      to refer  to the arbitration of the Industrial Tribunal      the  question   as  to   whether  the   management  has      implemented the settlement dated August 4, 1972 and all      other labour problems. In spite of this, if the workmen      do not  resume duty before Thursday, February 15, 1973.      then the  Company will  terminate the  services of  all      workmen who  are on  strike and  thereafter it will run      the 163      factory by  employing new workmen. All workmen may take      note of this fact."      The count-down  thus began.  February 15, 1973 arrived, and the  Management struck the fatal blow of discharging the strikers-all the  labour force,  853  strong-and  recruiting fresh hands and thus work was resumed by February 19, 1973.      This public  notice was allegedly sent to the Sabha and circulated to such workmen as hovered around the factory. It is common  case that the notice of February 15,1973, was not sent to  individual workmen but was a signal for action. The drastic consequence  of disobedience  was spelt  out  in  no uncertain terms:           "The workmen  are hereby informed that they should

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    resume duty  on or  before Monday,  February  19,  1973      failing which  the Management  will  presume  that  the      workmen want  to continue  their strike and do not wish      to resume  work until  their demands  as aforesaid  are      accepted by the management.      Parallel negotiations  were going  on even while mailed fist manoeuvres  were being  played up-thanks  to the  basic goodwill and  tradition of  dispute settlements that existed in this  company. Even  amidst the  clash of arms, bilateral diplomacy has  a place  in successful  industrial relations. The Management  and the  Sabha allowed the talks to continue which, at any rate, clarified the area of discord. One thing that stood  out  of  these  palavers  was  that  both  sides affirmed   the    pre-condition   of   negotiations   before arbitration over  differences although  the content,  accent and connotation  of ’negotiations’ varied with each side. No tangible  results   flowed  from  these  exercises  and  the inevitable happened on February 21, 1973 when the Management blotted out  the entire  lot of 853 workmen from the roster, by separate  orders of  discharge from  service, couched  in identical terms. The essential terms read thus :           "Your services are hereby terminated by giving you      one month’s  salary in  lieu of  one month’s notice and      accordingly you are discharged from service.           You should collect immediately from the cashier of      the factory  your one  month’s notice-pay  and due pay,      leave entitlements and gratuity, if you are entitled to      the same.  The payment will be made between 12 noon and      5 p.m.           If and  when you  desire to  be employed,  you may      apply ill  writing to the Company in that behalf and on      receipt of the application, a reply will be sent to you      in the matter." 164      Casual workmen were issued separate but similar orders. The Management  did record its reasons for the action taken, on February  20, 1973 and forwarded them to the Sabha and to the individual  workmen on  request.  The  anatomy  of  this proceeding  is   of  critical  importance  in  deciding  the character of  the action. Was it a harm less farewell to the workmen who were unwilling to rejoin or a condign punishment of delinquent workmen ?      The separate memorandum of Reasons refers to the strike as illegal  and unjustified and narrates the hostile history of assault by workmen of the officers, their go-slow tactics and sabotage  activities, their  contumacious and  a host of other  perversities   vindicating  the   drastic  action  of determining  the   services  of   all  the   employees.  The concluding  portion  reads  partly  stern  and  partly  non- committal:           "In the  interest of  the Company it is decided to      terminate the  services of  all the  workmen who are on      illegal and  unjustified  strike  since  27th  January,      1973.           Under the  circumstances, it  is decided  that the      services of  all the  workmen who  are on  illegal  and      unjustified strike  should  be  terminated  by  way  of      discharge simpliciter.  These workmen,  however, may be      given  opportunity  to  apply  for  employment  in  the      Company and  in  case  applications  are  received  for      employment from  such employees,  such applications may      be considered on their merits later on.           It may  be mentioned  here that  while arriving at      the aforesaid decision to terminate the services of the      workmen,  various  documents,  notices,  correspondence

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    with the  Union and others, records of production, etc.      have been considered and therefore the same are treated      as part  of  the  relevant  evidence  to  come  to  the      conclusion as aforesaid.                       FINAL CONCLUSION           The services of all the workmen who are on illegal      and  unjustified   strike  since  27-1-1973  should  be      terminated by  way of  discharge simpliciter  and  they      should be offered all their legal dues immediately.           The Administrative  Manager is  hereby directed to      pass  orders   on  individual   workers  as  per  draft      attached.      We thus  reach the tragic crescendo when the Management and the  workmen fell  apart and  all the workmen’s services were severed.  Whether each  of these  orders using,  in the contemporaneous reasons, 165 the vocabulary  of misconduct  but, in  the formal part, the expression ’discharge simpliciter’, should be read softly as innocent termination  or sternly  as penal action, is one of the principal disputes demanding decision.      We may as well complete the procession of events before taking up  the major controversies decisive of the case. The total termination  of the entire work force of 853 employees was undoubtedly  a calamity  of the  first  magnitude  in  a country  of   chronic  unemployment   and  starving   wages. Nevertheless,  under  certain  circumstances,  discharge  of employees may  well be  within the  powers of the Management subject to  the provisions of the Act. With all the strikers struck off the rolls there was for a time the silence of the grave. The  conditional invitation  to the employees to seek de novo  employment by  fresh applications  which  would  be considered on  their merits,  left the  workers cold. So the factory remained  closed until April 28, 1973 when, with new workers  recruited   from  the   open   market,   production recommenced. Among  the militants, the morale which kept the strike going,  remained intact  but  among  the  others  the pressure  to   report  for  employment  became  strong.  Re- employment  of   discharged   workmen   began   and   slowly snowballed, so that by July 31, 1973 a substantial number of 419 returned to the factory.      The  crack  of  workman’s  morale  was  accelerated  by escalating reemployment  and the Management’s restoration of continuity of  service and  other benefits  for  re-employed hands. The  Employer relied  on this gesture as proof of his bond fides.  Meanwhile,  there  were  exchanges  of  letters between and  ’trading’ of  charges against  each other.  The Management  alleged  that  the  strikers  were  violent  and prevented loyalists’  return while the Sabha was bitter that goondas  were   hired  to   break  the  strike  and  promote blacklegs. These  imputations have a familiar ring and their impact on the legality of the discharge of workmen falls for consideration a  little later.  The stream  of events flowed on. The  Sabha protested that the Management was terrorising workmen,  exploiting  their  sagging  spirit  and  illegally insisting on  fresh applications  for employment  while they were in  law continuing in services. With more ’old workers’ trickling back  for work  and their  discharge orders  being cancelled,  the   strike  became   counter-productive.  Many overtures on  both sides  were made through letters but this epistolary futility  failed to end the imbroglio and brought no bread.  The worker  wanted bread,  job,  and  no  phyrric victory.      A crescent  of hope appeared on the industrial sky. The Management but  out a ’final offer’ on May 31, 1973, calling

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on all workmen 166 to rejoin last the remaining vacancies also should be filled by fresh  recruits. The  Sabha responded  with readiness  to settle and  sought some  clarifications and  assurances. The employer informed :           "Our offer  is open till 10-6-1973. From 11-6-1973      we shall  recruit new  hands to  the extent  necessary.      Thereafter workers  who will not have reported for work      shall have no chance left for re-employment with us.           We repeat  that those  workers who will report for      work will  be taken  back in employment with continuity      of their  services, that the orders of discharge passed      against them on 21-2-1973 shall be treated as cancelled      and they will also be paid the difference in wages from      1969 as per the recommendations of the Wage Board."      The Sabha  was willing  and wrote  back on June 8, 1973 but sought  details about  the attitude of the Management to the many  pending demands. Meanwhile, the sands of time were running out  and so  the Sabha  telegraphed on 9th June that the workers  were willing  to report for work but were being refused work.  They demanded  the presence  of an  impartial observer.  The   reply  by  the  Management  repelled  these charges, but  there was some thaw in the estrangement, since the time  for return  to work  of the  strikers was extended upto 16-6-73. An apparent end to a long strike was seemingly in sight  with the  Sabha sore  but driven  to surrender. On 13- 6-73 the Sabha Secretary wrote back:           "This is  a further opportunity to you even now to      show your  bona fides.  If you  confirm to take all the      workmen discharged  on  21-2-1973  as  stated  in  your      various  letters   and  to  give  them  intimation  and      reasonable time  to join, l will see that your offer is      accepted by the workmen."      Here, at  long last,  was  the  Management  willing  to ’welcome’ back  all  the  former  employees  and  the  Sabha limping back  to the  old wheels  of work.  Was the  curtain being finally drawn on the feud ? Not so soon, in a world of bad blood  and bad  faith; or  may be, new developments make old offers obsolete and the expected end proves an illusion. Anyway, the  victor was the Management and II the vanquished the Sabha and the re-employment offered was watered down. In our materialist  cosmos, often  Might is  Right and  victory dictates morality ! 167      Hot upon  the receipt  of the  Sabha’s letter accepting the offer the Management back-tracked or had second thoughts on  full  re-employment.  For,  they  replied  with  a  long catalogue  of  the  Sabha’s  sins,  set  out  the  story  of compulsion to  keep the  production going and explained that since new hands had come on the scene full re-employment was beyond them.  In its  new mood  of victorious righteousness, the Management  modified the terms of intake of strikers and saddled choosy  conditions on  such absorption suggestive of breaking the Sabha’s solidarity:           "As on  the present  working of  the Company,  the      Company,  may   still  need   about  250  more  workers      including those  to be  on the  casual list  as per the      employment position prior to the start of the strike.           You may,  therefore, send  to us  immediately  per      return of  post the list of the workers who can and are      willing to  join duty immediately so as to enable us to      select and employ the workmen as per the requirement of      the Company.  Further, it  would also  be necessary for      you to state in your reply that you have called off the

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    strike and  have advised the workers to resume the work      as otherwise  it is  not clear  from your  letter as to      whether you are still advocating the continuance of the      strike  or   that  you  have  called  off  the  strike.      Therefore, unless  we have  a very definite stand known      from you on this issue, it may not be even now possible      for us to enter into any correspondence with you.           We may  again  stress  that  if  your  tactics  of      prolonging the  issue by  correspondence are  continued      the  management   would  be  constrained  to  fake  new      recruits and  in that  case, at a later date it may not      be even  possible to  employ as  many workmen as may be      possible to employ now."      Nothing is  more galling, says Sri Tarkunde, than for a Union which  has lost  the battle  and offered to go back to work to  be told  that it should further humiliate itself by formally declaring  the calling off of the strike. Sentiment apart, the  Sabha had  agreed  to  go  back,  but  then  the Management cut down the number to be re employed to 250 and, even this,  on a  selective basis. This selection could well be to weed out Union activists or to drive a wedge among the Union members.  These sensitive  thoughts and  hard bargains kept the two apart. The Sabha, wounded but not wiped 168 out, did  not eat the humble pie. The Management, on account of the  intervening recruitments  and injuries  inflicted-by the strike, did not budge either.      At this point we find that out of 853 employees who had been sacked  419 had  wandered back  by July 31, leaving 434 workmen at  flotsam. Their reinstatement became the focus of an industrial  dispute raised  by the Sabha. A few more were left out  of this jobless mass, and through the intercession of the  Commissioner of  Labour both sides agreed to resolve their disagreement  by arbitral  reference under Sec. 10A of the Act,  confining the  dispute  to  reinstatement  of  400 workmen discharged  on February  21 1973.  A reference under Sec. 10A  materialised. The ’Labour litigation’ began in May 1975 and  becoming ’at  each  remove  a  lengthening  chain’ laboured from  deck to  deck  and  is  coming  to  a  close, hopefully, by  this  decision.  Is  legal  justice  at  such expensive length  worth the  candle or counter-productive of social justice?  Is a  streamlined  alternative  beyond  the creative genius of Law India? An aside      As urgent  as an industrial revolution is an industrial law revolution,  if the  rule of law were at all to serve as social  engineering.  The  current  forensic  process  needs thorough overhaul because it is over-judicialised and under- professionalised, lacking  in social  orientation and  shop- floor know-how and, by its sheer slow motion and high price, defects  effective   and  equitable  solution  leaving  both Managements and Unions unhappy. If Parliament would heed, we stress this need. Industrial Justice desiderates specialised processual expertise and agencies.      This factual  panorama, omitting  a welter of debatable details and  wealth of  exciting embellishments,  being  not germane to  the essential  issues, leads us to a formulation of the  decisive  questions  which  alone  need  engage  our discussion. The  Management might  have been  right  in  its version or  the Sabha  might have  been wronged as it wails, but an objective assessment of the proven facts and unbiased application of  the declared  law will yield the broad basis for working  out a just and legal solution. Here, it must be noticed  that  a  new  Union  now  exists  even  though  its numerical following is perhaps slender. We are not concerned

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whether it is the favoured child of the Management, although it has received soft treatment  in several settlements which have somewhat  benefited the whole work force and suggests a syndrome  not   unfamiliar  among   some  industrial  bosses allergic to strong unions. 169      The central  problem on  the answer to which either the award of  the arbitrator  or the  judgment of the High Court can be  sustained as  sound is  whether the discharge of the workmen  en   masse  was  all  innocuous  termination  or  a disciplinary  action.   If  the  latter.  the  High  Court’s reasoning may  broadly be  invulnerable. Secondly,  what has been mooted  before us  is a  question  as  to  whether  the evidence before the Arbitrator, even if accepted at its face value, establishes  any misconduct of any discharged workman and further  whether the  misconduct, if any, made out is of such degree as to warrant punitive discharge. Of course, the scope of  Section 11A as including arbitrators, the power of arbitrators, given  sufficiently wide terms of reference, to examine the  correctness and  propriety of  the  punishment, inter  alia,   deserve  examination.   Likewise  the   rules regarding reinstatement,  retrenchment, back  wages and  the like, fall for subsidiary consideration.      Prefatory to this discussion is the appreciation of the constitutional consciousness  with regard to Labour Law. The Constitution of  India is  not a non-aligned parchment but a partisan of  social justice with a direction and destination which it  sets in  the Preamble and Art. 38, and so, when we read the  evidence, the  rulings, the  statute and the rival pleas  we   must  be   guided  by   the  value  set  of  the Constitution. We  not only appraise Industrial Law from this perspective in  the disputes before us but also realise that ours is  a mixed  economy with capitalist mores, only slowly wobbling towards  a  socialist  order,  notwithstanding  Sri Garg’s thoughts. And, after all ideals apart. ’law can never be  higher   than  the   economic  order  and  the  cultural development of  society brought  to pass  by  that  economic order’. The  new jurisprudence  in industrial relations must prudently be  tuned to the wave-length of our constitutional values whose  emphatic expression  is  found  in  a  passage quoted by Chief Justice Rajamannar of the Madras High Court. The learned judge observed :           "The doctrine  of ’laissez  faire’ which held sway      in  the   world  since  the  time  of  Adam  Smith  has      practically given  place to a doctrine which emphasises      the duty  of the  state to  interfere in the affairs of      individuals in  the interests  of the social well-being      of the  entire community.  As Julian  Huxley remarks in      his essay  on "Economic  Man and  Social Man": "Many of      our old ideas must be retranslated, so to speak, into a      new language.  The  democratic  idea  of  freedom,  for      instance, must  lose its  nineteenth century meaning of      individual liberty  in the  economic sphere, and become      adjusted  to   new  conception  of  social  duties  and      responsibilities. 170      When a  big employer  talks about his democratic rights      to individual  freedom,  meaning  thereby  a  claim  to      socially irresponsible  control over  a huge industrial      concern and  over the  lives of  tens of  thousands  of      human beings  whom it  happens to employ, he is talking      in a dying language."      Homo economicus  can no  longer warp  the social order. Even so the Constitution is ambitiously called socialist but realists will  agree that  a socialist transformation of the

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law of  labour relations  is a  slow though  steady judicial desideratum. Until specific legislative mandates emerge from Parliament the  court may mould the old but not make the new law. ’Interstitially,  from the  molar to  the molecular’ is the limited legislative role of the court, as Justice Holmes said and  Mr. Justice  Mathew quoted (see [1976] 2 S.C.C. at p. 343). The Core Question      Right at  the forefront  falls the  issue  whether  the orders of  discharge are,  as contended  by Sri Tarkunde, de facto dismissals,  punitive in impact and, therefore, liable to  be   voided  if  the  procedural  imperatives  for  such disciplinary action  are  not  complied  with,  even  though draped in  silken phrases like ’termination simpliciter’. It is common  case that  none  of  the  processes  implicit  in natural justice and mandated by the relevant standing orders have been  complied with,  were we  to construe  the  orders impugned as punishment by way of discharge or dismissal. But Sri Ashok  Sen impressively insists that the orders here are simple terminations with no punitive component, as, on their face, the  orders read. To interpret otherwise is to deny to the employer  the right,  not to  dismiss but  to discharge, when the law gives him option.      An analysis of the standing orders in the background of disciplinary jurisprudence  is necessitous  at this point of the case.      The Model  Standing orders  prescribed under Section 15 of the  Industrial Employment  (Standing Orders)  Act, 1946, apply to this factory. Order 23, clauses (1) and (4), relate to  termination   of  employment   of   permanent   workmen. Termination of  their  services  on  giving  the  prescribed notice or  wages in lieu of such notice is provided for. But clause (4A) requires reasons for such termination of service of permanent  workmen to  be recorded  and,  if  asked  for, communicated. This  is obviously  intended to  discover  the real reason for the discharge so that remedies available may not  be   defeated  by   clever  phraseology  of  orders  of termination.  Clause   (7)  permits  the  services  or  non- permanent workmen to be terminated without notice 171 except when  such temporary workmen are discharged by way of punishment.  Punitive   discharge   is   prohibited   unless opportunity to  show-cause against  charges of misconduct is afforded (Standing  order  15).  Orders  of  termination  of service have  to be by the Manager and in writing and copies of orders  shall be  furnished  to  the  workmen  concerned. Standing order  24 itemizes  the acts  and  omissions  which amount to misconduct           "According to  clause (b)  of  the  said  Standing      order, going on an illegal strike or abetting, inciting      instigating or acting in furtherance thereof amounts to      misconduct. Standing  order  25  provides  for  penalty      impossible  on   a  workman   guilty   of   misconduct.      Accordingly amongst  other punishments, a workman could      be visited with the penalty of discharge under order 23      of dismissal  without notice for a misconduct [see sub-      clauses (f)  and (g)  of clause  ( 1  ) j.  Clause  (3)      provides that  no order  of dismissal  under sub clause      (g) of clause (1) shall be made except after holding an      enquiry against the workman concerned in respect of the      alleged misconduct  in the  manner set  forth in clause      (4). Clause  (4) provides  for giving  to the concerned      workman   a charge-sheet  and an  opportunity to answer      the charge  and the  right to  be defended by a workman      working  in   the  same   department  as   himself  and

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    production  of   witnesses  and   cross-examination  of      witnesses on  whom the  charge rests. Under clause (6),      in awarding  punishment the  Manager has  to take  into      account the  gravity of  the misconduct,  the  previous      record,  if   any,  of   the  workman,  and  any  other      extenuating or aggravating circumstances."      The finding  of the Arbitrator that the workmen went on a  strike   which  was   illegal  and   in  which  they  had participated  is  not  disputed.  In  this  background,  the application of the procedural imperatives before termination of services  of the  workmen, in  the circumstances  of  the present case,  has to  be judged.  This, in turn, depends on the key finding as to whether the discharge orders issued by the management were punitive or non-penal.      The anatomy of a dismissal order is not a mystery, once we  agree   that  substance,   not  semblance,  governs  the decision. Legal  criteria are  not so  slippery that  verbal manipulations may outwit the court. Broadly stated, the face is the  index to  the mind and an order fair on its face may be taken  at its  face value.  But there  is more to it than that, because sometimes words are designed to conceal deeds 172 by linguistic  engineering. So it is beyond dispute that the form of  the order or the language in which it is couched is not conclusive. The court will lift the veil to see the true nature of the order.      Many situations  arise where  courts have  been puzzled because the  manifest language  of the  termination order is equivocal or  misleading and dismissals have been dressed up as  simple  termination.  And  so,  judges  have  dyed  into distinctions between  the motive  and the  foundation of the order and  a variety  of other  variations to  discover the. true effect  of an  order of termination. Rulings are a maze on this  question but,  in sum,  the conclusion is clear. If two  factors   coexist,  an   inference  of   punishment  is reasonable though not inevitable. What arc they ?      If the  severance of  service is  effected,  the  first condition is  fulfilled  and  if  the  foundation  or  causa causans of  such severance  is the  servant’s misconduct the second is  fulfilled. If  the basis  or foundation  for  the order  of   termination  is  clearly  not  turpitudinous  or stigmatic or  rooted in  misconduct  or  visited  with  evil pecuniary effects,  then the  inference of  dismissal stands negated and  vice versa.  These canons run right through the disciplinary branch  of master  and  servant  jurisprudence, both under  Article 311 and in other cases including workmen under managements  The law  cannot be  stultified by  verbal haberdashery because  the  court  will  lift  the  mask  and discover the  true face.  It is  true that decisions of this Court and of the, High Courts since Dhingra’s case (1958 SCR 828) have  been at  times obscure. if cited de hors the full facts. In  Samsher Singh’s  case the unsatisfactory state of the law  was commented  upon by one of us, per Krishna Iyer, J., quoting Dr. Tripathi for support:           "In some  cases, the  rule of  guidance  has  been      stated to  be ’the  substance of  the matter’  and  the      ’foundation’ of  the order. When does ’motive’ trespass      into ’foundation’ ? When do we lift the veil of form to      touch the  ’substance’ ?  When the Court says so. These      ’Freudian’ frontiers  obviously fail  in the work-a-day      world and  Dr. Tripathi’s  observations in this context      are not without force. He says:           ’As already  explained, in  a situation  where the      order of  termination purports  to be  a mere  order of      discharge without.

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173      stating the  stigmatizing results  of the  departmental      enquiry a   Search  for the  ’substance of  the matter’      will be  indistinguishable from a search for the motive      (real, unrevealed  object) of  the  order.  Failure  to      appreciate this  relationship between motive (the real,      but unrevealed  object)  and  from  (the  apparent,  or      officially revealed object) in the present con text has      lead to  an unreal  inter-play  of  words  and  phrases      wherein symbols  like ’motive’,  ’substance’ ’form’  or      ’direct’  parade   in  different  combinations  without      communicating precise  situations or  entities  in  the      world of facts.’           The need,  in this branch of jurisprudence, is not      so much  to reach  perfect justice  but to  lay down  a      plain test  which the  administrator and  civil servant      can  understand  without  subtlety  and  apply  without      difficulty.  After  all,  between  ’unsuitability’  and      ’misconduct’ thin  partitions do  their bounds divide’.      And over  the years,  in the  rulings of this Court the      accent  has   shifted,  the   canons  have  varied  and      predictability has proved difficult because the play of      legal light  and shade  has been  baffling. The learned      Chief  Justice  has  in  his  judgement,  tackled  this      problem and  explained the  rule which  must govern the      determination of the question as to when termination of      service of  a probationer  can be  said  to  amount  to      discharge simpliciter and when it can be said to amount      to punishment  so as  to attract  the inhibition of Art      311."      Masters and  servants cannot  be permitted to play hide and seek  with. the  law of  dismissals and  the  plain  and proper criteria  are not to be misdirected by terminological cover-ups or  by appeal  to psychic  processes but  must  be grounded on  the substantive  reason for  the order, whether disclosed or undisclosed. The Court will find out from other proceedings or  documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinized,  the order has a punitive flavour in cause or consequence,  it is  dismissal. If it falls short of this test, it cannot be called a G punishment. To put it slightly differently, a  termination effected  because the  master is satisfied  of   the  misconduct   and  of   the   consequent desirability of  terminating the  service of  the delinquent servant, it  is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise.  Whether, in  such  a  case  the  grounds  are recorded in  a different  proceeding from  the formal  order does not  detract from  its nature. Nor the fact that, after being satisfied  of  the  guilt,  the  master  abandons  the enquiry and proceeds to 174 terminate. Given  an alleged  misconduct and  a  live  nexus between it  and the termination of service the conclusion is dismissal. even  if full  benefits as on simple termination, are given and non-injurious terminology is used.      On  the   contrary,  even  if  there  is  suspicion  of misconduct the  master may  say that  he does  not  wish  to bother about  it and  may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate  nor take  the risk  of  continuing a dubious servant.  Then   it  is   not  dismissal   but   termination simpliciter, if  no injurious  record of reasons or punitive pecuniary cut-back  on his  full terminal benefits is found. For, in  fact, misconduct  is not  then the moving factor in

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the  discharge.   We  need   not  chase  other  hypothetical situations here.      What is decisive is the plain reason for the discharge. not the  strategy of  a non-enquiry  or clever  avoidance of stigmatizing epithets.  If the  basis is not misconduct, the order is saved. In Murugan Mills, this Court observed:           "The  right  of  the  employer  to  terminate  the      services of  his workman  under a  standing order, like      cl. 17(a)  in the  present case,  which accounts  to  a      claim "to  hire and  fire’ an  employee as the employer      pleases  and  thus  completely  negatives  security  of      service which  has been secured to industrial employees      through   industrial    adjudication.   came   up   for      consideration before  the Labour  Appellate Tribunal in      Buckingham   and Carnatic  Co. Ltd.  v. Workers  of the      Company. The  matter then  came up  before this  before      this Court  also in  Chartered Bank   v. Chartered Bank      Employees   Union(3) and the Management of  U.B. Dutt &      Co. v.  Workmen   of U.  B. Dutt  & Co.(4)  Wherein the      view taken  by Labour  Appellate Tribunal  was approved      and it  was held  that even  in a case like the present      the requirements   of  bona fides  was essential and if      the termination of service was a colourable exercise of      the power  or as  a result  of victimization  or unfair      labour practice  the industrial tribunal would have the      jurisdiction  to   intervene   and   set   aside   such      termination. The  form of  the order  in such a case is      not conclusive and the Tribunal can go behind the order      to find the reasons which led to the 175      order  and   then  consider   for  itself  whether  the      termination was  a colourable  exercise of the power or      was  a   result  of   victimisation  or  unfair  labour      practice.  If  it  came  to  the  conclusion  that  the      termination was  a colourable  exercise of the power or      was  a   result  of   victimisation  or  unfair  labour      practice. it  would have  the jurisdiction to intervene      and set aside such termination."       Again,  in Chartered Bank v. Employees Union his Court emphasised:      " ....  The form  of the  order of  termination is  not      conclusive of  the true  nature of the order, for it is      possible that  the form  may be merely a camouflage for      an order  of misconduct.  It is, therefore, always open      to the  Tribunal to  go behind the form and look at the      substance and  if  it  comes  to  the  conclusion,  for      example, that  though in  form  the  order  amounts  to      termination  simpliciter,   it  in   reality  cloaks  a      dismissal for  misconduct, it will be open to it to set      it aside as a colourable exercise of the Power."      A rain of rulings merely adds to the volume, not to the weight of  the proposition, and so we desist from citing all of them.  A bench  of seven  judges of this Court considered this precise  point in  Shamsher Singh’s    case  and  Chief Justice Ray ruled:           "The form  of the  order is  not  decisive  as  to      whether the  order is  by way  of punishment.  Even  an      innocuously worded order terminating the service may in      the facts  and circumstances of the case establish that      an  enquiry  into  allegations  of  serious  and  grave      character of  misconduct involving stigma has been made      in infraction  of the provision of Article 311. In such      a case the simplicity of the form of the order will not      give any sanctity. That is exactly what has happened in      the  case   of  Ishwar  Chand  Agarwal.  The  order  of

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    termination IS illegal and must he set aside." Simple termination or Punitive Discharge ?      We must  scan the  present order  of discharge  of  853 workmen and  ask the  right questions to decide whether they are punishments  or innocent  terminations. Neither judicial naivete nor  managerial ingenuity will put the court off the track of  truth. What.  then, are  the diagnostic factors in the orders under study ?      An isolated  reading of  the formal notices terminating their  services   reveals  no     stigma,   no  penalty,  no misconduct. They have just been told 176 off. But  the Management   admits  that as  required by  the Standing orders  it has  recorded reasons for the discharge. There, several  pages of  damnatory conduct have been heaped on the workers collectively accounting for the resort of the Management to the extreme step of discharging the whole lot, there being  no alternative.  Sri A.  K. Sen took us through the various  appeals made  by  the  Management,  the  losses sustained. the  many offers  to negotiate and arbitrate, the Sabha’s deaf  obduracy  and  resort  to  sudden  strike  and violent tactics  and, worst of all, its attempts to persuade the Central  Government to take over the factory as a ‘sick’ mill.  These  ordeals  were,  described  by  Sri  Ashok  Sen graphically to  justify the  submission that  the Management had no choice, caught between Scylla of strike and Charybdis of take-over, but to get rid of the strikers and recruit new workers. If the employer did not discharge the strikers they were adamant  and would  not return  to world,  and the very closure compelled  by the  Sabha was  being abused  by it to tell the  Central Government that for three months there had been no  production and  so the  mill qualified  to be taken over  as   ‘sick’  under  the  Industries  (Development  and Regulation) Act. If the Management discharged the workers to facilitate fresh  recruitment  and  save  the  factory  from statutory takeover  the cry  was raised  that the action was dismissal because  an elaborate  enquiry was  not held.  The Management had  avoided injury  to the  workmen, argued  Sri Sen, by  merely terminating their services without resort to disciplinary  action   and  recording   the  uncomplimentary grounds in  a separate  invisible order. He also underscored the fact  that the  strike was  illegal and  unjustified  as concurrently held by the Arbitrator and the High Court.      We agree  that industrial law promotes industrial life, not industrial  death, Any  realism is  the  soul  of  legal dynamics. Any  doctrine that  destroys  industrial  progress interlaced with social justice is lethal juristic and cannot be accepted.  Each side  has its  own version of the role of the other  which we  must  consider  before  holding  either guilty. Sri Tarkunde told us the tale of woe of the workmen. In 3  country where  the despair  of Government is appalling unemployment it  is a  terrible tragedy  to put  to economic death 853  workmen. And  for what?  For insisting  that  the pittance of  Rs. 100  per month  be raised  in terms  of the Central Wage Board recommendations, as long ago agreed to by the  Management   but  put   off  by   the  tantalizing  but treacherous offer of arbitration. When the point admitted of easy negotiated solution. Arbitration looks nice, but. since 1969, the  hungry families  have been yearning  for a morsel more, he urged. Blood, toil, sweat and tears for the workers and all  the profits’ and production for the Management, was the industrial  irony! Knowing  that every arbitral or other adjudicatory agency in 177 India, especially  when weak Labour is pitted against strong

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Capital in   the  sophisticated processual  system, consumes considerable time,  the lowly  working class  is allergic to this dilatory  offer of arbitration. They just don’t survive to eat the fruits. Such was his case.      The story of violence was also refuted by Sri Tarkunde, since the  boot was  on the other leg. Goondas were hired by the Management  to sabotage  the fundamental right to strike and with broken hearts several of them surrendered. When, at last, the  Sabha agreed to see that all workmen reported for work within  the extended  time, the  Management took to the typical tactics  of victimisation  of refusing work for all, as first  offered, and  of picking and choosing even for the 250 vacancies.  Moreover, other conditions were put upon the Sabha calculated to break unionism which those familiar with trade  union  movements  would  painfully  appreciate.  This insult and  injury apart,  the orders  of  termination  were painly dismissals  for a series of alleged misconducts which were chronicled  in separate  proceedings. The  formal order was like  a decree,  the grounds  recorded contemporaneously were like  the judgment,  to use  court vocabulary.  It  was obvious that  the foundation  for the  termination  was  the catena of  charges set  out  by  the  Management.  The  true character of  the order  could not  be hidden  by the unfair device of keeping a separate record and omitting it from the normal communication.  Law is  not such an ass as yet and if the  intent   and  effect   is  damnatory   the  action   is disciplinary.      Between  these   two  competing   cases,  presented  by counsel, we  have to  gravitate towards the correct factual- legal conclusion.  A number of peripheral controversies have been omitted  from this  statement, for brevity’s sake. When two high  tribunals have  spread out the pros and cons it is supererogation  for   this  Court  to  essay  likewise,  and miniaturization is  a wise  husbandry of judicial resources. First, we must decide whether the order of termination was a punitive discharge or a simple discharge.      Here we  reach the  dilemma of  the law for discovering unfailing  guidelines   to  distinguish   between  discharge simpliciter  and   dismissal  sinister.   The   search   for infallible formulae  is vain and only pragmatic humanism can help  navigate  towards  just  solutions.  We  have  earlier explained that from Dhingra’s case to Shamsher Singh’s case, the law  has been  dithering but  some rough and ready rules can be  decocted to  serve in  most situations. Law, in this area, is  a pragmatist,  not a  philologist, and we have set out the dual diagnostic tests applicable in such cases. 178      It was  not retrenchment,  according to the Management. Then what  was it  ? If  there was  work  to  be  done,  why terminate  services   of  workmen  except  as  punishment  ? Because, argued  Sri Sen, the workers did not work, being on strike and  the Management,  bent  on  keeping  the  factory going, needed  workmen who work. To recruit fresh hands into the lists and to keep the old hands on the roster was double burden, and,  therefore, the strikers had to be eased out to yield place  to new  recruits. The  object was not to punish the workmen  but to  keep the factory working Accepting this plea, as it were, the award of the arbitrator has exonerated the Management  of the  charge of  dismissal while  the High Court has held the action to be dismissal for misconduct and therefore bad in law.      In our  opinion, the  facts of the case before us speak for themselves  Here are  workmen on  strike. The  strike is illegal.  The  Management  is  hurt  because  production  is paralyzed. The strikers allegedly indulge ill objectionable.

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activities. The exasperated Management hits back by ordering their discharge  for reasons set out in several pages in the appropriate  contemporaneous  proceeding.  Misconduct  after misconduct is  flung on  the workers  to justify the drastic action In  all conscience and common sense, the discharge is the punishment  for the misconduct. The Management minces no words. What is explicity stated is not a colourless farewell to make  way for  fresh hands to work the factory  until the strike is  settled but  a hard hitting order with grounds of guilt and penalty of removal.      The inference  is inevitable,  however,  ingenious  the contrary argument,  that precisely  because  the  Management found the  workmen refractory  in their misconduct they were sacked. Maybe,  the management  had no  other way of working the factory  but that  did not  change the  character of the action taken.  Once  we  hold  the  discharge  punitive  the necessary consequence  is that enquiry before punishment was admittedly obligatory  and confessedly  not undertaken.  The orders were bad on this score alone.      Sri A. K. Sen urged that in a dismissal the employee is denied some  of the retiral and other benefits which he gets in a  simple discharge,  and here  all  the  employees  were offered their  full monetary  benefits, so that it was wrong to classify  the orders  of discharge  as punitive. Maybe, a dismissed servant may well be disentitled to some, at least, of the  financial  benefits  which  his  counterpart  who-is simply discharged  may draw.  But that  is not  a conclusive test. Otherwise,  the master  may ’cashier’  his servant and camouflage it  by offering  full retiral benefits. Dismissal is not discharge plus a price. The substance of 179 the action  is the  litmus test.  In the  present case,  the penal core,  ’tied ,4.  in tooth  and claw, shows up once we probe; and  the non-committal frame of the formal order is a disguise. For  a poor  workman loss  of his  job is  a heavy penalty when  inflicted for alleged misconduct, for he is so hungry that,  in Gandhiji’s  expressive words,  he sees  God Himself in a loaf of bread.      Before we  leave this  part of the case, a reference to some industrial law aspects and cases may be apposite though a  little   repetitive  Standing  orders  certified  for  an industrial undertaking  or the  model Standing orders framed under the  Industrial Employment Standing orders Act provide for   discharge    simpliciter,   a   term   understood   in contradistinction to  punitive discharge or discharge by way of penalty.  It is  not unknown  that an employer resorts to camouflage by  garbing or  cloaking, a punitive discharge in the innocuous words of discharge simpliciter. Courts have to interpose in order to ascertain whether the discharge is one simpliciter or  a punitive  discharge, and  in doing  so the veil of  language is  lifted and the realities perceived. In the initial  stages the  controversy raised  was whether the court/tribunal had  any jurisdiction  to lift  such a  veil. Prove and  penetrate so  as to  reveal the reality, but this controversy has  been set at rest by the decision in Western India Automobile Association v. Industrial  Tribunal Bombay. The wide  scope of the jurisdiction of industrial tribunal,’ court in  this behalf  is now  well established. If standing orders or  the terms  of contract  permit  the  employer  to terminate  the   services  of   his  employee  by  discharge simpliciter without  assigning reasons,  it would be open to him to  take recourse  to the  said term  or  condition  and terminate the services of his employee but when the validity of such termination is challenged in industrial adjudication it would  be competent  to the industrial Tribunal to ensure

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whether the impugned discharge has been effected in the bona fide exercise  of  the  power  conferred  by  the  terms  of employment.  If  the  discharge  has  been  ordered  by  the employer in  bona fide  exercise  of  his  power,  then  the industrial tribunal may not interfere with it; but the words used in  the order  of discharge  and the  form which it may have taken  are  not  conclusive  in  the  matter  an(l  the industrial tribunal would be entitled to go behind the words and form  and decide  whether the  discharge is  a discharge simpliciter or not If it appears that the purported exercise of power  to terminate  the Services  of the employee was in fact the  result of the misconduct alleged against him. then the tribunal  would be justified in dealing with the dispute on the  basis; that, despite its appearance to the contrary. the order  of discharge  is in effect an order of dismissal. In the exercise of this power, the 180 court/tribunal would be entitled to interfere with the order in question [see Assam Co. v. Its Workmen]. In the matter of an order  of discharge  of an  employee as understood within the meaning  of the  Industrial Disputes Act the iron of the order and  the language  in which  it  is  couched  are  not decisive. If  the industrial  court is  satisfied  that  the order of  discharge  is  punitive  or  that  it  amount;  to victimisation or  unfair labour  practice it is competent to the Court/tribunal  to set  aside the order in a proper case and direct reinstatement of the employee [see Tata oil Mills Co. Ltd.  v. Workmen].  The form  used for  terminating  the service is not conclusive  and the tribunal has jurisdiction to enquire into the reasons which led to such termination In the facts  of the  case it  was found  that Standing  orders provided  that   an  employee  could  ask  for  reasons  for discharge  in  the  case  of  discharge  simpliciter.  Those reasons were  given before  the tribunal  by the  appellant, viz., that  the respondents services were terminated because he deliberately resorted to go-slow and was negligent in the discharge of  his duty.  It was  accordingly held  that  the services of  the employee were terminated for dereliction of duty and  go-slow in  his work  which  clearly  amounted  to punishment for  misconduct and.  therefore. to pass an order under cl.  17(a) of the Standing orders permitting discharge simpliciter in  such circumstances  was clearly  a colorable exercise of  power to  terminate services of a workman under the provision of the Standing orders. In these circumstances the tribunal  would be  justified in  going behind the order and deciding  for itself  whether  the  termination  of  the respondent’s services could be sustained (vide Management of Murugan Mills  Ltd. v.  Industrial Tribunal,  Madras &  Anr. This view  was affirmed in Tata Engineering & Locomotive Co. Ltd. v. S. C. Prasad & Anr.(4). After approving the ratio in Murugan Mills  case, this Court in L. Michael & Anr. v. M/s. Johnson   Pumps  India  Ltd  observed  that  the  manner  of dressing up  an order did not matter. The slightly different observation in  Workmen of  Sudder    office,  Cinnamare  v. Management was  explained by  the Court  and it  was further affirmed that  since the  decision  of  this  Court  in  the Chartered Bank  v. The  Chartered  Bank Employee’s  Union it has taken  the consistent  view that  if the  termination of service is  a colourable  exercise of  power vested  in  the management or is a result of victimization 181 or unfair  labour practice,  the court/tribunal  would  have jurisdiction to intervene and set aside such termination. It was urged  that a  different view was taken by this Court in Municipal Corporation of Greater Bombay v. P. S. Malvenkar &

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ors. The  employee in  that was  discharged from  service by paying one  month’s wages  in lieu of notice This action was challenged by  the employee  before the  Labour Court and it was  contended  that  it  was  a  punitive  discharged.  The Corporation contended  that wider  Standing order No. 26 the Corporation had  the power  to discharge  but there  was  an obligation to  give reasons  if so demanded by the employee. The Corporation  had also  the power  to discharge by way of punishment. The Court in this connection observed as under:           "Now one  thing must  be borne  in mind that these      are two  distinct and  independent powers and as far as      possible either should be construed so as to emasculate      the other cr to render it ineffective. One is the power      to punish an employee for misconduct while the other is      the power  to terminate  simpliciter the  service of an      employee without  any, other  adverse consequence. Now.      proviso (i) to clause (1) of Standing order 26 requires      that the  reason  for  termination  of  the  employment      should  be  given  in  writing  to  the  employee  when      exercising the  power of  termination of service of the      employee under  Standing order  26. Therefore, when the      service of  an employee is terminated simpliciter under      Standing order  26, the reason for such termination has      to be given to the employee and this provision has been      made in the Standing order with a view to ensuring that      the management does not act in an arbitrary manner. The      management is  required to  articulate the reason which      operated on  its mind in terminating the service cf the      employee. But merely because the reason for terminating      the service of the employee is required to be given and      the reason  must obviously not be arbitrary, capricious      or irrelevant-it  would not  necessarily in  every case      make the  order or termination punitive in character so      as require  compliance with  the requirement  of clause      (2) of  Standing order  21 read with Standing order 23.      Otherwise. the  power of  termination of  service of an      employee under  Standing order  26  would  be  rendered      meaningless and  futile for  in no  case  it  would  be      possible to  exercise it.  Of course,  if misconduct of      the employee constitutes the 182      foundation for  terminating his  service, then  even if      the order  of termination is purported to be made under      Standing order  26, it  may be liable to be regarded as      punitive  in  character  attracting  the  procedure  of      clause (2)  of Standing  order 21  read  with  Standing      order 23,  though even  in such a case it may be argued      that the management n has not punished the employee but      has merely  terminated his service under Standing order      26."      It does  not purport  to run counter to the established ratio that  the form  of the  order is  not decisive and the Court can  lift the  veil. How  ever, it  may be  noted that there was  an alternative  contention before  the Court that even if  the order  of discharge  was considered punitive in character, the  employer corporation had led evidence before the labour  court to  substantiate the  charge of misconduct and that finding was also affirmed.      We are  satisfied that  the  Management,  whatever  its motives vis-a-vis  keeping the stream of production flowing, did remove  from service,  on punitive  grounds, all the 853 workmen.      The law  is trite that the Management may still ask for an opportunity  to make  out a case for dismissal before the Tribunal. The  refinements of  industrial law in this branch

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need not  detain u.s  because the arbitrator did investigate and hold  that the workmen were guilty of misconduct and the ’sentence’ of  dismissal was merited, even as the High Court did reappraise  and  reach,  on  both  counts,  the  reverse conclusion. The sweep of Article 226      Once we  assume that the jurisdiction of the arbitrator to enquire   into  the alleged misconduct was exercised, was there any  ground under  Article 226  of the Constitution to demolish that  holding ? Every wrong order cannot be righted merely because  it is wrong. It can be quashed only if it is vitiated by  the fundamental  flaws of  gross miscarriage of justice, absence  of legal  evidence, perverse misreading of facts, serious  errors of  law on  the face  of  the  order, jurisdictional failure and the like.      While the remedy under Article 226 is extraordinary and is of  Anglo-Saxon vintage,  it is  not  a  carbon  copy  of English processes.  Article 226 is a sparing surgery but the lancet   operates    where   injustice   suppurates.   While traditional  restraints  like  availability  of  alternative remedy hold  back the  court, and  judicial power should not ordinarily rush  in where  the other  two branches  fear  to tread,  judicial   daring  is   not  daunted  where  glaring injustice demands even affirmative action. 183 The wide  words of  Article 226  are designed for service of the lowly   numbers  in  their  grievances  if  the  subject belongs  to   the  court’s   province  and   the  remedy  is appropriate to  the judicial  process. There  is native  hue about Article  226, without  being anglophile or anglophobic in attitude.  Viewed from  this jurisprudential perspective, we have  to be  cautious both  in  not  overstepping  as  if Article. 226  were as  large as an appeal and not failing to intervene where a grave error has crept in. Moreover, we sit here in  appeal over  the High  Court s  Judgement.  And  an appellate power  interferes not  when the order  appealed is not right  but only when it is clearly wrong. The difference is real, though fine.      What are  the primary  facts  which  have  entered  the Tribunal’s  verdict   in  holding  the  strikers  guilty  of misconduct meriting   dismissal  ? We must pause to remove a confusion and  emphasise that  the dismissal,  order is  not against the  Union but the individual workers. What did each one do  ? Did his conduct, when sifted and scrutinised, have any exculpation  or extenuation  ? Not strikers in the mass, but each  worker separately, must be regarded as the unit of disciplinary action.  Each one’s  role  and  the  degree  of turpitude, his  defence on  guilt and  punishment,  must  be adjudged before  economic death  sentence  is  inflicted.  A typical trial  process instance  will  illumine  the  point. Suppose there  is case  of arson  and murder  in  a  village because of  communal faction  and a  hundred  men  from  the aggressive community  are  charged  in  court  with  serious offences. Suppose  further that  convincing testimony of the provocation and  aggression by  that community  is produced. Can any  single member of the violent community be convicted on   ’mass’    evidence,   without   specific   charges   of participation or  clear proof  of constructive involvement ? Judicial perspicacity  clears this  common  fallacy.  It  is dangerous to  mass-convict on the theory of community built. Anger sometimes brings in this error.      In our  assessment, the  arbitrator has  been swayed by generalities  where   particularities   alone   would   have sufficed. A  long story  may be  made short  by skipping the details and  focussing on  essentials. We must, in fairness,

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state that  the  Arbitrator,  an  experienced  and  accepted tribunal in  labour disputes,  has exhaustively brought into the Award  all available  details pro  and  con  with  over- emphasis here  and there. There are only a few confusions in his long  award but, regrettably, they happen to be on a few fundamentals. The  foremost, of  course, is a mix-up between mob-misconduct and  individual guilt.  The next  is  getting lost in  the oceanic  evidence while  navigating towards a 1 specified  port.   The  High   Court  too  has  excelled  in marshalling the  details  and  handling  the  legal  issues, although, even there, shortcomings 184 on basic  issues have  been pointed out by Sri A. K. Sen. We too are apt to err and reverse ourselves although we try our best to  avoid error. The Supreme Court is final not because it is  infallible; it  is infallible;   because it is final. propose to examine the essential issues from the perspective We  have   set  out  and  in  their  proper  jurisprudential bearings.      If misconduct was basic to the discharge and no enquiry precedent to  the dismissal  was made  the story did not end there in favour of the workmen. The law is well-settled that the Management  may still  satisfy the  tribunal  about  the misconduct.      As a  fact the  arbitrator held  misconduct proved.  He further found  that the  circumstances  justified  dismissal though he  decided the  order to  mean discharge simpliciter Was misconduct  proved against  each  discharged  worker  at least before  the arbitrator  ? If  it was, did every worker deserve punitive discharge ?      Dual jurisdictional  issues arise  here which have been argued at  some length  before us.  The position taken up by Sri Sen  was that  the High  Court could  not, under Article 226, direct  reinstatement, and  even  it    felt  that  the arbitrator had  gone wrong  in refusing  reinstatement,  the court  could   only  demolish   the  order  and  direct  the arbitrator to  reconsider the  issue. What  belonged,  as  a discretionary power,  to a  tribunal or  other  adjudicatory body could  not be  wrested by  the writ  court. To  put  it pithily,  regarding   the  relief   of  reinstatement,   the arbitrator could  but would not and the High Court would but could not.  (We will  deal later  with the  point  that  the arbitrator had  himself no  power under  Section 11 A of the Act but did have it in view of the wide terms of reference.)      The basis  of this submission as we conceive it. is the traditional limitations woven around high prerogative writs. Without examining  the correctness  of this  limitation,  we disregard it  because while Article 226 has been inspired by the royal  writs  its  sweep  and  scope  exceed  hide-bound British processes  of yore.  We are  what we are because our Constitution-framers have  felt the  need  for  a  pervasive reserve power  in the higher judiciary to right wrongs under our  conditions.   Heritage  cannot  hamstring;  nor  custom constrict where  the  language  used  is  wisely  wide.  The British paradigms  are not  necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in  Article 226  that any  order which should have been made by the lower authority could be made by the High Court. The very   width  of the  power and  the  disinclination  to meddle, except where gross injustice or fatal illegality and the like are present inhibit the exercise but do not abolish the power. 185      We may  dilate a  little more  on Article 226 vis-a-vis awards of  arbitrators. The  first limb  of the  argument is

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that when  there is  a  voluntary  joint  submission  of  an industrial dispute  to an  Arbitrator named by them under s. 10A of  the Industrial Disputes Act, he does not function as a Tribunal  and is  not amenable to the jurisdiction of that Court under  Article  227  or  under  Article  226.  Without further elaboration  this contention  can be  negatived on a decision of  this Court  in Rohtas Industries Ltd. & Anr. v. Rohtas Industries  State Union  ors. (1) This Court observed that as  the Arbitrator  under s.  10A has the power to bind even those who are not parties to the reference or agreement and the whole exercise under s. 10A as well as the source of the force  of the  Award on  publication  derived  from  the statute, it  is legitimate  to regard such an arbitrator now as part of the infrastructure of the sovereigns dispensation of justice,  thus falling  within the  rainbow of  statutory tribunals amenable to judicial review.      The second  limb of  the argument  was that  a writ  of certiorari could  not be  issued to correct errors of facts. In this  connection after affirming the ratio in Engineering Mazdoor Sabha  v. Hind  Cycle Ltd., this Court observes that what is  important is  a question of law arising on the face of the  facts found  and its  resolution  ex  facie  or  sub silentio. The Arbitrator may not state the law as such; even then such  acute  silence  confers  no  greater  or  subtler immunity on the award than plain speech. We do not dilate on this part  of the  argument as  we are satisfied that be the test the  deeply embedded  rules to  issue certiorari or the traditional grounds to set aside an arbitration award  ’thin partition  do   their  bounds   divide’  on  the  facts  and circumstances of  the  present  case.  Broadly  stated,  the principle of  law is that the jurisdiction of the High Court under Article  226 of the Constitution is limited to holding the judicial  or quasi-judicial  tribunals or administrative bodies  exercising  the  quasi-judicial  powers  within  the leading strings  of legality  and to  see that  they do  not exceed their statutory jurisdiction and correctly administer the law  laid down  by the  statute under which they act. So long as  the hierarchy of officers and appellate authorities created by  the statute  function  within  their  ambit  the manner  in   which  they   do  so   can  he  no  ground  for interference. The  power of judicial supervision of the High Court under  Article 227  of the  Constitution (as  it  then stood) is  not greater  than those  under Article 226 and it must be  limited to  seeing that a tribunal functions within the limits  of its  authority [see Nagendra Nath Bora & Anr. v. The  Commissioner of  Hills Division  & Appeals,  Assam & ors.(a) ]. This led to a proposition that in 186 exercising jurisdiction  under Article 226 the High Court is not constituted  a Court  of appeal  over  the  decision  of authorities, administrative  or quasi-judicial.  Adequacy or sufficiency of  evidence is  not its  meat. It  is  not  the function of  a High Court in a petition for a writ under Art 226 to  review the  evidence and to arrive at an independent finding on  the evidence. [See State of Andhra Pradesh v. S. Shree Rama   Rao  ] A constitution Bench of this Court in P. H. Kalyani  v. M/s-.  Air France,  Calcutta ) succinctly set out the  limits of  the jurisdiction  of the  High Court  in dealing with  a writ  petition. It was said that in order to justify a  writ of certiorari it must be shown that an order suffers from an error apparent on the face of the record. It was further  pointed out that in the finding of fact is made by the  impugned order  and it is shown that it success from an error  of law  and not  of fact, a writ under Article 226 would issue,  and, while so saying, the decision in Nagendra

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Nath Bora’s  case was affirmed. Following the aforementioned decision, the Gujarat High Court in Navinchandra Shakerchand Shah v.  Manager, Ahmedabad  Coop.  Department  Stores  Ltd. observed that  the amended Article 226 would enable the High Court  to   interfere  with   an  Award  of  the  industrial adjudicator if  that is based on a complete misconception of law or  it is based on no evidence or that no reasonable man would come  to the  conclusion to  which the  Arbitrator has arrived.      Even apart  from,  but  while  approving,  the  Gujarat ruling in 19 G.L.R. p. 108 cited before us, we are satisfied that  the   writ  power   is  larger  given  illegality  and injustice, even  if its  use is  severely  discretionary  as decided cases  have repeatedly  laid down.  We over-rule the objection of invalidity of the High Courts order for want of power.      The more serious question is whether the arbitrator had the plenitude  of power to re-examine the punishment imposed by the  Management, even  if he disagreed with its severity. In this  ease the arbitrator expressed himself as concurring with the  punishment. But  if he  had disagreed, as the High Court, in  his place,  did, could  he have interfered? Armed with the  language of  Sec. 11A, which confers wide original power to  the tribunal  to re-fix  the ’sentence’,  Sri  Sen argued that an arbitrator was uncovered by this new Section. So, even  if he would, he could not. And, in this case if he could, he  would  not.  There  the  matter  ended,  was  the argument. We disagree. Even if he could. he would not, true; but that  did not preclude the High Court from reviewing the order in exercise of its extraordinary constitutional power. Moreover, Sec. 11A did clothe the arbitrator with similar 187 power  as  tribunals,  despite  the  doubt  created  by  the abstruse absence  A of  specific mention  of ’arbitrator’ in Sec. 11A.  This position  needs closer examination and turns on  interpretational   limitations.  At   this   stage,   to facilitate the discussion, we may read the provision:           "11A. Where  an industrial dispute relating to the      discharge or  dismissal of  a workmen has been referred      to a  1 Labour Court, Tribunal or National Tribunal for      adjudication and,  in the  course of  the  adjudication      proceedings, the  Labour Court,  Tribunal  or  National      Tribunal, as  the case  may be,  is satisfied  that the      order of  discharge or  dismissal was not justified, it      may, as it thinks fit, or give such other relief to the      Workman on  such terms  and conditions,  if any,  as it      thinks fit,  or give  such other relief to the workman,      including the award of any lesser punishment in lieu of      discharge or dismissal as the circumstances of the case      may require:           Provided that in any proceeding under this section      the Labour  Court Tribunal  or National Tribunal as the      case  may be, shall rely on the materials on record and      shall not  take any  fresh evidence  in relation to the      matter".      Sec. 11A  was introduced in purported implementation cf the I.L.O.  recommendation which  expressly referred,  inter alia to  arbitrators. The  Statement of  objects and Reasons which illumines the words of the legislative text when it is half-lit, even if it cannot directly supplement the section, does speak  of the  I.L.o. recommendations  and, in terms of tribunals and  arbitrators. When it came to drafting Section 11A  the.   word  ’arbitrator’  was  missing.  Was  this  of deliberate legislative  design to  deprive arbitrators,  who discharge  identical   functions  as   tribunals  under  the

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Industrial Disputes  Act, of  some vital powers which vested in their  tribunal brethren  ? For what mystic purpose could such  distinction   be   ?   Functionally,   tribunals   and arbitrators being to the same brood. The entire scheme, from its I.L.O. genesis, through the objects and Reasons, fits in only with  arbitrators being  covered by Section 11A, unless Parliament cheated  itself and  the nation  by proclaiming a great purpose  essential to  industrial justice  and, for no rhyme or  reason and  wittingly or  unwittingly, withdrawing one vital  word. Every  reason for  clothing tribunals  with Sec. 11A  powers applies a fortiori to arbitrators. Then why omit ?  Could it  be a synopic omission which did not affect the semantics  because a tribunal, in its wider connotation, embraced every adjudicatory organ, including an arbitrator ? An economy of words is a legislative risk before a judiciary accustomed to the Anglo-Saxon meticulousness in 188 drafting. We  may easily  see meaning by one construction. A ’tribunal’ is  merely a  seat of  justice or a judicial body with  jurisdiction  to  render  justice.  If  an  arbitrator fulfils this  functional role  and he  does -how  can he  be excluded from  these scope  of  the  expression  ?  A  caste distinction  between   courts,  tribunals,  arbitrators  and others, is  functionally fallacious  and,  in  our  context, stems  from   confusion.  The     Section   makes   only   a hierarchical, not  functional,  difference  by  speaking  of tribunals and  national tribunals.  So we  see no  ground to truncate the  natural meaning  of ’Tribunal’ on the supposed intent of  Parliament to  omit irrationally  the category of adjudicatory organs  known as arbitrators. To cut down is to cripple and  the art  of  interpretation  makes  whole,  not mutilates, furthers  the expressed  purpose, not hampers, by narrow literality. Section 2(r) defines Tribunal thus:           ’Tribunal’   means    an    Industrial    Tribunal      constituted under Section 7A and includes an Industrial      Tribunal constituted  before the  10th  day  of  March,      1957, under this Act, Prima-facie it  is a different category from arbitrators but all statutory definitions are subject to contextual changes. It is  perfectly open.  to the  court to  give  the  natural meaning to a word defined in the Act if the context in which it appears  suggests a departure from the definition because then there is something repugnant in the subject or context.      Then what  is the  natural meaning  of  the  expression "Tribunal"? A  ’tribunal’ literally means a seat of justice. May be,  justice is  dispensed by  a quasi-judicial body, an arbitrator, a  commission, a  court  or  other  adjudicatory organ created  by the  State. All  these are  tribunals  and naturally the  import of  the word  embraces an  arbitration tribunal. Stroud’s  Judicial Dictionary  (Vol.  4  p.  3093) speaks of  ’Tribunal in  this, wider  sense and  quoted Fry, L.J. in Dawkins v. Rokeby [L.R. 8 Q.B. 255, affirmed, L.R. 7 H.L. 744]:           "I accept  that, with this qualification that I do      not like  the word  ’tribunal’. The word is, ambiguous,      because it  has  not  like  ’court’  any  ascertainable      meaning in  English law" (Royal Acsuarium v. Parkinson.      [1892]  Q.B. 431, cited COURT) .      There is  a reference  to the  bishop’s  commission  of enquiry as  judicial tribunal  and, significantly,  specific mention has been made in these terms. 189           "Disputes between  employers and  employees are  A      referred  to   such  tribunals  as  the  Civil  Service

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    Arbitration Tribunal, National Arbitration Tribunal and      the Industrial  Disputes Tribunal".  (Stroud’s Judicial      Dictionary p. 3094)      We have  hardly any  doubt that  ’tribunal’ simpliciter has  a   sweeping  signification   and  does   not   exclude ’arbitrator’.      Here  we   come   upon   a   fundamental   dilemma   of interpretative technology  vis-a-vis the judicative faculty. What  are  the  limits  of  statutory  construction  ?  Does creativity in  this jurisprudential  area permit travel into semantic engineering  as substitute  for verbalism  ? It  is increasingly  important   for  developing  countries,  where legislative transformation  of  the  economic  order  is  an urgent item  on the  national agenda,  to have the judiciary play a  meaningful role  in  the  constitutional  revolution without ferreting out laws in the draftsman, once the object and effect  are plain.  Judges may not be too ’anglo-phonic’ lest the system fail.      It is  edifying to  recall from Robert Stevens’ Law and Politics of the House of Lords as a judicial body:           "Moreover, Macmillan,  who began  to specialize in      the increasingly  frequent tax  appeals,  continued  to      develop  this  highly  artificial  approach  in  Inland      Revenue  Commissioner   v.  Ayrshire  Employers  Mutual      Insurance Association,  when   Parliament  had  clearly      intended  to   make  the  annual  surpluses  of  mutual      insurance companies  subject to  tax, Macmillan found a      particularly formalistic argument to show that this had      not been the effect of section 31 of the Finance Act of      1933. He  was  then  happily  able  to  announce,  "The      Legislature has  plainly  missed.  fire."(a).  Of  this      decision Lord  Diplock was later to say that "if, as in      this case,  the  Courts  can  identify  the  target  of      Parliamentary legislation  their proper  function is to      see that  it is  hit: not  merely to record that it has      been  missed.  Here  is  judicial  legislation  at  its      worst."(3) ’ We would  rather adopt  Lord Diplock’s  thought and have the court help  hit the  legislative target, within limits, than sigh relief  that the legislative fire has missed the bull’s eye. Of  course, the  social philosophy  of the Constitution has, as  ruled by  this court  in several  cases, a  role in interpretative enlightenment and judicial value vision. 190      We  may   reinforce  this  liberal  rule  of  statutory construction, being a matter of importance in the daily work of  the   Court,  by   reference  even  to  Roman  Law  from Justinian’s days  down to  the American  Supreme Court. "Not all  special   cases  can  be  contained  in  the  laws  and resolutions of the Senate", said the Roman jurist Jullianus, "but where  their meaning  is manifest in some case, the one who  exercises   jurisdiction  must   apply  the   provision analogously and  in  this  way  administer  justice."  Prof. Bodenheimer has  explained that  Civil Law  does not  regard words as  the sole basis of law but allows it to be modified by purpose.  "Celsus added the following admonition to these general principles  of interpretation:  "The laws  should be liberally  interpreted,   in  order  that  their  intent  be preserved".      "Samuel Thorne  has shown  that, during certain periods of English  medieval history, the position of the Common Law towards the  construction of  statutes was  similar  to  the general attitude  of the  Roman and Civil Law. Statutes were frequently extended  to situations  not expressly covered by them."(3)

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    Plowden pointed  out that  "when the words of a statute enact one  thing, they  enact all  other things which are in the like  degree," Plowden  demonstrated  that  a  statutory remedy at  that time was deemed to be merely illustrative of other analogous  cases that  deserved to  be governed by the same principle.      "our law  (like all others) consists of two parts, viz. OF body  and soul,  the letter of the law is the body of the law, and  the sense and reason of the law is the soul of the law.. And  it often  happens that  when you know the letter, you know  not the  sense, for  sometimes the  sense is  more confined and contracted than the letter, and sometimes it is more large and extensive"(5)      Prof. Bodehheimer  states that  the American  trend  is towards a  purpose-oriented rather than a plain-meaning rule in  its  rigid  orthodoxy.  In  United  States  v.  American Trucking Association. The U.S. Supreme Court wrote:           "When the  plain meaning  has  led  to  absurd  or      futile   results ..  this Court  has looked  beyond the      words to  the Purpose  of the Act. Frequently, however,      even when the 191      plain meaning did not produce absurd results but merely      an unreasonable  one  "plainly  at  variance  with  the      policy of  the legislation  as a  whole" this Court has      followed that  purpose rather  than the  literal words.      When aid  to construction  of the  meaning of words, as      used in  the statute, is available, there can certainly      be no  "rule of  law" which  forbids its use, how ever,      clear the words may be on "superficial examination." B      In the  present case,  as the  narration of  the  facts unfolded, the reference of the dispute was to an arbitrator. He reinvestigated and reassessed the evidence bearing on the guilt of-the  discharged workmen after giving an opportunity to both  sides to adduce evidence thereon Admittedly, he had this power.  But had  he the follow-up power, if he held the men guilty of punitive misconduct, to reweigh the quantum of punishment having regard to the degree of culpability ? This jurisdiction he  enjoys if  Sec. 11A includes ’arbitrators’. This, in turn, flows from our interference as to whether the word ’tribunal’  takes in  an adjudicatory  organ  like  the arbitrator. It  is plain that the expression ’arbitrator’ is not expressly mentioned in Section 11A. Nevertheless, if the meaning  of   the  word  ’tribunal’  is  wider  rather  than narrower, it  will embrace  arbitrator as  well. That is how the dynamics  of interpretation  are, in one sense, decisive of the fate of the present appeal.      Competing  interpretative  angles  have  contended  for judicial acceptance English preferences apart, Indian socio- legal conditions  must decide  the choice in each situation. Sometimes   Judges   are   prone   to   castigate   creative interpretation in  preference  to  petrified  literality  by stating that Judges declare the law and cannot make law. The reply to  this frozen  faith  is  best  borne  out  by  Lord Radcliffe’s blunt words:           " There  was never a more sterile controversy than      that upon  the question  whether a  judge makes law. Of      course he  does. How  can he help it ?.... Judicial law      is always a reinterpretation of principles in the light      of new  combinations of  facts.. Judges  do not reverse      principles once  well established,  but they  do modify      them, extend  them, restrict  them and  even deny their      application to the combination in hand.      Lord Devlin  in his "Samples of Lawmaking", agreed that Judges are  fashioners  of  law,  if  not  creators  out  of

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material supplied to them and went on to observe:           "If the  House of  Lords did  not treat  itself as      bound by its own decisions, it might do its own lopping      and pruning 192       ....  and perhaps  even a  little grafting, instead of      leaving all  that for the legislature. But it could not      greatly alter the shape of the tree."      Even so eminent a Judge as Lord Reid leaned to the view that the  law should  be developed  since it  was not static and, in  this limited  sense, Judges are law-makers although this view prevented "technical minded Judges (from pressing) precedents to  their logical  conclusions". On  the whole, a just  and   humanist   interpretative   technique,   meaning permitting, is  the best.  We do  not mean  to conclude that Judges can take liberties with language ad libitem and it is wholesome to  be cautious  as Lord  Reid in  Shaw v.  D.P.P. warned: "Where  Parliament fears  to tread it is not for the courts to rush in."      We are  persuaded that there is much to learn from Lord Denning’s consistent  refrain about  the inevitable creative element in  the judicial process in the interpretative area. We permit  ourselves a  quote from Lord Denning because Shri A. K.  Sen did  draw  our  attention  to  straightening  the creases as permissible but not stitching the cloth, making a critical reference  to the  controversial activism  of which Lord Denning was a leading light:           "The truth  is that  the law is uncertain. rt does      not cover  all the  situations that may arise. Time and      again practitioners  and  judges  are  faced  with  new      situations where the decision may go either way. No one      can tell  what the  law is until the courts decides it.      The judges  do every  day make law, though it is almost      heresy to  say so.  If the  truth is recognized then we      may hope  to escape  from the dead hand of the past and      consciously mould  new principles  to meet the needs of      the present."      Mr.  Justice   Mathew  in   Kesavananda  Bharti’s  case referred with  approval-and so  do we-to the observations of Justice Holmes.           "I recognize without hesitation that Judges do and      must legislate. but they can do so only interstitially;      they are confined from molar to molecular motions." 193      Arthur Selwyn  Miller writes, "Some have called it (the Supreme A  Court) the  highest legislative  chamber  in  the nation. Although there is no question that the Court can and does make law, and does so routinely, .. ".      Assuming the  above approach to be too creatively novel for traditionalism,  let us approach the same problem from a conventional angle  authenticated by  case-law. The question of construction  of s.  11A was  argued  at  length,  as  to whether an omission of any reference to Arbitrator appointed under s.  10A in  s. 11A  would suggest  that the Arbitrator under s.  10A, notwithstanding the terms of reference, would not enjoy  the power conferred on all conceivable industrial adjudicators under  s. 11A.  It was said, after referring to the objects  and reasons  in respect  of the  bill which was moved to  enact s.  11A in the Industrial Disputes Act, that while the  I.L.O. had  indicated that an arbitrator selected by the  parties for  adjudication of industrial dispute must be invested  with power  by appropriate legislation as found in s. 11A, the Parliament, while enacting the section in its wisdom, did  not include  the Arbitrator  even though  other adjudicators of industrial disputes have been conferred such

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power and,  therefore, it  is a  case  of  Sasus  omissions. Reliance was placed on Gladstone v. Bower where the question arose whether  a reference to a tenancy from year to year in s. 2(1)  of the  Agricultural Holdings  Act, 1948 would also cover a  tenancy for  18 months which could be terminated at the end  of the  first year.  The submission  was that  even though no  notice was  necessary at  common law  because the tenancy would  automatically terminate  at the expiry of the specified period  of tenancy,  the tenancy  took  effect  as tenancy from year to year by virtue of S. 2(1) of the Act so that it  continued until  terminated by  notice to quit and, therefore  the  landlord  was  not  entitled  to  possession without notice.  It was  further contended that if a tenancy from year to year was to get the protection of the Act it is inconceivable that  tenancy for  a longer duration would not qualify for  that protection. Court of Appeal negatived this contention holding  that this  is a  case  simply  of  casus omissus and  the Act  is defective.  The court  further held that if  it were  ever permissible for the Court to repair a defective Act of Parliament, the Court would be very glad to do so in this case so far as the Court could. The Court will always allow  the intention  of a  statute to  override  the defects of  wording buts  the Court’s  ability to  do so  is limited by  the recognised  canons  of  interpretation.  The Court may, for example, prefer an alternative construc- 194 tion which  is less  well-fitted to  the  words  but  better fitted to  the intention  of the  Act.  But  here,  for  the reasons given by the learned Judge, there is not alternative construction;  it  is  simply  a  case  of  something  being overlooked.  The   Court  cannot   legislate  for   a  casus omissions. To  do so  would be  to usurp the function of the legislature  [see Magor & St. Mellons Rural District Council v. Newport Corporation. Where the Statute’s meaning is clear and explicit,  words cannot  be interpolated. Even where the meaning of the statute is clear and sensible, either with or without the  omitted word,  interpolation is improper, since the primary  source of  the legislative  intent  is  in  the language of  the statute  [see Crawford’s  "Construction  of Statutes". 1940  Edn., p.  269 extracted in S. Narayanaswami v. G. Panneerselvam.] Undoubtedly, the Court cannot put into the Act  words which  ’are not  expressed, and  which cannot reasonably  he  implied  on  any  recognised  principles  of construction. That  would be  a work  of legislation, not of construction, and  outside the  province of  the Court  [see Kamalaranjan v. Secretary of State(3).] Similarly, where the words of  the statute  are clear it would not be open to the Court in  order to obtain a desired result either to omit or add to the words of the statute. This is not the function of the Court charged with a duty of construction. This approach has,  however,  undergone  a  sea  change  as  expressed  by Denning, I..  J. in  Seaford Court  Estates  Ltd.  v.  Asher wherein he observed as under:           "When a  defect appears a Judge cannot simply fold      his hands  and blame  the draftman. He must set to work      on the  constructive task  of finding  the intention of      Parliament.... and  then he must supplement the written      words so  as to  give ’force and life’ to the intention      of legislature  ...., A  judge should  ask himself  the      question how,  if the  makers of the Act had themselves      come across  this ruck in the texture of it, they would      have straightened  it out  ? He  must then  do as  they      would have done. A judge must not alter the material of      which the  Act is woven, but he can and should iron out      the creases."

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(Approved in  State of  Bihar  &  Anr.  v.  Dr.  Asis  Kumar Mukherjee & ors. where in he observed as under: 195      This long  excursion has become important because, once in a  while, social  legislation which  requires sharing  of social philosophy  between the Parliament and the Judiciary; meets with  its Waterloo  in the . higher courts because the true role  of interpretation  shifts from Judge to Judge. We are clearly  of the  view that  statutory construction which fulfills the  mandate of  the statute  must find favour with the   Judges, except  where the  words and the context rebel against such  , flexibility.  We would  prefer to be liberal rather than  lexical when  reading the meaning of industrial legislation which  develops from  day to  day in the growing economy  of   India.  The  necessary  conclusion  from  this discussion is  that the  expression ’tribunal’  includes, in the statutory  setting, an  arbitrator also. Contemporaneous par-legislative material  may legitimately be consulted when a word of wider import and of marginal obscurity needs to be interpreted. So viewed, we are not in a ’sound-proof system’ and the  I.L.O. recommendation  accepted by  India. and  the objects and Reasons of the amending Act leave no doubt about the sense, policy and purpose. Therefore Section 11A applies to the  arbitrator in  the present case and he has the power to examine  whether the  punishment imposed  in the  instant case is  excessive. So  has the  High Court,  if  the  Award suffers from a fundamental flaw.      A study  of the  lengthy award  discloses no mention of Section 11A,  and presumably, the authority was unmindful of that provision  while rendering  the verdict.  In a  limited sense, even prior to Section 11A, there was jurisdiction for a labour  tribunal, including  an arbitrator, to go into the punitive aspect  of the  Management’s order. This Court has, in a  catena of  cases, held  that a mala fide punishment is bad in law and when the punishment is grotesquely condign or perversely  harsh   or  glaringly  discriminatory,  an  easy inference  of   bad  faith,   unfair  labour   practice   or victimisation  arises.   The  wider   power  tn  examine  or prescribe    the     correct    punishment     belongs    to tribunal/arbitrator even  under Sec.  11 in no enquiry (or a defective enquiry  which is  bad,  and,  therefore,  can  be equated with  a ’no enquiry’ situation) has been held by the Management. For,  then, there is no extant order of guilt or punishment and  the tribunal  determines it fresh. In such a virgin situation  both  culpability  and  quantification  of punishment   arc    within   the    jurisdiction   of    the tribunal/arbitrator. The present is such a case.      Volleys of  rulings from  both sides  were fired during arguments,  the   target  being  the  limited  area  of  the tribunal’s power  to overturn   the  quantum  of  punishment awarded by  the Management.  We do not think it necessary to re-gurgitate all that has been said by this Court 196 upto now,  since it  is sufficient  to bring out the correct law  in   the  light   of  the   leading  citations.  It  is incontrovertible that  where, as  here, no  enquiry has been held by  the Management,  the entire subject is at large and both  guilt   and  punishment,  in  equal  measure,  may  be determined,  without  inhibition  of  jurisdiction,  by  the tribunal.      Lastly, as  rightly urged  by counsel for the Sabha, an arbitrator has  all the  powers the  terms of  reference, to which both  sides are  party, confer.  Here, admittedly, the reference is  very widely  worded and includes the nature of the punishment.  The law  and the  facts  do  not  call  for

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further elaboration  and we  hold that,  in  any  view,  the arbitrator  had   the  authority  to  investigate  into  the propriety  of   the  discharge   and  the  veracity  of  the misconduct. Even  if S. 11A is not applicable, an Arbitrator under  s.  10A  is  bound  to  act  in  the  spirit  of  the legislation under  which he  is to  function.  A  commercial arbitrator who  derives his  jurisdiction from  the terms of reference will  by necessary implication, be bound to decide according to  law and,  when one says ’according to law’, it only means  existing law  and the  law   laid  down  by  the Supreme Court being the law of the land, an Arbitrator under s. 10A  will have to decide keeping in view the spirit of S. 11A [See  Union of  India v. Bungo Steel Furniture Pvt. Ltd. (1967)] 1 S.C.R. 324]. The Jurisdictional hurdles being thus cleared, we  may handle  the basic facts and the divergences between the  Arbitrator   and the High Court before moulding the final relief.      Prefatory  to   the  discussion  about  the  factum  of misconduct and its sequel, we must remind ourselves that the strike  was  illegal,  having  been  launched  when  another industrial dispute  was pending  adjudication. Sec.  23  (a) appears, at  a  verbal  level,  to  convey  such  a  meaning although  the  ambit  of  sub-clause  (a)  may  have  to  be investigated fully  in some appropriate case in the light of its scheme and rationale. It looks strange that the pendency of a  reference on  a tiny or obscure industrial dispute-and they often  pend too  long-should block  strikes on  totally unconnected  yet  substantial  and  righteous  demands.  The constitutional implications  and practical  complications of such a veto of a valuable right to strike often leads not to industrial peace but to seething unrest and lawless strikes. But in  the present case, both before the arbitrator and the High Court,  the  parties  have  proceeded,  on  the  agreed footing that  the strike was illegal under Section 23(a). We do not  reopen the  issue at  this late stage and assume the illegality of the strike. The Fatal Flaw in the Award:      The Achilles heel of the arbitrator’s award is where he makes,  as   a  substitute  for  specific  and  individuated findings of guilt and 197 appropriate penalty  vis-a-vis  each  workmen,  a  wholesale survey of  A the march of events, from tension to breakdown, from fair settlement to illegal and unjustified strike, from futility of  negotiation to  readiness for arbitration, from offer of  full  re-employment  to  partial  taking  back  on application by  workmen in  sack cloth and ashes, by picking and choosing  after a humble declaration that the strike has been  formally   buried,  from   episodes  of  violence  and paralysis of  production  to backstage manoeuvres to get the factory taken  over as  a ’sick  mill’,  and  after  a  full glimpse of this scenario, holds that the Sabha was always in the  wrong,   and  inevitably,  the  Management  was  surely reasonable AND,  ergo, every employee must individually bear the cross of misconduct and suffer dismissal for the sins of the Sabha  leadership-its secretary  was not  an employee of the  mill-by   some  sub-conscious   doctrine  of  guilt  by association! Non Sequitur.      Each link  in the chain of facts has been challenged by the respondents  but let  us assume them to be true, to test the strength  of the  legal fibre  of the  verdict. (We  may mention by  way of  aside, D. that the Company seems to be a well managed one.)      The cardinal  distinction in our punitive jurisprudence between a commission of enquiry and a Court of Adjudication,

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between the cumulative causes of a calamity and the specific guilt of a particular person, is that speaking generally, we have rejected,  as a  nation, the  theory of community guilt and collective  punishment and  instead that no man shall be punished except  for his  own guilt.  Its reflection  in the disciplinary  jurisdiction   is  that  no  worker  shall  be dismissed save  on  proof  of  his  individual  delinquency. Blanket attainder  of a  bulk of  citizens on  any vicarious theory for the gross sins of some only, is easy to apply but obnoxious in  principle. Here,  the arbitrator has found the Sabha Leadership  perverse, held  that the  strikers  should have reasonably  reported for  work and  concluded that  the Management had,  for survival, to make-do with new recruits. Therefore what ?      What, at long last, is the answer to the only pertinent question in  6. a  disciplinary proceeding  viz. what is the specific misconduct against the particular workmen who is to lose his job and what is his punitive desert? Here you can’t generalise any  more than a sessions judge can, by holding a faction responsible  for a  massacre, sentence every denizen of that  factions village  to death penalty. The legal error is fundamental,  although lay  instinct may not be outraged. What did  worker A  do ? Did he join the strike or remain at home for  fear of  vengeance against  blacklegs in  a  para- violent situation ? Life 198 and limb  are dearer than loyalty, to the common run of men, and discretion  is the  ’better part  of valour. Surely, the Sabha complained  of Management’s  goondas  and  the  latter sought police  aid against  the unruly  core of strikers. In between, the  ordinary rustic workmen might not have desired to be branded blacklegs or become martyrs and would not have reported for  work. If  not being  heroic in daring to break through the  strike cordon-illegal though the strike be-were misconduct, the  conclusion would  have been  different. Not reporting  for   work  does  not  lead  to  an  irrebuttable presumption of  active participation  in the strike. More is needed to  bring home the mens rea and that burden is on the prosecutor, to  wit the  Management. Huddling  together  the eventful history  of deteriorating  industrial relations and perverse leadership  of the  Sabha is  no charge  against  a single worker  whose job  is at stake on dismissal. What did he do  ? Even  when lawyers  did go  on strike in the higher Courts or organize a boycott, legally or illegally, even top law officers  of the  Central Govt.  did not  attend  court, argued Shri  Tarkunde, and   if  they did  not  boycott  but merely did  not attend, could workers beneath the bread line be made  of sterner  stuff. There is force in this pragmatic approach. The  strike being  illegal is  a non-issue at this level. The  focus is  on active participation. Mere absence, without more, may not compel the conclusion of involvement.      Likewise, the  further blot  on the  strike,  of  being unjustified, even  if true, cuts no ice. Unjustified, let us assume; so  what? The  real question  is, did the individual worker, who was to pay the penalty, actively involve himself in this unjustified misadventure ? or did he merely remain a quiescent non-worker  during that explosive period ? Even if he was  a passive  striker, that  did not visit him with the vice of  activism in  running an  unjustified strike. In the absence  of   proof  of   being  militant   participant  the punishment may  differ. To  dismiss a  worker, in an economy cursed by  massive unemployment, is a draconian measure as a last resort. Rulings of this Court have held that the degree of culpability  and the  quantum of  punishment turn  on the level  of   participation   in   the   unjustified   strike.

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Regrettably, no  individualised enquiry has been made by the Arbitrator into  this significant  component of delinquency. Did any  dismissed worker  instigate, sabotage or indulge in vandalism or violence ?      The  Management’s  necessity  to  move  the  mill  into production for  fear of  being  branded  a  ’sick  unit’  is understandable. Of  course,   collective strike  is economic pressure  by   cessation  of   work  and   not  exchange  of pleasantries.  It   means  embarrassing   business.  Such  a quandary cannot  alter the  law. Here the legal confusion is obvious. 199 No inquest  into the Management’s recruitment of fresh hands is being  made at  this  stage.  The  inquiry  is  into  the personal turpitudes  of particular  workmen in propelling an illegal and  unjustified strike  and   the  proof  of  their separate part therein meriting dismissal. The despair of the Management cannot,  by specious  transformation of logic, be converted into  the despair  of each  of  the  853  workmen. Sympathies shall not push one into fallacies.      We may now concretize this generalised criticism of the otherwise well-covered  award. The  crowd of  documents  and camping attitudes  must have  added to  the  strain  on  the Arbitrator.           "A   voluminous    record   of    documents    and      correspondence has  been produced  before  me  by  both      sides.  There   have  been   allegations  and   counter      allegations made  by both  sides not  only against each      other but  even against  the Police,  the Department of      Labour and  persons in  Authority. The history has been      sought to  be traced  right from  the inception  of the      Company in  1966 or  1967, by  the Company to show that      their conduct has been always proper and above reproach      and by  Sabha to  establish that  not only  the Gujarat      Steel Tubes  Ltd. were  not fair  to the  employees but      that every  action of  theirs  good  or  bad  was  ill-      motivated, was  executed with  some  sinister  ulterior      motives."      The Award  set out  the history  of  the  Company,  its vicissitudes, the hills and valleys, the lights and shadows, of industrial  relations with  mob fury  and  lock-outs  and allied  episodes  often  ending  in  settlements  and  pious pledges. Then  the  Arbitrator  stressed  Clause  6  of  the Agreement of  December, 1971  which bespoke a no-strike zone for five  years. There  was reference  to  the  Management’s promise to  implement the  Wage Board  recommendations.  The Arbitrator was  upset that  despite Clause    a  strike  was launched but  was not  disturbed that despite the Wage Board proposals,  negotiations   were   being   baulked   and   an interminable arbitral  alternative was  being offered by the Management. He  exclaimed: "If  such a settlement arrived at was not respected and implemented the, machinery provided by law would  lose all  meaning and so also the sanctity of the word of  the Management  or the  word of  the union.  It is, therefore, essential  tn ascertain  who was  responsible for the breach of the agreement so solemnly entered into. -      Serious breach  by management  is alleged  and this  is given as  a reason or is made as an cause for getting rid of the obligations 200 arising out of the agreement which specifically could not be terminated for five years."      The narration continues and the following conclusion is reached:           "It is  thus very clear that the company had fully

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    discharged  its   obligation  under  the  agreement  in      respect of  64 discharged  or dismissed workmen and the      other workmen  and the  allegation made by the Sabha of      the company   having  made  a  breach  thereof  is  not      correct."      We thus  see, that  at this  stage, the  arbitrator has merely made  r) a generalised approach as if a commission of inquiry were  going into  the conduct  of the Management and the Sabha  to discover who was blameworthy in the imbroglio. The award  then swiveled round to a study of the case of the Sabha vis-a-vis the triple grievances, the Sabha had:           "I shall  first deal  with the grievance regarding      demands for  implementation of  the recommendations  of      the Wage Board".      The long and sterile correspondence was set out and the arbitrator arrived  at the conclusion that the insistence on reference  to   arbitration  as   against  negotiation   was justified on the part of the Management:           "I, therefore,  have accepted  the version of: the      Management and  disbelieved the motivated denial of the      Sabha in  this respect."      The culmination  of the  protracted discussion  on  the atmosphere and environment, rather than on the actual charge against each worker, was recorded in the Award:           "I have  exhaustively, perhaps  more  exhaustively      than even necessary, dealt with the allegations made by      the Sabha  that the  Management had committed breach of      agreement by  refusing to  accede to  the demand of the      Sabha for implementation of recommendations of the Wage      Board. There appears to be no doubt that the Management      had agreed  to implement the recommendation of the Wage      Board. There is also not the least doubt the Management      was ready  and willing to implement the recommendations      of the  Wage Board it was because it was prevented by .      the Sabha from doing so." 201      An analysis  of the  Management’s conduct in the matter of non-implementation  of the  Wage Board recommendation was thereafter made by the Arbitrator and he wound up thus :           "I am satisfied that the Company had not committed      any breach of the settlement dated 4-8-1972 at least so      far as  implementation of  the recommendations  of  the      Wage Board is concerned."      The question  of bonus  for  the  year  1971  was  also considered and dismissed and the Sabha’s case to that extent was negatived.  Again, the  plea for wages for the period of the lock-out was also negatived with the observations :           "I fail  to see how the Sabha can allege breach of      the agreement  dated 4-8-1972  in  view  of  the  clear      unequivocal  terms   contained  in  clause  4  of  that      Agreement."      In this  strain the Award continued and the refrain was the same  that the  Sabha was  in the  wrong. The Award even went to  the exaggerated extent of morbidly holding that the workers were  wearing printed badges which, along with other circumstances, amounted to a breach of the agreement !      The Award  then moved  on to  the strike of January 27, 1973 because  it led  to the  dismissal of  all the workmen. Until this  stage, the  arbitrator was  merely painting  the background and,  at any  rate, did  not  engage  himself  in isolating or  identifying any  worker or  any misconduct. He merely denounced the Sabha, which is neither here nor there, in the  matter  of  disciplinary  proceedings  against  each individual workman.  He missed  the meat  of the matter. The relevant portion of the Award based on generalisation proved

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this error :           "I am  concerned herein  with the question whether      the discharge or dismissal of the 400 workmen was legal      and proper or not and what relief to grant to them.           Approached from  any point  of view  the action of      the Company  appears to  me to  be  legal,  proper  and      justified and  the demands  on behalf  of these workmen      must be rejected."      A condemnation  of the  Sabha and  an approval  of  the Management’s handling  of the strike are miles away from the issue on hand. 202      We observe here also an unfortunate failure to separate and scan  the evidence  with specific  reference to  charges against individual  workman. On  the contrary,  all that  we find in  the award  is an autopsy of the strike by the Sabha and  a   study  of   its  allegedly   perverse  postures.  A disciplinary inquiry  resulting in  punishment of particular delinquents cannot but be illegal if the evidence is of mass misconduct by  unspecified strikers  led by  leaders who are perhaps not  even workmen.  We are constrained to state that pointed consideration  of facts  which make  any of  the 400 workmen guilty,  is a  search in  vain. The  award being  ex facie blank  from this  vital angle,  the verdict must prima facie rank  as void  since vicarious  guilt must  be brought home  against   the  actively  participating  members  of  a collectivity by  positive testimony, not by hunch, suspicion or occult  intuition. The short position is this. Is there a punishment of  any workman ? If yes, has it been preceded by an enquiry ? If not, does not the Management desire to prove the charge  before the  tribunal  ?  If  yes,  what  is  the evidence, against whom, of what misconduct ? If individuated proof be  forthcoming and  relates to an illegal strike, the further probe is this : was the strike unjustified ? If yes, was the  accused worker  an active  participant therein ? If yes, what  role did he play and of what acts was he author ? Then alone  the stage  is set  for a  just punishment. These exercises, as  an assembly  line  process  are  fundamental. Generalisation of  a  violent  strike  of  a  vicious  Union leadership, of  strikers fanatically  or foolishly or out of fear, failing  to  report  for  work,  are  good  background material.  Beyond  that,  these  must  be  identified  by  a rational process,  the workmen, their individual delinquency and the  sentence according  to their  sin. Sans  that,  the dismissal is  bad. Viewed  from this  perspective, the Award fails.      The Arbitrator comes to grips with the core question of discharge simpliciter versus dismissal as punishment but not with the  identification  of  delinquents  and  delinquency. After referring  to Order 23 of the Model Standing Orders he goes  on   to  state   the  law   correctly  by   extracting observations from the Assam Oil Company case.      Another vital  facet of  industrial law is that when no enquiry has  been held  by the  Management before imposing a punishment (or  the enquiry  held is defective and bad), the whole field  of delinquency  and consequent  penalty  is  at large for  the tribunal. Several rulings support this logic. We are  constrained to  hold that a certain observation made per incuriam by Mr. Justice Vaidyalingam, strongly relied on by Sri  A. K.  Sen, does  not accurately  represent the law, although the learned 203 Judge had  earlier stated the law and case-law correctly, if we may say so with respect.      A selective  study of  the case-law  is proper  at this

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place. Before  we do  this, a  few words on the basis of the right to  strike  and  progressive  legal  thinking  led  by constitutional  guidelines  is  necessitous.  The  right  to unionise,  the   right  to  strike  as  part  of  collective bargaining and,  subject to the legality and humanity of the situation, the  right of  the weaker group, viz., labour, to pressure the stronger party, viz., capital, to negotiate and render  justice,  are  processes  recognised  by  industrial jurisprudence and supported by Social Justice. While society itself, in  its basic needs of existence, may not be held to ransom in the name of the right to bargain and strikers must obey civilised  norms in  the battle  and not  be vulgar  or violent  hoodlums,  Industry,  represented  by  intransigent Managements, may  well be  made to  reel into  reason by the strike weapon and cannot then squeal or wail and complain of loss of  profits or  other ill-effects but must negotiate or got a  reference made.  The broad  basis is that workers are weaker although they are the producers and their struggle to better their lot has the sanction of the rule of law. Unions and strikes  are no  more conspiracies  than professions and political parties  are, and, being far weaker, need succour. Part IV  of the  Constitution, read  with Art.  19, sows the seeds of  this burgeoning  jurisprudence. The Gandhian quote at the beginning of this judgement sets the tone of economic equity  in  Industry.  Of  course,  adventurist,  extremist, extraneously inspired  and puerile  strikes, absurdly insane persistence and violent or scorched earth policies boomerang and are  anathema for  the law.  Within these parameters the right to strike is integral to collective bargaining.      Responsible  trade   unionism  is   an  instrument   of concerted action  and the laissez faire law that all strikes are ipso  facto conspiracies, is no longer current coin even in Adam Smith’s English country. Lord Chorley, in Modern Law Review, Vol.  28, 1965, p. 451, is quoted as saying that law must be altered as a consequence of Rookes v. Barnard, so as to  remove  the  effects  of  decisions  of  conspiracy  and intimidation. He  goes on  to state  that Allen v. Flood and Quinn v.  Leathem taking  the conspiratorial view must never be permitted  to be quoted in courts. In contrast, reference was made  to Willis  on  Constitutional  Law,  pp.  878-879, wherein the  Supreme Court of America reflects the impact of capitalistic development  and  the  economic  views  of  the judges and  the fact that the judges are members of a social order and a social product and the decisions are due more to the capitalistic  system and the world of ideas in which the judges live. Our Constitution is clear 204 in its mandate, what with Art. 39A superadded and we have to act in tune with the values enshrined therein.      The benign  attitude towards  strike being what we have outlined, the  further question  arises whether in the light of the  accepted finding that the strike as such was illegal and, further,  was unjustified, all the strikers should face the penalty  of dismissal  or whether  individual cases with special reference  to active  participation in  the  strike, should be  considered. A  rapid but  relevant glance  at the decided  cases   may  yield   dividends.  In  India  General Navigation and  Railway Co.  Ltd. v.  Their Workmen, (supra) this court  did observe  that if  a strike  is  illegal,  it cannot  be   called  ’perfectly   justified’.  But,  between ’perfectly justified’ and ’unjustified’ the neighbourhood is distant. More illegality of the strike does not per se spell unjustifiability. For,  in Crompton  Greaves Ltd. v. Workmen (supra) this Court held that even if a strike be illegal, it cannot be  castigated as unjustified, unless the reasons for

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it are entirely perverse or unreasonable-an aspect which has to be  decided on  the facts and circumstances of each case. In that decision, this Court awarded wages during the strike period because  the Management  failed  to  prove  that  the workmen resorted  to  force  and  violence.  Even  in  India General Navigation  and Railway  Co. Ltd.  (supra) where the strike was  illegal and  affected a  public utility service, this Court  observed that  "the only  question of  practical importance which may arise in the case of an illegal strike, would be  the kind  or quantum  of punishment,  and that, of course, has to be modulated in accordance with the facts and circumstances of  each case....  There may  be  reasons  for distinguishing the  case of those who may have acted as mere dumb-driven cattle  from those who have taken an active part in fomenting  the trouble  and instigating  workmen to  join such a strike or have taken recourse to violence." The court after holding  that the  strike was illegal "and that it was not even justified" made a pregnant observation :           "To determine  the question of punishment, a clear      distinction has  to be  made between  those workmen who      are only joined in such a strike, but also took part in      obstructing the  loyal workmen  from carrying  on their      work, or  took part in violent demonstrations, or acted      in defiance  of law  and order,  on the  one hand,  and      those  workmen   who   were   more   or   less   silent      participators in  such a  strike, on the other hand. It      is not  in the  interest of  the  industry  that  there      should be  a wholesale dismissal of all the workmen who      merely participated  in such  a strike. It is certainly      not in the 205      interest  of  the  workmen  themselves.  An  Industrial      Tribunal, therefore,  has to  consider the  question of      punishment,   keeping    in   view    the    overriding      consideration of  the full and efficient working of the      Industry as  a whole.  The punishment  of dismissal  or      termination of  services, has, therefore, to be imposed      on such  workmen as  had not  only participated  in the      illegal strike,  but had  fomented  it,  and  had  been      guilty of  violence or  doing acts  detrimental to  the      maintenance of law and order in the locality where work      had to be carried on." After noticing the distinction between peaceful strikers and violent strikers, Sinha, J., in that case, observed "it must be clearly  understood by  those who take part in an illegal strike that  thereby they make themselves liable to be dealt with  by   their  employers.   There  may   be  reasons  for distinguishing the  case of those who may have acted as mere dumb driven  cattle from those who have taken an active part in fomenting  the trouble  and instigating  workmen to  join such a strike, or have taken recourse to violence." The same line of dichotomy is kept up :           "Both the  types of  workmen may have been equally      guilty of  participation in  the illegal strike, but it      is manifest  that both  are not liable to the same kind      of punishment." Significantly, the  Court stressed  the need  for individual chargesheet being  delivered to  individual workmen  so that the degree of misconduct of each and the punitive deserts of each may be separately considered. We may as well refer to a few more rulings since considerable argument was expended on this point.      This Court  in M/s.  Burn & Co. Ltd. v. Their Workmen & Ors.(1) clearly  laid down  that mere  participation in  the strike would  not justify  the suspension  or  dismissal  of

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workmen particularly  where no clear distinction can be made between those  persons and  the very large number of workmen who had  been taken  back into  service  although  they  had participated in  the strike. After referring to the ratio in M/s. Burn  & Co.  Ltd. case, this Court in Bata Shoe Co. (P) Ltd. v.  D. N.  Ganguly &  Ors.(2) observed that there is no doubt  that   if   an   employer   makes   an   unreasonable discrimination in  the matter of taking back employees there may in  certain circumstances  be reason  for the industrial tribunal to interfere; but the circumstances 206 of each  case have  to be  examined before  the tribunal can interfere with  the order of the employer in a properly held managerial inquiry  on the  ground  of  discrimination.  The Court then  proceeded to  determine the  facts placed before it. Sri  Sen specifically  pointed out that in the Bata Shoe Co.’s case  this Court  distinguished the  decision in India General Navigation  & Railway  Co. Ltd.’s  and observed that the decision in that case was on the facts placed before the Court. In  fact, Bata  Shoe Co.’s case does not lay down any distinct proposition  about the treatment to be meted out to participants in  strike and actually it is a decision on its own facts.      In The  Swadeshi Industries Ltd. v. Its Workmen(1), the Management  after  holding  that  the  strike  was  illegal, terminated the  services of  230 workmen without framing any chargesheet or  holding any  enquiry. It  was contended that the strike was not legal. The Court observed that collective bargaining for  securing improvement  on matters  like basic pay, dearness  allowance, bonus, provident fund and gratuity leave and  holidays was  the primary object of a trade union and when  demands like these were put forward and thereafter a strike was resorted to in an attempt to induce the company to agree to the demands or at least to open negotiations the strike must  prima facie  be considered  justified.  As  the order of  termination was  found to  be illegal  it was held that reinstatement  with back  wages must follow as a matter of course,  not necessarily  because new  hands had not been inducted.      In I.  M. H.  Press,  Delhi  v.  Additional  Industrial Tribunal Delhi  & Ors.,(2)  this Court  was called  upon  to examine the  ratio in  Model Mills(3) case and India General Navigation &  Railway Co.  Ltd. case and this Court in terms affirmed the ratio in India General Navigation & Railway Co. Ltd. case  observing that  mere taking  part in  an  illegal strike  without  anything  further  would  not  justify  the dismissal of all the workmen taking part in the strike.      In Indian  Iron &  Steel  Co.  Ltd.  &  Anr.  v.  Their Workmen(4), this  Court observed  that the  management of  a concern has  power to direct its own internal administration and discipline  but the  power is  not unlimited  and when a dispute arises,  Industrial Tribunals  have been  given  the power to see whether the termination of service 207 of a workman is justified and to give appropriate relief. It may be noticed that the decision is prior to introduction of s. 11A.  It would  thus appear  that the important effect of omission to  hold  an  enquiry  was  merely  this  that  the tribunal would have to consider not only whether there was a prima facie case but would decide for itself on the evidence adduced whether  the charges have been made out. A defective enquiry in  this connection  stood on the same footing as no enquiry  and   in  either   case  the  tribunal  would  have jurisdiction to  go into  the entire matter and the employer would have  to satisfy  the tribunal  that on  the facts the

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order of  dismissal or discharge was proper. (see Workmen of Motipur  Sugar   Factory  (Pvt.)   Ltd.  v.   Motipur  Sugar Factory(1),  and   Provincial  Transport  Service  v.  State Industrial Court) (2). Once, therefore, it was held that the enquiry was  not  proper,  it  was  irrelevant  whether  the workman withdrew from the enquiry or participated in it, the decision had  to be  on appraisal of evidence, and if it was found that  the enquiry  was not  proper the  whole case was open before  the labour  court to  decide for itself whether the charge  of misconduct  was proved  and  what  punishment should be  awarded (see  Imperial Tabacco  Company of  India Ltd. v. Its Workmen) (3).      As against  the above propositions, Sri Sen relied upon the observations of this Court in Oriental Textile Finishing Mills, Amritsar  v. Labour  Court, Jullundur  & Ors.(4).  We fail  to   see  how  it  runs  counter  to  the  established principle. The  Court, in  fact, held  that even  where  the strike is  illegal, before  any action was taken with a view to punishing  the strikers  a domestic enquiry must be held. Even though  the Standing  Orders prescribing enquiry before punishment did  not provide  for any  such enquiry the Court held that  nonetheless a  domestic enquiry  should have been held in order to entitle the management to dispense with the service of  the workmen  on the  ground of misconduct, viz., participation in  the illegal  strike. After  so saying, the Court agreed  with the  view of  the Court in Indian General Navigation &  Railway  Co.  Ltd.  case  and  reaffirmed  the principle that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all the workers taking part in the strike and that if the employer, before  dismissing a  workman, gave him sufficient opportunity of  explaining his  conduct and  no question  of mala fides or victimisation arose, 208 it was not for the tribunal in adjudicating the propriety of such dismissal  to look into the sufficiency or otherwise of the evidence led before the enquiry officer or insist on the same degree  of proof  as was required in a court of law, as if it  were sitting  in appeal  over  the  decision  of  the employer.      Another aspect  of this  case emphasised  that it could not be  dogmatised as a matter of law that an overt act such as intimidation  or instigation or violence was necessary in order to justify termination of service for participating in an illegal strike. On the facts of that case, even though it was found  that no  domestic enquiry was held, reinstatement was refused on the ground that misconduct was made out.      Sri Sen,  of course,  relied on  this judgment  to show that where  a strike  was resorted  to and  the workers were called upon  to join  service within the stipulated time, on their failure  it was  open to  the company  to  employ  new hands.  This  is  reading  more  into  the  ruling  than  is warranted.      We cannot  agree that  mere failure to report for duty, when a  strike is  on, necessarily  means misconduct. Many a workman, as  a matter  of prudence, may not take the risk of facing the  militant workmen  or the  Management’s hirelings for fear, especially when there is evidence in the case from the Sabha that the Management had hired goondas and from the Management that  the striking  vanguard was  violent. It  is also possible,  in the  absence of evidence to the contrary, that  several   workmen  might   not  be   posted  with  the Management’s notice  of recall  or the  terms on  which they were being recalled. In this view, we are not able to uphold the conclusion  of the  arbitrator that  the  punishment  of

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dismissal was  appropriate for  the entire  mass of  workmen whose only  guilt, as  proved was  nothing more than passive participation in  the illegal  and unjustified strike by not reporting for  duty. The  verdict  is  inevitable  that  the discharge is wrongful.      The  only   comment  we   reluctantly  make  about  the otherwise thorough  award of  the Arbitrator is that omnibus rhetoric about  the obnoxious  behaviour of  a class may not make-do for  hard  proof  of  specific  acts  of  particular persons where a punitive jurisdiction is exercised.      What, then,  is the normal rule in the case of wrongful dismissal when  the workmen  claim reinstatement  with  full back wages  ? The High Court has held the discharge wrongful and directed restoration 209 with an  equitable  amount  of  back  wages.  The  following rulings of this Court, et al, deal with this subject :      The recent case of Hindustan Tin Works v. Its Employees (1) sets  out the  rule on reinstatement and back wages when the order of this Court, et al, deal with this subject :           "It is no more open to debate that in the field of      industrial jurisprudence  a declaration  can  be  given      that the  termination of service is bad and the workman      continues to  be in  service. The spectre of common law      doctrine that  contract of  personal service  cannot be      specifically enforced  or the doctrine of mitigation of      damages does  not haunt  this branch of law. The relief      of reinstatement  with continuity  of  service  can  be      granted where  termination of  service is  found to  be      invalid. It would mean that the employer has taken away      illegally the  right to work of the workman contrary to      the  relevant   law  or   in  breach  of  contract  and      simultaneously deprived the workman of his earnings. If      thus the  employer is  found to  be in  the wrong  as a      result  of   which  the   workman  is  directed  to  be      reinstated,  the   employer   could   not   shirk   his      responsibility of  paying the  wages which  the workmen      has been  deprived of  by the illegal or invalid action      of  the   employer.   Speaking   realistically,   where      termination of  service is  questioned  as  invalid  or      illegal and  the workman has to go through the gamut of      litigation, his  capacity to sustain himself throughout      the protracted  litigation is  itself such  an  awesome      factor that  he may  not survive  to see  the day  when      law’s proverbial  delay has become stupefying. If after      such a  protracted time and energy consuming litigation      during which  period the workman just sustains himself,      ultimately he  is to  be told  that though  he will  be      reinstated, he  will be  denied the  back  wages  which      would be  due to him, the workman would be subjected to      a sort  of penalty for no fault of his and it is wholly      undeserved.  Ordinarily   therefore,  a  workman  whose      service has been illegally terminated would be entitled      to  full  back  wages  except  to  the  extent  he  was      gainfully employed  during the  enforced idleness. That      is the  normal rule.  Any other view would be a premium      on the unwarranted litigative activity of the employer.      If the  employer terminates  the service  illegally and      the termination is motivated as in this 210      case, viz., to resist the workmen’s demand for revision      of wages,  the termination  may well  amount to  unfair      labour practice.  In such  circumstances  reinstatement      being the  normal rule  it should be followed with full      back wages.  Articles 41  and 43  of  the  Constitution

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    would assist  us in  reaching a just conclusion in this      respect.............. In  the  very  nature  of  things      there cannot  be a  strait-jacket formula  for awarding      relief of  back wages. All relevant considerations will      enter the  verdict. More  or less, it would be a motion      addressed to  the discretion of the Tribunal. Full back      wages would  be the normal rule and the party objecting      to it  must establish  the circumstances  necessitating      departure. At that stage the Tribunal will exercise its      discretion   keeping   in   view   all   the   relevant      circumstances."      Dealing with  the complex  of considerations bearing on payment of back wages the new perspective emerging from Art. 43A cannot  be missed,  as explained in Hindustan Tin Works, Labour is  no more a mere factor in production but a partner in Industry,  conceptually speaking, and less than full back wages is a sacrifice by those who can best afford and cannot be demanded  by  those,  who  least  sacrifice  their  large ’wages’ though  can best  afford, if financial constraint is the ground  urged by the latter (Management) as inability to pay full back pay to the former. The morality of law and the constitutional mutation  implied in  Art. 43A  bring about a new  equation   in  industrial  relations.  Anyway,  in  the Hindustan Tin  Works’ case 75 per cent of the past wages was directed to  be paid.  Travelling over  the same  ground  by going through  every precedent is supererogatory and we hold the rule is simple that the discretion to deny reinstatement or pare  down the  quantum of  back wages is absent save for exceptional reasons.      It must  be added however that particular circumstances of each case may induce the court to modify the direction in regard to  the quantum  of back wages payable as happened in the India  General Navigation and Railway Co. Ltd. vs. Their Workmen (Supra).  We may,  therefore, have to consider, when finally moulding  the relief,  what, in this case, we should do regarding reinstatement and back wages. A Sum-up      We may  now crystallise our conclusions in the light of the long  discussion. The  basic assumption  we make is that the strike was not only illegal but also unjustified. On the latter part, a contrary 211 view cannot be ruled out in the circumstances present but we do not  reinvestigate the  issue since  the High  Court  has proceeded on  what both  sides have  taken for  granted. The Management, in  our view, did punish its 853 workmen when it discharged  them  for  reasons  of  misconduct  set  out  in separate but integrated proceedings, even though, with legal finesse, the formal order was phrased in harmless verbalism. But  fine   words  butter  no  parsnips,  and  law,  in  its intelligent honesty, must be blunt and when it sees a spade, must call it a spade. The action taken under the general law or the  standing orders,  was  illegal  in  the  absence  of individualised chargesheets, proper hearing and personalised punishment, if found guilty. None of these steps having been taken,  the  discharge  orders  were  still  born.  But  the Management could,  as in this case it did, offer to make out the delinquency  of the employees and the arbitrator had, in such cases,  the full  jurisdiction to  adjudge de novo both guilt and  punishment. We hold that sec. 11A does take in an arbitrator too,  and, in  this case, the arbitral reference, apart from sec. 11A, is plenary in scope.      In the second chapter of our sum-up, the first thing we decide is that Art. 226, however restrictive in practice, is a power  wide enough,  in all  conscience, to be a friend in

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need when  the summons  comes in  a crisis  from a victim of injustice; and, more importantly, this extraordinary reserve power is  unsheathed to grant final relief without necessary recourse  to  a  remand.  What  the  tribunal  may,  in  its discretion, do,  the High Court too, under Art. 226, can, if facts compel,  do. Secondly,  we hold that the Award suffers from a  fundamental flaw  that it  equates  an  illegal  and unjustified strike  with brazen  misconduct by every workman without so  much as  identification of  the  charge  against each, the  part of  each, the  punishment  for  each,  after adverting  to   the  gravamen  of  his  misconduct  meriting dismissal. Passive  participation in  a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive  discharge.  There  must  be  active  individual excess such as master-minding the unjustified aspects of the strike, e.g.,  violence,  sabotage  or  other  reprehensible role. Absent  such gravamen  in the  accusation, the extreme economic penalty  of discharge is wrong. An indicator of the absence of such grievous guilt is that the Management, after stating in  strong terms  all the  sins of the workmen, took back over  400 of  them as  they trickled  back  slowly  and beyond the  time set, with continuity of service, suggestive of the  dubiety of the inflated accusations and awareness of the minor  role of  the mass  of workmen  in  the  Engineers strike. Furthermore, even though all sanctions short of 212 punitive discharge  may be  employed by a Management, in our current conditions  of massive  unemployment, low  wages and high cost  of living,  dismissal of  several hundreds,  with disastrous impact on numerous families, is of such sensitive social concern that, save in exceptional situations, the law will inhibit  such a  lethal  step  for  the  peace  of  the Industry, the welfare of the workmen and the broader justice that transcends  transient disputes.  The  human  dimensions have decisional  relevance. We  hold the  discharge  orders, though approved by the Arbitrator, invalid.      The last  part of our conclusions relates to the relief which must  be fashioned  with an eye on mutual equities. We cannot ignore a few raw realities since law is not dogmatics but  pragmatics,   without  temporising  on  principle.  The Management’s limitations  in absorbing  all the large number of discharged  employees all  at once  when, steel,  the raw material, is scarce, is a problem. Likewise, their inability to pay  huge sums by way of back wages or otherwise, without crippling the progress of the industry, cannot be overlooked but cannot  be overplayed after Hindustan Tin Works. Another factor which cannot be wished away is the presence of over a couple of  hundred workmen, with varying lengths of service, who may  have to  be sacked  if the  old workmen  are to  be brought back.  It is  a problem of humanist justice. Lastly, the rugged  fact of life must not be missed that some of the workmen during the long years of desperate litigation, might have sought  jobs elsewhere  and most  of them perhaps have, for sheer survival, made at least a starving wage during the prolonged  idle   interval.  This   factor  too  is  a  weak consideration, tested  by the  reasoning  in  Hindustan  Tin Works. Moreover,  rationalisation of  re-absorption  of  the removed workmen  requires attention to the classification of permanent  workmen  and  their  casual  counterparts.  Every proposal must  be bottomed  on the  basic economic fact that the beneficiaries  are from  the many  below the destitution line. This  Court has,  in a  very different context though, has drawn attention to the Gandhian guideline:      "Whenever you are in doubt .. apply the following test.      Recall the face of the poorest and the weakest man whom

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    you may  have seen,  and ask  yourself, if the step you      contemplate is going to be of any use of him." It is apt here.      This perspective  informs our  decision. What  did  the High Court  do regarding  reinstatement and should we modify and why? If the discharge is bad, reinstatement is the rule. In India General Navi- 213 gation, Punjab National Bank and Swadeshi Industries, et al, restoration, despite  large numbers,  was directed. But most rules have  exceptions wrought  by the  pressure of life and Oriental, was  relied on  to contend that reinstatement must be denied.  There is  force in the High Court’s reasoning to distinguish Oriental, as we hinted earlier and we quote:      "There were  only 22 workmen involved in that case. The      management had  made genuine  and persistent efforts to      persuade the  concerned workmen  to call  of the strike      and  join  work.  Those  efforts  were  made  at  three      different stages,  namely, (1)  immediately  after  the      workers  went  on  the  lightening  strike  and  before      chargesheets were  issued, (2)  after the  charges were      dropped and individual notices were sent to the workmen      asking them  to resume  work by specified dates and (3)      after  the   orders  of  termination  were  served  and      conciliation proceedings were commenced pursuant to the      demand notice.  But this  is not  all. Even  the Labour      Officer and  Labour Inspector had tried to persuade the      concerned workmen to joint duty before the charge-sheet      came to  be issued. As against these repeated bona fide      attempts on  the part  of the management and an outside      agency to  persuade the  erring workmen,  they not only      did not  resume work  but also failed to acknowledge or      send a reply to the individual notices served upon them      requesting them  to resume work and they appear to have      made it  a condition  precedent to  their joining  duty      that the  suspended workmen  should also be taken back.      Even under  such circumstances,  the management did not      straightaway  terminate   their   services   but   gave      individual notices  requiring the  concerned workmen to      show cause why their names should not be struck off and      asked them  to submit  their reply  by a  certain date.      Even  those  notices  were  not  replied.  It  is  only      thereafter that  the services  of the concerned workmen      came to  be terminated.  It is  against this background      that  the   Supreme  Court   held  that  there  was  "a      persistent and obdurate refusal by the workmen to joint      duty" notwithstanding the fact that "the management has      done everything possible to persuade them and give them      opportunities to  come back  to work" and that they had      without any  sufficient cause  refused to  do so  which      constituted  "misconduct"   so  as   to  ’justify   the      termination of their services". 214      "....If the  workmen had  been approached individually,      not only  those amongst them who were unwilling to join      strike but  were prevented from joining work would have      taken courage  to resume  duty but  even those  amongst      them who  were undecided could also have been won over.      That apart,  those notices, as their contents disclose,      were hardly  persuasive efforts. They were a mixture of      ultimatums, threats,  complaints and  indictment of the      workmen and  the Sabha.  Was it,  therefore, a  genuine      effort on  the part  of a  keenly desirous  employer to      offer  an   olive  branch?   In  Oriental,   orders  of      termination were  passed only  after giving  individual

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    notices to the concerned workmen to showcause why their      names should  not be struck off. Besides, those notices      were given  after charges  formally  served  upon  each      workmen earlier  were dropped  and  persuasive  efforts      made in  the meantime  had failed.  None of those steps      was taken  herein. All that happened was that in one of      the notices meant for mass consumption and circulation,      such intimation was given."      Even so,  during the  several years  of the pendency of the  dispute,   surely  some   workmen  would  have  secured employment elsewhere as was conceded by counsel at a certain stage, and  it is  not equitable  to recall  them merely  to vindicate the  law especially  when new  workmen already  in precarious service  may have  to be  evicted to  accommodate them. In  the course  of the debate at the Bar we gained the impression that  somewhere  around  a  hundred  workmen  are likely to  be alternatively employed. Hopefully, there is no hazard in this guess.      Another, facet  of the  relief turns  on the demand for full  back   wages.   Certainly,   the   normal   rule,   on reinstatement,  is  full  back  wages  since  the  order  of termination is  non est. [see Lad’s case(1) and Panitole Tea Estate’s case(2)].  Even so,  the industrial  court may well slice off  a part if the workmen are not wholly blameless or the strike  is illegal and unjustified. To what extent wages for the  long interregnum  should be  paid is,  therefore, a variable dependent  on a  complex of circumstances. [See for e.g. 1967 (15) F.L.R. 395 paras 3 and 4].      We are mindful of the submission of Sri Tarkunde, urged in the  connected appeal by the Sabha, that where no enquiry has preceded 215 a punitive  discharge and  the tribunal, for the first time, upholds the  punishment this  Court has  in D. C. Roy v. The presiding Officer, Madhya Pradesh Industrial Court, Indore & Ors.(1) taken  the view  that full  wages must be paid until the date  of the award. There cannot be any relation back of the date of dismissal to when the Management passed the void order.      Kalyani(2) was  cited to  support the  view of relation back of  the Award to the date of the employer’s termination orders.  We   do  not   agree  that  the  ratio  of  Kalyani corroborates the  proposition propounded. Jurisprudentially, approval is  not creative  but  confirmatory  and  therefore relates back.  A void  dismissal is  just void  and does not exist. If  the Tribunal, for the first time, passes an order recording a  finding of  misconduct and  thus breathes  life into the  dead shall of the Management’s order, predating of the nativity  does not  arise. The reference to Sasa Musa in Kalyani enlightens  this position.  The latter case of D. C. Roy v.  The Presiding  Officer,  Madhya  Pradesh  Industrial Court,  Indore   &  Ors.   (supra)  specifically  refers  to Kalyani’s case and Sasa Musa’s case and holds that where the Management discharges  a workmen  by an  order which is void for want  of an enquiry or for blatant violation of rules of natural  justice,   the  relation-back  doctrine  cannot  be invoked.  The  jurisprudential  difference  between  a  void order, which  by a  subsequent judicial  resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still born or void and all that is needed in the  law to  make it  good is  a subsequent approval by a tribunal which is granted, cannot be obfuscated.      We agree  that the  law stated  in D. C. Roy (supra) is correct but  now that  the termination  orders are being set aside, the  problem does  not present  itself directly. Even

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the other alternative submission of Sri Tarkunde that if the plea of  the  Management  that  the  order  is  a  discharge simpliciter  were   to  be   accepted,  the   result  is   a retrenchment within  the meaning  of s. 2(00) which, in this case, is  in violation of s. 25F and therefore bad, is not a point urged  earlier. We  are disposed  to stand by the view that discharge, even where it is not occasioned by a surplus of hands, will be retrenchment, having regard to the breadth of the  definition and its annotation in 1977 1 SCR 586. But the milieu in which the order was passed in February 1973 is not fully  available, viewed  from this  new  angle.  So  we decline to go into that contention. 216 Final Relief      We are  concerned with  400 workmen,  some of whom have been  claimed   by  death   or  other  irreversible  causes- casualties of  litigative longevity  ! are  370 workmen  are left behind,  of whom  239 are admittedly permanent. We have already stated  that 100, out of them, are probably fixed up elsewhere. So, we exclude them and direct that the remaining 139 alone  will be  reinstated. A  list of the aforesaid 100 workmen will  be furnished  to the  Management by  the Sabha within two  weeks from  today. That  shall  be  accepted  as correct and final.      While reinstatement  is refused  for these 100 workmen, when shall  they be  deemed to  have ceased to be in service for drawal  of terminal  benefits ?  Their discharge  orders having been  quashed, they remain in service until today. We concluded the  arguments on August 3, 1979 and on the eve of the closure  of counsel’s  submissions certain  inconclusive settlement proposals were discussed. We, therefore, consider August 3,  1979 as  a pivotal  point in  the  calender  with reference to  which the  final relief  may  be  moulded.  We direct that  the 100 workmen for whom reinstatement is being refused will  be treated  as in service until August 3, 1979 on which  date they  will be deemed to have been retrenched. We direct  this step with a view to pragmatise the situation in working  out  the  equities.  These  100  will  draw  all terminal benefits  plus 75  per cent of the back wages. This scaling down  of back  pay is consistent with the assumption that somewhere  in the  past they  had  secured  alternative employment. The  long years  and the  large sum payable also persuade us  to make this minor cut. Of course, in addition, they will  be entitled to retrenchment benefits under s. 25F of the Act, and one month’s notice pay.      The remaining  139 will  be awarded  50 per cent of the back wages  since we  are restoring them. The High Court has adopted this  measure and  so we  do not depart from it. The case of  the hundred stands on a slightly different footing, because  some   compensation   in   lieu   of   refusal   of reinstatement is  due to  them and that also has entered our reckoning while fixing 75 per cent for them. The computation of the  wages will be such as they would have drawn had they continued in  service and  on that  the cut directed will be applied.      We have  disposed of  the case of the permanent workmen except to  clarify that  in their case continuity of service will be  maintained and  accrual of benefits on that footing reckoned. The next category relates to casual employees, 131 in number of whom 57 have less 217 than nine  months’ service.  The policy  of the  Act draws a distinction between  those with service of 240 days and more and others with less. The casuals with less than nine months service are  57 in  number and  we do  not think  that  this

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fugitive service should qualify for reinstatement especially when we  find a number of intermediate recruits, with longer though untenable  service, have  to be baled out. We decline reinstatement of  these 57  hands.  The  other  74  must  be reinstated although nationally but wrongly they are shown as casual. In  the ’life’ sense, all mortals are casuals but in the legal  sense, those  with a  record of  240 days  on the rolls, are  a class who have rights under industrial law. We direct the  74 long-term  casuals aforesaid to be reinstated but not  the 57 short-term ones. To this extent, we vary the High Court’s order.      We adopt  the directive of the High Court regarding the back wages to both categories of casuals except that for the lesser class  of 57  casuals, a flat sum of 1000/- more will be paid  as a  token compensation  in lieu of reinstatement. The reinstated  casuals (74  of them)  will be  put back  as casuals but  will be  confirmed within  six months  from the date of  rejoining since  it is  meaningless to keep them as casual labourers  when they are, by sheer length of service, on the regular rolls.      Two issues  remain When  are the  workmen to be retaken and what  is to  happen in the meanwhile ? How is the amount payable by the Management to be discharged and on what terms ? Many  years have  flowed by,  thanks to the long-drawn-out litigation. Further  delay in  putting back the workers will be unfair.  But the  Management pleads  that steel  shortage cuts into  the flesh  of the  factory’s  expansion,  without which additional  intake of  workers is  beyond their budget unless considerable  time for  reabsorption were  given. But the lot  of the  workmen is  unspeakable while  the  overall assets and  outlook of the Company are commendable enough to bear an  increased wage  bill. Divas  cannot  complain  when Lazarus asks for more crumbs. Even if a slight slant be made in favour  of the  Management, the direction to them to take back, in  order of  seniority, the  first 70  out of the 139 permanent workmen  on or  before December  31, 1979  and the rest on  or before March 31, 1980 is the least that is just. Until those  dates the  workmen will  be paid 2/3rd of their wages as  now due. Of course, if any workmen fails to report for work within 15 days of service of written notice to him, with simultaneous copy to the Sabha, he will not be eligible for any more reinstatement or wages. 218      The back wages run into a large sum but a good part has been paid  under the  stay order  of this  Court. We make it clear that  the payments  made will  be given credit and the balance if  paid as  directed  below  and  within  the  time specified will  not carry  interest. If default is made, the sums in default will carry 10 per cent interest.      The figures  of amounts  due will be worked out by both sides and  put into  Court in  10 days  from now.  Half  the amount  determined   by  the   Court,  after  perusing  both statements,  will   be  paid  directly  to  the  workmen  or deposited with  the Industrial Tribunal who will give notice and make disbursements, on or before 31-3-1980 and the other half on or before 30-9-1980.      The  conclusions   may   be   capsulated   for   easier consumption.      1. Out  of 370 workmen directed to be reinstated by the High Court,  239 are  permanent. It is assumed that 100 have found alternative employment and are not interested any more in reinstatement  and they  are  to  be  excluded  from  the direction of  reinstatement. The  Company  must,  therefore, reinstate 139  permanent workmen and the list of 100 workmen who are  not to be reinstated would be supplied by the Sabha

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within two  weeks  from  the  date  of  this  judgment.  The discharge order  in respect  of  100  workmen  herein-before mentioned would  be set  aside and  they are deemed to be in service till  August 3,  1979, when  they will be retrenched and they  will be paid retrenchment compensation as provided in s.  25F plus  one month’s  pay in  lieu  of  notice,  the compensation to be worked out on the basis of the wages that will  be   admissible  under   the  recommendations  of  the Engineering Wage  Board as  applicable to  the Company. This amount will  be paid  in lieu of reinstatement and they will also be paid 75 per cent of the back wages.      2. The  remaining 139 permanent employees would be paid 50 per cent of the back wages as directed by the High Court.      3. 70  out of  139 permanent  workmen  directed  to  be reinstated should be provided actual employment on or before December 31, 1979, and the rest on or before March 31, 1980. During this  period and  till the  actual reinstatement each one of  these 139  workmen should be paid 2/3 of the monthly wages from  August 9,  1979, when  the hearing  in this case concluded. 50 per cent of the amount that becomes payable to each workmen under the directions herein above given will be paid on  or before  March 31,  1980, and  the balance  on or before September  30, 1980,  and till  then the  amount will carry interest at the rate of 10 per cent. 219      4. In  respect of casual workmen whose service was less than 9  months on  the date  of dismissal  it would  not  be proper to  grant reinstatement.  They are  57 in number. The remaining casual  workmen 74  in number shall be reinstated. In case  of 57  casual  workmen  to  whom  reinstatement  is refused, the  direction of  the High Court is confirmed with the further  addition that each one will be paid Rs. 1,000/- over and above the amount payable under the direction of the High Court  and this  would be  in  lieu  of  reinstatement. Casual workmen  74 in number and having service of more than 9 months  on the  date  of  dismissal  will  be  treated  as confirmed within  six months  of the date of their rejoining and they  will be  offered reinstatement  by March 31, 1980, and the  High Court’s  direction for  back  wages  in  their respect in confirmed.      With these  modifications, we dismiss both the appeals. The Management-appellant  will pay  the costs  of the Sabha- respondent, advocates fee being fixed at Rs. 5,000/-. An Afterword      This  litigation,   involving   many   workmen   living precariously on  post-wages amidst agonising inflation and a Management whose young budget, what with steel scarcity, may well be  shaken by  the burden  of arrears,  points  to  the chronic pathology  of our Justice System-the intractable and escalating backlog in the Forensic Assembly Line that slowly spins Injustice out of Justice and effectually wears down or keeps out  the weaker  sector of  Indian life. This truma is felt  more   poignantly  in   Labour  litigation   and   the legislature fails  functionally if it dawdles to radicalise, streamline and  simplify the  conflict resolution procedures so as to be credibly available to the common people who make up the  lower bracket  of the  nation. The stakes are large, the peril is grave, the evils are worse than the prognostics of Prof. Lawrence Tribe (of the Harvard Law School) :                "If court  backlogs  grow  at  their  present      rate, Our  children may  not be able to bring a lawsuit      to a  conclusion within  their lifetime.  Legal  claims      might then  be willed on, generation to generation like      hillbilly feuds; and the burdens of pressing them would      be contracted like a hereditary disease."

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    Law may  be guilty  of double  injustice when it is too late and  too costly  for it  holds out remedial hopes which peter out into sour dupes and bleeds the anaemic litigant of his little cash only to tantalise him into a system equal in form but unequal in fact. The price of 220 this promise of unreality may be the search by the lowly for the reality  of revolutionary alternatives. Compelled by the crisis in  the Justice System, we sound this sombre judicial note.      We direct  payments and  reinstatements  as  spelt  out earlier, within the specificated time, and, hopefully, leave the case with the thought that, given better rapport between the partners in production, the galvanic Gujarat Steel Tubes Ltd., will forge ahead as a paradigm for the rest.      KOSHAL, J.-I  have had  the advantage  of going through the judgment  of my  learned brother  Iyer,  J.,  but  after giving the  same my most serious consideration I regret that I find  myself unable  to endorse  it as  I hold a different opinion in  relation to  three important findings arrived at by him, namely,           (a)  that the discharge of workmen amounted really                to their dismissal because the motivation for                it was their alleged misconduct.           (b)   that an  arbitrator would  fall  within  the                ambit of  the term "Tribunal" as used in sub-                section (2)  of section 11A of the Industrial                Disputes Act  (hereinafter  called  the  1947                Act), and           (c)   that the  High Court  acted within  the four                corners or its jurisdiction under article 227                of   the    Constitution   of   India   while                interfering   with   the   finding   of   the                arbitrator that  the workmen  were  correctly                punished with  dismissal  if  the  orders  of                discharge could be construed as such.      I am therefore appending this note which may be read in continuation of that judgment.      2.  The   parties  are   admittedly  governed   by  the Industrial Employment  (Standing Orders Act, 1946 (hereafter referred to  as  the  "S.O.  Act"  section  15(2)  of  which empowers the  appropriate Government  to make  rules,  inter alia setting  out model  standing orders for the purposes of that Act.  The expression  ’standing orders’  is defined  in section 2(g)  of the  S.O. Act to mean rules relating to the matters set  out in  the schedule  thereto, items 8 and 9 of which run thus :           "8. Termination  of  employment,  and  the  notice      therefor to be given by the employer and workmen. 221           "9. Suspension  or dismissal  for  misconduct  and      acts or omissions which constitute misconduct."      The appropriate Government (in this case the Government of Gujarat)  has prescribed  Model Standing  Orders (M.S.Os. for short) under section 15(2) of the S.O. Act. The relevant part of M.S.O. 23 is extracted below :           "23.  (1)   Subject  to   the  provisions  of  the      Industrial disputes  Act, 1947,  the  employment  of  a      permanent workman  employed on  rates  other  than  the      monthly rates  of wages may be terminated by giving him      fourteen days’  notice or  by payment of thirteen days’      wages (including  all admissible allowances) in lieu of      notice.           "(2)................................           "(3)................................

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         "(4)  The   employment  of   a  permanent  workman      employed  on   the  monthly   rates  of  wages  may  be      terminated by  giving him  one  month’s  notice  or  on      payment of  one month’s wages (including all admissible      allowances) in lieu of notice.           "(4-A) The  reasons for the termination of service      of a permanent workman shall be recorded in writing and      communicated to  him, if  he so desires, at the time of      discharge, unless such communication, in the opinion of      the Manager,  is likely  directly or  indirectly to lay      any person open to civil or criminal proceedings at the      instance of the workman.           "(5)....................................           "(6)....................................           "(7) All  classes  of  workmen  other  than  those      appointed on  a permanent basis may leave their service      or their  service may  be terminated  without or pay in      lieu of  notice : Provided that services of a temporary      workman shall  not be terminated as a punishment unless      he has  been given  an opportunity  of  explaining  the      charges of misconduct alleged against him in the manner      prescribed in Standing Order 25.           "(8).....................................           "(9)...................................." 222      M.S.O. 24  enumerates 25  kinds of acts or omissions on the part  of a  workman which  amount to misconduct. Clauses (a) and (b) of the M.S.O. describe two of such acts thus :           "(a)  willful   insubordination  or  disobedience,                whether or  not in  combination with another,                of any  lawful  and  reasonable  order  of  a                superior;             (b)   going  on   illegal  strike  or  abetting,                inciting,   instigating    or    acting    in                furtherance thereof;"      M.S.O. 25  lays down  the manner  in  which  a  workman guilty of misconduct may be dealt with. It states :      "25. (1) A workman guilty of misconduct may be -           (a)............................................           (b)............................................           (c)............................................           (d)............................................           (e).............................................           (f) discharged under Order 23;           (g) dismissed without notice.          "(2)............................................           "(3) No order of dismissal under sub-clause (g) of      clause (1)  shall  be  made  except  after  holding  an      inquiry against the workman concerned in respect of the      alleged misconduct  in the  manner set  forth in clause      (4).           "(4) A  workman against  whom an  inquiry has been      held shall  be given  a  charge-sheet  clearly  setting      forth  the  circumstances  appearing  against  him  and      requiring explanation. He shall be given an opportunity      to answer  the charge and permitted to be defended by a      workman working  in the  same  department  as  himself.      Except for  reasons to  be recorded  in writing  by the      officer holding  the  inquiry,  the  workman  shall  be      permitted to  produce witnesses,  in  his  defence  and      cross-examine  any  witnesses  on  whose  evidence  the      charge rests.  A concise summary of the evidence led on      either side and the workman’s plea shall be recorded.      "(5) .............................................. ."      Clauses (3)  and (4)  of M.S.O.  25 speak of an inquiry

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only in the case of an order falling under sub-clause (g) of clause (1) of 223 that M.S.  It is thus quite clear (and this is not disputed) that the only sub-clause of clause (1) of M.S.O. 25 to which the provisions  of clauses  (3) and (4) of that M.S.O. would be attracted  is sub-clause  (g) and  that if  an  order  of discharge falls under M.S.O. 23 an inquiry under clauses (3) and (4)  of M.S.O.  25 would  not be  a prerequisite thereto even though  such an  order is mentioned in subclause (f) of clause (1)  of that  M.S.O. And  that is  why  it  has  been vehemently  urged   on  behalf   of  the  workmen  who  were discharged en  masse and  who were  not taken  back  by  the Management that  the orders of discharge made in relation to them amount really to orders of dismissal and are bad in law by reason  of the  fact that  no inquiry  of the  type above mentioned was held before they were passed.      3. Under M.S.Os. 23 and 25 the Management has the power to effect  termination of  the services  of an  employee  by having recourse  to either  of them.  In action  taken under M.S.O. 23  no element  of punishment  is  involved  and  the discharge is  a discharge  simpliciter; and  that is  why no opportunity to  the concerned employee to show cause against the termination  is provided  for. Dismissal, however, which an employer may order, is, in its very nature, a punishment, the infiction  of which  therefore has  been made subject to the result of an inquiry (having the semblance of a trial in a criminal  proceeding). Exercise  of each of the two powers has the  effect of  the termination  of the  services of the concerned employee  but must  be regarded,  because  of  the manner in  which each has been dealt with by the M.S.Os., as separate and distinct from the other.      4. It  was vehemently  argued on  behalf of the workmen that once  it was  proved that  the order  of discharge of a workman was  passed by  reason of a misconduct attributed to him by  the management,  the order  cannot but  amount to an order of dismissal. But this argument, to my mind, is wholly without substance,  and that for two reasons. For one thing, clause (1)  of M.S.O.  25 specifically  states in sub-clause (f) that  a workman  guilty of  misconduct may be discharged under M.S.O.  23. This  clearly means that when the employer is satisfied  that a  workman has been guilty of misconduct, he may  (apart from  visiting the  workman with  any of  the punishments specified  in sub-clauses (a), (b), (c), (d) and (e) of  clause (1)  of M.S.O. 25) either pass against him an order  of  discharge  for  which  no  inquiry  precedent  as provided for  in clauses  (3) and  (4) of M.S.O. 25 would be necessary,  or,  may  dismiss  him  after  holding  such  an inquiry. Which  of the two kinds of order the employer shall pass is left entirely to his own discretion. 224      It is  true that  the employer cannot pass a real order of dismissal  in the garb of one of discharge. But that only means that  if the  order of  termination of  services of an employee is  in reality  intended to  punish an employee and not merely  to get  rid of  him  because  he  is  considered useless, inconvenient or troublesome, the order, even though specified to be an order of discharge, would be deemed to be an order  of dismissal  covered by  sub-clause (g) of clause (1) of  M.S.O. 25. On the other hand if no such intention is made  out,   the  order   would  remain   one  of  discharge simpliciter even  though it  has been  passed for  the  sole reason that a misconduct is imputed to the employee. That is how,  in   my  opinion,   M.S.Os.  23  and  25  have  to  be interpreted. The argument that once an alleged misconduct is

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shown to have been the motive for the passage of an order of discharge, the  same would  immediately  and  without  more, amount to  an order  of dismissal,  is not  warranted by the language used  in M.S.O.  25 which specifically gives to the employer the  power to  get rid  of  "a  workman  guilty  of misconduct" by  passing an  order  of  his  discharge  under M.S.O. 23.      5. Secondly, the reasons for the termination of service of a  permanent workman  under M.S.O. 23 have to be recorded in writing  and communicated to him, if he so desires, under clause 4-A)  thereof. Such reasons must obviously consist of an opinion  derogatory to  the workman  in relation  to  the performance of  his duties; and whether such reasons consist of negligence,  work-shirking or  of serious overt acts like theft or  embezzlement, they  would in  any case  amount  to misconduct for  which he may be punished under M.S.O. 25. It is difficult  to conceive  of a  case in  which such reasons would not amount to misconduct. The result is that M.S.O. 23 would  be   rendered  otiose   if  termination   of  service thereunder for  misconduct could  be regarded as a dismissal and such  a result  strikes at  the very  root  of  accepted canons of  interpretation. If  it was  open to  the Court to "lift the  veil" and to hold an order of discharge to amount to a  dismissal merely  because the  motive behind  it was a misconduct attributed  to the  employee, the  services of no employee could  be terminated without holding against him an inquiry such  as is  contemplated by  clauses (3) and (4) of M.S.O. 25.      6. The interpretation placed by me on M.S.Os. 23 and 25 finds ample support in Bombay Corporation v. Malvankar(1) of which the 225 facts are  on all fours with those in the present case. Miss P. S.  Malvankar, respondent No. 1 in that case, was a clerk in  the   employment  or  the  Bombay  Electric  Supply  and Transport Undertaking  which was  being run  by  the  Bombay Corporation. Her services were terminated on the ground that her record  of service  was unsatisfactory.  It was  however stated in  the order of termination of her services that she would be  paid one month’s wages in lieu of notice and would also be eligible for all the benefits as might be admissible under the  Standing Orders  and Service  Regulations of  the Undertaking.  Those   Standing  Orders   correspond  to  the standing  orders   with  which   we  are   here   concerned. Thereunder, two  powers were  conferred on the employer, one being a  power to impose punishment for misconduct following a disciplinary inquiry under clause (2) of Standing Order 21 read with  Standing Order  23 and the other one to terminate the service  of the employee by one calendar month’s written notice or  pay in  lieu thereof under Standing Order 26. The question arose  as to  which power had been exercised by the employer in  the case  of Miss  Malvankar and Jaswant Singh, J., delivering  the judgment  of  the  Court  on  behalf  of himself and  Bhagwati, J.,  was answering that question when he made  the observations reproduced from his decision by my learned brother  Iyer, J. This Court was then clearly of the opinion that-      (a)  the power to terminate the services by an order of           discharge  simpliciter   is  distinct   from   and           independent of  the power to punish for misconduct           and the  Standing Orders cannot be construed so as           to render either of these powers ineffective; and      (b)  reasons for termination have to be communicated to           the  employee   and  those   reasons   cannot   be           arbitrary, capricious or irrelevant but that would

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         not mean  that the  order of  termination  becomes           punitive in  character just  because good  reasons           are its basis. The Court  further remarked  that if  the misconduct  of the employee constituted  the  foundation  for  terminating  his service then  it might  be liable to be regarded as punitive but this  proposition was  doubted inasmuch as "even in such case it  may be  argued that the management has not punished the employee  but has  merely terminated  his service  under Standing Order 26".      7. So  all  that  remains  to  be  determined  in  this connection  is   as  to   when  would   misconduct  be   the ‘foundation’ of an order of dis- 226 charge. Merely  because it  is the reason which weighed with the employer  in effecting the termination of services would not make  the order  of such  termination as  one founded on misconduct, for, such a proposition would run counter to the plain meaning of clause (1) of M.S.O. 25. For an order to be ‘founded’ on misconduct, it must, in my opinion, be intended to have  been passed  by way of punishment, that is, it must be intended  to chastise  or cause  pain in  body or mind or harm or loss in reputation or money to the concerned worker. If such an intention cannot be spelled out of the prevailing circumstances, the  order of  discharge or  the reasons  for which it  was ostensibly passed, it cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge  in the  interests of the factory or of the general body  of workers  themselves. That  this is what was really meant  by the  judicial precedents which use the word ‘foundation’ in  connection  with  the  present  controversy finds support  from a  number of decisions of this Court. In The Chartered Bank, Bombay v. The Chartered Bank, Employees’ Union(1) this  Court held that if the termination of service is  a  colourable  exercise  of  the  power  vested  in  the management or  is a result of victimization or unfair labour practice, the  Industrial Tribunal will have jurisdiction to intervene and  set aside  such  termination.  Applying  this principle to  the facts  of the  case before  it, this Court ruled :           "We are  satisfied that  the management has passed      the order of termination simpliciter and the order does      not amount  to one  of  dismissal  as  and  by  way  of      punishment" (emphasis supplied).      This case was followed in The Tata Oil Mills Co., Ltd., v. Workmen(2)  where Gajendragadkar, C.J., who delivered the judgment of the Court, stated the law thus :           "The true  legal  position  about  the  Industrial      Courts’ jurisdiction  and  authority  in  dealing  with      cases of  this kind  is no  longer in doubt. It is true      that  in  several  cases,  contract  of  employment  or      provisions in  Standing Orders  authorise an industrial      employer to  terminate the  service  of  his  employees      after giving  notice for one month on paying salary for      one month  in lieu of notice, and normally, an employer      may, in a proper case, be entitled to exercise the said      power. But where an order of discharge passed by an 227      employer gives  rise to an industrial dispute, the form      of the  order by  which  the  employees’  services  are      terminated,   would   not   be   decisive;   industrial      adjudication would be entitled to examine the substance      of the  matter and decide whether the termination is in      fact discharge  simpliciter or  it amounts to dismissal      which has  put on the cloak of a discharge simpliciter.

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    If the  Industrial Court is satisfied that the order of      discharge is punitive, that it is mala fide, or that it      amounts to  victimization or unfair labour practice, it      is competent  to the  Industrial Court to set aside the      order and in a proper case, direct the reinstatement of      the employee.  In some  cases, the  termination of  the      employee’s services  may appear to the Industrial Court      to be  capricious or  so unreasonably  severe  that  an      inference may legitimately and reasonably be drawn that      in terminating  the  services,  the  employer  was  not      acting bona fide. The test always has to be whether the      act of  the employer  is bonafide or not. If the act is      mala fide,  or appears  to be  a colourable exercise of      the powers  conferred on  the employer  either  by  the      terms of  the contract  or by the standing orders, then      notwithstanding  the  form  of  the  order,  industrial      adjudication would  examine  the  substance  and  would      direct reinstatement in a fit case..". The same test was laid down for determining whether an order of discharge could be construed as one ordering dismissal in The Tata  Engineering and  Locomotive Co.,  Ltd., v.  S.  C. Prasad(1) by Shelat and Bhargava, JJ. :           "No doubt,  the fact that the order was couched in      the  language   of   discharge   simpliciter   is   not      conclusive. Where  such  an  order  gives  rise  to  an      industrial dispute  its form  is not  decisive and  the      tribunal which adjudicates that dispute can, of course,      examine the  substance of the matter and decide whether      the termination  is in  fact discharge  simpliciter  or      dismissal though  the language  of the  order is one of      simple termination  of service. If it is satisfied that      the order  is punitive  or mala  fide  or  is  made  to      victimise the  workmen  or  amounts  to  unfair  labour      practice, it  is competent to set it aside. The test is      whether the  act of the employer is bona fide. If it is      not, and is a colourable 228      exercise of  the power under the contract of service or      standing orders,  the Tribunal  can discard it and in a      proper case direct reinstatement."      The  Chartered  Bank,  Bombay  v.  The  Chartered  Bank Employees’ Union  (supra) was  followed  by  this  Court  in Workmen of  Sudder Office,  Cinnamore v.  Management(1)  and therein stress was laid on the employer’s right to terminate the  services   of  a  workman  by  an  order  of  discharge simpliciter under  the terms of the contract where there was no  lack   of  bona   fides,  unfair   labour  practice   or victimization.      So the  real criterion which formed the touchstone of a test  to  determine  whether  an  order  of  termination  of services is  an order of discharge simpliciter or amounts to dismissal is  the real  nature of  the order,  that is,  the intention with  which it was passed. If the intention was to punish, that  is, to  chastise, the order may be regarded as an order  of dismissal;  and for  judging the intention, the question of  mala fides  (which  is  the  same  thing  as  a colourable exercise  of power)  becomes all-important. If no mala fides can be attributed to the management, the order of discharge must  be regarded  as one having been caused under M.S.O. 23  even though the reason for its passage is serious misconduct.      8. It  is in light of the conclusion just above arrived at that the discharge of the workmen in the instant case has to be  judged. The  question of  intention or  mala fides is really one  of fact  (of which  the arbitrator  was,  in  my

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opinion, the sole judge, unless his finding on the point was vitiated by  perversity in which case alone it was liable to be reviewed  by the  High  Court).  The  discussion  of  the evidence by the arbitrator in his award is not only full and logical but,  in my  opinion, also  eminently just.  At  all material times  the Management  was out to placate the Sabha (and therefore,  the workmen)  and gave  to it  a long  rope throughout. The  attitude of the Sabha on the other hand was one  of   intransigence  and   obduracy.  According  to  the settlement of  the 4th  of August,  1972, it was not open to the workmen  to resort  to a  strike till  the expiry  of  a period of  five years;  nor could  the Management  declare a lock  out  till  then.  Any  disputes  arising  between  the parties, according  to the  terms arrived  at,  were  to  be sorted  out   through  negotiations  or,  failing  that,  by recourse to  arbitration. A  dispute was raised by the Sabha soon   thereafter    over   the    implementation   of   the recommendations  of   the  Central  Engineering  Wage  Board (hereinafter called the Board), the payment of bonus 229 for the  year 1971  and wages  for an  earlier lock  out. In paragraph 7.47 of its award the Board had made the following recommendations :           "7.47.  After   considering  the  problem  in  its      entirety, we  agreed to  divide the  industry into five      regions or areas as under and in doing so, we have also      considered the  prevailing  wage  levels  at  different      places and  the cost  of living at important centres in      these places.      "1.   Bombay City  and Greater  Bombay including  Thana           Ambarnath & Kalyan Industrial Areas.      "2.   Calcutta,  Greater  Calcutta,  Howrah  Industrial           area,  Jamshedpur   Industrial   area,   Durgapur,           Asansol and Ranchi industrial areas.      "3.  Madras industrial area, Bangalore industrial area,           Hyderabad   industrial    area,    Poona-Chinchwad           industrial  area,   Delhi  industrial   area   and           Ahmedabad.      "4.   Coimbatore, Nagpur,  Bhopal, Kanpur,  Baroda  and           Faridabad industrial areas.      "5.  The rest of the country." This classification  was made  for the  purpose of  granting ‘area allowance’ which varied with the category in which the area of the situation of a factory fell. No allowance was to be paid  to the  factories falling  in category 5 and on the basis of  the phraseology  used by  the Board the Management contended that  Ahmedabad  industrial  area  (in  which  its factory  was  situated)  fell  within  that  category.  This interpretation of  the categorisation  made by the Board was not acceptable to the Sabha who claimed that the factory was covered by  category 3;  and this  was an issue on which the Sabha was  not prepared  to climb down. Similarly, the Sabha was adamant on the question of bonus for the year 1971 which it claimed  at 16  per cent  over and  above 8.33  per  cent allowed by statute with the plea that bonus at that rate had been paid  in the  earlier year. This being the position and negotiations  between  the  parties  held  at  two  meetings convened on  14-12-1972 and  20-1-1973  having  ended  in  a fiasco, the Management offered to have the disputes resolved by arbitration but that again was a course not acceptable to the Sabha which, however, accused the Management of flouting the settlement dated the 4th of August , 1972, by not coming to the  negotiating table. The attitude adopted by the Sabha was, to say the least, most unreason 230

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able. It  could not  have its  own  way  in  taking  certain matters as final and non-negotiable. Nor can it be said that stand taken  by the  management was  unreasonable. Paragraph 7.47 of the award of the Board categorized various factories with reference  to the  areas which were either described by the names  of the  cities in  which they were situated or by the  names   of  certain  industrial  areas.  Ahmedabad  was mentioned as  such and so was Calcutta while the other areas were mentioned  as such  and such  industrial areas.  It was thus a  very reasonable  plea put  forward on  behalf of the Management  that  only  Ahmedabad  city  and  not  Ahmedabad industrial area  was included  in category  3 and  that that industrial area  fell within  category 5. On the other hand, the Sabha  interpreted the  word  ‘Ahmedabad’  occurring  in category 3  to include  Ahmedabad industrial  area (in which lay the factory in question) and demanded area allowance for its workers on that score. The reasonableness of the plea of the Management  is obvious  and it  was the  attitude of the Sabha which  lacked reason  in that  on the  failure of  the negotiations they  spurned the  offer of  the Management for arbitration  on   the  question  of  interpretation  of  the categorisation. It  can also  not be said that the objection regarding payment  of bonus raised by the Management was not a reasonable  one.  The  argument  that  the  stand  of  the Management that  the negotiations between them and the Sabha on the  questions of interpretation of the Board’s award and bonus having failed as there was no meeting ground on either of them,  they could  be  referred  to  arbitration,  lacked reason, is wholly unacceptable. The attitude of the Sabha in insisting on  negotiations being  held only  on the basis of certain propositions  formulated by  it amounted really to a refusal  to   negotiate  the   points  in  dispute  and  the Management was  therefore  not  left  with  any  alternative except  to  suggest  an  arbitration  as  envisaged  in  the settlement dated the 4th of August, 1972.      9. Later developments reveal a similar state of affairs in so  far as  the attitude  of the Sabha is concerned. Over and over  again it was asked not to precipitate a strike and to act  within the  terms of  the settlement  but the advice fell on  deaf ears.  Even after  the  strike  which,  it  is admitted  on  all  hands,  was  illegal  and  certainly  not envisaged by  the settlement of the 4th of August, 1972, the Management continued  to make  requests to the Sabha to send back the  workers, but  again no  heed  was  paid  to  those requests.  On   the  other  hand,  the  Sabha  began  making suggestions to  the Government  to take  over  the  factory. Ultimately, when the Management was faced, to adopt means to rehabilitate the factory by reports to fresh 231 recruitment, they  had no  option except  to  terminate  the services  of   its  workmen.  Each  one  of  the  orders  of termination of  services which  were actually passed, was on the face  of it  wholly innocuous  inasmuch as  it  did  not stigmatise in  any manner  whatsoever the concerned workman. The  Management  had  however  to  record  reasons  for  the discharge in  pursuance of  the provisions of clause (4A) of M.S.O. 25  and those  reasons did  charge each  worker  with misconduct inasmuch  as he  had taken  part in  the  illegal strike and  had refused  to resume  duty inspite of repeated demands made by the Management in that behalf. All the same, the Management made it clear that inspite of such misconduct it had  no intention of punishing the workers who were given not only  the benefit  of an  order of discharge simpliciter but also  the option to come back to work within a specified period in  which case  they would  be reinstated  with  full

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benefits. An  intention not to punish could not be expressed in clearer  terms and is further made out from the fact that more than  400 workers  who  resumed  duty  were  reinstated without  break   in  service.   In  passing  the  orders  of discharge, therefore,  the Management  did nothing more than act under  M.S.O. 23  and its  action cannot  be regarded as amounting to  dismissal in  the case  of any of the workers. They had the right to choose between a discharge simpliciter and a dismissal and, in the interests of the factory and the members of  the Sabha  and perhaps  on compassionate grounds also, they  chose  the  former  in  unequivocal  terms.  The intention to  punish being  absent, the  finding of the High Court that  the  order  of  discharge  amounted  to  one  of dismissal cannot be sustained.      10. I now turn to the interpretation of sub-section (2) of section  11A of  the 1947 Act. It is a well settled canon of interpretation  of statutes that the language used by the legislature must  be regarded  as the  only  source  of  its intention  unless  such  language  is  ambiguous,  in  which situation the  preamble to  the Act the Statement of Objects of and  Reasons for  bringing it on the Statute book and the purpose  underlying   the  legislation  may  be  taken  into consideration for  ascertaining  such  intention.  That  the purpose of  the legislation  is to  fulfil a  socio-economic need, or  the express  object underlying  it, does  not come into the  picture till  an  ambiguity  is  detected  in  the language and the court must steer clear of the temptation to mould the  written word according to its own concept of what should have  been enacted. That is how I propose to approach the exercise in hand.      11. For  the sake of convenience of reference I may set out the  provisions of clauses (aa) and (r) of section 2, of sub-sections (1) 232 and (2) and the opening clause of sub-section (3) of section 11, and of the whole of section 11A of the 1947 Act:           "2. (aa) ‘arbitrator’ includes an umpire;"           "2. (r)   ‘Tribunal’  means an Industrial Tribunal                     constituted   under   section   7A   and                     includes    an    Industrial    Tribunal                     constituted before  the 10th  of  March,                     1957, under this Act;"                "11. (1)  Subject to  any rules  that may  be           made in  this  behalf,  an  arbitrator,  a  Board,           Court, Labour Court, Tribunal or National Tribunal           shall follow  such procedure  as the arbitrator or           other authority concerned may think fit.                "(2) A  conciliation officer or a member of a           Board, or  Court or  the presiding  officer  of  a           Labour Court,  Tribunal or  National Tribunal  may           for the  purpose of  inquiry into  any existing or           apprehended  industrial   dispute,  after   giving           reasonable notice,  enter the premises occupied by           any establishment to which the dispute relates.                "(3)  Every   Board,  Court,   Labour  Court,           Tribunal and National Tribunal shall have the same           powers as  are vested  in a  Civil Court under the           Code of Civil Procedure, 1908. when trying a suit,           in respect  of  the  following  matters,  namely:-           .........."                "11A. Where  an industrial  dispute, relating           to the  discharge or  dismissal of  a workman  has           been referred  to  a  Labour  Court,  Tribunal  or           National Tribunal  for adjudication  and,  in  the           course of the adjudication proceedings, the Labour

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         Court, Tribunal  or National Tribunal, as the case           may be,  is satisfied  that the order of discharge           or dismissal  was not  justified, it  may, by  its           award,  set   aside  the  order  of  discharge  or           dismissal and  direct reinstatement of the workman           on such terms and conditions, if any, as it thinks           fit, or  give such  other relief  to  the  workman           including the  award of  any lesser  punishment in           lieu   of    discharge   or   dismissal   as   the           circumstances of the case may require:                Provided that  in any  proceeding under  this           section the  Labour Court,  Tribunal  or  National           Tribunal, as  the case  may be, shall rely only on           the materials  on record  and shall  not take  any           fresh evidence in relation to the matter."      Section 2 of the Act specifically lays down that unless there is  anything repugnant  in the subject or context, the expressions defined 233 therein  would   have  the   meanings  attributed  to  them. Throughout  the  Act  therefore,  while  ’arbitrator’  would include  an  umpire,  a  ’Tribunal’  would  not  include  an arbitrator  but  would  mean  only  an  Industrial  Tribunal constituted under  the Act,  unless  the  context  makes  it necessary to  give the word a different connotation. In sub- section  (1)  of  section  11,  it  is  conceded,  the  word ’Tribunal’ has  been used  in accordance with the definition appearing in  clause (r)  of section 2 because an arbitrator is separately mentioned in that sub-section. In sub-sections (2) and  (3) of  that section  a Board,  a Labour  Court,  a Tribunal and  a National  Tribunal have  been invested  with certain   powers. Would  a Tribunal  as contemplated by sub- sections (2)  and (3)  then include an arbitrator ? My reply to the  question is  all emphatic  ’no’. It  is well settled that if  a term  or expression is used in a particular piece of legislation  in one  sense at  one  place, the same sense will pervade  the entire  legislation wherever  the term  is used unless  an intention to the contrary is expressed. Here the word  ’Tribunal’ has  been used in three sub-sections of the same  section and no reason at all is fathomable for the proposition that  it means  one thing in sub-section (1) and something different in sub-sections (2) and (3). It may also be mentioned  here that  in all  the three  sub-sections the word ’Tribunal’  has a capital ’T’ which is also part of the expression ’Tribunal’  as occurring in clause (r) of section 2 and  thus connotes  a proper  noun rather than the generic word ’tribunal’  as embracing  all institutions adjudicating upon rights  of contending  parties. A  third and  perhaps a clinching reason for this interpretation is available in the use of  the expression  "National Tribunal"  along with  the word  "Tribunal"   in  all   the  three  sub-sections  which militates against  the argument  that the word "Tribunal" as used in  sub-sections (2)  and (3)  means an  institution of that type.  If the  word "Tribunal"  as used in sub-sections (2) and  (3) means  such an institution, then the use of the expression  "National   Tribunal"  would  be  redundant  and redundancy is  not one  of the qualities easily attributable to a legislative product. In that case, in fact, other words used in the two sub-sections last mentioned, namely, ’Court’ and ’Labour Court’ would also become redundant. In this view of the  matter, the word "Tribunal" as used in all the first three sub-sections  of section  11 must be held to have been used in  the sense of the definition occurring in clause (r) of section 2.      12. Section 11A is just the next succeeding section and

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therein a  part of the arrangement adopted is the same as in sub-sections (2)  and (3)  of section  11 so that powers are conferred by it on a "Labour 16-868SCI/79 234 Court, Tribunal  or National  Tribunal" which arrangement is repeated  in   the  section   thrice  over.  That  the  word "Tribunal" as used in section 11A has the same meaning as it carries in  the three  sub-sections of section 11 is obvious and I  need not repeat the reasons in that behalf; for, they are practically  the same  as have  been set  out by  me  in relation to section 11.      13. In  my opinion the language employed in section 11A sufferers from  no ambiguity whatever and is capable only of one  meaning,  i.e.,  that  the  word  ’Tribunal’  occurring therein is  used in  the sense  of the  definition given  in clause (r) of section 2. It is thus not permissible for this Court to  take the  Statement of  Objects and Reasons or the purpose underlying  the enactment  into consideration  while interpreting section 11A.      I may  mention here  however  that  a  perusal  of  the Statement of  Objects and  Reasons forming the background to the  enactment   of  section   11A  leads  me  to  the  same conclusion. In  that Statement  a reference was specifically made to  tribunals as  well as  arbitrators in, terms of the recommendations of  the International  Labour  Organization. But inspite  of that the word ’arbitrator’ is conspicuous by its absence  from the  section. What  is the  reason for the omission ?  Was it  consciously and deliberately made or was it due  to carelessness  on the  part of the draftsmen and a consequent failure  on the  part of  the legislature ? In my opinion  the   Court  would   step  beyond   the  field   of interpretation and  enter upon the area of legislation if it resorts to guess work (however intelligently the same may be carried out) and attributes the omission to the latter cause in a  situation like  this which postulates that the pointed attention of  the legislature  was drawn to the desirability of clothing  an arbitrator  with the  same  powers  as  were sought to  be conferred  on certain  courts and tribunals by section 11A  and it  did not  accept the  recommendation.  I would hold,  in the  circumstances, that  the  omission  was deliberately made.      It follows  that the  powers given  to a Tribunal under section 11A  are  not  exercisable  by  an  arbitrator  who, therefore, cannot  interfere with the punishment (awarded by the employer) in case he finds misconduct proved.      14. The  last point  on which I differ with the finding of my  learned brother  relates to  the exercise by the High Court of its powers under article 227 of the Constitution of India.  As   pointed  out  by  him  the  High  Court,  while discharging its functions as envisaged by that article, does not sit  as  a  court  of  appeal  over  the  award  of  the arbitrator but  exercises limited jurisdiction which extends only to 235 seeing that  the arbitrator  has functioned within the scope of his  legal authority. This proposition finds full support from Nagendra  Nath Bora  and Another v. The Commissioner of Hills Division  and   Appeals, Assam  and Others(1),  P.  H. Kalyani v.  M/s. Air  France, Calcutta(2),  state of  Andhra Pradesh v.  S. Sree Rama Rao(3) and Navinchandra Shakerchand Shah v.  Manager, Ahmedabad  Cooperative  Department  Stores Ltd.(4), all  of which  have ben  discussed at length by him and require  no further  consideration at  my hands. In this view of  the matter  it was  not open  to the  High Court to revise the punishment (if the discharge is regarded as such)

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meted out  by the  Management to  the delinquent workmen and left in  tact by  the arbitrator whose authority in doing so has not  been shown to have been exercised beyond the limits of his jurisdiction.      15. I  need not  go into the other aspects of the case. In view of my findings-           (a)   that the  orders of discharge of the workmen                could not  be regarded  as  orders  of  their                dismissal and were, on the other hand, orders                of  discharge   simpliciter  properly  passed                under M.S.O. 23;           (b)   that the  arbitrator could  not exercise the                powers conferred  on a Tribunal under section                11A of  the 1947  Act and could not therefore                interfere with  the punishment awarded by the                Management  to   the  workmen  (even  if  the                discharge could  be regarded  a  punishment),                and           (c)   that in any case the High Court exceeded the                limits of  its  jurisdiction  in  interfering                with the said punishment purporting to act in                the exercise  of its powers under article 227                of the Constitution of India, the judgment  of the  High Court  must be  reversed and  the order of  the arbitrator  restored. The  three  appeals  are decided accordingly,  the parties  being left  to bear their own costs throughout.                          O R D E R      The  appeals  are  dismissed  substantially  with  such modifications as  are indicated  in the decretal part of the judgment of the majority. V.D.K.                                    Appeals dismissed. 236