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PETITIONER: INDIA MARINE SERVICE PRIVATE LTD.

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 08/08/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. GAJENDRAGADKAR, P.B. DAS, S.K.

CITATION:  1963 AIR  528            1963 SCR  (3) 575  CITATOR INFO :  R          1972 SC1975  (10)  F          1976 SC 758  (18,22)

ACT: Industrial  Dispute-Dismissal  of  employee-Insubordination- Tribunal,s  power  to  re-instate-Lock-out  due  to  illegal strike-Lock-out  originally valid but found  invalid  later- Claim for wages for the period of lock-out.

HEADNOTE: B, a clerk in the appellant company, was found shouting  and behaving  in  a rude and insolent manner with  his  superior officer.  In consequence of this incident a charge-sheet was issued  to him and he was asked to give his explanation  for his  behaviour;  he was also asked to  give  explanation  in respect  of certain purchases made by him for  the  company. Eventually  an enquiry was held by the Managing Director  at which  he found that two charges were made out, and  on  the basis of the findings the company dismissed B from his post. In  the  letter by the Managing Director dated  October  29, 1953,  addressed  to B it was stated :  "After  giving  your matter  our very careful consideration, we have,  therefore, painfully  come  to  the decision that in  the  interest  of discipline  and business you should be  forthwith  dismissed from our service. In taking this action against you we  have also taken into consideration your past record which is very much  against you." The Industrial Tribunal considered  that the findings were based not merely on the charges set out in the  charge-sheet but on certain other charges which  B  was not  given  on opportunity to explain, and,  therefore,  the enquiry  was  vitiated  and  the  dismissal  could  not   be sustained.  The Tribunal proceeded to consider the  evidence and  held that the allegation of insubordination  against  B was not proved.  It, accordingly, ordered his reinstatement. Held,  that the order of the Tribunal was contrary  to  law; that  the  Managing  Director must  be  considered,  in  his letter’ to have arrived at the conclusion that B’s  services should  be terminated in the interest of discipline.  though he  had added one sentence to give additional weight to  the decision  already arrived at; and that the Tribunal was  not competent to go behind the finding of, the Managing Director

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and consider for itself the evidence adduced before him, 576 On  account  of a sudden strike launched by the  workmen  on November  13,  1958, the company declared a  lock-out.   The lock-out  continued till January 5, 1959, on which date  the company’s  works were reopened, It was found that while  the strike  was  unjustifiable  and the  lock-out  when  it  was ordered on November 13, 1958, was justified, its continuance for   53  days  was  wholly  unreasonable  and,   therefore, unjustified. Held, that where a strike is unjustified and is followed  by a  lock-out which has, because of its long duration,  become unjustified, the proper course for an industrial tribunal is to  apportion the blame and direct the payment of the  wages for the period of the lock-out which could be considered  as unjustified. Where a strike is unjustified and the lock-out is  justified the  workmen would not be entitled to any wages at all,  but where   the  strike  is  justified  and  the   lock-out   is unjustified  the  workmen would be entitled  to  the  entire wages for the period of strike and lock-out.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 202 of 1962. Appeal  by  special leave from the Award dated  January  31, 1961, of the Third Industrial Tribunal, West Bengal, in case No. VIII-28 of 1960. Y.   Kumar, for the appellant. B.   P. Maheshwari, for the respondents. 1962.  August 8. The Judgment of the Court was delivered by MUDHOLKAR,  J.-In  this appeal by special leave  against  an award  made by the Third Industrial Tribunal,  West  Bengal, two questions &rise for consideration.  The first is whether the  dismissal of Robin Bose, Purchaser, was  justified  and the other is whether the appellant’s employees were entitled to any  wAges for the Period between November 13, 1958, and January 4, 1959, during which there was a lock-outs 577 In a sense the two questions are separate and we will  first mention  the  facts relevant to the question  regarding  the dismissal  of Robin Bose.  Bose was a clerk,  designated  as Purchaser by the.appellant company.  On September 13,  1958, at  about 10-00 a. m. R. N. Chatterjee, under  whose  super- vision  Bose was working, took from the latter’s  table  the purchase estimate book maintained by him for the purpose  of checking an item of purchase made by him on August 18, 1958. Shortly afterwards Bose went up to Chatterjee and asked  for the book to be returned.  Chatterjee told him that the  book should be left there fore some time and would be returned to him  after  he  (Chatterjee) had finished  with  it.   Bose, however,  got  annoyed.  He flared up  and  started  abusing Chatterjee  in an objectionable language in the presence  of the  entire office staff.  Though reminded by Chatterjee  of the need for maintaining discipline in the office he did not pay any heed to chatterjee.  Then he told him in a loud  and threatening  voice:  "Don’t teach me office  discipline.   I have  worked  in  bigger offices, you  shall  have  to  bear consequence,  if  you  don’t return  the  book  right  now." Chatterjee reminded him that he was "purchase-in-charge" and had every right to see the registers maintained by the  Dur- chase department.  This only infuriated Bose further  and-he said "I shall see you know how to teach you a good  lesson," and   left  Chatterjee’s  table.   Shortly  thereafter   the

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Managing Director came and Chatterjee reported the matter to him  about  Bose.   Bose was then  called  by  the  Managing Director"  to his Chamber and asked for an  explanation  for shouting  and behaving in a rude manner with  his  superior. It  would  appear  that Bose was  not  repentant  and  after leaving  the  Managing Director’s room again  started  being nasty  to Chatterjee and said in a loud voice "If you  don’t arrange  to return the book at once  will teach you  a  good lesson on the road." 578 Thereafter  the Managing Director came out of the  room  and with difficulty succeeded in making him quiet. In consequence of this incident a charge-sheet was issued to Bose  and he was asked to give his written  explanation  for his rude and insolent behaviour towards his superior officer R.N.  Chatterjee.   He  was also asked  to  explain  another matter, that is, not bringing to Chatterjee’ notice the fact that on August 18, 1958, he had bought copper sheets at  Rs. 3-1-0  per lb. from Messrs.  Joydeb Nityalal Paramanick  and when  he was sent again to purchase the same commodity  from the same firm on August 21,1958, he bought it at the rate of Rs.  3-4-0 per lb.  ID his reply dated September  20,  1958, Bose  stated that what was set out in the  charge-sheet  was distortion of facts and that at the time of enquiry he would place  all  the  facts  before  the  enquiry  officer.   He, however,  denied the charges.  To this the  company  replied saying  that  the statement was vague and that  in  his  own interest  and in the interest of justice he should give  his precise  explanation.  To this Bose replied saying  that  he had   nothing   further   to   say.    Then   some   further correspondence ensued between Bose and the company and as  a result  of  something  which Bose had said  is  one  of  his letters he was served with a second charge-sheet. Eventually an enquiry was held by the, Managing Director  at which  he  found that the two charger set out in  the  first charge  sheet were made out.  On the basis of  the  findings the  company  dismissed  Bose from his  post.   No  separate report  had been drawn up by the Managing Director who  hold the  enquiry  but all material things were set  out  in  the letter dated October 29, 1958, addressed by him to Bose.  579 The Tribunal observed that no enquiry was held on the second charge-sheet  and,  therefore, the  charge-sheet  should  be ruled out from consideration and that as the findings  were based not merely on the charges set out in the first charge- sheet but on certain other charges which Bose was not  given an  opportunity to explain the enquiry was vitiated and  the dismissal could not be sustained.  It, therefore,  proceeded to  consider  the  evidence  adduced  before  the   domestic Tribunal  and  held that the allegation  of  insubordination against  Bose  has not been proved by  convincing  evidence. It,  therefore, ordered the reinstatement of Bose with  full back  wages  and allowances from the date of  his  dismissal upto the date on which he will be reinstated. It is no doubt true that no enquiry was held on the  charges contained  in the second charge-sheet and,  therefore,  that charge-sheet  was rightly kept out of consideration  by  the Managing  Director  and  the Tribunal.  It is  true  that  a reference  is  made  to certain extraneous  matters  in  the letter  of  the Managing Director dated  October  29,  1958, addressed  to Bose.  But considering the letter as  a  whole and  particularly  the last paragraph it seems to us  to  be abundantly clear that the decision of the Managing  Director to   dismiss   Bose  was  based  only  on  the   charge   of insubordination.   In this connection it will be  useful  to

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quote that paragraph:               "After  giving  your matter our  very  careful               consideration,  we have, therefore,  painfully               come  to the decision that in the interest  of               discipline   and   business  you   should   be               forthwith dismissed from our service.   Accor-               dingly your service will no longer be required               by  us  from  today.  In  taking  this  action               against you we have also taken into  consider-               ation  your  past record which  is  very  much               against You. 580 It  is  true that the last sentence suggests that  the  past record of Bose has also been taken into consideration.   But it  does not follow from this that was the effective  reason for dismissing him. the Managing Director having arrived  at the  conclusion that Bose’s services must be  terminated  in the  interest of discipline, he added one sentence  to  give additional weight to the decision already arrived at.   Upon this  view  it  would  follow  that  the  Tribunal  wag  not competent to go behind the finding of the Managing  Director and  consider  for itself the evidence adduced  before  him. The order of the Tribunal quashing the dismissal of Bose and directing  his  reinstatement is, therefore,  set  aside  as being contrary to law. Coming next to the question of the lock-out it is abundantly clear  that the lock-out was ordered by the company  because of  a sudden strike, no doubt a token one, launched  by  the workmen.   It  would appear that the strike was only  to  be partial and notice of it was given on the previous day.   In order  to appreciate the background of the strike and  look- out  it  is  desirable  to set out  certain  facts.   By  an agreement dated November 23, 1956, the management had agreed to pay 37 days’ wages to its factory employees for the  year 1955-56  as  bonus.  It was also agreed at  that  time  that bonus  was not to be a condition of service.   On  September 10,  1958,  the respondent union made a.  demand  for  seven days’  bonus over and above the usual bonus of 37 days.   In reply to this the company stated in its letter dated October 11, 1953, that it does not agree to the demand that bonus is payable as a condition of service, that although no bonus is payable, the company, as a gesture of goodwill, have offered to  pay to the workmen 15 days, consolidated wages as  bonus and expressed the hope that its offer would be accepted.  On October  581 13, 1958, the company again wrote to the union pointing  out that  the  workmen  had resorted to go  slow  tactics  which adversely  affected  their business which was  of  repairing ships and then observed:               "We  should  also strongly  suggest  that  the               management and the union jointly approach  the               Labour  Directorate at once on  the  following               issues:               1.    Whether  the  workmen are  justified  in               stopping overtime as and when they like.               2.    Bonus.               In consideration of this we may even agree  to               pay  the workmen certain sum of money, as  may               be recommended by the Conciliation Officer, on               advance  account pending the  adjudication  by               the  Tribunal  of  the  issue  of  bonus.   It               should,  however, be clearly understood,  that               if  the  Tribunal decides against  payment  of               bonus  or  allows bonus less than  the  amount

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             advanced to them, the entire advance money  or               the  difference  will be  recovered  from  the               wages of the workmen by instalments as may  be               directed by the Tribunal."               This suggestion was peremptorily rejected by               the  respondent  union  by  its  letter  dated               October  15,  1958, the  relevant  portion  of               which is as follows:               "We would simply ask where had your good sense               for  tripartite  conference before  which  you               have  adopted  now we think as  a  measure  of               delaying  tactics.  We know better what to  do               when  we  will be asked to  attend  tripartite               conference."               On October 16, 1958. the company wrote to  the               Labour  Commissioner# West  Bengal,  apprising               him 582 of  the  situation  in the factory  and  requesting  him  to intervene.   It seems that on that day a  representative  of the  company  discussed  the situation with  Mr.  Basu,  the Assistant  Labour Commissioner.  Next day the company  wrote to Mr. Basu in which it observed that although the financial position of the company does not justify the demand of bonus the company was prepared to make ex-gratia payment of  bonus on  the same basis as in the previous year subject to  three conditions               (i)   the Union condemns the workmen’s conduct               in stopping overtime since 10th October,  1958               and putting the company to considerable loss.               (ii)the  Union  undertakes  to  see  that  the               workmen do not stop doing overtime in future.               (iii)the  bonus is not to be considered  an  a condition of service."  ON  November  5, 1958, the respondent union  wrote  to  the company  a letter in which they made ten demands, the  first of which was that 37 days’ wages as bonus should be paid  to all workmen at the works and head office.  Then they went on a  partial strike ’on November 13, 1958.  On that  very  day the company published a look-out notice on its notice  board and  served  copy thereof on the union.  That  notice  reads thus:                "For  sometime  past the  workmen  by  taking               resort to organised slow down and by  refusing               to  work  overtime  and by  keeping  a  strike               notice  banging on us have to a  great  extent               crippled our ship repairing business and  have               made it difficult for us to accept major  ship               repairs  or large orders.  Today  the  workmen               have resorted to a strike when               583               we  have  on  our hands a  ship  in  dry  dock               awaiting  unlocking today and another ship  is               due to sail in two days’ time.  This strike is               definitely illegal and in consequence of  this               illegal strike we have no choice but hereby to               declare, look-out." The  lock-out continued till January 5, 1959, on which  date the company’s works were re-opened.  The termination of  the lock-out  was  brought  by a  settlement  made  between  the parties  on  January  3, 1959.  In that  settlement  it  was agreed  that 1% of the sale proceeds of the  ship  repairing section, less sales tax, for the whole year will be paid  as bonus to the workmen irrespective of profit and loss of  the company and 16 day’s wages will be paid as Puja bonus to the

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workmen  every year irrespective of profit and loss  of  the company.  It is not necessary to refer to the other terms of the agreement. It  seems  to  us that the attitude of  the  company  was  a reasonable  one and that it even proposed to the  union  and through  it to its workmen that work should go on, that  the dispute should be taken before the COnciliation officer  for conciliation  and that in. the meanwhile they were  prepared to grant some interim relief to the workmen.  But instead of accepting  this  reasonable’  offer  the  union  spurned  it contemptuously  and for coercing the company encouraged  its members  to  strike work on November 13,’1958.  It  is  true that  the  strike was intended to be a token one.   But  the object  of that strike being to circumvent settlement in  an amicable manner. even though the company was ready for  such settlement,  we have no doubt that strike  was  unjustified. It is in the light of this finding that the lock-out has  to be   judged.    In  our  opinion,  while  the   strike   was unjustifiable the. lock-out when it was ordered on  November 13, 1958, Was justified. 584 It  seems  to  us, however, that  though  the  look-out  was justified  at its commencement its continuance for  53  days was  wholly unreasonable and, therefore. unjustified.  In  a case  where  a strike is unjustified and is  followed  by  a look-out  which  has, because of its long  duration,  become unjustified  it  would  not  be  a  proper  course  for   an industrial  tribunal to direct the payment of the  whole  of the wages for the period of the look-out.  We would like  to make it clear that in a case where the strike is unjustified and  the  look-out  is justified the workmen  would  not  be entitled to any wages at all.  Similarly where the strike is justified and the look-out is unjustified the workmen  would be entitled to the entire wages for the period of strike and look-out.   Where, however, a strike is unjustified  and  is followed by a look-out which becomes unjustified a case  for apportionment  of blame arises.  In our opinion in the  case before  as the blame for the situation which resulted  after the strike and the lock-out can be apportioned roughly  half and  half  between  the company and  its  workers.   In  the circumstances we, therefore, direct that the workmen  should get  half their wages from November 14, 1958, to January  3, 1959, (both days inclusive). The appeal is thus allowed partly and the award modified  to the extent to which the appeal has been allowed.  We make no order as to cost.                              Appeal allowed in part.                      -------- 585