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PETITIONER: HIND CONSTRUCTION & ENGINEERING CO.  LTD.

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 09/11/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.

CITATION:  1965 AIR  917            1965 SCR  (2)  85  CITATOR INFO :  R          1972 SC 763  (30)  R          1975 SC1892  (5)  R          1978 SC1044  (12)  R          1984 SC 914  (11)  RF         1988 SC 328  (8)

ACT: Industrial  Dispute-Dismissal  of  workman-Some  ordered  to rejoin  but fail to do so--Reference of dispute to  tribunal treating them as dismissed if valid. Tribunal-powers of-When punishment amounts to  victimization or unfair labour practice-If Tribunal can interfere.

HEADNOTE: The appellant company employed 30 workmen in its store  yard of  whom  11  were permanent and  the  remaining  temporary. According  to the practice of the appellant company 14  days in  each year (including the 1st of January)  were  holidays and  whenever a holiday fell on a Sunday the  following  day was made a holiday.  The first day of January 1961, being a, Sunday, the 1 1 permanent workmen did not attend work on the 2nd  January treating it as holiday, although they had  been told that owing. to pressure of work 2nd January was to be a working day and a. holiday in lieu would be given on another day.   Because  of their absence, they were given  a  charge sheet and after enquiry, were ordered to be dismissed Upon  a  reference to it of the dispute, the  Tribunal  held that  the  workmen  had  gone on a  strike  (which  was  not illegal)  but the punishment of dismissal for such a  strike for  one  day  was too severe and unjustified  and  must  be treated  as victimisation.  Reinstatement of  the  employees was therefore order. It was contended on behalf of the appellant company,  first, that  after, the enquiry, 3 of the 11 workmen  were  excused and  ordered to rejoin duty and therefore the  reference  to the  Tribunal was bad because it referred to 11  workmen  as ’dismissed’  when  only  8 were so  treated;  secondly,  the Tribunal  could  not  examine a finding or  the  quantum  of punishment  and  was not justified in interfering  with  the punishment of dismissal after it had come to the  conclusion that  the  workmen  had gone on a strike,  even  though  the

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strike was not illegal. HELD:     (i) All the 1 1 workmen were charged together  and raised  similar  defences except that 3 of them  had  raised additional  defences.   Although these  three  workmen  were ordered  to rejoin work, they could not have done  so  after their  dispute  was taken over by the Union and  they  would have  been  treated like the others unless they  broke  away from the Union by going against its wishes.  The  Government was therefore entitled to treat the dispute relating to  all the workmen is single and undivided and refer it as such  to the Tribunal. [87 H; 88 A-B] (ii) Although  it  is  a  settled rule  that  the  award  of punishment for misconduct is a matter for the management  to decide and if there is any justification for the  punishment imposed,  the  Tribunal  should  not  interfere,  where  the punishment  is  so disproportionate that no  reasonable  em- ployer would ever have imposed it in like circumstances, the Tribunal  may  treat the imposition of  such  punishment  as itself showing victimization or unfair labour practice.  [88 F] 86 No reasonable employer would have imposed the punishment  of dismissal   on  its  entire  permanent  staff   in   similar circumstances.   Their  punishment  was severe  and  out  of proportion  to the fault and therefore the  interference  by the Tribunal was justified. [89 E-H; 90 A-B] Case law reviewed.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 970 of 1963. Appeal  by special leave from the Award dated May  4,  1962, -of  the 2nd Industrial Tribunal, West Bengal, in  Case  No. VIII146 of 1961. M.C.  Setalvad, N. C. Shah and B. P. Maheshwari, for  the appellant. D. L. Sen Gupta and Janardan Sharma, for the respondent. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal by special leave  against the  award  of the Second Industrial Tribunal,  West  Bengal dated  May  4,  1962 by which _the Tribunal  set  aside  the dismissal  of  eleven  workmen  employed  by  the  appellant Company and ordered their reinstatement with all back  wages except wages for January 2, 1961. The  appellant Company carries on activity as engineers  and contractors  in different parts of West Bengal.  It  had  at Sukchar a store yard and at the relevant time it employed 30 workmen  at  Sukchar  of  whom 11  were  permanent  and  the remaining temporary.  We are concerned with the dismissal of the  permanent workmen from January 2, 1961.   According  to the  practice of the ,appellant Company fourteen  days  were holidays  in each year.  They included the 1st  of  January. Whenever  a holiday fell on a Sunday the usual practice  was to  make  the following day a holiday and that  is  how  the dispute  arose  over  the 2nd of January  which  followed  a Sunday  in 1961.  The case of the Union. in short, was  that the  eleven  workmen did not attend work on 2nd  of  January treating  it  as a holiday while the case of  the  appellant ,Company was that they had been expressly told that owing to pressure  of  work 2nd January was to be working day  and  a holiday  in lieu would be given on another  subsequent  day. In view of their absence they were given a charge-sheet  and after  enquiry,  were ordered to be dismissed.   Before  the enquiry  they  were  placed  under  suspension  and  at  the

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instance  of  the Union a reference was made to  the  Labour Officer  for conciliation.  The conciliation failed  because the appellant Company did not appear.  A  87 reference was made to the Labour Tribunal by the  Government of West Bengal on April 21, 1961 of the following issue "Whether   the  dismissal  of  the  following   workmen   is justified; what relief, if any, they are entitled to, and                (here followed the 11 names)". The Tribunal by its award held that there was no lock out or lay  off  by the employer as was pleaded on  behalf  of  the Union  1  1  Workmen had gone on a strike  but  it  was  not illegal and that the punishment of dismissal for this strike must  be treated as victimization of the employees  and  was quite  unjustified both in severity and in relation  to  the strike for one day.  The order setting aside their dismissal and reinstating them was passed. It  may be pointed out that the Enquiry Officer  recommended the dismissal of only 8 of these workmen.  In regard to  the remaining  3,  benefit  of the doubt  was  given  for  their absence on grounds which may now be mentioned.  One  Quigly, who  was  a  Christian,  was  excused  with  a  warning  and deprivation  of wages for 2nd January on the ground that  he had  informed the Works Manager that he would be  unable  to attend  to  his duties on 2nd January.  One J. C.  Bose  was excused  because  he had joined on the 31st  December  after absence  and  was  not in a position to know  that  the  2nd January was not declared a holiday.  He was also warned  and his absence was adjusted against leave due to him.   Lastly, one A. K. Sarkar who was on leave till the 31st of  December was  excused  because  he was informed by  Quigly  that  2nd January  would  be a holiday.  He was also  warned  and  his absence  was  to  be treated as leave with  or  without  pay depending  upon  leave to his credit.  These  three  persons were ordered to join duty but they did not as the Union  was of  the opinion that the original dispute was still  pending for conciliation and till the dispute was settled they could not join. The  appellant  Company contends that the reference  is  bad because it refers to 1 1 workmen as "dismissed" when only  8 were so treated.  Technically this is correct but we do  not think that we should interfere with the award on this ground alone.  All workmen were charged together and their  defence more  or less was that the day following the 1st of  January was  to  be  a holiday in accordance  with  the  established practice,  though three of them raised  additional  defences when  asked to file separate defences.  It is  obvious  that these three workmen could not join when their 88 dispute  was  taken over by the Union and though  they  were offered  employment  they would have been treated  like  the others  unless  they  broke away from their  Union  or  went against its wishes.  In these circumstances, Government  was entitled to treat the dispute as single and undivided and to refer  the cases of all workmen who had absented  themselves on the 2nd of January on the ground that they claimed it  as a  holiday.  We do not, therefore, interfere with the  award on this ground. The  next question is whether the Tribunal was justified  in interfering  with the punishment of dismissal after  it  had come to the conclusion that the workmen had gone on a strike even  though the strike was not illegal.  Reference is  made to  a  number  of  cases in which  the  principles  for  the guidance  of  the Tribunals in such matters have  been  laid down by this Court.  It is now settled law that the Tribunal

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is  not to examine the finding or the quantum of  punishment because  the whole of the dispute is not really open  before the  Tribunal as it is ordinarily before a court of  appeal. The  Tribunal’s powers have been stated by this Court  in  a large  number  of  cases  and it has  been  ruled  that  the Tribunal  can only interfere if the conduct of the  employer shows  lack  of bona fides or victimization of  employee  or employees or unfair labour practice.  The Tribunal may in  a strong case interfere with a basic error on a point of  fact or  a  perverse finding, but it cannot  substitute  its  own appraisal of the evidence for that of the officer conducting the  domestic  enquiry  though it may  interfere  where  the principles  of  natural justice or fair play have  not  been followed  or  where  the  enquiry is  so  perverted  in  its procedure as to amount to no enquiry at all.  In respect  of punishment  it has been ruled that the award  of  punishment for  misconduct  under  the Standing Orders, if  any,  is  a matter  for  the management to decide and if  there  is  any justification  for  the  punishment  imposed  the   Tribunal should’  not  interfere.  The Tribunal is  not  required  to consider  the  propriety or adequacy of the  punishment   or whether  it  is  excessive or too  severe.   But  where  the punishment is shockingly disproportionate, regard being  had to the particular conduct and the past record or is such, as no   reasonable   employer  would  ever   impose   in   like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair  labour practice.   These  principles  can  be  gathered  from   the following cases :- Bengal Bhatdee Coal Co. Ltd. v. Ram Probesh Singh &  Ors.(1) Buckingham & Carnatic Co. Ltd. v. Workers(2); Tita- (1) [1964] 1 S.C.R. 709. (2) [1952] L.A.C. 490.  89 ghar Paper Mills Co. Ltd. v. Ram Naresh Kumar(1); Doom Dooma Tea  Co.  Ltd. v. Assam Chah Karamchari  Sangh  (2);  Punjab National  Bank Ltd. v. Workmen(3); Chartered Bank Bombay  v. Chartered Bank Employees Union(4). In  the present case the dispute was whether the  punishment amounted  to victimization or unfair labour  practice.   Mr. Sen  Gupta  referred to various parts of the record  of  the enquiry to show that the conduct of the workmen was regarded as  collective, that it was described as a strike,  that  it was  considered  to be the result of a conspiracy  and  that there  was a demand for over time.  Mr. Sen Gupta  contended that, in the circumstances, this must be regarded as a  case of  victimization  because only the permanent  workers  were subjected  to  this treatment.  Mr. Sen  Gupta  hinted  that there  was  an ulterior motive in dismissing  the  permanent workers and getting the work done by temporary hands so that the Union may break down and even the re-employment of three workmen,  who were probably indispensable to  the  employer, was  with the same motive.  On the other hand, Mr.  Setalvad argued  that  there was nothing on the record to  show  that this was a case of victimization.  These persons were  found guilty  at the enquiry and also by the Tribunal and  it  was merely  a question of what Punishment should be imposed  and that  was  a matter entirely within the, competence  of  the employer. In our judgment, this is one of those cases in which it  can plainly be said that the punishment imposed was one which no reasonable employer would have imposed in like circumstances unless  it served some other purpose.  There was a  practice of substituting for a holiday falling on a Sunday, the  clay next  following.   This  appears to have been  done  in  the

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appellant Company for a number of years.  In this year  also the  2nd  of January would have been a holiday but  for  the contrary  decision  of the  Management. From the  record  it does  not  appear  that there  was   anything  very  special requiring  attention on that day.  But assuming  there  was, the  absence  of  the  eleven workmen on  the  2nd  was  not something  for  which no lesser punishment could  have  been imposed.   The  absence  could have been  treated  as  leave without  pay  the workmen might even have  been  warned  and fined.  It is impossible to think that any other  reasonable employer  would   have  imposed the  extreme  punishment  of dismissal  on  its entire permanent staff  in  this  manner. Assuming for a moment, that three (1)[1961] 1 L.L.J. 511. (2)[1960] 2 L.L.J. 56. (3)[1959] 11 L.L. J. 666. (4) [1960] 11 L.L. J. 222. Sup.165 -7 90 workmen  were warned and taken back, the employer knew  very well that they could not join in view of the intervention of the  Union.   On the whole, therefore, though  we  emphasise again that a Tribunal should not interfere with the kind  or severity   of  punishment  except  in   very   extraordinary circumstances,  we think that interference was justified  in this case because the punishment was not only severe and out of proportion to the fault, but one which, in our  judgment, no reasonable employer would have imposed. The appeal, therefore, fails and is dismissed with costs. Appeal dismissed. 91