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PETITIONER: INDIAN IRON & STEEL CO., LTD. & ANOTHER

       Vs.

RESPONDENT: THEIR WORKMEN(and connected appeals)

DATE OF JUDGMENT: 15/10/1957

BENCH: DAS, S.K. BENCH: DAS, S.K. BHAGWATI, NATWARLAL H. KAPUR, J.L.

CITATION:  1958 AIR  130            1958 SCR  667

ACT:        Industrial  dispute-Illegal strike-Lock-out-Notice  lock-out        and  asking  workmen to resume work-Workmen’s  right  to  be        taken  back  without condition-Workmen taken in  custody  by        police--Refusal   of  leave-Discretion  of   the   employer-        Dismissal  of workmen Powers of the Industrial  Tribunal  to        interfere.

HEADNOTE:        On account of the continued illegal stoppage of work, ’glow        down’  tactics,  and  strikes indulged  in  by  the  workmen        despite  the  advice of their Union, the  appellant  company        issued a notice dated August 23, 1953, that  in  consequence        of  the  illegal strike the Management has no option but  to        declare  a lock-out of the entire works except  the  special        shifts  with effect from August 24, 953 The services of  all        other  workers shall be deemed to be discharged with  effect        from  August 24, 953." Subsequently, the company lifted  the        lock-out.  and  gave notice on September 17,  1953,  to  the        effect that all employees on the Works rolls of the  Company        on  August 23, 1953, and who wish to report for  duty,  must        resume  work   on  September 18, 1953 A  third  notice  gave        extension  of  time  to the workmen  to  resume  work.   The        question  was  whether  the notice dated  August  23,  1953,        terminated  the services of the respondents  by  discharging        them with effect from August 24, 1953, and the notice  dated        September  17, 1953, merely gave them an opportunity of  re-        employment  at the pleasure of the company on fulfilment  of        certain conditions.        Held, that, on a construction of the notices, the expression        "shall  be  deemed to be discharged" had to be read  in  the        context of the declaration of a lock-out, and the  intention        of  the company was that the employees whose employment  bad        been  refused  during  the period of  lock-out  were  to  be        permitted  to  resume work without any  conditions  if  they        reported for duty by a particular date, and on fulfilment of        a condition if they reported for duty after that date.        Where  some of the workmen who were taken in custody by  the        police  applied for leave when in custody but  were  refused        leave by the company acting under Standing Order No. o,  and        the  Labour  Appellate Tribunal took the view  that  as  the

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      workmen  were  in custody the company was not  justified  in        refusing  leave,  held, that whether in  such  circumstances        leave  should  be  granted  or  not  must  be  left  to  the        discretion  of the employer, unless, it was proved, that  it        was  a  case of colourable or mala fide  exercise  of  power        under the Standing Order.        668        Burn  and  Co., Calcutta v. Their Employees,  [1956]  S.C.R.        781, followed.        The  powers of an Industrial Tribunal to interfere in  cases        of  dismissal of workmen by the company, are  not  unlimited        and  the  Tribunal  does not act as a court  of  appeal  and        substitute its own judgment for that of the management.   It        will  interfere  (1) when there is want of good  faith,  (2)        when  there is victimisation or unfair labour practice,  (3)        when  the  management has been guilty of a  basic  error  or        violation of a principle of natural justice, or (4) when  on        the   materials  the  finding  is  completely  baseless   or        perverse.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 44,45,  336,        and 337 of 1957.        Appeals by special leave from the decisions dated 29th June,        1956, of the Labour Appellate Tribunal of India, Calcutta in        Appeals Nos.  Cal.223, 226, 247 and 250 of 1955.        M.   C.  Setalvad, Attorney-General for India,  Dipak  Datta        Chaudhury  and B. N. Ghosh, for the appellants in C. A.  No.        44 and respondents in C. A. No. 45.        M.   C. Setalvad, Attorney-General for India, S. N.  Mukerji        and  B. N. Ghosh, for the appellants in C. A. Nos.  336  and        respondents in C. A. No. 337.        S.   K.  Acharya,  Arun  Kumar Dutt, D.  L.  Sen  Gupta  and        Sukumar Ghosh, for the appellants in C. A. Nos. 45 & 337 and        respondents in C. A. Nos. 44 & 336.        1957.  October 15.  The Judgment of the Court was  delivered        by        S.   K. DAS J.-These four appeals by special leave arise out        of  certain  labour disputes between the  employer,  Messrs.        Indian  Iron  and  Steel  Company  Limited  and  the  Indian        Standard   Wagon   Company   Limited,   Burnpur,    Asansol,        (hereinafter  compendiously referred to as the  Company)  on        one side and some of their employees on the other.   Messrs.        Martin  Burn  Limited,  12 Mission Row,  Calcutta,  are  the        Managing Agents of the Company.  Originally, the case out of        which  Civil Appeals 44 and 45 have arisen was known as  the        case  of 144 workmen, and the other case out of which  Civil        Appeals 336 and 337 have arisen was known as the case of  74        workmen.  At present, the        669        number  of  workmen  involved in the four  appeals  is  much        smaller.  Civil Appeals 44 and 45 go together as they  arise        out of the same decision, Civil Appeal 44 being on behalf of        the  Company in respect now of 104 respondent  workmen,  and        Civil  Appeal  45  on  behalf of 103 out  of  the  said  104        workmen.   Similarly, Civil Appeals 336 and 337 go  together        and  arise out of a common decision, Civil Appeal 336  being        on  behalf of the Company in respect of 10 workmen in  three        groups  and  Civil Appeal No. 337 on behalf of  31  workmen.        The  facts  of  these  two  sets  of  appeals  are  somewhat        different,  and it will be conducive to convenience as  also        to clarity of discussion of the issues involved, if the  two        sets are dealt with separately.

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                        Civil Appeals 44 and 45.        We  take up first Civil Appeals 44 and 45.  With  regard  to        these  appeals  the relevant facts are these.  In  1947  the        Asansol Indian Iron and Steel Workers Union with one  Prof.‘        Abdul  Bari as President was recognised by the Company.   On        the  death  of  Prof.  Bari, one  Mr.  Michael  John  became        President  and the Union continued to be recognised  by  the        Company.  In 1951 the Company was declared a Public  Utility        Service  under  the Industrial Disputes Act, 1947.   It  was        alleged on behalf of the Company that on September 12, 1951,        a  procedure was established for an amicable  settlement  of        such  disputes  as might arise between the Company  and  its        employees.  The procedure was substantially this: in case of        a  dispute  regarding an individual  employee,  the  dispute        would be referred first to the Shop-in-charge and then to  a        Works   Committee,  and  the  Union  would   discourage   an        individual approach to the management of the Company; if the        Works Committee was able to effect a settlement, it would be        final; but if it failed, the Union could take up the case on        merits,  with  the  management of the  Company.   The  above        procedure, it is stated, was accepted at a joint meeting  of        the Works Committee held on November 13, 195 1. Then we come        to  1953.  The case of the company was that on  January  18,        1953, certain workers of the, Hot Mills        670        section resorted to an illegal stoppage of work, and on  the        next  day  all  the three shifts of the  Hot  Mills  section        commenced a ’slow down’ strike.  This adversely affected the        production of the Company, and it addressed a letter to  the        Secretary  of  the Union on January 27,  1953,  drawing  the        attention  of the Union to the illegal stoppage of work  and        ’slow down’ tactics; the letter further stated that if there        was  no  improvement  in the attitude of  the  workers,  the        Company  would  be  compelled  to take  such  action  as  it        considered  necessary  to bring about resumption  of  normal        work.  Two days later, the workers of the Hot Mills  section        submitted certain demands, but not through the Union.   With        regard  to the demands made by the workers of the Hot  Mills        section,  they were informed that joint  petitions,  without        reference to the Union or the Works Committee, would not  be        accepted  and  so long as normal work was  not  resumed,  no        consideration  could  be  given to  the  demands  made.   It        appears  that the Union also informed the Company  that  the        workers  concerned had made no representation to the  Union,        and  the  Union  did not support their  activities.   It  is        obvious that at this stage there was a cleavage between some        of the workers of the Hot Mills section and the Union.   The        Company then issued certain notices to the workmen  advising        them  of the consequences of their action.  The  workers  in        their  turn  elected a committee of six men to  press  their        demands;  the  Company, however, refused to  negotiate  with        this  committee.  The impasse continued and in March,  1953,        there  was  a  tripartite  conference  between  the   Labour        Commissioner  of the Government of West Bengal, the  General        Manager  of  the  Company and the President  of  the  Union.        Before this, the Company had issued a notice closing ’B’ and        ’C’  shifts  of  the  Hot  Mills  section.   The  tripartite        conference came to certain conclusions but failed to restore        harmony, and one of the reasons for its failure was that the        representatives of the workers of the Hot Mills section were        not  included  therein.  The  workers’  committee  protested        against the closing of two shifts, and the trouble continued        till April 8, 1953, when the Company                              671        issued a notice to the workmen that unless they  voluntarily

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      recorded their willingness to do normal work, they would  be        considered as no longer employed by the Company from 2  p.m.        on  April 10, 1953.  It was stated that on April  11,  1953,        some  700 workers resorted to an illegal stoppage  of  work.        The Labour Minister, Government of West Bengal, then visited        Asansol, and met the representatives of the workers, and  of        the  Union  and the Management.  He made  some  suggestions,        which did not however end the trouble.  Meanwhile, an Action        Committee was set up by the workmen.  There was a strike  on        April  27,  1953.  The Sub-Divisional  Magistrate,  Asansol,        promulgated  an order under s. 144 of the Code  of  Criminal        Procedure  and the situation continued to worsen.  Iron  and        Steel  were  declared  to be essential to the  life  of  the        community  under the provisions of the West Bengal  Security        Act,  1950,  and leave to all employees was stopped  by  the        Company.   Some  38 workers of  different  departments  were        discharged for alleged disobedience of orders, and on August        18,1953,  the Action Committee gave a strike notice  to  the        Company, stating that the workmen would resort to strike and        abstain  from duty from September 11, 1953.  We now come  to        the crucial date, August 23, 1953.  On this date the Company        declared  a lock-out and issued a notice, which must be  set        out in full, because a good part of the argument of  learned        counsel for both parties has centred round this notice :                                 " NOTICE.        Having  regard  to the continued existence of the  go.  slow        strike  and the unsatisfactory working of the Plant  and  in        consequence of the illegal strike which took place on-        (1) 18-1-53.        (2) 9-3-53.        (3)  11-4-53 to 20-4-53.        (4)  27-4-53 and 28-4-53.        (5) 15-7-53.        the Management has no option but to declare a lockout of the        entire works except the special shifts in the        672        Hot  Mills  Section  of the Sheet  Mills  with  effect  from        Monday, the 24th August, 1953.        The following Departments will continue to operate:        No. 3 Boiler Plant.        No. 2 Power House.        Nos.  1 and 2 Reservoir Pump Houses.        Riverside Pump Station.        Town Water Works.        Town Sub-Station.        Coke Ovens.        Workers required in the above Departments will be  notified.        The  services  of all other workers shall be  deemed  to  be        discharged with effect from Monday,        August 24th, 1953.        Bunpur                               (Sd.) J. McCraken        23rd August, 1953.                      General Manager."        On  September  17, 1953, another notice was  issued  by  the        Company  lifting  the lock-out with effect from  6  a.m.  on        Friday, September 18, 1953.  This notice stated inter alia:        "All employees on the Works rolls of the Company on the 23rd        August,  1953, and who wish to report for duty, must  resume        work  between 6 a. m. on Friday, the 18th  September,  1953,        and 10 p.m. on Saturday’ the 19th September, 1953, on  their        regular  shift.  If, however, any worker in the vicinity  of        the Works is unable to resume duty on account of illness, he        should  report himself to the Company’s Medical  authorities        or  if unable personally to attend, send written  intimation        of  his  sickness  to  the Company  by  Saturday,  the  19th        September,  1953.  In the latter case the Company will  make

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      arrangements  for  his  medical  examination.   Such  worker        should  resume duty from the date he is declared fit by  the        Company’s Medical authorities.        Any worker who has left the vicinity of the Works may resume        duty  on  or  before Thursday,  the  24th  September,  1953,        provided he produces evidence-satisfactory to the Company of        his absence."         On September 23, 1953, the Company issued a  third  notice,        which quoted a request received from the        673        President  of the Asansol Iron and Steel Workers’ Union  for        extension  of the time given to the workmen to resume  work,        and then concluded as follows:        "The  Company  is pleased to accede to this request  to  the        extent  of  one week’s extension and its notice  No.  GM/CS-        3B/571 dated 17-9-53 may be considered amended  accordingly,        i.e.,  the extension will be until Friday, the 2nd  October,        1953."        Of  the workmen with whom we are now concerned,  98  workmen        reported for duty on October 1, 1953, 4 reported for duty on        October 2, 1953, and one on October 9, 1953.  They were not,        however,  allowed  by the Company to  resume  their  duties.        This  led to an industrial dispute which the  Government  of        West Bengal referred to the Fifth Industrial Tribunal.   The        two  issues  were-(1) whether the Company was  justified  in        keeping  the workmen mentioned in three lists A, B & C,  out        of  employment;  and  (2)  whether  the  said  workmen  were        entitled   to  employment  and  any  other   relief   and/or        compensation.   The Tribunal held that all the  workmen  who        turned up on or before October 2, 1953, in pursuance of  the        notices issued by the Company were entitled to be taken back        into  employment  without condition and of the two  men  who        came later, one was ill of typhoid fever and had  sufficient        reason  for reporting himself for duty on October  9,  1953.        On the second issue, the Tribunal said:        "  Accordingly,  I  award  that  these  men,  barring   Shri        Satyanarayan, No. 5 of the list C, attached to the order  of        reference, would get half salary for the entire period  from        the 2nd October, 1953, up to the date of their actual return        to duties after this award.  I allow only half basic pay and        no dearness allowance and no other allowance."        From  the  decision of the Fifth  Industrial  Tribunal,  two        appeals  were  preferred to the Labour  Appellate  Tribunal,        Calcutta.   The appeal on behalf of the Company  was  mainly        against  the  order  directing that the  employees  who  had        turned  up on or before October 2, 1953, must be taken  back        in  employment,  and  the appeal on behalf  of  the  workmen        raised the question        674        that full compensation should be given to the work., men who        were  directed to be taken back in employment.   The  Labour        Appellate Tribunal dismissed both appeals-the appeal of  the        Company  on  merits, and the appeal of the  workmen  on  the        ground  that it did not involve any substantial question  of        law.  Both parties then asked for and obtained special leave        from  this Court to appeal from the decision of  the  Labour        Appellate Tribunal, Calcutta.        In  Civil  Appeal  No. 44, Mr.  M.  C.  Setalvad,  Attorney-        General,  has appeared for the Company and has  argued  that        both  the  Tribunals  below  went  wrong  on  principle   in        construing the notices dated August 23, 1953, and  September        17,  1953,  respectively.  According to him,  the  continued        illegal  stoppages of work, ’slow-down’ tactics and  strikes        indulged  in  by  the workmen despite the  advice  of  their        Union, left the Company no alternative but to discharge  the

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      workmen,  except in some essential departments, with  effect        from August 24, 1953, and the notice dated August 23,  1953,        though it stated that the Company declared a lock-out of the        entire   Works  except  for  some  special  shifts,   really        terminated  the services of the respondents  by  discharging        them  with  effect  from August 24, 1953.   He  has  further        submitted that the notice dated September 17, 1953, did  not        revoke  the earlier order of discharge, but merely gave  the        respondents  an opportunity of reemployment at the  pleasure        of  the  Company on fulfilment of certain  conditions.   The        learned Attorney-General contends that if the notices are so        construed,  then  the Tribunals below are wrong  in  holding        that  the  respondents  are entitled to  be  taken  back  in        employment  as of right.  He has further submitted that  the        Fifth  Industrial Tribunal was wrong in law in holding  that        there  could  not be a lock-out and discharge  at  the  same        time.        In our view, the two notices in question are not capable  of        bearing the construction which the learned  Attorney-General        has  pressed for our acceptance, apart altogether  from  the        question  if under the Industrial Disputes Act, 1947,  there        can  be  a simultaneous order of discharge and  lock-out  in        respect of the                               675        same  employees.  The question of construction is  really  a        question  of  intention-to be gathered  primarily  from  the        words  used  in the documents; and if the  word-.  used  are        ambiguous, then surrounding circumstances can be looked into        for the purpose of construing the notices.  It is worthy  of        note  that  the  first  notice states  inter  alia  that  in        consequence  of  the  illegal strikes which  took  place  on        several previous dates, the Management has no option but  to        declare  a look-out of the entire Works except some  special        shifts with effect from Monday, August 24, 1953; then in the        concluding  portion the notice states-" The services of  all        other  workers shall be deemed to be discharged with  effect        from  Monday,  August 24, 1953.  The expression "  shall  be        deemed to be discharged has to be read in the context of the        declaration  of  a lock-out; such an expression  is  neither        usually  employed  nor  apt to effectuate  an  intention  to        terminate the services of the workmen altogether.  A  ’lock-        out’, according to the definition in the Industrial Disputes        Act, 1947, means the " closing of a place of employment,  or        the  suspension  of work, or the refusal by an  employer  to        continue to employ any number of persons employed by him  ".        In  this context, the notice when it said that the  services        of all other workers shall be deemed to. be discharged  with        effect  from the date of the lock-out really meant that  the        Company refused to employ the respondent workmen during  the        period when the place of employment was closed.  The  second        notice  dated September 17, 1953, places the  matter  beyond        any  doubt.  It starts by saying that the  "management  have        reasons  to  believe  that  many  workers  are  desirous  of        resuming  work" etc.; then it states that "all employees  on        the  Works rolls of the Company on August 23, 1953, and  who        wish to report for duty, must resume work between 6 a.m.  on        Friday,  September  18  1953,  and  10  p.m.  on   Saturday,        September  19, 1953." The  expressions used in  the  second-        notice clearly show that the intention was not  reemployment        of  discharged workmen, but resumption of work by  employees        who  desired  to resume work and whose employment  had  been        stopped on account of the   86        676        look-out.  The third notice dated September 23, 1953,  which        extended the date of joining to October 2, 1953, again  said

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      that  " a large number of workers might have been  prevented        from resuming their work for reasons beyond their control  "        and gave that as the reason for extending the date.  If  the        three  notices referred to above are read  together  against        the background of events which bad happened prior to  August        23,  1953,  the  only reasonable  construction  is  the  one        adopted  by  the Tribunals, viz., that the  employees  whose        employment   had  been  refused  during  the  lockout   were        permitted  to  resume work without any  conditions  if  they        reported for duty by a particular date, and on fulfilment of        a condition if they reported for duty after that date.        The  learned Attorney-General has referred us to  some  oral        and documentary evidence to show that the workmen themselves        understood the notice dated August 23, 1953, as a notice  of        discharge.  He has referred particularly to the letter dated        September  2, 1953, written by the Action Committee  to  the        General  Manager  of the Company in which the  notice  dated        August  23,  1953,  was  referred to as  "  an  illegal  and        unconstitutional  notice of discharge".  On the other  side,        Mr.  S. K. Acharya appearing for the respondent workmen  has        referred  us to the evidence given by some of the  Company’s        servants, which showed that no formal order of discharge was        recorded  in the service book of the employees, as  required        by  the  rules;  nor  any notice  of  one  month  given  for        discharging  the  workmen; but on the contrary  the  workmen        were  given continuity of service for the entire  period  of        their  absence.   We do not, however, think  that  when  the        words used in the notices sufficiently and clearly bring out        the  intention of the Company, it is necessary to  refer  to        other evidence in the record.  Moreover, this Court does not        sit as a regular Court of appeal over Industrial  Tribunals,        and does not ordinarily subject the evidence given on behalf        of the parties to a fresh review and scrutiny, unless it  is        shown  that exceptional or special circumstances  exist,  or        that  substantial and grave injustice has been done or  that        the case        677        in  question  presents  features of  sufficient  gravity  to        warrant a review of the decision appealed from.        It  is necessary now to consider an alternative argument  of        the   learned  Attorney-General.   He  has  contended   that        assuming  that  the notices bear the construction  which  we        have put on them, the respondent workmen did not join on  or        before  Saturday,  September 19, 1953,--the  latest  day  by        which  they  could resume work without any  condition;  they        reported  for duty on October 1, 1953, or October  2,  1953,        but  failed to produce evidence satisfactory to the  Company        of  their absence as required by the notice dated  September        17, 1953, and, therefore, they were not entitled to be taken        back as of right and without any condition.  It is necessary        to state here what happened between November 1953, and April        1954.   It  appears  that  a large  number  of  workmen  who        reported  for duty on October 1, 1953, and October 2,  1953,        were  subsequently  interviewed,  and as a  result  of  that        interview  144  workmen were not taken back  to  employment.        What  happened  at the interview was stated by  Shri  S.  K.        Kanwar, witness for the Company, who said :        " Question: Why these 144 men were not taken ?        Answer:   These  men  were interviewed, but they  could  not        give  satisfactory  explanation for not reporting  for  duty        within  the time given.  These men did not comply  with  the        condition  laid  down in the notice of the  17th  September,        1953.   Whatever happened during the interview has been  put        in writing."        The  writing which embodied the result of the interview  was

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      not,  however,  produced.  The same witness said  that  some        workmen  who were also subsequently interviewed  were  taken        back without any explanation of their absence.  The evidence        on  this  point is very Conflicting; one witness  said  that        about  2,000  men came to the main gate of  the  Company  on        October  1, 1953, and October 2, 1953, and from  October  2,        1953, the instruction of the company was " to take back only        those  who were not harmful to the running of the  factory".        Another witness said that he did not        678        remember  if any of the respondent workmen  appeared  before        him  on October 1, 1953, or October 2, 1953, and if  any  of        them  gave  any reasons for their absence.  In view  of  the        conflicting  evidence  on the point, it is not  possible  to        proceed on the footing that the respondent workmen failed to        produce satisfactory evidence of their absence, and that was        the reason why they were not taken back by the Company.  The        learned  Attorney General drew our pointed attention to  the        evidence  of Shri Promotho Nath Mukherji, witness No. 9  for        the  workmen, who said: "When the lock-out was lifted I  did        not think it proper to join immediately because most  people        were  then outside, secondly, my colleagues and  others  had        not then joined, and. lastly, my social status in the  place        combined  with  the above circumstances restrained  me  from        joining."  It  may be that some of the  workmen  could  have        presented  themselves  earlier than they actually  did,  But        that  does not prove that the Company refused to  take  only        those  workmen  who  had  failed  to  produce   satisfactory        evidence  of  their absence.  If that was the  case  of  the        Company,  then  it should have produced  the  writing  which        embodied  the  result of the interview or  given  sufficient        evidence  to  establish  that in each  case  the  respondent        workmen failed to produce satisfactory evidence of  absence.        On  the  contrary,  the  Tribunal  found  that  the  Company        scrutinised  the conduct of the workmen to find out how  far        they were associated with the Action Committee, how far they        took  part  in the meetings, etc., and on that  basis,  some        workmen were taken back and some were not taken back.  It is        somewhat late in the day to try to make out a case that each        of  the  respondent workmen in these two appeals  failed  to        produce satisfactory evidence of their absence.        For  these  reasons,  we do not  think  that  the  appellant        Company  in  Civil Appeal 44 has made out any case  for  our        interference  with  the decision appealed from.   There  was        some  argument  before us as to the illegal  nature  of  the        strike  declared by the workmen and also as to the  legality        of the lock-out declared by the Company.  We do not pause to        decide those                                679        questions,  because it is unnecessary to do so in  the  pre-        sent  appeals.   We must make it clear,  however,  that  our        reluctance to pronounce on the conduct of the workmen  prior        to  August  23, 1953, does not signify an approval  of  that        conduct  which rightly came in for a good deal of  criticism        by  the Industrial Tribunal.  It has been  somewhat  faintly        suggested  that  if  the  notice  dated  August  23,   1953,        terminated  the  services  of the  workmen  and  the  second        notice, dated September 17, 1953, operated as a  conditional        revocation  of  the  earlier  notice,  then  there  was   no        consideration  for  the condition imposed  and  the  Company        could  change its mind-: and ignore the condition.   In  the        view  which we have taken of the three notices,  it  becomes        unnecessary" also to examine this submission.        As to Civil Appeal 45 on behalf of the workmen in which  the        prayer is for payment of full compensation, it is sufficient

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      to  state  that no question of principle is  involved.   The        Fifth Industrial Tribunal refused to give compensation,  for        the period anterior to October 2, 1953, on the. ground  that        the workmen themselves tried to coerce the Company by ’slow-        down’  tactics etc.; for the period after  October  2,’1953,        the  Tribunal allowed half the wage as compensation  on  the        ground that some of the workmen were near Burnpur and  might        have  joined  earlier, some claimed to come  back  to  their        services  as of right without any explanations and  none  of        the workmen had done any actual work for the period.  As  we        have  said, no question of principle is involved and  we  do        not  think that the Tribunal has committed any error in  the        matter of awarding compensation.        Civil Appeals 336 and 337.        We  now turn to the other two appeals.  We have stated  that        the  case out of which these two appeals have  arisen  dealt        initially  with  74  workmen  who  had  been  discharged  or        suspended  by the Company  for" one reason or another.’  The        question which was referred to the Fifth Industrial Tribunal        was  whether  the discharge and/or suspension  of  these  74        workmen was justified if not, to what relief these men  were        entitled.   The  Tribunal  classified  these  men  in   four        categories--        680        (1)those  whose services were terminated in accordance  with        the  Standing  Orders of the Company,  for  absence  without        permission  for  14  consecutive days; (2)  those  who  were        dismissed   for  major  misdemeanor;  (3)  those  who   were        suspended but whose cases could not be disposed of  finally;        and (4) those who were dismissed for disobedience of  orders        and  other  activities in pursuance of a concerted  plan  of        "go-slow" strike.  The Tribunal considered the case of  each        workman  under  the  four  categories  mentioned  above  and        ordered reinstatement of 25 out of 74 workmen and granted to        24  of  the workmen directed to be  reinstated  compensation        equal   to  half  basic  pay  for  the  period   of   forced        unemployment.   From  the decision of the  Fifth  Industrial        Tribunal  two  appeals were taken to  the  Labour  Appellate        Tribunal,  Calcutta,-one  on behalf of the Company  and  the        other  for  the  workmen.   The  Labour  Appellate  Tribunal        dismissed both the appeals.  Hence the two appeals before us        by special leave.        In  Civil Appeal 336 we are concerned with only 10  workmen,        seven  of whom fall in the category of those whose  services        were  terminated in accordance with Standing Orders  of  the        Company  for absence without permission for  14  consecutive        days.   These  seven  men  are-(1)  Bamapado  Mukherji,  (2)        Chandrasekhar Mukherji, (3) Niaz Hossain, (4) Dhani Ram, (5)        Chandrabhan  Sing, (6) Raja Sing, and (7) Jai Kishore  Sing.        Two  others,  Samar  Sen  and Abharani  Debi,  fall  in  the        category  of those who were said to have been dismissed  for        major  misdemeanour.   The tenth workman  Himansu  Chattoraj        falls in a class by himself.        In  Civil Appeal 337 on behalf of the workmen there  are  31        appellants,  nine of whom (except Samar Sen) are  those  who        figure in the Company’s appeal.  The rest are those who were        not ordered to be reinstated.  The cases of two of these men        Akka  Hossain  and  D. P. Das, have  been  specially  placed        before  us  by Mr. S. K. Acharya, on the  ground  that  Akka        Hossair, stands on the same footing as Himansu Chattoraj and        D.   P. Das on the same footing as those whose leave was not        granted and who were absent for 14 consecutive days  without        permission.        681        We  now proceed to consider the cases of the 10  workmen  in

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      Civil  Appeal 336.  Let us first take the seven workmen  who        were absent without leave for 14 consecutive days.  Standing        Order  No. 9 of the Company, which is the relevant  Standing        Order on the subject, is in these terms:        " Absenteeism--Workers absent without leave will be  subject        to   disciplinary   action.   Overstaying  leave   will   be        considered as absence without leave.        Any  worker  who is absent for 14 consecutive  days  without        permission  will  be  automatically  discharged.  Also,  any        worker  who  is  absent for 14 individual  days  during  any        period of 12 months is liable to discharge."        What  happened in the case of these men is that  on  diverse        dates  between  July 5, 1953, and July 10, 1953,  they  were        taken  in custody by the police and remained in custody  for        some time; they applied for leave when in custody but  leave        was  refused.   The Industrial Tribunal took the  view  that        Standing Order No. 9 was not an inflexible rule, and a  mere        application for leave was sufficient to arrest the operation        of  the  Standing  Order.   When the  case  was  before  the        Appellate  Tribunal,  Mr.  S. K. Acharya on  behalf  of  the        workmen  conceded that he was not in a position  to  support        the  view of the Fifth Industrial Tribunal in this  respect;        he  contended, however, that the Industrial Tribunal had  in        each  case considered the justification for absence  without        leave, and in view of the circumstance that the men were  in        custody,  the Company was not justified in  refusing  leave.        This  contention  found  favour with  the  Labour  Appellate        Tribunal.        The  point is now covered by a decision of this Court:  Burn        and  Co., Calcutta v. Their Employees (1). in that case  one        Ashimananda  Bannerji  was arrested tinder the  West  Bengal        Security Act and detained in jail from January 25, 1949,  to        April  ’5,  1949.  The Company terminated  his  services  on        April  22,  1949, on the ground of continued  absence.   The        Appellate  Tribunal Ordered his reinstatement on the  ground        that  he  had been discharged without a charge  and  without        holding        (1)  [1956] S.C.R. 781, 798.        682        an enquiry.  This Court observed:        "We are unable to agree with this decision.  The  ground  of        discharge is the continued absence of the employee, and  his        inability  to  do  work, and it is  difficult  to  see  what        purpose  would be served by a formal charge being  delivered        to  him and what conceivable answer he could  give  thereto.        The order of the Appellate Tribunal is manifestly  erroneous        and must be set aside."        The same principle should apply in the present case.  It  is        true that the arrested men were not in a position to come to        their  work, because they had been arrested by  the  police.        This may be unfortunate for them; but it would be unjust  to        hold  that  in such, circumstances the Company  must  always        give  leave  when an application for leave is  made.   If  a        large  number of workmen are arrested by the authorities  in        charge  of  law and order by reason  of  their  questionable        activities  in connection with a labour dispute, as in  this        case,  the  work  of the Company will be  paralysed  if  the        Company  is forced to give leave to all of them for a  "more        or  less  indefinite period.  Such a principle will  not  be        just; nor will it restore harmony between labour and capital        or  ensure  normal  flow of production.   It  is  immaterial        whether the charges on Which the workmen are arrested by the        police are ultimately proved or not in a court of law.   The        Company must carry on its work and may find it impossible to        do  so if a large number of Workmen are absent.  Whether  in

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      such  circumstances leave should be granted or not  must  be        left  to the discretion of the employer.  It may be  readily        accepted that if the workmen are arrested at the instance of        the  Company for the purpose of victimisation- and in  order        to  get rid of them on the ostensible pretext  of  continued        absence, the position will be different.  It will-then be  a        colourable or mala fide exercise of power under the relevant        Standing  Order; that, however, is not the case  here.   We,        are of the view that the two Tribunals below have misdirect-        ed  themselves  as  to  the true scope  and  effect  of  the        "Standing Order in question, and their decision-with  regard        to the seven workmen mentioned above cannot be supported.        683        We now turn to the two persons in the second category  Samar        Sen  and  Abharani Debi, remembering what  we  have  already        stated  as to the exercise of our jurisdiction on an  appeal        by  special leave.  Samar Sen worked as the Manager  of  the        Burnpur hotel, and one of the questions raised was if he was        a ’workman’ within the meaning of the relevant provisions of        the  Industrial Disputes Act, 1947.  At the  relevant  time,        ‘workman’ was defined in the Act as follows:        "  Section  2(s).   " workman " means  any  person  employed        (including an apprentice) in any industry to do any  skilled        or unskilled manual or clerical work for hire or reward  and        includes, for the purposes of any proceedings under this Act        in  relation to an industrial dispute, a workman  discharged        during  that  dispute,  but  does  not  include  any  person        employed  in  the  naval, military or  air  service  of  the        Government."        The question is if Samar Sen did any clerical work for  hire        or  his duties were merely supervisory in nature.  Both  the        Tribunals  have referred to the evidence on this  point  and        have concurrently found that Samar Sen was a workman  within        the meaning of that word as used in the Industrial  Disputes        Act,  1947; they have referred to Samar Sen’s  own  evidence        which   showed   that  he  had  to   write   ledgers,   file        correspondence, enter the cash book, etc.  We see no  reason        to hold that the finding of the two Tribunals on this  point        is erroneous.        On  merits, the case against Samar Sen was that as a  result        of  a  regular and proper enquiry, he was  found  guilty  of        unauthorised   absence  and  insubordination,   etc.,   and,        therefore,  the Company dismissed him.  The argument  before        us  is  that the Company having held a  regular  and  proper        enquiry in which Samar Sen had an opportunity of meeting the        charges  against  him,  it was for  the  Company  to  decide        whether  the  charges  had been proved  and  the  Industrial        Tribunal should not have interfered with the decision of the        Company, unless it found that the decision was mala fide  or        amounted  to victimisation.  It is necessary to state  here,        in  the words of the Fifth Industrial Tribunal, its  finding        about Samar Sen. The Industrial Tribunal said: 87        684        "Next,  I consider the merit of the case.  On the 6th  July,        1953,  he went on leave.  On the 16th July, he  applied  for        extension  of  leave for one month (vide Ex. 6).  He  got  a        reply from the Company on the 25th or 26th July, 1953.   But        as  the  Company refused his leave, he jointed  on  the  1st        August,  1953,  with a medical certificate of  fitness.   So        practically  he was within 14 days’ admissible grace  period        for  joining  one’s  duty.  When he was  on  leave,  he  was        suffering from blood pressure and fever.  The doctor advised        him  to take rest.  Of course, he should have consulted  the        Companies’  doctor.  But even if he had not done so, it  did        not  matter as he was then on leave allowed by the  Company.

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      So where was his fault?  Yes, his fault was that he was  the        Secretary of the Action Committee at that time.  The  Action        Committee  to the Companies was like a red rag to the  bull.        I  find  absolutely  no  reason  why  this  man  should   be        dismissed.   So  I set aside the order of  dismissal  passed        against  him,  and  order his reinstatement.   I  grant  him        compensation at half basic pay for the period of his  forced        unemployment."        The  finding  really  amounts to this  that  Samar  Sen  was        victimised as he was the Secretary of the Action  Committee;        he  was really ill and the only fault he committed was  that        he  did  not  consult the  Company’s  doctor.   The  learned        Attorney-General has very seriously contested the  aforesaid        finding  of the Tribunal and taken us through  the  relevant        evidence  including  Samar Sen’s own statements  before  the        Enquiry Committee.  He has pointed out that though Samar Sen        was said to be suffering from fever and blood-pressure,  his        statements  before the Enquiry Committee showed that he  was        not taking complete rest as " advised by his doctor but  was        engaged in doing some " public work." The argument  advanced        by  the  learned  Attorney-General  might  have  been  urged        acceptably to a Court or Tribunal of first instance; but  we        are  not  such a Court or Tribunal, and in  the  absence  of        exceptional or special circumstances or of grave  injustice,        we shall not be justified in interfering with what really is        a finding of fact.        685        This brings us to the case of Abharani Debi, where also  the        same  principles  apply.   She was a nurse  in  the  Burnpur        Hospital and the charge against her was that she had incited        and instigated one Karu, a sweeper working in the  hospital,        not  to  attend his duties on the morning  of  September  5,        1953.   An enquiry was held and she was found guilty of  the        charge.  The Tribunal found that the charge against her  was        completely baseless, and the enquiry report against her made        a  mountain of a mole-hill.  She made some comments to  Karu        with regard to a pass which had been issued to Karu, and the        comments  innocuous  in  themselves were  magnified  into  a        charge  of intimidation.  It is significant that before  the        Labour  Appellate Tribunal, the Company did not  even  argue        the  case  of Abharani.  Undoubtedly, 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 of a workman        is  justified and to give appropriate relief.  In  cases  of        dismissal on misconduct, the Tribunal does not, however, act        as  a  Court of appeal and substitute its own  judgment  for        that of the management.  It will interfere (i) when there is        a  want of good faith, (ii) when there is  victimisation  or        unfair  labour practice, (iii) when the management has  been        guilty  of  a  basic error or violation of  a  principle  of        natural justice, and (iv) when on the materials the  finding        is completely baseless or perverse.  In our view, Abharani’s        case comes under, clause (iv) above.        Lastly,  we come to Himansu Chattoraj.  The  Company’s  case        against  him was the following.  It was alleged  that  since        January,  1953, he incited other workmen to resort to  ’slow        down’  tactics.  On March 28, 1953, he was charged  that  he        took  an active part in the ‘ slow-down’ strike in  the  Hot        Mills  section, and he initiated such action and  instigated        others to do the same.  On March 29, 1953, he submitted  his        explanation.   On March 31, 1953, he was  suspended  pending        enquiries.  On April 3, 1953 and April 4, 1953, some        686

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      evidence   was  taken  against  several  workmen   including        Chattoraj in the course of the enquiry, but the evidence not        being  of an overwhelming character against  Chattoraj,  the        management  postponed its decision pending further  enquiry.        In  May 1953, the Sub-divisional Magistrate  promulgated  an        order  under  s.  144, Criminal  Procedure  Code,  in  which        Chattoraj  was mentioned.  In September, 1953,  the  dispute        was  referred  to  the  Fifth  Industrial  Tribunal,   which        included  the  case of Chattoraj-there  being  a  suspension        order against him.  It was stated that an application  under        s.  33  of the Industrial Disputes Act, 1947, was  made  for        permission to dismiss Chattoraj for activities subsequent to        the charge-sheet of March 28, 1953.  The Tribunal instead of        dealing   with   that   application   made   the   following        observations in its award regarding Himansu Chattoraj:        " He was, therefore, charged on the 28th March, 1953,  along        with  others.   There was an enquiry.  But as  the  evidence        against  this  man  was  not  overwhelming,  the  management        postponed  their  decision for the time  being.   This  man,        however,  continued his activities with the result that  the        Sub-divisional Officer of Asansol promulgated an order under        section 144, Cr.  P.C., on the 15th May, 1953, and in  which        order  his  name  was mentioned.   This  workman  was  again        obstructing  the loyal workers after the lock-out  had  been        lifted.   So in view of the above, the Companies decided  to        terminate  his services.  But it could not take  any  direct        action  as  his case was referred to the Tribunal.   So  the        position  is  that the charge-sheet on which  this  man  was        sought  to be punished was not proved even according to  the        Companies’  own version.  For his other activities there  is        no charge-sheet.  In such circumstances I do not think  that        the Companies were entitled to dismiss him.  So regard being        had to this aspect of the matter, I order his reinstatement.        But as I am satisfied that. this man indulged in  activities        which  were prejudicial to the interest of the Companies,  I        do  not allow him any compensation during the period of  his        forced unemployment consequent upon suspension.  This period        687        of unemployment should be treated as leave without pay.   He        must be reinstated as soon as the award becomes operative."        The Appellate Tribunal dealt with the case of this man  very        summarily  by saying that his reinstatement was not open  to        any objection.        Before us, it has been argued that the decision that Himansu        Chattoraj should be reinstated is vitiated by a basic error.        The  only  formal  order  against  him  was  the  order   of        suspension,   which  was  certainly  a  valid  order.    The        Industrial   Tribunal  found  that  Chattoraj  indulged   in        activities  prejudicial  to  the  Company  and  it  is   now        recognised  that  deliberate  ’slow-down’  tactics  and   an        incitement  to  other  workmen to adopt  such  tactics  both        amount  to  misconduct.  The lower Tribunal  was  apparently        satisfied that Chattoraj was guilty of such misconduct;  yet        it  held  that  the  charge-sheet  on  which  Chattoraj  was        suspended  had not been proved.  If the order of  suspension        was  the only subject if reference, so far as Chattoraj  was        concerned,  the Tribunal could-not order  his  reinstatement        till  the enquiry was completed.  If, on the  contrary,  the        Tribunal  proceeded  on  the footing that  the  company  had        decided to terminate the services of Chattoraj on the ground        of  his prejudicial and subversive activities then on  being        satisfied  that Chattoraj was guilty of such activities  the        proper order would have been to give the Company  permission        to  dismiss  Chattoraj.  In either view, the  order  of  his        reinstatement is unjustified.

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      Only  a few words are necessary to dispose of  Civil  Appeal        337.   The Tribunal had considered the case of each  workman        under  the  four  categories mentioned  previously  and  had        refused  reinstatement to those against whom it  found  that        the Company had good reasons for dismissal.  Mr. Acharya has        not  been  able  to  satisfy us  that  the  Tribunals  below        committed  any error with regard to the appellants  of  this        appeal.  He has pressed the case of two persons Akka Hossain        and D. P. Das.  Against Akka Hossain there was a charge  for        slow-down tactics; later he was charged with assaulting  the        Company’s  driver.  Though he was  acquitted in  a  criminal        proceeding, the Tribunal        688        found  that  the decision of the Company  to  terminate  his        services was justified.        D.   P.  Das absented himself from duty from July  5,  1953,        and  was  absent without leave for more than 14  days.   His        case was fully considered by the Tribunal, which found  that        his  services  were rightly terminated  under  the  Standing        Orders of the Company.        The result of the foregoing discussion is this: Civil Appeal        44,  Civil Appeal 45 and Civil Appeal 337 are without  merit        and  must be dismissed.  Civil Appeal 336 succeeds in  part,        and  the  decision of the Tribunals below is  set  aside  in        respect  of  the  following  eight  men,  only-(1)  Bamapada        Mukherji  (2)  Chandrasekhar  Mukherji,  (3)  Niaz  Hossain,        (4)Dhani  Ram, (5) Chandrabhan Sing, (6) Raja Sing, (7)  Jai        Kishore  Sing,  and  (8) Himansu Chattoraj.   In  all  other        respects,  the  decision appealed from will stand.   In  the        peculiar  circumstances of this case, the parties will  bear        their own costs here.        Appeal No. 336 partly allowed.        Others dismissed.        689