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PETITIONER: LAKSHMI DEVI SUGAR MILLS LTD.

       Vs.

RESPONDENT: PT. RAM SARUP.(and connected appeal)

DATE OF JUDGMENT: 24/10/1956

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA DAS, S.K. MENON, P. GOVINDA

CITATION:  1957 AIR   82            1956 SCR  916

ACT: Industrial  Dispute-Application  for permission  to  dismiss workmen-Jurisdiction of Appellate Tribunal-Scope of enquiry- Interim order of suspension by employer pending enquiry  and receipt of permission-If amounts to a lock-out-If amounts to punishment  -Prior Permission of the Appellate Tribunal,  if required-Enquiry  by  General  Manager-Non-co-operation   by workmen-Enquiry  not  held within the prescribed  time-If  a breach  of  Standing Orders Industrial  Disputes  (Appellate Tribunal)  Act  (XLVIII  of  1950),  ss.  22,  23-Industrial Disputes  Act (XIV of 1947), s.  33(a)(b)--Standing  Orders, cl.  L 12.

HEADNOTE: Seventy-six  workers of the appellant company resorted to  a tools-down  strike in sympathy with a dismissed  -co-worker. Repeated  attempts  to persuade them to resume  work  having failed  the  General Manager suspended  them  until  further orders.   After  midday  recess  the  Management  sought  to prevent  the  workers  from  entering  the  mills  but  they violently entered the mills and the Police had to be  called in by the company to keep the peace.  Charges of  misconduct and  insubordination  were  thereafter  framed  against  the workers  and they were called upon to show cause in an  open enquiry  to be held by the General Manager why  disciplinary action  should  not be taken against them and the  order  of suspension  was extended pending the enquiry.   The  workers took  up  an  attitude  of  total  non-cooperation  and  the atmosphere was tense with the result that the enquiry  could not  be  held  within 4 days.   The  Management  decided  to dismiss  the  workers as a result of the enquiry but  as  an appeal   was  then  pending  before  the  Labour   Appellate Tribunal,  the  company applied to it under s.  22  -of  the Industrial  Disputes  (Appellate Tribunal) Act of  1950  for permission  to do so and extended the period  of  suspension pending  receipt of such permission.  The workmen  in  their turn  filed  an application under a. 23 of the  Act  to  the Appellate Tribunal for requisite action to be taken  against the  company for having contravened s. 22(b) of the  Act  by resorting to an illegal lock-out and thereby punishing  them

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without  its prior permission.  The Appellate Tribunal  held that  the company had not held the enquiry within  the  time specified  by el.  L 12 of the Standing Orders and  on  that ground   dismissed   its  application.    It   allowed   the application  of  the  workers  holding  that  the  wholesale suspension   of  the  workers  and  preventing   them   from continuing  work.  after the mid-day recess  amounted  to  a lock-out 917 and  punishment by the company and contravened s.  22(b)  of the  Act  and  directed their  reinstatement.   The  company appealed.   It was contended on behalf of the  company  that there had been neither a breach of el.  L 12 of the Standing Orders nor a contravention of s.   22(b) of the Act. Hold, that the contentions were correct and the appeals must succeed. The  conduct  of  the  company  did  not  come  within   the definition of a lock-out and even if there was any  lock-out it  was in consequence of the illegal strike resorted to  by the workmen and as such could not be deemed to be illegal by virtue of s. 24(3) of the Industrial Disputes.Act, 1947. Moreover, even assuming that the company declared an illegal lock-out  it  was  not  necessary  for  it  to  obtain   the permission of the Appellate Tribunal under s. 22 of the  Act before it could do so. A  lock-out was neither an alteration of the  conditions  of service  within  the meaning of el. (a) nor a  discharge  or punishment  by dismissal or otherwise within the meaning  of el.  (b)  of s. 33 of the Industrial Disputes-Act,  1947  or under s. 22 of the Industrial Disputes (Appellate  Tribunal) Act, 1950 and no permission was, therefore, required for its declaration.   If the lock-out was illegal the  workmen  had their remedy under s. 26 of the Industrial Disputes Act  and in any event they had the right to have the dispute referred for adjudication. Jute  Workers  Federation,  Calcutta  v.  Clive  Jute  Mills ([1951]  11  L.L.J.  344)  and  Colliery  Mazdoor  Congress, Asansol v. New Beerbhoom Coal Co. Ltd. ([1952] L.A.C.  219), approved. The  Company having been declared a public utility  concern, the  workers had no right to go on strike without  giving  a notice in terms of s. 22(1) of the Industrial Disputes  Act, 1947  and  the  tools-down strike resorted to  by  them  was illegal and the company was within its rights in  suspending them. Buckingham   and  Carnatic  Co.  Ltd.  v.  Workers  of   the Buckingham  and  Carnatic  Co. Ltd.,  ([1953]  S.C.R.  219), referred to. Mere  failure to hold an enquiry within the period  of  four days  prescribed by el.  L 12 of the Standing  Orders  could not  determine the matter before the Appellate Tribunal  and where,  as  in the instant case, the delay was  due  to  the conduct of the workers it was sufficiently explained. Where full and free opportunity was given to the workers  to be present and defend themselves in a duly notified  enquiry and  they failed to do so, the Management was  quite  within its  right to come to its own conclusion as to  their  guilt and  the punishment to be meted out to them and it  was  not open to the workmen thereafter to urge that such enquiry was not fair or impartial or violated the principles of  natural justice. 918 There could be no punishment so long as there was no offence and  any  action  of the employer to the  detriment  of  the workers’  interest would not amount to punishment.  The  law

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did not contemplate anything like a contingent punishment of a worker and, consequently, where there was an interim order of suspension pending an enquiry or the grant of  permission by  the  Appellate  Tribunal, the question of  pay  for  the period  of such suspension depending on whether or  not  the permission  would  be  granted, such  suspension  would  not amount  to  punishment even where it was  of  an  indefinite duration so as to attract the operation of s. 22 of the  In- dustrial Disputes (Appellate Tribunal) Act, 1950. Champdany  Jute Mills and Certain Workmen, ([1952) 1  L.L.J. 554), Joint Steamer Companies and -Their Workmen, ([1954] II L.L.J.  221), Assam Oil Co. Ltd. v. Appalswami,  ([1954]  11 L.L.J.  328), Standard Vacuum Oil Co. v. Gunaseelan,  M.  G. ([1954] II L.L.J. 656), relied on. Under  that  section  the  only  thing  that  the  Appellate Tribunal had to consider was whether a prima facie case  had been made out by the employer for lifting the ban imposed by the  section  and  if, on the materials before  it,  it  was satisfied  that  there  bad  been  a  fair  enquiry  in  the circumstances  of the case and the Management had bona  fide come  to  the  conclusion  that the  worker  was  guilty  of misconduct  with which he had been charged and it  would  be detrimental to discipline and dangerous in the interests  of the  company  to continue him in its employ, a  prima  facie case was made out and the Tribunal would be bound to  permit the employer to punish the workman.  It would be no part  of its  duty  to  judge whether the  punishment  was  harsh  or excessive, except so far it might bear on the bona fides  of the  Management,  and  could only grant  the  permission  as sought for or refuse it and the question of the propriety of the  punishment  could be decided only  by  the  appropriate Tribunal  appointed by the Government for  adjudicating  the industrial dispute which would ensue upon the action of  the management. Atherton  West  & Co. Ltd. v. Suti Mills Mazdoor  Union  and Others,  ([1953]  S.C.R. 780), The  Automobile  Products  of India Ltd. v. Bukmaji Bala & Others, ([1955] 1 S.C.R.  1241) Champdany  Jute  Mills and Shri Alijan,  ([1952]  II  L.L.J. 629), R.B.S. Lachmandas Mohan Lal & Sons Ltd. and Chini Hill Karmachari  Union,  ([1952]  II L.L.J. 787)  and  Assam  Oil Companies’ Case, ([1954] L.A.C. 78), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 244 and 245 of 1954. Appeals  from the judgment and order dated August 19,  1952, of  the  Labour Appellate Tribunal of  India  (Calcutta)  at Allahabad in Miscellaneous Cases Nos, C-91 and 93 of 1952. 919 N.   C. Chatterji, H. J. Umrigar, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant in   both appeals. Purshottam Tricumdas, R. Ganapathy Iyer and B.    P. Maheshwari, for respondents in both appeals. M. C. Setalvad, Attorney-General for India, Porus A.    Mehta   and  R.   H. Dhebar, for the Intervener. 1956.  October 24.  The Judgment of the Court was  delivered by BHAGWATI J.-These two appeals :by special leave arise out of an order of the Labour Appellate Tribunal of India,  Lucknow Bench,  by  which  it  dismissed  the  application  of   the appellant under s. 22 of the Industrial Disputes  (Appellate Tribunal) Act, 1950, hereinafter referred to as the Act  for

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permission  to dismiss the respondents from its  employ  and allowed  the application of the respondents under s.  23  of the Act for reinstatement. The respondents are 76 employees of the appellant, a limited company of Sugar Mills, situated in village Chitauni in  the district  of  Deoria  and were working  in  the  engineering department of the mills in the mill house, boiling-house and the  workshop  sections.  There were  disputes  between  the appellant  and  its workmen and, on the  date  in  question, i.e.,  May  27, 1952, there was pending  before  the  Labour Appellate  Tribunal an appeal which was registered  as  Cal- 101/51.   It appears that one Motilal Singh, an employee  of the  appellant,  had  been dismissed by  it  sometime  prior thereto and he had been inciting the workmen to make  common cause  with him, and, at a meeting held the previous  night, some sort of action had been decided upon.  When the workmen of the appellant entered the mills on the morning of May 27, 1952, these 76 workmen, though they entered their respective sections of the engineering department, did not commence any work  from 7 a.m. as they should have done.   The  sectional engineers  in-charge asked these workmen as to why they  did not commence their work and became a ware of their intention to resort 920 to a tools-down strike.  They reported the fact to the Chief Engineer  who sent a slip to the General  Manager  informing him  that the workers had gone on a tools down strike.   The General.  Manager thereupon personally went to the workshop, mill  house and -the boiling house and asked  these  workmen not to resort to such strike but the latter did not pay  any heed  to  his advice. -The General Manager  then  asked  the Chief  Engineer  to persuade these workmen to  commence  the work,  give them time for about 2 hours till 10-30 a.m.  and report to him if, in spite of his persuasions, they did  not commence  work.  The persuasions of the Chief  Engineer  and also of the section engineers proved of no avail and the  76 workmen persisted in their attitude with the result that the section engineers made their reports to the General  Manager through  the Chief Engineer giving the names of the  workmen belonging  to their respective sections who had resorted  to the  tools-down  strike with effect from 7  a.m.  that  day. These reports were endorsed by the Chief Engineer and passed on  to the General Manager who,in his turn, passed an  order at about 10-30 a.m. suspending these 76 workmen till further orders.  The order for suspension was communicated to  these workmen through their sectional heads and was also pasted on the  notice board of the mills.  There was a recess  between 11 a.m. and 1 p.m. and when the gates were opened at 1  p.m. these   76  workmen,  in  spite  of  the  warnings  of   the gatekeepers  and  Jemadar to the contrary, rushed  into  the mills,  entered  their  respective sections  and  adopted  a threatening attitude.  The sectional engineers made  reports to  the  General -Manager in regard to this  occurrence  and these  reports also were endorsed by the Chief Engineer  and passed  on  by him to the General  Manager.   The  situation which  was  created by these workmen  by  forcibly  entering their  respective sections and continuing there  threatening violence was explosive and the management had to call in the police  in  order  to  avert  violence  and  damage  to  the property.  The police came in at 5 p.m. and order appears to have been restored.  There was no untoward incident that day 921 but  the  management appears to have  viewed  the  situation with,  seriousness and approached the Regional  Conciliation Officer the next day in order to ask for advice in regard to

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the  dismissal of these workmen.  The Regional  Conciliation Officer,  however, pointed out to the General Manager  that, in  view  of the pendency of the appeal  before  the  Labour Appel,  late Tribunal, he had no jurisdiction  to  entertain any application for such permission and referred the General Manager  to the Labour Appellate Tribunal.  The workmen,  on the  other hand, got a letter dated May 28, 1952,  addressed to the General Manager by the General Secretary of the Chini Mill  Mazdoor Sangh to the effect that they had gone to  the gates of ’the mills as usual at 7 a.m. that day to attend to their work but they were not allowed to enter the mill  pre- mises.   They charged the management with the  intention  to victimise  them  -on the charge of a tools down  strike  and stated  that they had neither struck nor intended to  strike but had been prevented from attending to their work and  had therefore  been advised to go back to their quarters with  a view  to maintain peace.  The last paragraph of that  letter was very significant.  The General Manager was told that  if he  did not mend his illegal mistakes and did not  take  the workmen back on duty he would be responsible for any  breach of peace. After receipt of that letter it was evident that the workmen would resort to violent measures in order to attend to their work and a breach of peace was apprehended.  The  management evidently continued the police precautions and, after having waited for some time, the General Manager furnished to these 76  workmen  on  June 2, 1952,  a  charge-sheet  wherein  he charged  them  with having committed misconduct  within  the meaning of cl.  L. I (a) and (b) and wailful insubordination within  the  meaning of el.  L. I (a), (b) and  (w)  of  the Standing  Orders.  He called upon them to show cause  within 24 hours of the receipt of the charge-sheet why disciplinary action  should  not  be taken against  them  and  gave  them intimation that an open enquiry in connection with the  said charges 120 922 would  be  held by him at 8 a.m. on June 6, 1952.   He  also intimated  that  if  all the  workmen  arranged  to  present themselves  earlier than June 6, 1952, he would take up  the said  enquiry earlier provided, however, an  intimation  was received to that effect from them or from their Union.   The workmen  were  to  remain suspended  till  the  enquiry  was finished. The workmen addressed uniform letters to the General Manager denying  that  there was any tools down strike  on  May  27, 1952,  and alleging that the sectional heads and  the  Chief Engineer  bad  conspired  together  "under  some  mysterious preconceived plans" and stated that no useful purpose  would be served by holding an enquiry  on the 1 1 th day of  their suspension.  They pointed out that such indefinite period of suspension  during  the pendency of the  appeal  before  the Labour  Appellate  Tribunal  and  Reconciliation  Board  was illegal  and unjustified and was in utter disregard  of  the Standing  Orders.   By their further letter  dated  June  5, 1952,  similarly  addressed  to the  General  Manager,  they voiced  their  apprehension  that they  would  not  get  any justice  from an enquiry held by the management  itself  and asked  for  investigation  by an  impartial  tribunal.   The management, however, held the enquiry as intimated at 8 a.m. on  June 6, 1952.  The workmen non-co-operated and  did  not present themselves at the enquiry. The General Manager immediately addressed a letter to  these workmen  putting  on  record that- in spite  of  the  orders conveyed by him earlier the workmen had disobeyed the.  same

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and had not appeared at the appointed time and place for the enquiry into the tools-down strike.  He pointed out that  by not appearing in this manner they had made themselves liable to  dismissal  for insubordination, and intimated  that  the management  was  applying  to  the  proper  authorities  for permission  to  dismiss them pending receipt  of  which  the workmen  would  remain under suspension.   This  letter  was received by the workmen at 9 a.m. that day and they  replied through  the  General Secretary of the  Chini  Mill  Mazdoor Sangh repeating that a demand had been made for an 923 investigation  by an impartial tribunal and in so far as  no impartial   tribunal  had  been  appointed  they  were   not agreeable to present themselves and submit their defence  at the enquiry which was conducted by the management itself. The  appellant  thereafter made  the  necessary  application under s. 22 of the Act before the Labour Appellate  Tribunal of India, Lucknow Bench, for permission to dismiss these  76 workmen.   In  the affidavit which was filed in  support  of that application, all the facts herein before mentioned were set  out  in  extenso  and  it  was  pointed  out  that  the management,   after   giving  full  consideration   to   the explanations  and  offering every  possible  opportunity  to these  workmen  to explain their conduct  coupled  with  the unreasonable  attitude  adopted by them, had  adjudged  them guilty of misconduct under cl.  L. I (a), (b) and (w) of the Standing  Orders and considered that any further  employment of   these  workmen  would  be  extremely   detrimental   to discipline and dangerous in the interests of the industry. The  workmen,  in  their turn, filed on  June  9,  1952,  an application  under s. 23 of the Act for requisite action  to be  taken  against the appellant for having  contravened  s. 22(b) of the Act by inflicting on them the punishment in the shape  of harassment by resorting to an illegal lookout  for an indefinite period with effect from May 27, 1952,  without obtaining  the  prior permission of the ,  Labour  Appellate Tribunal  and "thereby acting contrary to law and  resorting to  mala fide actions in direct violation of the  provisions of  the Standing Orders in continuation of the  management’s anti-trade (Union) activities". Counter-affidavits  were  made by the workmen  as  also  the management  in  reply to both the above  applications.   The Labour  Appellate Tribunal held that the appellant  did  not act  in  strict compliance with cl.  L. 12 of  the  Standing Orders   and  was,  therefore,  not  entitled  to  ask   for permission  to  dismiss  the  76  workmen.   It  accordingly dismissed  the  appellant’s application under s. 22  of  the Act.   In regard to the application of the workmen under  s. 23 of the Act, it held 924 that  the wholesale suspension of the 76 workmen  and  their prevention from resuming work at I p.m. after the lunch hour amounted to a lockout and that this conduct of the appellant amounted  to punishment of the workers whether by  dismissal or  otherwise  and was, therefore, in  contravention  of  s. 22(b) of the Act.  It accordingly ordered the  reinstatement of the workmen if they presented themselves at the office of the General Manager during office hours on any day within 15 days  of  the  order and also ordered payment  of  half  the salary  and allowances for the period of non-payment,  viz., from  the date of their suspension up to the date  on  which they were taken back in service. Shri  N.  C.  Chatterjee for the  appellant  before  us  has strenuously  urged  that  the workmen had  resorted  to  the tools-down strike which was an -illegal strike and that  the

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appellant  was  well  within its rights  in  suspending  the pending  enquiry  and  also  pending  the  application   for permission to dismiss them made before the Labour  Appellate Tribunal.   Even  if  it  be held  that  the  appellant  had declared a lockout, such a lockout was in consequence of the illegal  strike resorted to by the workmen and could not  be deemed to be illegal.  He further urged that the  management had  held an enquiry into the illegal strike which had  been resorted  to by the workmen and found that the workmen  were guilty of misconduct and insubordination within the  meaning of cl.  L. I (a), (b) and (w) of the Standing Orders and the appellant  rightly came to the conclusion that  any  further employment  of these workmen would be extremely  detrimental to  discipline and dangerous in the interests of the  indus- try.   He  also  contended that the  delay  in  holding  the enquiry  was  not  unreasonable and the  suspension  of  the workmen  pending enquiry for more than four days was due  to sufficient  reason,  the  atmosphere  created  by  the  non- cooperation  of  the  workers being so tense  as  not  being appropriate for the holding of an enquiry within those  four days, that there was no breach of cl.  L. 12 of the Standing Orders  and that the Labour Appellate Tribunal was in  error when it 925 refused to grant the application under s. 22 of the Act. Civil  Appeal No. 245 of 1954 which is directed against  the order  of the Labour Appellate Tribunal under s. 23  of  the Act  may  be  disposed of at  once.   The  Labour  Appellate Tribunal was of opinion that the conduct of the appellant in preventing the workmen from continuing work after I p.m.  on May  27, 1952, came within the definition of a  lockout  and the workmen being employed in a public utility concern  such lockout  would be illegal without a proper notice.   It  was further of opinion that this conduct amounted to  punishment of  a  worker  whether by dismissal or  otherwise  and  was, therefore,  in contravention of s. 22(b) of the  Act.   This conclusion  of  the Labour Appellate Tribunal  was,  in  our opinion,  based on a misapprehension of the whole  position. The  position  had been summed up by  the  Labour  Appellate Tribunal in the following words:-    "As  a matter of fact the management never thought  of  a lockout.   Their idea was to suspend the  suspected  persons pending enquiry for which they gave a notice". If this was the correct position, the conclusion reached  by the  Labour  Appellate  Tribunal that  the  conduct  of  the management  came  within  the definition of  a  lockout  was absolutely  unjustifiable.   The Labour  Appellate  Tribunal recorded  its inability to come to a definite finding as  to what  was the position which obtained on May 27,  1952.   It observed- "We  have  got  a number of affidavits  in  support  of  the parties’  case  and there is oath against oath.  We  do  not find  ourselves in a position to hold definitely as to  what was  the exact situation.  But it does appear to us  that  a mountain  has been made of a mole hill and conclusions  have been arrived at without going deep into the matter". Even  if the parties had made a mountain of a mole hill  and had reached conclusions without going deep into the  matter, it  was  certainly  the business  of  the  Labour  Appellate Tribunal itself to record a finding of fact in regard to the situation as it obtained on 926 that day.  This unfortunately the Labour Appellate  Tribunal did  not do and it came to record its conclusion,  that  the conduct  of the management came within the definition  of  a

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lockout   without   realizing  that  such   conclusion   was inconsistent with what it’ had stated a little earlier  that the  management  as  a matter of fact  never  thought  of  a lockout.  -We have been taken through the whole evidence  by the  learned  counsel for the appellant and there  is  clear documentary evidence to show that the 76 workmen resorted to a  tools-down  strike  from 7 a.m. on  May  27,  1952.   The reports which were made by the section engineers and sent to the  General Manager through  the Chief Engineer were  clear and  categoric  in regard to such tools-down  strike  having been resorted to by the workmen in question and the list  of the  76  workmen which was prepared by the  General  Manager ordering  their suspension was based on those reports.   The further  reports  which were made by the  section  engineers again sent by them to the General Manager through the  Chief Engineer  in the afternoon of May 27, 1952, also were  clear and  categoric  in regard to the said  workmen  having  been asked  not to enter the workshop, the boiling house and  the mill  house  at  1 p.m. but their having  entered  the  same threatening  violence.  A faint attempt was made  to  charge the  section  engineers and the Chief Engineer  with  having conspired "under some mysterious preconceived plans" but the same  rested  merely  on  a  bare  allegation  and  was  not substantiated  by any tangible evidence.  Even though  there was some conflict of evidence in regard to the time when the notice  of  suspension was given by the General  Manager  to these workmen and when the notice in that behalf was  pasted on the notice-board of the appellant, it is abundantly clear on  the documentary evidence above referred to that  the  76 workmen  resorted to a tools down strike from 7 a.m. on  the morning  of  May  27, 1952, that they  were  suspended  till further orders immediately after the receipt by the  General Manager  of  the first series of reports  from  the  section engineers,  that  they  were  prevented  from  entering  the premises 927 at  I  p.m. but entered the same threatening  violence.   If this  is  the  true position it follows that  there  was  no lockout  declared  by the appellant, much  less  an  illegal lockout.  The workmen bad resorted to an illegal strike  and the  General  Manager  rightly  ordered  that  the   workmen indulging in such strike should be suspended pending further orders  which  obviously meant pending  enquiry  into  their conduct and the obtaining of the permission to. dismiss them as  a result of such enquiry if the management thought  fit. If there was thus no illegal lockout at all, the  conclusion reached by the Labour Appellate Tribunal in that behalf  was absolutely unjustified.  Even if there had been a lockout as concluded  by the Labour Appellate Tribunal the same was  in consequence of the illegal strike which had been resorted to by these workmen and could not by virtue of s. 24(3) of  the Industrial Disputes Act, 1947, be deemed to be illegal. There  is, however, a more fundamental objection that,  even if the appellant be held responsible for having declared  an illegal  lockout, the lockout would not come within the  ban of  s.  22 of the Act.  The Labour  Appellate  Tribunal  had before  it  an earlier decision of its own in  Jute  Workers Federation,  Calcutta v. Clive Jute Mills(1), in  which  the same question had beed considered with reference to s. 33 of the Industrial Disputes Act, 1947.  In that case, a  lockout had  been  declared  which involved  4,000  workers  of  the company  and a preliminary contention was urged  that  there was  no  contravention  of the provisions of s.  33  of  the Industrial   Disputes  Act,  1947.   The  Labour   Appellate Tribunal considered the question whether the lockout had (1)

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in fact altered the conditions of service of the workmen  to their prejudice, or (2) had the effect of discharge, or  (3) amounted  to  punishment  of the workmen.  It  came  to  the conclusion that a lockout had not the effect of a discharge, for a lockout does not automatically terminate the  services of  the workmen.  It did not also amount to punishment,  for punishment presup- (1)  [1951] II L.L.J. 344. 928 poses  an  offence or misconduct.  A  lockout  is  generally adopted  as a security measure and may in certain  cases  be used as a weapon corresponding to what the employees have in the  shape of a strike and that, therefore, a.  33(b)  would not  be contravened by the company by. declaring a  lockout. The  Labour  Appellate Tribunal then  considered  whether  a lockout would attract the operation of s. 33(a).  It was  of opinion that no automatic termination of the services of the employees  was brought about by a lockout and  the  question was  whether  any of the conditions of service  was  altered thereby to their prejudice.  The contention of the Union was that the conditions of service were altered to the prejudice of the workmen because those employees did, not in fact  get their  pay  during  the  period  of  the  lockout  with  the possibility of losing it.  This contention was negatived and the  Labour  Appellate  Tribunal was  of  opinion  that  the conditions of their service would be altered by the  lockout if  the  employees  lost their right to  receive  their  pay during  the period of lockout in ’all circumstances but  the question  whether  they would be entitled to get  their  pay during  that period could not be postulated  with  certainty for  that would depend on a variety of  considerations..  In the  opinion  of the Labour Appellate- Tribunal to  bring  a case  within  s.-33(a), the questioned act of  the  employer must directly and in fact alter the conditions of service to the prejudice of the workmen concerned, that is to say,  the moment the lockout was declared.  The possibility that  they may  or may not get their pay meant that the lockout may  or may  not  alter  the conditions of their  service  to  their prejudice.  Section 33(a) would not, therefore, be attracted by  the  mere  fact  of a  lockout.   The  Labour  Appellate Tribunal thus came to the conclusion that -neither s.  33(a) nor  s.  33(b) would be contravened by the  company  in  de- claring the lockout. This  decision  of  the  Labour.   Appellate  Tribunal   was followed  in  Colliery  Mazdoor Congress,  Asansol,  v.  New Beerbhoom Coal Co. Ltd.(1) and the Labour (1) 11952] L A.C. 219. 929 Appellate  Tribunal there held that a lockout did  not  come within  the  ambit of s. 33 and,  therefore,  no  permission under that section was required for declaring a lockout. We  agree with the reasoning adopted in the above cases  and are  of opinion that a lockout is neither an  alteration  to the  prejudice of the workmen of the conditions  of  service applicable  to  them  within the meaning of cl.  (a)  nor  a discharge or punishment whether by dismissal or otherwise of the  workmen within the meaning of cl. (b) of s. 33  of  the Industrial  Disputes Act) 1947, or s. 22 of  the  Industrial Disputes   (Appellate   Tribunal)  Act,  1950,   and   that, therefore, no permission of the Conciliation Officer,  Board or  Tribunal as the case may be is necessary to be  obtained before a lockout can be declared.  If the lockout is  legal, no  question can at all arise.  If, on the other hand,,  the lockout  is  illegal, a remedy is provided in s. 26  of  the Industrial Disputes Act, 1947.  The employees affected by  a

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lock-out  would  in  any  event be  entitled  to  refer  the industrial  dispute  arising  between  themselves  and   the employer  for adjudication by adopting the proper  procedure in regard thereto. The  Labour  Appellate Tribunal was, therefore,  clearly  in error when it came to the conclusion that the conduct of the appellant  came within the definition of a lockout and  that it  amounted  to  punishment  of  the  workmen  whether   by dismissal or otherwise and was, therefore, in  contravention of s, 22(b) of the Act.  The application of the  respondents under  s.  23  of  the Act  was  accordingly  liable  to  be dismissed  and  should  have been dismissed  by  the  Labour Appellate  Tribunal.   Civil Appeal No. 245  of  1954  will, therefore, be allowed and the order of the Labour  Appellate Tribunal  reinstating the respondents in the service of  the appellant will be set aside. Coming  now  to  Civil Appeal No. 244  of  1954,  the  first question  to  determine  is  whether  the  respondents   had resorted to an illegal strike.  We have already pointed  out the circumstances under which the 76 workmen resorted to the tools-down strike from 7 a.m. on May 27, 1952, and  recorded the finding 121 930 that they not only resorted to such strike but persisted  in their  attitude  in spite of the persuasions  of  the  Chief Engineer  and  the General Manager of  the  appellant.   The appellant having been declared a public utility concern, the workmen  were not entitled to resort to such strike  without giving to the appellant notice of the strike in terms of  s. 22(1)  of the Industrial Disputes Act, 1947, and the  tools- down strike which was resorted to by them was, therefore, an illegal  strike.   The fact that the strike was of  a  short duration  viz.,  from  7  a.m. till  10-30  a.m.  would  not exculpate  the respondents from the consequence"  of  having resorted to such illegal strike, the avowed intention of the strikers being not to resume work until their  pre-concerted plan  conceived at, the meeting held on the  previous  night was carried out.  The strike resorted to by the workmen  was of an indefinite duration. and the management, having failed in its attempts to persuade the workmen to resume their work was well within its rights to suspend these workmen  pending further  orders. (Vide Buckingham and Carnatic Co.  Ltd.  v. Workers of the Buckingham’ and Carnatic Co. Ltd.(1)). The  Labour Appellate Tribunal did not decide this issue  at all  but only considered the alleged non-compliance  by  the appellant   of  cl.   L.  12  of  the  Standing  Orders   as determinative of the whole enquiry before it observing  that "although  the  delay  (in  holding  the  enquiry)  was  not unreasonable,  there  was no doubt that the  management  did violate  the letter of the rule".  It further observed  that there  was no sufficient reason indicated for extending  the period of suspension beyond the period of four days provided in cl. L. 12 of the Standing Orders, the tension created  by the   non-co-operation  of  the  workers  not  having   been considered  sufficient  to  preclude  the  management   from collecting  materials for conducting the enquiry within  the said  period  of  4  days,  This  reasoning  of  the  Labour Appellate  Tribunal  was unsound.  Having once come  to  the conclusion that the delay was not unreasonable, there was no justification for the further (1)  [1953] S.C.R. 219. 931 conclusion reached by the Labour-Appellate Tribunal that the tension  created by the non-co-operation of the workers  was

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not  a  sufficient reason for extending the period  of  such suspension.   The workmen had forcibly entered the  premises of  the mills in spite of the warnings of the  watchmen  and the  Jemadar and had also entered the workshop, the  boiling house  and  the  mill  house and  continued  to  stay  there threatening  violence.  In their letter dated June 3,  1952, they had also threatened the General Manager that if he  did not  mend his illegal mistakes and did not take the  workmen back  on  duty  be would be responsible for  any  breach  of peace.  This was enough evidence of their mentality and  the management  naturally enough apprehended breach of peace  at the  hands  of  these  workmen.   If  this  was  the   tense atmosphere  created by the non-co-operation of the  workmen, the  management  was perfectly justified in  postponing  the enquiry by a few days and continuing the workmen under  sus- pension.  The delay which was thus caused in furnishing  the charge-sheets  and  giving notice of the  enquiry  to  these workmen  on  June  2,  1952,  was,  therefore,  sufficiently explained  and  if there was any one responsible  for  this. delay it was the workmen and not the management.  It did not then lie in the mouth of the workmen to protest against this delay  in  the enquiry and trot out their suspension  for  a period exceeding four day’s as an excuse for abstaining from the enquiry.  As a matter of fact, the management  intimated to  the workmen that -in spite of June 6, 1952, having  been fixed as the date for the open enquiry, the management would be  prepared  to  take up the enquiry  earlier  provided  an intimation  was  received either from the  workmen  or  from their  Union to that effect.  Instead of responding to  this gesture of the appellant the workmen persisted in asking for an   independent  enquiry  and  non-co-operated   with   the management in the enquiry which was ultimately held by it as notified at 8 a.m. on June 6, 1952.  We are of opinion  that under  the  circumstances the appellant was  not  guilty  of having contravened el.  L. 12 of the Standing Orders and the Labour Appellate 932 Tribunal  was  in  error  when  it  came  to  the   contrary conclusion  and dismissed the application of  the  appellant under s. 22 merely on that ground without making any further enquiry into the circumstances of the case.  It appears that the  Labour Appellate Tribunal was driven to take this  step because it found itself unable to hold definitely as to what was  the  exact situation on May 27, 1952.   We  shall  only observe that if the Labour Appellate Tribunal had really ap- plied  its mind to the question it would have come  -to  the conclusion  that the respondents in fact did resort  to  the illegal  strike from 7 a.m. on May 27, 1952, and that  there was no contravention of cl.  L. 12 of the Standing Orders by the appellant. The next question that falls to be determined is whether the enquiry  which was held by the management on June  6,  1952, was a fair enquiry and whether the General Manager  observed the  principles  of natural justice in the conduct  of  that enquiry  Due  notice  of  the  enquiry  was  given  to   the respondents  by  the letter of the management  addressed  to them  on June 2, 1952, and if the respondents did not  avail themselves  of the opportunity of presenting themselves  and defending  their  action  at  the  enquiry  they  had   only themselves  to blame for it.  It was within the province  of the  management  to hold such an enquiry  after  giving  due notice  thereof  to the respondents and to come to  its  own conclusion   as  a  result  of  such  enquiry  whether   the respondents  were  guilty  of the  charges  which  had  been leveled  against  them.  If full and  free  opportunity  was

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given  to  the  respondents to  present  themselves  at  the enquiry and defend themselves it could not be said that  the enquiry  was  anything but fair.  No principles  of  natural justice  were violated and the management was at liberty  to come to its own conclusions in regard to the culpability  of the respondents and also to determine what punishment should be  meted  out  to the respondents for  the  misconduct  and insubordination  proved against them.  If the ban  which  is imposed  by s. 22 of the Act had not been in existence,  the management would have been entitled to impose the punishment on the 933 respondents  and dismiss them without anything more,  if  it honestly  came  to the conclusion that  dismissal  of  these workmen was the only punishment which should be meted out to them in all the circumstances of the case.  The  respondents would  no  doubt  then  have  been  entitled  to  refer  the industrial  dispute which arose out of their  dismissal  for adjudication by adopting the proper procedure set out in the Industrial  Disputes Act, 1947, and the Industrial  Tribunal appointed  by  the Government for the adjudication  of  such dispute would have been in a position to thrash out all  the circumstances and award to them the appropriate relief  This course was, however, not open to the appellant by reason  of the  pendency  of  the appeal before  the  Labour  Appellate Tribunal  and the only thing which the appellant  could  do, therefore,  was,  after coming to its own  conclusion  as  a result  of  such enquiry, to apply to the  Labour  Appellate Tribunal under s.22 of the Act for permission to dismiss the respondents and this the appellant did on June 8, 1952.   It was  not open to the respondents then, having regard to  the attitude  which they had adopted throughout in  relation  to the  said enquiry, to urge that the enquiry was not fair  or impartial or that the principles of natural justice had been violated  by  the General Manager of the  appellant  in  the conduct of the enquiry. It was, however, urged on behalf of the respondents that the suspension  for  an indefinite period beyond the  period  of four days provided in cl.  L. 12 of the Standing Orders  was a  punitive measure and the appellant was not  justified  in imposing  that punishment on them without the permission  of the  Labour Appellate Tribunal.  It was contended that  such suspension involved loss of pay by the respondents and being of an indefinite duration inflicted such harassment on  them that  it  could  not  be deemed  to  be  anything  except  a punishment.  We do not accept this contention.  It has  been rightly   held  by  the  Labour  Appellate   Tribunal   that suspension  without  pay  pending enquiry  as  also  pending permission of the Tribunal under the relevant section  could not 934 be  considered  a  punishment  as  such  suspension  without payment would only be an interim measure and would last till the  application  for permission to punish the  workman  was made  and the Tribunal bad passed orders thereupon.  If  the permission was accorded the workman would not be paid during the  period of suspension but if the permission was  refused he would have to be paid for the whole period of suspension. There  is nothing like a contingent punishment of a  workman and  therefore such suspension could not be deemed to  be  a punishment of the workman at all.  Such suspension would  of necessity  be  of an indefinite duration because  to  get  a written  permission of the Tribunal would mean delay and  no Tribunal  would  likely issue any order without  notice  and without  hearing  all  the parties  concerned.   Orders  for

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suspension  were meant only as security measures or  precau- tionary ones taken in the interest of the industry itself or its  employees  in general.  These measures  were  sometimes called  for  immediately after an incident  and  any  delay, however  small,  might  defeat the purpose  for  which  such measures were intended.  It would therefore be necessary  to adopt these measures immediately and to suspend the  workman pending  the enquiry as also the permission to  be  obtained from  the  appropriate Tribunal for dismissing him if  as  a result of the enquiry the, management thought fit to inflict such  punishment upon him.  The suspension., however,  would not  be  a punishment by itself.   The  ordinary  dictionary meaning  of the word "Punish" is "to cause the  offender  to suffer  for  the  offence" or "to  inflict  penalty  on  the offender"  or "to inflict penalty for the offence"  (Concise Oxford  Dictionary,  4th Ed.). Punishment can  be  otherwise defined  (Vide  Law  Lexicon by P.R.  Aiyar,  1943  Ed.)  as penalty  for  the  transgression. of law, and  the  word  cc punish"  denotes or signifies some offence committed by  the person  who is punished. Any action of the employer  to  the detriment of the workman’s interest would not be  punishment so  long as no offence was found to have been  committed  by the  workman.   The  suspension  under  such  circumstances, therefore, could 935 not  be a punishment even though it may be of an  indefinite duration and would not attract the operation of s. 22 of the Act.  It could not be contended, therefore, that  suspension without pay even for an indefinite period pending enquiry or pending  the  permission  of  the  appropriate  Tribunal  to dismiss  the  workman  would be  a  punishment  which  would require  permission under s. 22 of the Act before  the same could  be  meted out to the workman.  (Vide  Champdany  Jute Mills  And Certain Workmen(1); Joint Steamer  Companies  And Their  Workmen(2);  Assam  Oil Co.  Ltd.  v.  Appalswami(3); Standard Vacuum Oil Co. v. Gunaseelan, M. O.(4)). The  scope  of  the  enquiry  before  the  Labour  Appellate Tribunal under s. 22 of the Act has been the  subject-matter of  decisions by this Court in Atherton West & Co.  Ltd.  v. Suti  Mill  Mazdoor Union and Others(5) and  The  Automobile Products  of  India Ltd. v. Rukmaji Bala &  Others(6).   The Tribunal  before  whom  an application is  made  under  that section  has not to adjudicate upon any  industrial  dispute arising  between the employer and the workman but  has  only got  to  consider whether the ban  which is imposed  on  the employer  in  the  matter  of  altering  the  conditions  of employment ’to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during  tile pendency  of the proceedings therein referred to  should  be lifted.   A  prima  facie case has to be  made  out  by  the employer   for  the  lifting  of  such  ban  and  the   only jurisdiction  which the Tribunal has is either to give  such permission  or  to refuse it provided the  employer  is  not acting mala fide or is not resorting to any unfair  practice or  victimization.  It cannot impose any conditions  on  the employer  before  such  permission is  granted  nor  can  it substitute another prayer for the one which the employer has set  out in his application.  If the permission is  granted, the  ban  would  be  lifted and the  employer  would  be  at liberty, if he so chooses thereafter, to deal out the (1)  [1952] I L.L.J. 554. (2)  [1954] II L.L.J. 328. [1953] S.C.R. 780. (4)  [1951] II L.L J. 221. (5)  [1954] II L.L.J. 656. (6)  [1965] 1 S.C.R. 1241,

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936 punishment  to the workman.  On such action being  taken  by the  employer  the  workman would be entitled  to  raise  an industrial  dispute which would have to be referred  to  the appropriate  Tribunal for adjudication by the Government  on proper  steps  being  taken  in  that  behalf.   When   such industrial  dispute  comes  to be adjudicated  upon  by  the appropriate Tribunal, the workman would be entitled to  have all the circumstances of the case scrutinized by the  Tribu- nal and would be entitled to get the appropriate relief -at. the  hands  of the Tribunal.  If, on the  other  hand,  such permission is refused, the parties would be relegated to the status  quo and the employer would not be able to  deal  out the punishment which he intends to do to the workman.   Even then an industrial dispute might arise between the  employer and  the workman if the workman was not paid his  due  wages and other benefits.  Such industrial dispute also would have to be referred to the appropriate Tribunal by the Government and the Tribunal would award to the workman the  appropriate relief  having regard to all the circumstances of the  case. The Tribunal before whom such an ’application for permission is made under s. 22 of the Act would not be entitled to  sit in judgment on the action of the employer if once it came to the conclusion that a prima facie case had been made out for dealing out the punishment to the workman.  It would not  be concerned  with the measure of the punishment nor  with  the harshness or otherwise of the action proposed to be taken by the employer except perhaps to the extent that it might bear on  the  question whether the action of the  management  was bona  fide or was actuated by the motive  of  victimization. If  on  the materials before it the Tribunal  came  to  the- conclusion that a fair enquiry was held by the management in the  circumstances of the case and it bad bona fide come  to the  conclusion  that the workman was guilty  of  misconduct with  which he had been charged a prima facie case would  be made out by the employer and the Tribunal would under  these circumstances  be bound to give the requisite permission  to the employer to deal 937 out  the punishment to the workman.  If the  punishment  was harsh or excessive or was not such as should be dealt out by the  employer having regard to all the circumstances of  the case  the dealing out of such punishment by the employer  to the  workman after such permission was granted would be  the subject-matter of an industrial dispute to be raised by  the workman  and to be dealt with as aforesaid.   The  Tribunal, however, would have no jurisdiction to go into that question and the only function of the Tribunal under s. 22 of the Act would  be  to either grant the permission or to  refuse  it. (Vide  Champdani  Jute  Mills And  Shri  Alijan(1);  R.B  S. Lachmandas Mohan Lal & Sons Ltd.  And Chini Mill  Karmachari Union(2) Assam Oil Companies’ case(3)). In the circumstances of the present case, once the appellant succeeded  in establishing that the workmen had resorted  to an  illegal strike from 7 a.m. on May 27, 1952, that a  fair enquiry  into the alleged misconduct and insubordination  of the  workmen  had  been  held  by  the  management   without violating  any  principles  of  natural  justice,  that  the management  had as a result of such enquiry found  that  the workmen  had been guilty of misconduct  and  insubordination with  which they had been charged -and that  the  management had  come  to the bona fide conclusion that  continuing  the workmen  in  its employ was detrimental  to  discipline  and dangerous  in  the interests of the  appellant,  the  Labour Appellate  Tribunal  ought to have held that a  prima  facie

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case  for the dismissal of the workmen had been made out  by the  appellant and ought to have granted the  appellant  the permission to dismiss the workmen. We  are,  therefore, of opinion that  the  Labour  Appellate Tribunal  was clearly in error in rejecting the  application of the appellant under s. 22 of the Act and refusing it  the permission  to  discharge the respondents from  its  employ. Civil Appeal go. 244 of 1954 will, therefore, be allowed and the order of (1) [1952] II L.L.J. 629.     (2) [1952] II L.L.J. 787, (8) [1954] L.A.C. 78. 122 938 the  Labour  Appellate Tribunal dismissing  the  application under  s.  22 of the Act will be set aside.   The  appellant will  be  granted  permission  under s. 22  of  the  Act  to discharge the respondents from its employ. Under the orders of the Court, one-half of their salary  has been  already paid by the appellant to the respondents  from May  27, 1952, onwards.  As a result of this  decision,  the appellant  would be entitled to recover the same  back  from them.   Shri  N. C. Chatterjee appearing on  behalf  of  the appellant  has,  however, stated that  the  appellant  would forego  the recovery of that amount and would also keep  the respondents on the reserve list to be employed in the  mills as  and when there were vacancies in their permanent  cadre. We  hope  that the respondents will take this offer  in  the true  spirit with, which it has been made on behalf  of  the appellant  and  behave  better in the future.   Shri  N.  C. Chatterjee has also left the question of costs of both these appeals to us and we do order that, in all the circumstances of the case, it would be proper that each party do bear  and pay its own costs of both these appeals. Appeals allowed. 939