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PETITIONER: M/S.  BHARAT SUGAR MILLS LTD.

       Vs.

RESPONDENT: SHRI JAI SINGH AND OTHERS

DATE OF JUDGMENT: 20/09/1961

BENCH:

ACT: Industrial  Dispute-"Go  slow"  by  workmen-Application  for permission  to dismiss-Domestic enquiry       not  Proper-If Tribunal  can  take independent evidence for  finding  prima facie  case  Mala fides and  victimisation-Delay  in  making application-Effect  of-Industrial Disputes Act, 1947 (14  of 1947).s. 33.

HEADNOTE: Certain workmen of the appellant resorted to "go slow".  The appellant  held, a domestic enquiry and as a result  thereof decided to dismiss 21 workmen.  After considerable delay  it made  an application under s. 33 of the Industrial  Disputes Act,   1947,  for  permission  to  dismiss  these   workmen. Evidence  was  led before the Tribunal to prove  the  charge against  the workmen.  The Tribunal held that  the  domestic enquiry  was  not proper, that the appellant was  guilty  of mala  fide  conduct and victimisation, that, except  in  the case  of  one  workmen, the others were not  guilty  of  any deliberate  go  slow and accordingly granted  permission  in respect  of the one workman alone.  The appellant  contended that  the  finding that the remaining 20  workmen  were  not guilty  of  deliberate  go slow was perverse  and  that  the finding  in  respect  of mala fides  and  victimisation  was arbitrary  and erroneous.  The workmen contended  that  once the  domestic enquiry was found to be improper the  Tribunal had  to  dismiss  the  application and  it  could  not  take independent  evidence and arrive at a finding of its own  as to the guilt of the workmen. Held,  that in an application under s. 33 of the  Industrial Disputes Act, 1947, when there has been no domestic  enquiry or when the domestic enquiry has not been properly conducted it  is  the duty of the Tribunal to take  evidence  of  both sides and to decide whether the alleged misconduct has  been made out.  The evidence produced before the Tribunal clearly established  that  13 out of the 20 workmen were  guilty  of deliberate go slow.  Go slow was a pernicious and  dishonest practice  which was a misconduct punishable  with  dismissal under the standing orders.  Actual participation in go  slow was   serious  misconduct  and  the  management  could   not reasonably be accused of mala fides or revengefulness if  it proposed  punishment of dismissal for such  conduct.   There was delay in holding the domestic enquiry and the management showed  lamentable callousness in this matter.  In cases  of this nature the enquiry should be held as early as possible, specially when the workmen arc put under suspension.  Again, there was delay in making the application for permission to 685 dismiss.  But these delays did not show that the  management

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was  guilty of mala fides or of an intention  to  victimise. The order of the Tribunal refusing permission to dismiss  13 of  the workmen was entirely wrong and unjust and could  not be allowed to stand. Sasa Musa Sugar Works v. Shobrati Khan, [1959] Supp. 2 S. C. R.  836, Shri Ram Swarath Sinha v. Belsund Sugar  Co.,  Ltd. 1959  L.  A.  C. 697 and Punjab National Bank  Ltd.  v.  its workmen,, [1960] 1 S. C. R. 806, referred to.

JUDGMENT: CiviL  APPELLATE  JURISDICTION : Civil Appeal  No. 252  of 1960. Appeal by special leave from the Award dated March 6,  1958, of the Industrial Tribunal, Bihar, Patna in Misc.  Case  No. 1 of 1959. A.   B.  N.  Sinha, K. K. Sinha and G. N. Dikshit,  for  the appellants. T. R.    Bhasin, for the respondents. 1961.   September  20.   The  Judgment  of  the  Court   was delivered by DAS  GUPTA J.-The appellant, a Sugar Mill Company,  made  on December  31,  1956  an  application  under  s.  33  of  the Industrial  Disputes  Act before  the  Industrial  Tribunal, Bihar, Patina for the dismissal of 21 workmen for misconduct in  connection with "go slow" alleged to have been  resorted to  by  the  workmen of the factory  from  the  midnight  of February  12, to the February 18, 1955.  The  Tribunal  held that   actual  participation  in  a  "go  slow"   had   been established only against one of the workmen at the Donga end and  that  the "go slow" at the later stages  in  which  the other  20 workmen had been engaged occurred as  a  necessary consequence of this go slow by one workman at the Donga  end and was not a deliberate ,go slow" by them, The Tribunal was of opinion also that the management was not acting bona fide and  really was seeking to victimise, active members of  the Union   which  the  employer  had  refused   to   recognise. Accordingly,  it refused permission in respect of 20 of  the workmen  and gave permission to dismiss only Nihora Dubey  a workman at the Donga The 686 correctness of this refusal is challenged before is in  this appeal  by special. leave-.  The appellant’s  contention  is two-fold.  First it is said that the finding of the Tribunal that these workmen in respect of whom permission to  dismiss was  refused  were not guilty of any deliberate go  slow  is perverse; secondly it is contended that the Tribunal’s  view that  the  employer  was guilty of  mala  fide  conduct  and victimisation  of  these  workmen for  Union  activities  is arbitrary and erroneous. It does not appear to have been disputed that " go slow" was actually  resorted to in this factory from February  12,  to February 18, 1955.  It was indeed hardly open to the workmen to dispute this, after all the pomp and ceremony with  which go  slow" was celebrated.  We find that as early as  January 15,  1955,  10  demands were communicated by  the  Union  on behalf  of  the workmen by a letter which said  that  unless these  demands  were conceded by the January  26,  1955  the workmen  world  resort to "go slow" from January  30,  1955. This notice to "’;.to slow appears to have been withdrawn on the  22nd  January, 1955, apparently on the  advice  of  the Assistant  Commissioner of Labour, Muzaffarpur.   A  further letter was issued the same day in which 5 demands were  made with a request to concede these by the 6th February  failing

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which  it  was said they would "resort to go slow  from  the February  19,  1955".  The, Secretary of  the  Bharat  Sugar Mills to whom the Conciliation Officer wrote, that very day, wrote  back on January 22, 1955, that they had not  received any  notice dated January 22, 1955.  In reply to  a  further communication  from  the Assistant Labour  Commissioner  the appellant  sent a telegram on February 3,  1955,  regretting inability  to  attend the proposed conciliation  meeting  on February  4, 1955 as both the  Secretary and  the  Assistant Secretary  were away.  Then on February 8  another  telegram was  sent  on   behalf  of  the  management  informing   the Assistant  Labour  Commissioner that the  General  Secretary would be returning soon and that any date after 687  the  11th may be fixed.  Thereafter, in reply to a  further communication  from the Assistant Commissioner inquiring  as to what date would suit the management the General Secretary Shri  K.C.  Sarda  sent  another  telegram  requesting   the Assistant  Labour  Commissioner to fix any date  before  the 17th.   This telegram was sent on February 11.  On the  next date,  February  12, Sarda sent a further  telegram  to  the Assistant Labour Commissioner stating that he would come  to Muzaffarpur on the 15th afternoon.  Before any action  could however  be taken by the Assistant Labour Commissioner,  the workers  commenced  their  "go slow" from  the  midnight  of February 12. "Go  slow  which  a picturesque  description  of  deliberate delaying  of production by workmen pretending to be  engaged in the factory is one of the most pernicious practices  that discontended or disgruntled workmen sometime resort to.   It would  not be far wrong to call this dishonest.  For,  while thus delaying production and thereby reducing the output the workmen  claim  to  have remained employed and  thus  to  be entitled to full wages.  Apart from this also, ",go slow" is likely to be much more harmful than total cessation of  work by strike.  For, while during a strike much of the machinery can be fully turned off, during the "go slow" the  machinery is  kept going on a reduced speed which is often  extremely damaging  to  machinery parts.  For all these  reasons  logo slow"   has  always  been  considered  a  serious  type   of misconduct.  The Standing Orders which have been made  under the  Standing Orders Act for the appellant  factory  specify "go  slow" as misconduct in sub-cl. (u) of cl. (1) para.   M under  the words : " Malingering or deliberate  delaying  of production  and  carrying  out of  orders."  It  is  strange therefore  to  see that notice of intention to  commit  this misconduct  was  solemnly given by the Union in  one  letter after another.  Some light on the mystery is however  thrown by the fact that in Bihar a Committee to 688 consider and report on the question of "go slow" tactics  in industries  was  appointed  by the  Bihar  Central  Standing Labour  Advisory Board and the report of the  Committee  was submitted   in   1951.    The   Committee   made,    several recommendations  including  one that "go  slow"  by  workers should be treated on a par with strike.  It also recommended however that workers should not resort to "go slow"  without at  least  7 days notice, that the notice  would  remain  in force  for  4 weeks but. that it would not be  necessary  to notify  the exact date of starting the "’go slow".   Another recommendation  was  that workers should not resort  to  "go slow"  during the pendency of a conciliation proceeding  but that  the conciliation proceeding must be  concluded  within four weeks of the notice.  The Committee went to the  length of  recommending that "go slow" due to mal-practices by  the

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management  would  be  justified.   By  a  resolution  dated December 1, 1951, the Government of Bihar "’were pleased  to accept  the recommendations of the "go slow"  Committee  and expressed their "thanks to the members of the Committee  for the well considered report." No action was however taken  to delete  item (u) of clause (1) of para.  M of  the  Standing Orders  and  so under the Standing Orders which  it  may  be mentioned were certified on November 7, 1951, the deliberate delaying  of production continued to remain  a  -misconduct" under  the  law inspite of the bleags it received  from  the Committee and the Government of Bihar. As to the fact that "go slow" was resorted to in the factory from  the midnight of February 12, 1955, up to the  February 18,  1955,  could not be and was not  disputed,  it  becomes necessary to consider the evidence on the record to  examine the  conclusion  reached by the Tribunal that there  was  no deliberate "go slow" by any of the present respondents.  The charge -sheets which were served on the workmen accused them not  only of actual participation in the "go slow" but  also of instigating and intimidating other workmen to ",go slow". It is 689 to  be  noticed however that while’  ,,,inciting  others  to strike  work" is misconduct under’ the Standing Orders  para M.  el.  sub-el. (u) incitement to  deliberate  delaying  of production has not been specifically made a misconduct under the Standing Orders. We shall therefore confine our attention to the  appellant’s case  that  these workmen actually participated in  the  "go Flow".   A complaint was made on behalf of  the  respondents that the charges that were given to the workmen were  vague. We  have  examined the charges and consider  this  complaint wholly  unjiustfied.   We  have  no  hesitation  however  in accepting  the  criticism  by the learned  counsel  for  the respondents  that the enquiry made by the domestic  tribunal of  the  appellant  was far from a proper  enquiry,  as  the minimum requirements of natural justice were not  satisfied. It  appears  that no witness was examined by  the  Enquiring Officer and the only person examined was the workman against whom  the enquiry was being held.  Reports by some  officers of the company were taken into consideration but it does not appear that the contents of these reports were read out  and explained  to the workmen.  The persons whose  reports  were thus considered were present at the enquiry, but even so  it does not appear that the workman was given an opportunity to examine  them.   Indeed,  as  none  of  these  persons  were actually  examined  in  the  presence  of  the  workmen  the question  of their cross-examination by or on behalf of  the workmen  did  not arise.  The workman thus had not  only  no proper chance of knowing what was being alleged against  him and by whom but also no chance of testing the correctness of the  allegations  that  were in fact  made  in  the  written report. In  view  of  these serious defects in the  enquiry  by  the domestic  tribunal  it was not possible for  the  Industrial Tribunal  to  place  any reliance an the  findings  of  that domestic tribunal in order to decide 690 whether permission to dismiss should be given Under s. 33 of the  Industrial Disputes Act. (Vide Phulbari Tea  Estate  v. Its Workmen) Evidence  was  however adduced by the appellant  before  the Industrial  Tribunal to make out its case that  the  workmen concerned were in fact guilty of the alleged misconduct.  On behalf  of the respondents it has been urged before us  that

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once  it is found that the enquiry by the domestic  tribunal has  been  defective  it  was not  open  to  the  Industrial Tribunal  before which the application under section  33  is made to allow any evidence to be adduced before it.  We  see no  force  in  this contention.  /When  an  application  for permission for dismissal is made on the allegation that  the workman  has  been guilty of some misconduct for  which  the management  considers dismissal the  appropriate  punishment the  Tribunal  has to satisfy itself that there is  a  prima facie  case  for  such dismissal.  Where there  has  been  a proper enquiry by the management itself the Tribunal, it has been settled by a number of decisions of this Court, has  to accept the findings arrived at in that enquiry unless it  is perverse and should give the permission asked for unless  it has  reason  to  believe that the management  is  guilty  of victimisation  or has been guilty of unfair labour  practice or  is acting mala fide.  But the mere fact that no  enquiry has  been  held or that the enquiry has  not  been  properly conducted cannot absolve the Tribunal of its duty to  decide whether  the  case that the workman has been guilty  of  the alleged  misconduct has been made out.’ The proper  way  for performing  this  duty  where there has not  been  a  proper enquiry  by  the  management is, for the  Tribunal  to  take evidence,   of  both  sides  in  respect  of   the   alleged misconduct.   When  such  evidence  is  adduced  before  the Tribunal the management is deprived of the benefit of having the  findings  of the domestic tribunal  being  accepted  as prima facie proof of the (1)  [1960] (1) S. C. R. 32. 691 alleged misconduct unless the finding is perverse and has to prove  to the satisfaction of the Tribunal itself  that  the workman  was  guilty of the alleged misconduct.  We  do  not think  it either just to the management or indeed even  fair to  the workman himself that in such a case  the  Industrial Tribunal  should refuse to take evidence and  thereby  drive the management to make a further application for  permission after  holding a proper enquiry and deprive the  workman  of the  benefit  of  the Tribunal  itself  being  satisfied  on evidence adduced before it that he was guilty of the alleged misconduct. It  may be pointed out in this connection that in Sasa  Musa Sugar  Works V. Shobrati Khan & others (1) the  management’s application  under section 33 had not been preceded  by  any enquiry into the misconduct of the workman and that  itself, it  was urged on behalf of the workmen was a reason why  the application  should  be rejected.  The  Industrial  Tribunal held  that all the evidence ’which might have been taken  in the enquiry by the management had been led before it and  it was  in full possession of the facts and no question of  any prejudice to the workmen arose as it would be open to it  on a review of the entire, evidence before it to decide whether the application for permission to dismiss should be  granted or  not.  On a consideration of that evidence  the  Tribunal held  as regards 16 of the workmen concerned that there  was no  evidence  that  they  had  taken  part  in  the  alleged misconduct of "’go slow" or instigation to ,,,go slow".   No objection  appears  to  have been taken  either  before  the Appellate  Tribunal or before this Court to the  application being   disposed  of  on  the  evidence  taken  before   the Industrial Tribunal itself, and in, fact this Court  allowed the  application under section 33 in respect of all  the  48 workmen  on  the  basis of the  evidence  given  before  the Industrial Tribunal. (1)  [1959] S. C. R. Suppl. 11 p. 836.

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692 It  is  worth  noting that several years  before  this,  the Appellate Tribunal had in Shri Ram Swarath Sinha v.  Belsund Sugar  Co.,  Ltd. (1), laid it down that  the  materials  on which  a Tribunal acts in disposing of an,  application  for permission to dismiss may consist of (1)  entirely  the evidence taken by the management  at  the enquiry and the proceedings of the enquiry, or (2)  that evidence and in addition thereto further  evidence led before the Tribunal, or (3)  evidence placed before the Tribunal for the first  time in support of the charges. It  was pointed out there that the last mentioned case  pre- supposed  an absence of a prior enquiry by  the  management. It is not without significance that even though the question whether  in  the absence of a proper prior  enquiry  by  the management evidence can for the first time be placed  before the  Tribunal-in support of the alleged misconduct had  been discussed  in Belsund Sugar Co., Ltd. (1), no  objection  to the  taking of such evidence for the first time  before  the Tribunal  was  raised  before this Court on  behalf  of  the respondent in Sasa Musa Sugar Work’s Case (2). Nor can we ignore the fact that for a long time now, it  has been  settled law that in the case of an adjudication  of  a dispute  arising  out  of a dismissal of a  workman  by  the management  (as distinct from an application for  permission to  dismiss  under s. 33), evidence can be adduced  for  the first  time before the Industrial Tribunal.   The  important effect  of the omission to hold an enquiry is merely this  : that  the tribunal would not have to consider  only  whether there was a prima facie case but would decide for itself  on the  evidence adduced whether the charges have  really  been made out.  This war, (1) [1959] L. A. C., 697. (2) [1959] S. C. R. Suppl. 11 P. 836. 693 recently pointed  out again in the  Punjab  National  Bank Itd.,  v. Its Workmen (1) in these words : ’,if  no  enquiry has  in fact been held by the employer; the issue about  the merits of the impugned order of dismissal is at large before the  Tribunal  and, on the evidence adduced before  it,  the tribunal  has  to decide for itself whether  the  misconduct alleged  is  proved.........  The reasons for  which  it  is proper  for the Tribunal to take evidence itself as  regards the  alleged  misconduct when adjudicating  upon  a  dispute arising out of an order of dismissal which has been made  by the  management  are equally present in the case  where  the management  makes an application for permission  to  dismiss without  having held a proper enquiry.  In our  opinion  the tribunal  rightly allowed the management to adduce  evidence before  it in support of its application for  permission  to dismiss  even  though the domestic enquiry held  by  it  was highly defective as pointed out above. Of  the six witnesses examined on behalf of  the  management the  important evidence as regards the participation in  the "go  slow" during the period February 12 to February  18  is given  by Ishwari Dayal, Chief Engineer, Kanpur  the  chief Chemist and Bhikari, a machine man. On  February 13, 1955 the Chief Engineer submitted a  report to  the Secretary, K. C. Sarda about what he had  seen  that very day.  He referred to this report in an affidavit  sworn before a Magistrate and stated that the facts stated in  the report  was true.  In his deposition before the Tribunal  he has referred to this affidavit and said that the  statements made therein are correct.  While a more satisfactory way  of

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putting  Dayal’s  evidence  on record, would  have  been  to record  his testimony on all these matters mentioned in  the affidavit and report directly, it cannot be reasonably  said that the statements made in the affidavit ,and report do not amount to legal evidence on (1)  [1960] (1) S.C.R. 806. 694 which  the  Tribunal could act.  In this  report  the  Chief Engineer states thus :-               "I  noticed  that groups of persons  from  the               assembled   crowd  moved  about  the   factory               announcing  the commencement of  the  go-slow"               and  actually threatened those who  would  not               fall  in  line  with  them.   I   particularly               noticed   Harikishan  Kuer,  Baijnath   Singh,               Ramdeo  Singh,  Nagendranath  and  Baldeo  and               others whose name didn’t remember in the crowd               taking an active part               Later in the report he says that:               "as a result of the instigation as  aforesaid               and  perhaps as planned in advance,  the  ’go-               slow’  actually  started  with  the   incoming               shift.   The  abnormally slow running  of  the               mill  Engine and the Cane Carrier came  to  my               notice  immediately.  I personally checked  up               the  stream  pressure and found  that  it  was               normal.   Thereupon I called  Dhannoo  Mistry,               Mill House Fitter and expressed my  resentment               at  a low speed, after all my persuasions  and               directions  to them not to resort  to  goslow.               Dhannoo  Mistry had the impudence to  tell  me               that  it shall remain low as they had gone  on               go  slow  and the question  of  restoring  the               normal  speed did not arise.  Finding  Dhannoo               Mistry’s  attitude as it was, I went with  the               Shift  Engineer Mr. Mukherji to Swarath  Singh               who  was at the Mill Engine and  Hardeo  Singh               who was at the Cane Carrier Clutch, and  asked               them      to     restore     normal      speed               immediately..................  They  paid   no               heed  to  my  orders and  were  determined  to               continue the go slow." It is important to notice that of the persons named by  this witness as having taken an active part-by which he obviously meant an active part in moving about the factory  announcing the commencement of the go slow-Baijnath Singh 1 and  Ramdeo Singh                             695 were both engaged in the Evaporator section, Baijnath  being an  Evaporator Cooly while Ramdeo Singh being an  Evaporator Reliever;  Harikishan  Kuer was an  Assistant  Panman  while Baldeo and Nagendranath Prasad were Engine men, Baldeo being an Assistant Fitter and Nagendranath being a Pitter. We  have  no  hesitation  in  believing  as  correct   these statements made by the Chief Engineer in his report made  on February  13.  There can be no doubt therefore that  Swarath Singh, Hardeo Singh and Dhannoo actually participated in the go  slow.  As regards Harikishan Kuer, Baijnath, Ramdeo  and Nagendranath  and Baldeo we have to remember that it is  not disputed  that there was in fact a go slow in the  different jobs on which these men were engaged.  If they had not  been proved  to  have taken an active part in  promoting  the  go slow, there may have been some scope for saying that the  go slow in their jobs was the consequence of the go slow at the Donga  and  not  deliberate go slow  on  their  part.   When

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however  we  find that these persons were active  in  asking other workmen to go slow, they cannot be reasonably heard to say that the go slow in their own jobs was not deliberate on their  part.   The Tribunal was in our  opinion  clearly  in error  in thinking that the go slow in the jobs where  these persons were engaged was merely the result of the go slow at the Donga end and not deliberate go slow on their part.   In our  opinion,  the  evidence  of  Ishwari  Dayal  definitely establishes  that  these several persons,  Harikishan  Kuer, Baijnath Singh, Ramdeo Singh, Nagendranath Prasad,  Baldeo,- Dhannoo Mistry, Sawarath Singh and Hardeo Singh did actually participate in delaying production. The  Chief Chemist, A. N. Kapur, submitted to the  Secretary one  report  on February 12, 1955 and ,two more  reports  on February  13.   In  the first report  he  said  that  having received  information at about 9.30 A. m. that Gulab  Singh, Evaporatorman, 696   was inciting persons who were doing periodical cleaning of the  Evaporators that day that they  should do the  cleaning slowly  as  if the "go-slow" had already  started  in  their case, he immediately went to the Evaporators and  questioned Gulab  Singh about his alleged conduct and that Gulab  Singh ultimately admitted that it was true but that he had  merely been saying what others had decided. In  the  second report marked Ex. 4 (b) the  Chief  Chemist states  that trouble started on the midnight of February  12 after  "C"  shift  was over and that  he  noticed  "Baijnath Singh,  Hira Sukul, Harikishan Kuer, Ramdeo  Singh,  Ramayan Singh and Golla among others asking other workers to stay on and see that the go slow was actually started.  He says also that  the noticed Kawalpati and Bachan, Centrifugal  Coolies and a few others taking a prominent part in proclaiming that go slow must be started. In the third report the Chief Chemist stated that after 8 A. M.  on February 13 he noticed Kawalpati and Bachan and  Amar Mahto, Jai Singh and Gulab Singh and others going round  the factory  and openly saying that as the go slow  had  started any  workman  who sided with the factory  will  be  severely dealt with.  We can see no reason to doubt the truth of  the statements made by the Chief Chemist.  Of the persons  named by  him,  Baijnath Singh, Harikishan Kuer and  Ramdeo  Singh were also named by Isbawari Dayal as we have already pointed out above.  In addition to these Hira Sukul, Ramayan  Singh, Golla, Jai Singh Amar Mahto and Gulab Singh must be held  to have actually asked others to go slow and when this fact  is taken  with  the admitted fact that "go slow"  was  actually practiced  at the stages of production where  these  workmen were engaged there can be no escape from the conclusion that they were guilty of active participation in go slow,                             697 As  regards  Kawalpati and Bachan we have, apart  from  this evidence of the Chief Chemist that they were going round the factory saying that go slow must be continued, the  evidence of Bhikari Rout that on February 14 he found these two,  not operating the machine, and sitting there on a gunny bag  and sugar was falling down from the Pugmill.  From this evidence of  Bhikari  Rout  taken  with the  evidence  of  the  Chief Chemist,  it appears clear beyond any reasonable doubt  that these  two workmen, Bachan and Kawalpati did  also  actively participate in "go slow". We are therefore of opinion that the evidence adduced before the   Tribunal  clearly  establishes  that   the   following respondents, Harikishan Kuer, Baijnath Singh, Ramdeo  Singh, Nagendra-nath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh,

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Hardeo  Singh, Kawalpati, Bachan, Ramayan Singh, Jai  Singh, Hira Sukul, Golla and Gulab Singh were guilty of  misconduct within the meaning of paragraph M el. (1) sub-el. (u) of the Standing  Orders.   Of  these Ramdeo  Singh  and  Golla  are reported to be dead. Before however permission can be granted to dismiss them for this  misconduct we have to see whether the charge  of  mala fide  and  victimisation brought against the  management  is true.   The workmen’s suggestion which found favor with  the Tribunal was that it was because of the Union activities  of these 21 workmen that the management decided to take  action against  them  and that the allegation that they  had  taken part  in the go slow was merely a sham excuse.   As  regards the above workmen who it is established by the evidence were in  fact guilty of go slow, can it be said that  though  the management takes action against them for this misconduct the real  reason for the managements proposal is these  people’s Union   activities   ?   We   are   unable   to   see   any. justification  .for  this view.  If the misconduct  had  not been 698 serious  and still the management sought to  dismiss  them, taking advantage of the fact that under the Standing  Orders a  punishment of dismissal could be given, there might  have been some scope for an argument that the apparent reason for the management’s action was not the real reason.  It is  not possible however to consider actual participation in go slow as  anything but very serious misconduct and  no  management can be accused reasonably of mala fide or of  revengefulness if, it proposes punishment of dismissal for such conduct. The  Industrial Tribunal appears to have been  impressed  by the  fact  that  13 other workmen who  were  suspended  were pardoned  and taken back while 21 ,were not allowed to  join duty.  It appears clear that several at least of the 13  who had  been taken back were also active members of the  Union. There is no ground for saying therefore that the  management discriminated  against these 21 workmen because of the  fact that  they  were active members of the Union.  It  may  very well  be  that  they have been taken back  as  their  active participation  in the go slow was not established.   Without knowing  fully the circumstances under which those other  13 were taken back to work it is not proper to hold that  there has been any discrimination against these 2 1. Learned Counsel for the respondents next contended that mala fide  and victimisation were ’writ large on the  conduct  of the  management ’in preventing the holding of a meeting  for conciliation  which  was attempted by the  Assistant  Labour Commissioner.   It  is also urged that by this  conduct  the company provoked the workmen to resort to go slow.  Even  if it were’ found that the company had deliberately avoided the proposed  meeting there would be no ground for  saying  that the workmen had been "provoked" to go slow.  Inspite of  the recommendation  of the go slow committee and the  resolution of Bihar Government ,go slow" continued to be a  misconduct under the Standing Orders "-and 699 a  mere  refusal of the company to attend  the  conciliation meeting  cannot  be  considered such  provocation  as  would compel or justify the commission of misconduct.  Nor can  we find-even  assuming  for the present that  the  company  did deliberately  prevent  the conciliation meeting  before  the 12th  February-that this showed an intention  to  victimise. Before  an  industrial  adjudication can  find  an  employer guilty of an intention to victimise there must be reason  to think that the employer was intending to punish workmen  for

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their  Union  activities  while purporting  to  take  action ostensibly   for   some   other   activity.    It   would-be unreasonable to think, that the appellant, expected that  if the meeting was not held on the date as proposed the workmen were  surer  to  start  go slow and  that   would  give  the management  an opportunity of proceeding against  the  Union workers.   It  was not unreasonable for  the  management  to expect better sense from workmen and to hope that they would not commit misconduct too readily.  While we do not wish  to say that no unfair conduct on the part of the management  in negotiations over the workers’ threat to go slow would  ever justify  a finding of mala fides on the employer’s part,  we must  clearly say that the mere asking for adjournment of  a conciliation meeting is not such conduct on which mala fides or an intention to victimise can be reasonably based. Apart  from this, we are not satisfied that in  the  present case the management was guilty of any  deliberate attempt to delay  the conciliation meeting.  The reasons for asking  an adjournment  of  the  meeting  were  clearly  mentioned   in the several telegrams sent by  the management to the  Labour Commissioner and there is nothing on the record to justify a  conclusion that these reasons were not true  or  honestly given. Our attention was drawn to the delay in holding the  enquiry and  the  subsequent  delay in filing  the  application  for permission to dismiss. 700 That there has been great and indeed unusual delay is clear. The  charge-sheets were served on the workmen in March  1955 and  the  explanations  were received about  the  middle  of March,  but  the domestic enquiry took  place  in  September 1955.   Trying  to explain this delay  of  several,  months, Sarda, the General Secretary, has stated thus :-"The enquiry into  the  charge sheets could not be commenced  before  the beginning  of September, 1955, because of my  continued  ill health which necessitated complete rest for several weeks at a time and also because of my multifarious Assignments which took me many a time to Patna and outside the State of Bihar. I  could not assign the matter of holding the  enquiries  to other  officers namely Chief Engineer or the  Chief  Chemist because  they  were  themselves  complainants  against   the workmen concerned." We   are   unable  to  consider  this   explanation   wholly satisfactory  and are inclined to think that the  management showed  lamentable callousness in this matter of  proceeding with the enquiry .In cases of this nature the enquiry should be held as early as possible, specially when the  management takes the step of putting the workmen under suspension. No   application  for  permission  to  dismiss   was   filed immediately.   It  was  only in August  1956  that  such  an application was filed under s. 22 of the Industrial Disputes Appellate Tribunal Act before the Labour Appellate Tribunal, Calcutta.   But that was rendered infructuous on account  of the  disposal  of  the matter before  the  Labour  Appellate Tribunal.   The  present  application was made  as  late  as December  30,  1956,  after an application  by  the  workmen themselves  under  section 23 of  the  Industrial  Disputes. Appellate  Tribunal Act had been withdrawn.  We do not  find any  satisfactory explanation for the management’s delay  in applying for-permission to dismiss.  At the same time, it is not  possible  to say that these delays show  even  remotely that in making the application for per-  701 minion to dismiss the management was guilty of mala fides or an intention to victimise.

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We   have  therefore  come,  to  the  conclusion  that   the Tribunal’s  order  in refusing permission to  dismiss  these workmen, viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati  Bachan, Ramayan Singh, Jai Singh, Hira Sukul  and Gulab  Singh  was entirely wrong and unjust  and  cannot  be allowed  to  stand.  As however even though no stay  of  the Tribunal’s order was granted when special leave was  allowed by thins Court and still the workmen concerned have not been allowed  to work or paid their wages the  permission  should not  be  granted  to dismiss them before the  date  of  this judgment. As  the two respondents Ramdeo and Golla are dead, there  is no question of granting permission now to dismiss them, even though  on the evidence on the record, the  appellant  might have been entitled to permission to dismiss these, two  with effect from this date, if they were living.  These two  will be entitled to wages till the date of their death. As regards the other respondents we are of opinion that  the application  was  rightly refused inasmuch as  the  evidence adduced  before the Industrial Tribunal does  not  establish the charge of misconduct against them. We  accordingly allow the appeal in part and set  aside  the order  of  the Industrial Tribunal in respect  of  these  13 workmen named above and order that the management is granted permission to dismiss them with effect from the date of this judgment.  There will be no order as to costs. Appeal allowed in part. 702