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PETITIONER: M/S.  SASA MUSA SUGAR WORKS (P) LTD.

       Vs.

RESPONDENT: SHOBRATI KHAN AND OTHERS

DATE OF JUDGMENT: 29/04/1959

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P. GAJENDRAGADKAR, P.B.

CITATION:  1959 AIR  923            1959 SCR  Supl. (2) 836  CITATOR INFO :  R          1959 SC1111  (7)  R          1959 SC1342  (17,18,19)  E          1963 SC1756  (8)  R          1964 SC 708  (29,30)  R          1965 SC1803  (11)  R          1972 SC 136  (33)  RF         1972 SC1031  (51)  D          1976 SC1760  (7,12)  RF         1979 SC1652  (18)  RF         1980 SC1896  (152)

ACT: Industrial  Dispute-Go-slow-Employer’s application for  Per- mission to dismiss workmen-Tribunal’s power-Perverse finding Grant  of  Permission-Industrial Disputes Act, 1947  (14  Of 1947),s. 33.

HEADNOTE: Pending  an adjudication proceeding between the workmen  and the  Mills,  the management of the  appellant  Mills  served notices  on  thirty-three  of  its  workmen  and  thereafter suspended them for taking a leading part in a protracted go- slow  in contravention of the Industrial Disputes Act.   For similar  reasons, a few days later, it again served  similar notices  on fifteen others and suspended  them.   Thereafter the  management  made two applications under s.  33  Of  the Industrial  Disputes Act for permission to dismiss the  said workmen.   The  forty-eight workmen in  their  turn  applied under  s.  33A of the Act alleging breach of s.  33  by  the management  in  suspending them by way of  punishment.   The Industrial Tribunal found that the suspension was not by way of punishment and that there was a deliberate resort to  go- slow  by the workmen which was unjustified; it  refused  the permission  with  respect to sixteen of the workmen  on  the ground  of  want  of  evidence  but  granted  leave  to  the management  to  suspend  the  rest  for  seven  days,   thus disallowing the prayer for dismissal.  It also rejected  the workmen’s application under s. 33A of the Act.  Appeals were filed by both the parties and when they came up for hearing, the Appellate Tribunal allowed the workmen to withdraw their appeal  so far as it related to their application  under  S.

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33A  of  the Act, with the result that the  finding  of  the Tribunal  that the suspension was not a punishment but  only pending enquiry by the management and proceedings before the Tribunal,  stood confirmed.  While agreeing with  all  other findings  of the Tribunal, the Appellate Tribunal  took  the view  that  the  suspension ordered  by  the-management  was substantive punishment since the notices did not state  that it  was pending enquiry, and the subsequent application  for permisson  to dismiss the workmen was, therefore, mala  fide and dismissed the appeal of the management. Held,   that  the  material  findings  arrived  at  by   the Industrial  Tribunal not having been upset by the  Appellate Tribunal, the only possible order on the applications of the management  under  s.  33 of the Act was  to  permit  it  to dismiss the workmen provided there was evidence against them all.   It  was  not  open  to  the  Industrial  Tribunal  to substitute   some  other  form  of  punisliment   and   give permission therefor. 837 The Appellate Tribunal was clearly in error in holding  that suspension,  in the instant case, was not an  interim  order pending  .enquiry and proceedings before the Tribunal  under S.  33, but substantive punishment, contrary to the  finding of the Industrial Tribunal which stood confirmed by its  own order permitting the withdrawal of the appeal against it  by the workmen. The  finding  of the Industrial Tribunal that there  was  no evidence  against  sixteen workmen was, on the face  of  it, perverse,  since the evidence against them was the  same  as against the thirty-two others. As  go-slow was serious misconduct, insidious in nature  and could not be countenanced, and since the workmen were  found guilty  of such misconduct, the management must  be  granted the permission to dismiss them.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 746 and 747 of 1957. Appeals by special leave from the judgments and orders dated June  3,  1955, and May 21, 1956, of  the  Labour  Appellate Tribunal  of India, Calcutta, in Appeal No. Cal. 366/52  and Misc.  Case No. 145 of 1955 respectively, arising out of  an Award dated September 22, 1952, of the Industrial  Tribunal, Bihar,  and published in the Bihar State Government  Gazette on October 21, 1952. M.   C. Setalvad, Attorney-General for India and R.   C. Prasad, for the appellant. The respondent did not appear. 1959.  April 29.  The Judgment of the Court was delivered by WANCHOO,  J.-These  are  two appeals by  the  management  by special  leave  in an industrial matter arising out  of  two applications  under  s. 33 of the  Industrial  Disputes  Act (hereinafter  called  the Act).  The facts of the  case  are briefly  these  : The appellant, Messrs.   Sasa  Musa  Sugar Works  (Private) Ltd. is a sugar factory in  District  Saran (Bihar).   The  factory was established in  1932.   In  June 1942,  a  trade union was formed in this factory.   In  July 1943,  trouble arose between the workmen and the  management resulting  in the discharge of three office-bearers  of  the union, including one Shams-ud-din, who was then the 838 joint secretary.  That matter ",as referred to  adjudication and the discharged workmen were ordered to be reinstated  in

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the beginning of 1944.  In December 1944, there was  trouble again  and  a  large  number  of  workmen  were   dismissed, including Shams-ud-din, who had by now become the  president of  the  union.   This  dispute was  again  referred  to  an Industrial  Tribunal, which again ordered  reinstatement  of the  dismissed workmen in August 1947.  There was peace  for some  time  after this.  But in June  1951,  the  management again discharged seventeen workmen, including  Shams-ud-din, who  was at that time secretary of the union.   The  trouble continued up to December 1951, when an agreement was arrived at  between  the union and the management, as  a  result  of which  twelve  of  the workmen  were  reinstated  but  five, including Shams-ud-din, were not and their cases were to  be referred to adjudication.  It appears, however, that another reference between the management and its workmen was already pending  since  September  8,  1951,  before  an  Industrial Tribunal,  when this agreement was arrived  at.   Thereafter the  work in the factory proceeded smoothly for  some  time. But on January 1, 1952, a notice was issued by the union  to the  management enlisting as many as 40 demands and  it  was threatened  that  if the demands were not met  within  seven days,  the union would have to advise the work-men to  adopt go-slow and call upon them to offer passive resistance  with effect  from January 9, 1952, and take all legitimate  means to see that the decision of go-slow was carried out till the demands  of  the  union were  fulfilled.   This  notice  was received  by the management on January 4, which  immediately contacted  the officers of the Labour Department as well  as the  Sub-Divisional Magistrate at Gopalganj.  On January  8, the  Deputy Labour Commissioner wrote to the union  that  as the conciliation officer was busy in the general  elections, the status quo should be maintained till the elections  were over,  so  that  the  matter might be  looked  into  by  the conciliation  officer.  The union, however, gave no heed  to this advice and go-slow began from January 9 and 839 was  continued  till  January 12,  1952.   Then  the  Labour Commissioner  himself came to the factory on January 12  and advised Shams-ud-din who was the s moving spirit behind  all this  to call off the go-slow, as it was proposed  to  start conciliation  proceedings  at  Patna on  January  17,  1952. Conciliation  proceedings  then began on January 17  and  an agreement  was  arrived  at as to some  of  the  demands  on January  23,  and it was decided that  further  conciliation proceedings would be held in February.  But in spite of this agreement  go-slow was again resorted to from January 24  to January 31.  In the meantime, the Labour Officer had arrived at  the factory on January 28, 1952, and further talks  took place.  The workmen, however, did not pay heed to the advice of  the Labour Officer.  He, therefore, reported on  January 31  to  the  Labour  Commissioner  that  go-slow  was  still continuing.  The Labour Commissioner then ordered the Labour Officer  to  tell the workmen that no  further  conciliation proceedings would take place until the goslow was called of. The  Labour  Officer then informed the  management  that  it could take disciplinary action against the workmen concerned with   the   permission   of   the   Industrial    Tribunal. Consequently, the management suspended thirty-three  workmen by  a  notice  given  on the night of  January  31  as  from February  1.  It was said in the notice that  these  thirty- three  workmen had been found taking a leading part  in  the unjustified  go-slow which was in contravention of  the  Act and they were therefore suspended from service until further orders.  This notice had some good effect and work  improved for four days; but from February 5 goslow was started again.

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Consequently,  the management suspended seven  more  workmen from  February  6 and eight more from February 7  by  giving notice  to  them in the same terms in which the  notice  had been  given to the thirty-three workmen, on January 31.   As adjudication  proceedings were pending since September  1951 between  the management and its workmen, the former  applied on  February 6, 1952, under s. 33 of the Act for  permission to  dismiss  the thirty-three workmen and  on  February  11, 1952, for permission to 840 dismiss the remaining fifteen workmen who had been suspended later.   The  forty-eight workmen in their turn  applied  on March  29, 1952, under s. 33-A of the Act to the  Industrial Tribunal and their case was that they had been suspended  as a  measure of punishment and that as this was  done  without the sanction of the Industrial Tribunal, the management  had committed a breach of s. 33. The three applications were tried together by the Industrial Tribunal and the contentions raised before it were these : (1)  The management’s applications under s. 33 had not  been preceded  by any enquiry into the misconduct of the  workmen and were, therefore, liable to be rejected ; (2)  The  order  of  suspension in  this  case  amounted  to punishment and therefore s. 33 had been contraven- ed; and (3)  There  was  an unjustified go-slow by  the  workmen  in January and February 1952. On  the first point, the Industrial Tribunal found  that  Do enquiry  had  been  held by the management  before  the  two applications,  under s. 33 were made; but it held  that  all the  evidence which could 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 applica- tions  for permission to dismiss should be granted  or  not. On  the second point, it held that the order  of  suspension was  not as a measure of punisment in the  circumstances  of this  case and that it was an order pending enquiry  by  the management  and proceedings under s. 33 before the  tribunal and that, as there were no Standing Orders as to  suspension in  this  factory,  the management’s liability  to  pay  the workmen   their  wages  during  the  period  of   suspension remained.   On  the third point,  the  Industrial  Tribunal, after an elaborate discussion of the evidence, came to  the’ conclusion  that there was a deliberate go-slow resorted  to by the workmen in January and February 1952 and 841 that it was unjustified as it took place while  conciliation proceedings were pending. Having  given  these findings, the Industrial  Tribunal  had then   to  decide  what  orders  it  should  pass   on   the applications  under s. 33 and s. 33-A.  It held  that  there was  no  evidence to show that of  the  forty-eight  workmen concerned, sixteen workmen named by it had taken part in the go-slow   or  instigated  it.   It  therefore  refused   the application  under  s.  33 with  respect  to  these  sixteen workmen.  As to the remaining thirtytwo workmen it held that as  some Standing Orders which were under  contemplation  at the  time provided either dismissal or suspension for  seven days in case of misconduct, it was proper to grant leave  to the  management  to suspend the workmen for seven  days,  in view  of  some  opinion expressed  by  a  Go-Slow  Committee appointed  some time before by the Bihar Central  (Standing) Labour  Advisory Board.  In effect, therefore,  it  rejected

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the  prayer of the management for dismissal with respect  to these  thirty-two  workmen also.  Finally, it  rejected  the application under s. 33-A. This  award led to two appeals before the  Labour  Appellate Tribunal; one was by the management against the entire award so  far as it related to its applications under s.  33,  and the  other  by the workmen against the  dismissal  of  their application under s. 33-A and against the award relating  to the  applications of the management under s. 33.   When  the matter  came up for hearing before the  Appellate  Tribunal, the  workmen  withdrew their appeal with  respect  to  their application under s. 33-A and it was consequently dismissed. The result of the dismissal of the appeal of the workmen was that  the  finding  of  the  Industrial  Tribunal  that  the suspension was not a punishment and was only pending enquiry by  the management and the proceedings before the  tribunal, stood confirmed. As  to  the *appeal by the management with  respect  to  the applications  under  s. 33, it was contended on  its  behalf before  the Appellate Tribunal that the Industrial  Tribunal had gone wrong on two substantial questions of law, namely- (1) the Industrial Tribunal could either grant or 106 842 refuse  permission  to dismiss on an  application  for  such permission  under s. 33 and it could not substitute its  own judgment about the quantum of punishment; and (2)  it  was  wrong in rejecting  the  applications  against sixteen workmen on the ground that there was no evidence. The   Appellate  Tribunal  was  of  the  opinion  that   the contention  of  the  management on  both  these  points  was correct  and that the appeal involved substantial  questions of  law.   It  also found  that  the  Industrial  Tribunal’s finding  that  the workmen had resorted to go-slow  was  not perverse and could be the only finding on the evidence.   It then went on to say that go-slow was insidious in nature and could   not  be  countenanced,  and  that  it  was   serious misconduct  normal punishment for which was  dismissal.   It also  held  that the Industrial Tribunal was  not  right  in relying  upon the recommendations of the  Go-Slow  Committee and  the  contemplated Standing Orders which were  not  till then in force.  Having said all this, we should have expect- ed that the Appellate Tribunal would set aside the order  of the   Industrial  Tribunal  and  grant  permission  to   the management  to  dismiss  the workmen for  what  was  serious misconduct  of  an  insidious  nature  which  could  not  be countenanced.   But  it  went on to say  that  it  was  well settled  that where an employer could not punish  a  workman without obtaining permission from the tribunal under s.  33, an  application for permission would be mala fide if it  was made after any punishment had already been meted out to  the workman.   It held that in the present case, the  suspension of the workmen by the management was substantive punishment, because  the notice did not in so many words state  that  it was  pending  enquiry  and therefore  the  applications  for permission having been made after punishment had been  meted out  were  mala  fide.  In coming to  this  conclusion,  the Appellate  Tribunal  seems  to have forgotten  that  it  had already  dismissed the appeal of the workmen from the  order of the Industrial Tribunal on their application under s. 33- A,  which in effect amounted to confirming the order of  the Industrial Tribunal that the suspension was not a punishment but was rightly made pending enquiry by 843 the  management  and proceedings before the  tribunal.   The

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Appellate  Tribunal supported its decision on this  question of  punishment  by  stating  that  the  mala  fides  of  the management  were  clear  from  the  fact  that  though   the suspensions had been made between January 31 and February 7, 1952,  the application was filed by the management on  March 29, 1952, after the application by the workmen under s.  33- A  had been filed.  This observation was clearly wrong,  for the applications under s. 33 were filed on February 6 and 11 by the management, and it was the application of the workmen under  s.  33-A which was filed on March  29.   Having  thus inverted  the order in which the applications were  made  to the Industrial Tribunal, the Appel. late Tribunal held  that the applications of the management under s. 33 were Dot bona fide.  It then dismissed the appeal of the management,  thus upholding the order of the Industrial Tribunal so far as the suspension  of  thirty-two workmen for seven days  was  con- cerned  on the ground that the workmen had  withdrawn  their appeal, though in the earlier part of the judgment all  that -was  said was that the workmen had withdrawn  their  appeal against the order under s. 33-A. As  the Appellate Tribunal had obviously made a mistake  and inverted  the order in which the applications under  ss.  33 and  33-A had been made, a review application was  filed  by the management.  It, however, held that though the dates had been  wrongly  mentioned by accident, it saw  no  reason  to review  its  order.  That is how the  management  filed  two special leave petitions in this Court.  We  are of opinion that on the findings of  the  Industrial Tribunal on the three points formulated by it which have not been  upset  by  the  Appellate  Tribunal,  the  only  order possible  on the applications of the management under s.  33 was  to  permit  it to dismiss  the  forty  -eight  workmen, provided  there was evidence against them all.  It  was  not open  to the Industrial Tribunal when it was asked  to  give permission  to  dismiss  to substitute some  other  kind  of punishment  and  give permission for that.   The  Industrial Tribunal  was satisfied that there was misconduct  and  that finding has been upheld by the Appellate Tribunal.  As such 844 if  there was evidence that these forty-eight  workmen  were guilty  of misconduct, the Industrial Tribunal was bound  to accord  permission  asked  for.  We cannot  agree  with  the Appellate  Tribunal  that the suspension in  this  case  was substantive punishment and was not an interim order  pending enquiry and proceedings before the Industrial Tribunal under s. 33.  We have already pointed out that the Labour  Officer told the management on January 31, 1952, that it was free to take   disciplinary  action  with  the  permission  of   the Industrial  Tribunal.   It was thereafter  that  thirtythree workmen were suspended on January 31 and the notice  clearly said  that the suspension was pending further  orders,  thus intimating  to the workmen that the order of suspension  was an interim measure.  This notice of January 31 was  followed by  an application on February 6 to the Industrial  Tribunal for permission to dismiss the thirty-three workmen  involved in  it, and this also clearly shows that the suspension  was pending  enquiry (if any) by the management and  proceedings before  the Industrial Tribunal.  Similarly, the  suspension notices of February 5 and 6 relating to fifteen workmen said that  they  were  suspended till  further  orders  and  were followed on February II by an application under s. 33 to the Industrial Tribunal for permission to dismiss them.  In  the circumstances it is quite clear that suspension in this case was  not  a punishment but was an  interim  measure  pending enquiry  and  proceedings  before  the  tribunal.   We  have

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already  pointed  out  that  this was  the  finding  of  the Industrial  Tribunal on the basis of which  the  application under s. 33-A was dismissed and this finding stood confirmed when the workmen withdrew their appeal with respect to their application under s. 33-A.  The Appellate Tribunal therefore was  clearly in error in holding . that the  suspension  was punishment. The only question that remains is about the sixteen  workmen about  whom the Industrial Tribunal held that there  was  no evidence  to connect them with the go-slow.   The  Appellate Tribunal’s  view in this matter was that the  contention  of the  management  that the Industrial Tribunal was  wrong  in holding  that  there was no evidence against  these  sixteen workmen was 845 correct.   It  has been shown to us  that  evidence  against these  sixteen workmen is of exactly the same witnesses  and of  the  same  kind as the evidence  against  the  remaining thirty-two.   The  finding,  therefore,  of  the  Industrial Tribunal  that  there was no evidence  against  the  sixteen workmen  is  patently  perverse,  for  there  was  the  same evidence  against them as against the remaining  thirty-two. It follows, therefore, that all the forty-eight workmen (two of whom are since said to have died) are exactly in the same position.   As held by the.  Appellate Tribunal, go-slow  is serious  misconduct  which is insidious in  its  nature  and cannot  be  countenanced.  In these circumstances  as  these fortyeight workmen were taking part in the go-slow and  were thus  guilty  of  serious  misconduct,  the  management  was entitled  to  get permission to dismiss them.   But  as  the management held no enquiry after suspending the workmen  and proceedings under s. 33 were practically converted into  the enquiry  which  normally  the management  should  have  held before  applying to the Industrial Tribunal, the  management is  bound  to pay the wages of the workmen till a  case  for dismissal was made out in the proceedings under s. 33;  (see the decision of this Court in the Management of Ranipur Col- liery v. Bhuban Singh (1) ). As already pointed out, this is the view taken by the Industrial Tribunal while dealing with the  application under s. 33-A which stood confirmed by  the dismissal of the appeal by the workmen in that behalf.   The management  will therefore have to pay the wages during  the period  of  suspension  till the  award  of  the  Industrial Tribunal. We  therefore allow the appeals and set aside the orders  of the two Tribunals so far as the applications under s. 33 are concerned and grant the appellant the permission sought  for by  it  in these applications subject to the  workmen  being paid  all their wages during the period of suspension up  to the date of the award of the Industrial Tribunal, i. e., 22- 9-1952.   As  the workmen did not appear  to  contest  these appeals, we pass no order as to costs. Appeals allowed. (1)  [1959] Suppl. 2 S.C.R. 719. 846