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PETITIONER: THE DUNLOP RUBBER CO.

       Vs.

RESPONDENT: WORKMEN

DATE OF JUDGMENT: 10/11/1964

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. BACHAWAT, R.S.

CITATION:  1965 AIR 1316            1965 SCR  (2) 414

ACT: Domestic  enquiry-Dismissal of workmen for ’go  slow’-Charge not  expressly mentioning go slow but referring to  Standing Order  dealing  inter alia with  ’go  slow’-Enquiry  officer turning  down workmen’s request of representation through  a member of unrecognised union-Enquiry whether vitiated.

HEADNOTE: The  appellant  company  dismissed  some  workmen  after   a domestic  enquiry  holding them guilty on a  charge  of  ’go slow’ action.  The respondents raised an industrial dispute. The  Industrial  Tribunal found that the  dismissal  of  the respondents could not be sustained as there was no  specific mention  of ’go slow’ in the charge.  Further it found  that there  was denial of natural justice at the enquiry  as  the workmen  were not allowed to be represented by a  person  of their  choice.  The Tribunal set aside the dismissal of  the respondents  and ordered their reinstatement.   The  company appealed to the Supreme Court by special leave. HELD  : (i) The charge specified cls. 10(vii) and  (xvi)  of the  Operators  Standing Orders.  These  clauses  deal  with insubordination  and,  inter  alia,  with  ’go  slow’.   The workmen  had been expressly warned by notice that they  were "going  slow" and in their reply to the charge  they  denied that  they were going slow.  The Tribunal was thus wrong  in holding  that  the workmen were not charged with  ’go  slow’ action and could not be found guilty of that charge. [143 B- C, G-H] (ii) ’Mere  was  no denial of natural  justice  because  the workmen asked to be represented by a member of a union which was not recognised The Standing Orders clearly provided that only  a representative of a union which is registered  under the  Trade  Union  Act and recognised  by  the  company  can assist.  ’Mere was no right to representation as such unless the  company by its Standing Order recognised such a  right. [144 F-G, H] Kalindi  &  Ors.  v.  Tata  Locomotives  &  Engineering  Co. Ltd.[1960]3  S.C.R.  407 and Brook Bond India  (P)  Ltd.  v. Subba Raman [1961] 11 L.L.J. 417, relied on.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 464 of 1964. Appeal  by special leave from the Award dated the  September 29, 1962 of the Third Industrial Tribunal in Case No.  VIII- 197 of 1960. A.   V. Viswanatha Sastri, Anand Prakash and D. N. Gupta, for the   appellant. N.   C. Chatterjee, D. L. Sen Gupta and Janardan Sharma, for the respondent. 140 The Judgment of the Court was delivered by Hidayatullah,  J. The Dunlop Rubber Co. Ltd. was granted  on January  21, 1963 special leave to appeal against the  award of   the  Third  Industrial  Tribunal,  West  Bengal   dated September  29, 1962.  By that award the Tribunal  set  aside the dismissal from service of twelve workmen of the  Company and  ordered their reinstatement with continuity of  service but  awarded only 25 per cent of the back wages etc.  during the  period they were out of employment treating the  period as  leave.  This dispute was referred by the  Government  of West  Bengal on July 20, 1960 under s. 10 of the  Industrial Disputes  Act,  1947.  The workmen were  dismissed  after  a domestic  enquiry  commenced on February 4, 1960  which  was carried  on exparte because these workmen did not choose  to be  present.   The Tribunal held that the  enquiry  was  not proper and some of the witnesses were re-examined before the Tribunal  whose  verdict was against the Company  and  hence this appeal. Eleven  of  these workmen belonged to what is known  as  the Dual  Auto  Mill  and the twelfth was  working  on  what  is described  as  the  Baby Mill.  These  workmen  and  several others  stopped  work from January 21, 1960  and  they  were placed  under  suspension  on 25/27th  January.   Ten  other workmen were also dismissed but they were taken back on  the intercession  of  the Government of  Bengal.   The  incident arose in the following circumstances : In the processing of rubber which is used in the manufacture of rubber goods by the Company, a number of departments have to work in sequence.  The Banbury Section prepares a mixture of rubber and chemicals and it is passed on to the Dual Auto Mill  which, after further processing, turns out  blocks  of rubber  called "batches".  Each batch is of about 1250  lbs. There were at the material time two Dual Auto Mills and they were working in three shifts and as each auto mill  required the  attendance  of two workmen, twelve  such  workmen  were employed  to look after the two mills.  Each shift was of  8 hours  with  half an hour’s rest for meals and an  extra  20 minutes  for  emergencies.  It was expected to  produce  and was,  in fact, producing 17 batches till January  12,  1960. There was another mill called the Baby Mill but what it  was used for is not quite clear on the record of the case.   One of  the dismissed workmen (S.  R. Sen Gupta--Check  No.  252 was working on the Baby Mill and he was a protected worker. The workmen in this Company are grouped under three Unions : the  most  numerous is Union No. 4145 which goes  under  the name of Dunlop Workers’ Union.  This Union was registered  141 but  it  was not recognised by the Company.   Another  Union which  bears  No.  729 and goes under the,  name  of  Dunlop Rubber Factory Labour Union was recognised by the  Company.. We  need not refer to the third Union which does not  figure in these proceedings.  It appears that Union No. 4145, which

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came  into  existence in 1957, managed to  capture  all  the elective  seats  open  to  the  workmen  by  defeating   the candidates set up by Union No. 729.  There was great rivalry between the two Unions and the dismissed workmen belonged to Union No. 4145.  It appears that Union No. 4145 had raised a demand  for revision of wages etc. which was being  resisted by  the  Company.  The Baby Mill, the Banbury Mill  and  the Dual  Auto  Mills were manned by the  workmen  belonging  to Union  No. 4145, except one Raghunandan Das, Check No.  100, who belonged to Union No. 729 and was teamed with Chandramma Chaube  one of the dismissed workmen.  Raghunandan  Das  was absent  on leave from January 12 to January 19, 1960.   From January 12, there was a fall in the output of the Dual  Auto Mills  at all the three shifts.  The number of batches  fell from 17 to 15 and later still further.  On January 15,  1960 warnings  were issued to these workmen that they were  going slow  and  that "go slow" action was  misconduct  under  cl. 10(XVI)  of the Company’s Standing Orders for operators  and under cl. 18(C) of the Labour Union Agreement for operators. They  were told that if they did not immediately  return  to their  normal  output the Company would be  forced  to  take disciplinary  action  against them.  All  the  workmen  were served with such letters. On  January  19, Raghunandan Das joined his duties  and  was teamed  again with Chandramma Chaube.  It seems that  Raghu- nandan  Das found that Chandramma Chaube was not giving  the full output and was taking more than the required time  over the  mixing  operations.  Chandramma Chaube’s case,  on  the other  hand,  was  that Raghunandan  Das  was  not  allowing sufficient   technical   time  for  the  mixtures   and   he (Chandramma Chaube) was objecting to it.  It may be  pointed out  that  the workmen were. paid extra if they  turned  out more than the expected quota of batches and Raghunandan  Das was  anxious to earn more, if possible.  Be that as it  may, it seems that these two workmen quarreled on January 21  and Raghunandan Das abused Chandramma Chaube and also Union  No. 4145.   Immediately the members of 4145 Union threatened  to stop  work unless Raghunandan Das was removed from the  Dual Auto  Mill  and  transferred  to  another  Department.   The officers of the Company promised an enquiry 142 but  asked  the  workmen to go back to  work.   The  workmen belonging to the 4145 Union refused to do this.  As a result the  Dual Auto Mills either remained closed or  worked  much below  their  capacity.  The workmen were  again  and  again requested and ultimately on 25/27th January they were called to  the  office so that they could be  served  with  charge- sheets.   They  declined to accepted the  charge-sheets  and were there and then placed under suspension. The suspended workmen included these twelve workmen and  ten others  as already stated.  One Mr. P. K.  Maitra  commenced enquiry  into  the  charges in the presence  of  Mr.  R.  M. Bhandari,  an observer.  At the commencement of the  enquiry each of the workmen asked for a representative of Union  No. 4145 who was "conversant with the art of  cross-examination" to  be present.  Under the Standing Orders of  this  Company representation  could  only be by a member of  a  recognised Union  but as Union No. 729 was anathema to the  members  of Union  No. 4145 they would not avail of the services of  any member of that Union.  They elected to remain absent  except S.  R. Sen Gupta who, though their leader, appeared  at  the enquiry  against  himself  and  made  a  statement  clearing himself  but  took  no further part in the  enquiry.   As  a result  of the enquiry, which was ex parte, Mr. Maitra  held that these workmen were going slow and that they were guilty

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of  the  charge brought against them.   He  recommended  the punishment  of dismissal.  The Company  accordingly  ordered their  dismissal seeking at the same time the permission  of the Tribunal under s. 33 of the Industrial Disputes Act  and tendering  one  month’s wages to each workman.   Later,  the Government of West Bengal took interest in the matter and at the  intercession  of the Government the Company  agreed  to take back 10 of the workmen leaving it to Union No. 4145  to select  the  persons  who should be  taken  back.   All  the workmen  of  the Banbury Mill were taken back and  the  1  1 workmen of the Dual Auto Mill and Sen Gupta of the Baby Mill remained dismissed. The  Tribunal in reaching the conclusion that the  dismissal was improper and that the workmen should be reinstated  held that the Company had not really charged the workmen with "go slow"  action but had found them guilty of that charge.   It held  that the Company was showing favours to Union No.  729 and  was  trying  to put down the  Union  of  the  dismissed workmen.   The Tribunal, however, held that the stoppage  of work  by  the  workmen  amounted to  strike  as  there  were proceedings  pending  before  the Tribunal,  but  since  the strike was peaceful and non-   143 vident it was only technically illegal.  The Tribunal blamed the Company for contributing to the strike by its refusal to shift  Raghunandan Das from his place of work.  In  view  of these  findings  the Tribunal held that  the  punishment  of dismissal  was not justified and the order now impugned  was accordingly passed. The  Tribunal was wrong in almost all its  conclusions.   It was wrong in holding that the workmen were not charged  with "go slow" action and therefore could not be dismissed on the finding  that  they  were guilty of "go  slow".   Under  the Standing  Orders  of  the  Company  "go  slow"  is  a  major misconduct.   Clauses (VIII) and (XVI) of Standing Order  10 deal with insubordination or disobedience or failure whether alone or in combination with others, to carry out any lawful and reasonable or proper order of a Superior (cl.  VIII) and engaging  or  inciting  others to  engage  in  irregular  or unjustified or illegal strikes; malingering or slowing  down of work (cl.  XVI).  The charge-sheet stated as follows :-               "You  are  hereby  asked  to  show  cause  why               disciplinary   action  should  not  be   taken               against you for the following misconduct under               Operators Standing orders Clauses 10(VIII) and               (XVI). The two clauses of Standing Order 10, as pointed out  above, deal  with insubordination and inter alia with  going  slow. It was contended before us that the words "go slow" did  not figure  in  this charge as they did in the  charges  against workmen  in the Banbury AM.  It is to be remembered that  on January  15,  1960 these workmen had been  expressly  warned that  they  were going slow and that "go  slow"  action  was misconduct  under  cl.  10(XVI) of  the  Company’s  Standing Orders  for Operators.  No doubt Mr. Lobo, who drew  up  the charge, had not mentioned go slow in these charges as he had done  in  the  charges framed against  the  workmen  of  the Banbury  Mill,  but  it is  nevertheless  clear  that  these charges  refer  to go slow and indeed the workmen  in  their replies to the charge denied that they were going slow.   It may  be  pointed  out that Mr. Lobo had  stated  before  the Enquiry  Officer  that the charge was "go  slow".   The  log books  also  showed that from January 12, 1960  against  the Dual  Auto Mills the remark was "slow work".  It is  clearly established  by  the  records produced that  instead  of  17

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batches  15 batches or less were turned out at  each  shift. This proves that there was a deliberate "go 144 slow"  no sooner Raghunandan Das left on leave and the  Dual Auto Mills came into the exclusive hands of Union No.  4145. This  Union thought that the opportunity was too good to  be wasted  to force their demand for increase of wages  by  the tactics  of "go slow".  The explanation of the workmen  that the mixture received from the Banbury Mill was too cold  and had to be reheated before it could be processed in the  Dual Auto  Mills was false.  They attributed the cooling  of  the mixture to the working of a new machine called the festooner from the 12th of January.  It is clear that this machine was tried for three months before it was put into operation  and had worked for three months prior to January 12, 1960 and so such complaint had been made by the workmen.  It is possible that the Banbury Mill operators, who were also suspended and dismissed, were cooling the mixture unduly by means of their blower  to  delay operation.  But whether the  Banbury  Mill cooled it and the Dual Auto Mills were required to reheat it or  the Dual Auto Mills delayed the operations, it is  clear that the motivating force behind it was the action of  Union No.  4145  to force the hands of the Company in  support  of their  demands.  It is sufficient to say that after the  new workmen  had  got trained in the working of  the  Dual  Auto Mills  the  production  again reached  the  same  number  of batches  and  after the figure was even  better  though  the festooner continued in operation.  We are satisfied that the workmen  were  going slow from January 12,  1960,  that  the charge  of  "go slow" was incorporated in  the  charge-sheet read  with  the  warning  letter  and  that  it  was   fully substantiated.   This amounted to misconduct under  Standing Order No. 10 and was not a minor offence as contended before us  by their learned counsel.  The minor offences deal  with conduct of a very different kind. The  Tribunal  was also wrong in thinking that there  was  a denial  of natural justice because the workmen were  refused the  assistance  of  a representative of  their  own  Union. Under  the  Standing Orders it is clearly provided  that  at such  enquiries only a re-presentative of a Union  which  is registered  under the Indian Trade Union Act and  recognised by  the  Company can assist.   Technically,  therefore,  the demand  of  the workmen that they should be  represented  by their own Union could not be accepted.  It has been ruled by this   Court  in  Kalindi  &  Ors.  v.  Tata  Locomotive   & Engineering  Co.  Ltd.(1) and Brook Bond India (P)  Ltd.  v. Subba  Raman(2) that there is no right to representation  as such  unless the Company by its Standing  Orders  recognises such a right. (1)[1960] 3 S.C.R. 407. (2) [1961] 11 L.L.J. 417.  145 Refusal  to  allow representation by any  Union  unless  the Standing  Orders  confer  that right does  not  vitiate  the proceedings.   It  is  true that only the  rival  Union  was recognised  and there was hostility between the two  Unions. The  quarrel  itself which sparked off the strike  was  also between  two representatives of the rival Unions.   In  such circumstances it is idle to expect that these workmen  would have chosen to be represented by a member of the rival Union and  the Company might well have considered their demand  to be  represented by any other workman of their  choice.   The workmen, however, insisted that the representation should be in   the   capacity  of  a  representative  of   their   own unrecognised  Union.   In other words,  they  were  desiring

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recognition of their Union in an indirect way. The dispute, therefore, was carried on by these workmen with the  twin  object of achieving their  demand  for  increased wages  and  also for the recognition of  their  Union.   The implication of their demand that they should be  represented by a member of their own Union was not lost upon the Company and  the  refusal  to allow representation  on  these  terms cannot  be characterised as a denial of natural  justice  or amounting  to  unfair play.  If the Company had  been  asked that  the workmen wished to be represented by a  workman  of their own choice without the additional qualification  about Union  No. 4145 it is possible that the Company  might  have acceded  to the request.  We think, the Company  might  have asked the workmen to delete all reference to Union No.  4145 and  allowed  them  to have a representative  of  their  own choice in the special circumstances of this dispute.  But we cannot  say that the action of the Enquiry Officer  was  for that  reason  illegal  or amounted to a  denial  of  natural justice.  In this connection, we have repeatedly  emphasised that  in holding domestic enquiries, reasonable  opportunity should  be  given to the delinquent employees  to  meet  the charge framed against them and it is desirable that at  such an  enquiry the employ should be given liberty to  represent their  case  by  persons of their choice,  if  there  is  no standing  order against such a course being adopted  and  if there  is  nothing  otherwise  objectionable  in  the   said request.    But   as  we  have  just   indicated,   in   the circumstances  of  this  case, we have  no  doubt  that  the failure of the Enquiry Officer to accede to the request made by  the employees does not introduce any serious  defect  in the  enquiry  itself,  and  so, we  have  no  hesitation  in holding-  that  the  result of the said  enquiry  cannot  be successfully challenged in the present proceedings. 146 It  follows that the two main reasons for  interfering  with the order of dismissal do not really exist.  The charge  was under  cls. (VIII) and (XVI) of Standing Order No.  10.   It said so and its meaning was quite clear to the workmen  who, according  to plan, were definitely going slow from  January 12, 1960 when the Dual Auto Mills passed into the control of workmen  belonging  to Union No. 4145.  The  demand  of  the workmen,  couched  as it was, could not be  granted  by  the Enquiry Officer, because the Standing Orders did not  permit representation  by a member of any but a  recognised  Union. The additional reasons given by the Tribunal that later  the demands of this Union were accepted in respect of wages  can hardly  justify the action of these workmen in going  on  an illegal  strike and in declining to resume work unless  what they  demanded was done.  There was thus  justification  for the  order passed by the Company.  It is on record that  the Dual Auto Mills perform a key operation and no rubber  goods can  be  produced without the batches being  available.   By their  action these workmen slowed down production of  every category and by their refusal to work when asked to g0  back to  work  cause enormous loss to the  Company.   The  motive underlying  the  action  is more deep  seated  than  a  mere quarrel between Chandramma Chaube and Raghunandan Das or the abuses which Raghunandan Das is alleged to have showered  on Chandramma Chaube and his Union. It  is contended that there was discrimination  between  the Banbury Mill and the Dual Auto Mills because workmen of  the Banbury Mill were reinstated but not the workmen of the Dual Auto  Mills.  The discrimination, if any, was made by  Union No.  4145 which nominated those who should be taken back  in service.   There  must be some reason why the  Banbury  Mill

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workmen  were treated differently and if we are to hazard  a guess,  it seems that those workmen were not sending  out  a cold mixture as alleged but that the Dual Auto Mill  workmen were   taking  more  time  on  their  own  operation.    The production was slowed down not by the Banbury Mill operators but  by the Dual Auto Mill operators.  In other  words,  the Banbury Mill workmen, though they joined in the strike,  did not  probably join in the "go slow", but the Dual Auto  Mill workmen  not only started "go slow" but also led the  strike affecting  a  large  number of workmen.  In  any  event  the workmen chosen for reinstatement’. were chosen by their  own Union  and  it  cannot be said that  the  Company  made  any discrimination. We  are  satisfied that in this case the  Tribunal  was  not justified in interfering.  It has acted as a court of appeal in scrutinizing the evidence and in reaching conclusions  of its own.  We are also  147 satisfied  that  the  conclusions reached  by  it  were  not justified   on   the  evidence  in  the  case.    In   these circumstances,  we  think  that  the  order  passed  by  the Tribunal  should  be  vacated and the order  passed  by  the Company ought to be accepted. It is a pity that these workmen, who, on their own admission were better paid than in any other Organisation should  lose their  job in an attempt to get an indirect  recognition  of their  Union.  But it cannot be helped because  the  Company must have a free hand in the internal management of its  own affairs.   No outside agency should impose its  will  unless the  action  of the Company is lacking in bona fides  or  is manifestly perverse or unfair.  There is nothing to indicate this.  At the same time we must say that existence of  Union No.  4145 which has a larger membership than Union  No.  729 which  is the only recognised Union, has in a great  measure contributed  to  this dispute.  We have often  noticed  that Companies  favour one Union out of several and  thus  create rivalry which disturbs industrial peace.  It often turns out that this has adverse effect on Company itself.  Since Union No.  729  was formed in 1950 and Union No. 4145 in  1957  we cannot  say that the non-recognition of Union No.  4145  was deliberate.   But as that Union seems to be the stronger  of the two Unions the Company should seriously consider whether Union No. 4145 should not also be recognised. The appeal must succeed.  It will be allowed but we make  no order about costs. Appeal allowed. 148