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PETITIONER: THE PUNJAB NATIONAL BANK, LTD.

       Vs.

RESPONDENT: ITS WORKMEN

DATE OF JUDGMENT: 24/09/1959

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P. SUBBARAO, K.

CITATION:  1960 AIR  160            1960 SCR  (1) 806  CITATOR INFO :  F          1960 SC 762  (13)  R          1960 SC1262  (4)  R          1961 SC 689  (7)  R          1961 SC 860  (8)  R          1963 SC 601  (6)  F          1965 SC 917  (5)  R          1965 SC1803  (11)  F          1968 SC 231  (14)  R          1971 SC2171  (5)  R          1971 SC2417  (7,11)  R          1972 SC 136  (33)  R          1972 SC 277  (10)  RF         1972 SC1031  (21,51)  E          1973 SC1227  (18,20)  F          1978 SC 995  (6,10,12)  R          1978 SC1380  (8)  RF         1978 SC1428  (18,20)  RF         1979 SC1652  (18)  RF         1980 SC1896  (148)  RF         1981 SC 422  (4)  RF         1990 SC1054  (19)

ACT: Industrial    Dispute-Dismissal    by    employer    pending adjudication  -Omission  to hold proper  enquiry  or  obtain permission of the Tribunal-Such dismissal, if wholly  void-- Jurisdiction of Tribunal, Scope of-Pen-down strike-Legality_ If  disentitles  a  dismissed  employee  to   reinstatement- Industrial  Disputes Act, 1947 (14 of 1947), ss.  2(q),  10, 33, 33A.

HEADNOTE: The  employees  of  the appellant  Bank  commenced  pen-down strikes,  which were followed by a general  strike,  pending arbitration  of  an industrial dispute  between  them.   The Government  of  India  intervened and as the  result  of  an agreement   that  followed  the  Bank  reinstated  all   the employees   except  150,  against  whom  it   had   positive objections, and the Government referred their cases under s. 10  of the Industrial Disputes Act, 1047, to the  Industrial Tribunal  for  adjudication.   The  two  issues  before  the

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Industrial Tribunal were whether the 150 employees had  been wrongly dismissed and what wages and allowances would the 807 employees be entitled to on reinstatement.  The case of  the employees  was that the Bank wanted to penalise  the  active trade  union workers by the said dismissals while  the  Bank maintained  that the employees were guilty of  participation in  illegal  strikes intended to paralyse its  business  and scare  away its customers.  The Industrial Tribunal did  not hear  evidence  and,  by its final  award,  held  that,  the strikes  being illegal, the Bank was, on that ground  alone, justified in dismissing the employees.  Even so, it directed the  Bank  to  make certain payments  to  the  employees  on compassionate  grounds.  The Bank as well as  the  employees appealed.   The  Labour Appellate Tribunal  held  that  even though the strikes were illegal under s. 23(b) read with  s. 24(1) of the Industrial Disputes Act, 1947, the Bank had, by entering  into the agreement with the Government  of  India, waived its right to take penal action against the  employees for  joining  the illegal strikes and  that,  therefore,  an enquiry should be held on additional evidence to decide  the disputes  on merits.  Against this interlocutory  order  the Bank  appealed to this Court and it was held by  this  Court that while the strikes were no doubt illegal under s.  23(b) of the Act, the orders of dismissal passed by the Bank  were no  less  so under s. 33 of the Act, and  it  dismissed  the appeal.  The Appellate Tribunal, thereafter, heard the cases on  merits,  directed-the reinstatement of 136 of  the  said employees,  but refused to reinstate the rest whom it  found guilty  of issuing posters and circulars subversive  of  the credit  of  the  Bank.  Both the parties  appealed  to  this Court.  Preliminary objections were raised on behalf of  the said  employees  that, (1) in view of the decision  of  this Court   dismissing  the  Bank’s  appeal  against  the   said interlocutory  order the subsequent inquiry by the  Tribunal and the orders of dismissal must be held to be void and, (2) no  charges  having been admittedly framed  nor  any  proper enquiry  held by the Bank against the employees, the  orders of dismissal were wholly invalid.  It was urged, inter alia, on behalf of the Bank in the appeals that participation in a pen-down strike by itself amounted to misconduct  sufficient to  disentitle  an employee to reinstatement  and  that  the entire body of strikers, being collectively responsible  for the publication of the subversive documents in question, the dismissed employees could by no means escape liability. Held  (per curiam), that the preliminary objections must  be negatived  and  the  decision  of  the  Appellate   Tribunal affirmed  with  this  modification  that,  in  view  of  its inconsistent  findings, the appeal of one of  the  employees must be allowed. Per   Sinha   and  Gajendragadkar,   JJ.-The   purpose   the Legislature had in view in enacting s. 33 of the  Industrial Disputes  Act,  1947,  was to maintain  the  status  quo  by placing  a  ban  on  any  action  by  the  employer  pending adjudication. But the jurisdiction conferred on the Industrial Tribunal by S. 33 of the Act was a limited one.  Where a proper  enquiry had been held and no victimisation or unfair labour practice had been 808 resorted to, the Tribunal in granting permission had only to satisfy itself that there was a Prima facie case against the employee  and not to consider the propriety or  adequacy  of the ,proposed action.  But to such permission, when granted, the Tribunal could attach no conditions; it can either grant

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or refuse it. The  effect  of such permission was only to remove  the  ban imposed  by s. 33 of the Act.  It could neither  validate  a dismissal  nor  prevent  it  from  being  challenged  in  an industrial dispute; but in such a dispute, when raised,  the employer  could justify its action only on such  grounds  as were specified in the original charge-sheet and no others. There was substantial difference between non-compliance with s. 33 of the Act and that with Art. 311(2) of the  Constitu- tion.  Compliance with s. 33 only avoided the penalty  under s.  31(1) of the Act, while compliance with Art.  311(2)  of the Constitution made the order of dismissal final. Atherton  West  &  Co. Ltd.  V. Suti  Mills  Mazdoor  Union, [1953] S.C.R. 780, The Automobile Products of India Ltd.  v. Rukmaji Bala, [1955] 1 S.C.R. 1241, Lakshmi Devi Sugar Mills Ltd.  v. Pt.  Ram Sarup, [1956] S.C.R. 916, Indian lron  and Steel  Co.  Ltd.  v. Their Workmen, [1958]  S.C.R.  667  and McKenzie  & Co. Ltd. v. Its Workmen, [1959] S.C.R.  (Suppl.) 222 referred to. It  was  not,  therefore,  correct  to  contend  that   non- compliance with s. 33 of the Act could render the orders  of dismissal  wholly void or take away the jurisdiction of  the Tribunal to hold the enquiry.  Nor could the failure to hold a proper enquiry have that effect. Under  s.  33A of the Act, as construed by this  Court,  the jurisdiction  of the Tribunal was not limited to an  enquiry as  to the contravention of s. 33 of the Act.  Even if  such contravention  was proved, the employer could still  justify the impugned dismissal on merits and there was no difference in  this regard between a reference under s. 10 of  the  Act and a dispute raised under s. 33A of the Act. The  Automobile  Products  of India Ltd.  v.  Rukmaji  Bala, [1955]  1  S.C.R. 1241 and Equitable Coal  Co.Ltd.  v.  Algu Singh, A.I.R. 1958 S C. 761, referred to. Although  there  can be no doubt that in  proper  cases  the Industrial Tribunal has the power to direct reinstatement in disputes  arising out of dismissal of employees, it  is  not possible to Jay down any hard and fast rule to be applied to such  cases.   In  coming to its  decision,  the  Industrial Tribunal  has  to reconcile the conflicting  claims  of  the employer and the employee,--the latter’s right to protection against  wrongful dismissal, and in such a case  the  normal rule  is reinstatement, and the interest and safety  of  the industry  itself.   Its approach to such a  problem  cannot, therefore, be legalistic or doctrinaire or as is permissible 809 in  a civil court deciding the validity of dismissals  under S. 240 of the Government of India Act, 1935, or Art.  311(2) of the Constitution. Western India Automobile Association v. Industrial Tribunal, Bombay,  [1949] F.C.R. 321 and Buckingham &  Carnatic  Mills Ltd. v.   Their Workmen, (1955) 11 L.L.J. 314, referred to. If  no enquiry is held by the employer before it  passes  an order  of dismissal, the propriety of such dismissal can  be adjudged by the Tribunal on evidence and no employer can  be allowed  to  object to it on the ground that  it  interferes with the exercise of its managerial function. The  Madras Electric Tramways, (1904) Ltd.  Madras v.  Their Workers,  (1951)  11  L.L.J.  204,  distinguished  and  held inapplicable. The  propriety  of reinstatement in a case  of  wrongful  or illegal  dismissal is normally a question of fact and  where the  Industrial  Tribunal on a proper consideration  of  the relevant  factors refuses to pass such an order  this  Court would be reluctant, in absence of any general or substantial

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question  of  law,  to  interfere under  Art.   136  of  the Constitution. A  pen-down strike falls within the definition of  a  strike contained  in S. 2(q) of the Industrial Disputes Art,  1947, and  is  not Per se illegal.  Even if it  might  involve  an element  of  civil  trespass as in the  present  case,  that cannot disentitle an employee to reinstatement. M/s.   Burn  & Co. Ltd. v. Their Workmen, A.I.R.  1959  S.C. 529, referred to. It is not safe to extend principles of American decisions to such  a  strike without a careful scrutiny of  the  relevant provisions  of the American Statute and the facts  on  which the said decisions are based. National  Labour Relations Board v.  Fansteel  Metallurgical Corporation, 306 U.S. 238, considered and held inapplicable. William  Truax  v.  Michael  Corrigan,  66  Law.   Ed.  311, referred to. Since  in  the instant case, the  peaceful  and  non-violent conduct of the strikers, as found by the Appellate Tribunal, could not amount to criminal trespass within, the meaning of s.  441 of the Indian Penal Code, mere participation in  the pen-down strike did not disentitle them to reinstatement. T.   H.  Bird  v. King-emperor, (1934) L.R. XIII  Pat.  268, held inapplicable. The mere fact that the employer had engaged new hands during the  strike,  was  not sufficient to  defeat  the  claim  to reinstatement  of such employees as were subsequently  found to have been wrongfully dismissed. National Transport and General Co. Ltd. v. The Workmen, C.A. NO. 312 of 1956, decided on January 22, 1957, referred to. 810 But  where, as in the instant case, the  Appellate  Tribunal took a common-sense view of the matter of evidence and  held certain  office-bearers and leaders of the union liable  for subversive  acts and refused to extend such liability to the entire body of strikers on theoretical and academic grounds, no principles of natural justice could be said to have  been contravened by it.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 519 to  521 of 1958. Appeal  by  special leave from the  decision  dated  January 4,1955, of the Labour Appellate Tribunal of India, Calcutta, in Appeals Nos.  Cal. 69152 and Cal. 70/52.                             AND Civil Appeal No. 521 of 1958. Appeal  by special leave from the decision dated January  4, 1955, of the Labour Appellate Tribunal of India, Calcutta in Appeal No. Cal 70/52. Ram Lal Anand and Naunit Lal, for the appellant in C.A.  No. 519 of 58. H.   N.  Sanyal, Additional Solicitor-General of India,  Ram Lal  Anand  and Naunit Lal, for the appellants in  C.A.  No. 520/58 and respondents in C.A. NO. 521 of 58. M.   C.   Setalvad,  Attorney-General  for  India,   C.   K. Daphtary,   Solicitor-General,  M.   K.   Ramamurthi,   Syed Mahummud,  B.  K.  Garg, Miss.  A.  B.  Varma  and  Janardan Sharma, for respondent No. 1 in C.A. Nos. 519 and 520 of  58 and appellant in C.A. No. 521 of 58. Hardyal Hardy and M. B. Krishna Pillai, for respondent No. 2 in C.As, Nos. 519 & 520 of 58. 1959.    September   24.    The  judgment   of   Sinha   and

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Gajendragadkar,  JJ.,  was delivered by  Gajendragadkar,  J. Subba Rao, J., delivered a separate judgment. J.GAJENDRAGADKAR  J.-These  three appeals arise  out  of  an industrial  dispute between the Punjab National  Bank,  Ltd. (hereinafter called the Bank) and two sets of its  employees represented   by  the.   All-India  Punjab   National   Bank Employees’  Federation (hereinafter called  the  Federation) and  the U.P. Bank Employees’ Union hereinafter  called  the Union) respectively. 811 On  July 2, 1951, this dispute was referred by  the  Central Government  for adjudication to the industrial  tribunal  of which Mr. A. N. Sen, a retired Judge of,, the Calcutta  High Court,  was  the sole member.  It raised  two  issues.   The first  was  whether  the 150 workmen mentioned  in  Sch.  11 attached  to the reference had been wrongfully dismissed  by the  Bank,  and the second had reference to  the  claim  for reinstatement  and payment of wages and allowances from  the date  of  dismissal  to  the  date  of  reinstatement.   The reference  thus made has gone through a long and  protracted career  and  the  final decision of  the  dispute  would  be reached  after we dispose of the present appeals.  In  order to  appreciate the points raised for our decision  in  these appeals  it is necessary to indicate briefly at  the  outset the  salient points of controversy between the parties,  the findings  made  by the original  tribunal,  the  conclusions reached   by   the   Labour  Appellate   Tribunal   in   its interlocutory  and final judgments and the decision of  this Court in the appeal which had been brought before it by  the Bank  against  the  interlocutory  judgment  of  the  Labour Appellate Tribunal. The  150  employees, whose dismissal has given rise  to  the present  dispute  are spread over several  branches  of  the Bank.  52  of them work at its head office in Delhi,  15  in Bombay, 73 in East Punjab and 10 in U.P. 140 workmen in  the first  three areas are represented by the  Federation  while the  last 10 in U.P. are represented by the Union.   All  of these employees took part in strike which, according to  the Bank, were illegal.  The strikes in which the two respective groups  of  workmen took part were, however,  for  different reasons. The strike in which the Federation took part was the  result of  the  suspension  by the Bank  of  its  typist  Sabharwal employed in the Delhi Branch of the Bank on April 17,  1951. It  appears  that Sabharwal, who was the  Secretary  of  the Punjab  National Bank Employees’ Union, Delhi,  had  applied for  leave  for  seven  days  on  April  3,  1951,  but  his application  was rejected; even so he absented himself  from duty  and went to Bombay.  As soon as he resumed his  duties on 812 April  14, 1951, he was supplied with a written  chargesheet for  absence without leave which he refused to  accept.   It was then sent to him by registered post, and on April 17  he was suspended.  This suspension was followed by an immediate pen-down  strike  at  the head office of  the  Delhi  Branch subsequent  to which the Bank suspended 60 other  employees. This  led  to  a  general strike in  Delhi  and  many  other branches  and it commenced at different dates from April  18 to 20, 1951.  On April 21-22, 1951, the Bank issued  notices calling upon all striking members of the staff to report for duty by 10 a. m. on April 24, 1951, and it warned them  that if  they  did not comply with the notice it would  be  taken that  they  had voluntarily ceased to be its  employees  and their services would be deemed to have terminated from  that

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date.  This was followed by another notice on April 24 which announced  that  the strikers who had failed to  report  for duty as aforesaid had ceased to be the employees of the Bank from  April 24, 1951.  An option was, however, given to  the strikers  who were still willing to rejoin duty to apply  in that behalf and explain their action in staying away.  It is common  ground  that the 140 employees  represented  by  the Federation  who had taken part in the strike were  dismissed by  the  Bank for absence due to the strike.   That  is  the genesis  of the dispute between the Bank and the  Federation in relation to the 140 employees of the Bank. The  strike in which the remaining 10 employees of the  Bank from the U.P. branches are concerned commenced on April  23, 1951.   This  strike was in pursuance of the  strike  notice served  by  the Union on the Bank on April 22,  1951.   This pen-down  strike  was  a part of the  general  strike  which affected  not only the Bank but also the Allahabad Bank  and other  banks  in  the  U.P.  region.   The  Regional  Labour Commissioner of the U.P. Government who intervened suggested that the general strike should be called off and recommended that  some  of the demands made by the  strikers  should  be referred  to  the industrial tribunal for  adjudication;  in accordance with this request, on April 30, 1951, the  strike committee decided to call off the strike and 813 Advised workmen to join duty from May Is 1951.  This advice, however,  did  not reach all the branches in time  with  the result  that  some of the employees of the Bank  offered  to resume  work  on May 3,1951.  The other banks  in  the  U.P. region took back their employees who rejoined on May 3,  but the  Bank refused to take back its employees on  the  ground that  they’ had not offered to rejoin on or before the  date fixed;  and so it proceeded to dismiss them.  The  dismissal of  the said 10 employees is also the subject-matter of  the present  reference.  That is bow the reference is  concerned with the dismissal of 150 employees of the Bank in all. The  strikes in question which affected the head office  and the  large number of branches of the Bank operating in  more than  one  State and a very large number  of  its  employees caused  public  concern, and so the Prime Minister  and  the Labour  Department  of  the Central  Government  thought  it necessary to intervene; and a conference was arranged at New Delhi  between the officers of the Government and the  Bank. To this conference the representatives of the Federation  or the  Union were, however, not invited.  This conference  led to  an agreement as a result of which the Bank undertook  to reinstate  all  its  employees who had  taken  part  in  the strikes  except  those  to  whose  reinstatement  it  had  " positive  objections".   This, however, was subject  to  the reservation  that  the number of such employees was  not  to exceed  150 and that their case,-, would be referred by  the Central  Government  for adjudication by a  tribunal.   This agreement  was  the result of several meetings  between  the representatives of the Bank and the Labour Department of the Central  Government  and it was reached on or about  May  9, 1951. Thereafter  the  head  office of the Bank  sent  a  circular letter  to  all  its  branches  calling  for  names  of  the employees who according to the branch managers could not  be considered  for reinstatement.  The list of  such  employees received by the head office from the respective managers  of its  branches was examined by the head office and  the  Bank then compiled the 103 814

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list  of 150 workmen whom it was not prepared to  reinstate. This list was in due course communicated by the Bank to  the Central  Government;  and  in  pursuance  of  the  agreement aforesaid  the  Central Government referred the  dispute  in respect of the said 150 workmen for adjudication before  the tribunal by its notification issued on July 2, 1951. Before  the  tribunal the case for the  Federation  and  the Union was that the refusal of the Bank to take back the  150 workmen  in  question  was  a  part  of  the  concerted  and deliberate  plan adopted by the management of the  Bank  for victimising  the President, the Vice-President, the  General Secretary  and Secretaries and Treasurer of  the  Federation and of the working committees of the different trade  unions of workers and the members of the strike committees, and  it showed that the sole object of the Bank in refusing to  take back those employees was to teach a lesson to the Federation and  -the  Union  and to penalise  all  active  trade  union workers who supported the cause of the employees. On  the other hand, the Bank contended that the  strikes  in which  the 150 employees had participated were  illegal  and had  been resorted to not with a view to obtain  relief  for the  employees but with a view to paralyse the  business  of the Bank and to scare away its customers.  The Bank  further alleged  that  the  said  150 employees  were  guilty  of  " unpardonable  acts of violence, intimidation,  coercion  and victimisation." The  tribunal gave two interim awards by which  it  directed the  Bank to make some payments to the 150 employees by  way of allowance pending the final disposal of the dispute.   On February  2, 1952, the tribunal pronounced its final  award. It held that the strikes were illegal and that the’ Bank was entitled to dismiss the employees solely on the ground  that the  said employees had participated in an  illegal  strike. On  this  view the tribunal did not think  it  necessary  to allow  evidence  to be given on the question as  to  whether some  of the strikers were guilty of specific subversive  or violent acts.  It also did not allow 815 evidence to be led by workmen in support of their plea  that their dismissal was the result of victimisation.  It decided the  dispute  on  the sole ground,  that  the  strikes  were illegal  and participation in illegal strikes justified  the dismissal  of the employees.  Even so the tribunal  made  an order directing the Bank to pay certain amounts to the  said employees on compassionate grounds. The direction issued by the tribunal for the payment of  the said amount was challenged by the Bank by its appeal (No. 25 of  1952) before the Labour Appellate Tribunal  (hereinafter called the appellate tribunal), whereas the decision of  the tribunal  that  the  150  employees  were  not  entitled  to reinstatement was challenged by the two sets of employees by two  different  appeals  (Nos.  69 and  70  of  1952).   The appellate  tribunal recorded its interlocutary  decision  on September  22,  1952.   As a result  of  this  decision  the dispute  was  set  down for further hearing  on  the  points indicated  by  it.   It was urged by  the  Bank  before  the appellate  tribunal  as  a preliminary  objection  that  the appeals  preferred by the employees were incompetent.   This objection  was  overruled.   The  appellate  tribunal   then proceeded  to consider two questions of law, (1) whether  an employer has the right to dismiss a workman for his  absence from duty by reason of his mere participation in an  illegal strike,  and (2) if he has, can the tribunal scrutinise  the exercise  of that right and grant relief to such  a  workman when  it  comes to the conclusion that the  right  has  been

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exercised  capriciously or by unfair labour  practice.   The appellate  tribunal  held  that the strike  started  by  the Federation  was illegal under s. 23 (b) read with s. 24  (1) of  the Industrial Disputes Act, 1947 (14 of 1947)  (herein- after  called  the Act).  It appears that  on  February  21, 1950,  an  industrial  dispute  between  the  Bank  and  the Federation  had  been  referred to the  arbitration  of  Mr. Campbell  Puri,  and  whilst the  proceedings  in  the  said reference  were pending before the tribunal the  strike  was commenced  on  or  about April 17, 1951.  That  is  why  the strike  was illegal.  The appellate tribunal, however,  held that, even if mere participation 816 in  an  illegal  strike by workmen is assumed  to  give  the employer  certain rights against the striking workmen,   the employer  can  waive these rights, that is to  say,  rafrain from exercising those rights against the workmen.  According to the appellate tribunal such waiver or relinquishment  can be inferred from conduct, and it thought that the conduct of the  Bank evidenced by the agreement which it  reached  with the  Central  Government on or about May  9,  1951,  unambi- guously proved that it had waived or relinquished its rights to  take any penal action against its employees  merely  for their participation in the illegal strike.  In other  words, the  effect  of the findings of the appellate  tribunal  was that, though the strike was illegal, by its conduct the Bank had  precluded itself from exercising its alleged  right  to dismiss  its  employees for their participation in  such  an illegal strike. The appellate tribunal also considered the general  question of law as to whether participation in an illegal strike  can be  said to deserve dismissal of the striking  workmen.   It took the view that an illegal strike absolves the  liability of  the  employer to pay to its employees wages  during  the period  of  absence  of the striking workmen,  but  that  it cannot be stated as a general proposition that participation in an illegal strike would by itself necessarily involve the penalty  of  dismissal.  The Bank attempted to  justify  the dismissal  in  the  present  case by  urging  that  the  150 employees were guilty of violent or subversive acts but  the appellate tribunal held that it was not open to the Bank  at that stage to plead in justification of their dismissal  any such  acts  of  violence or subversive  acts.   "  There  is abundant  authority ", observed the appellate,  tribunal,  " for the proposition that an employer can justify before  the tribunal  a  dismissal  only  on  the  ground  on  which  he purported to dismiss him and not a ground different from  it ".  That is why in the end the appellate tribunal held  that the dismissals were wrongful.  The appellate tribunal had no doubt  that  mere participation by a workman in  an  illegal strike  or his absence due to such participation   does  not entitle an employer to dismiss him and that it is 817 open to a tribunal to order reinstatement in a proper  case. Having  reached  this  conclusion  the  appellate   tribunal observed that "though in the case of wrongful dismissals the normal  rule  is  that the  employees  wrongfully  dismissed should be reinstated, it would nevertheless be necessary  to consider  the question of reinstatement in the case of  each individual  employee in the light of requirements of  social justice  and  fair play for which the  employee  claims  and industrial   peace   and  discipline  which   the   employer emphasizes."  In  order to decide the cases of  the  several employees  from  this twofold point of  view  the  appellate tribunal  thought it was necessary to allow the  parties  to

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lead additional evidence on relevant points.  The  employees wanted  to  lead  evidence  in  support  of  their  case  of victimisation  and  they  were  allowed  to  do  so  by  the appellate  tribunal.   The Bank wanted to lead  evidence  on five  points.  The appellate tribunal held that evidence  on items  (3) and (5) would be irrelevant and it  thought  that item  (4) was too vague.  That is why ’the Bank was  allowed to lead evidence only in respect of item (2) and some  heads mentioned in item (1).  In the result opportunity was  given to the parties to lead evidence on the following points: (1) victimisation,   (2)  past  service  records  of   the   150 employees, (3) conduct of those 150 employees or any of them during the strike confined to acts of violence, intimidating loyal workers and acts subversive of the credit of the Bank, (4) employment which any of those 150 persons got after this dismissal,  the period during which they were in  employment and  the wages or emoluments they received.   The  appellate tribunal then directed the Bank to file a statement within a month giving particulars of the acts confined to the matters on which the Bank was allowed to lead evidence in respect of each one of the 150 employees after supplying a copy of  the same,  one to the Federation and one to the Union.   In  the meanwhile  the appellate tribunal directed the Bank to  make interim payments to the employees as indicated in its order. This  interlocutary  judgment  was challenged  by  the  Bank before this Court by its appeal under Art. 136 818 of  the  Constitution.  On behalf of the Bank it  was  urged that the conclusion of the appellate tribunal that the  Bank had   condoned  the  illegal  strike  by  its  workmen   was unjustified  and that it was open to the Bank to  rely  upon the  illegal strike as justifying the dismissal of the  said workmen.   The  case  of the Bank thus was  that  the  order passed  by the appellate tribunal setting down  the  dispute for  further  enquiry was illegal and should be  set  aside. The judgment of this Court delivered by Patanjali Sastri, C. J., shows that this Court thought it unnecessary to  express any opinion on the question of condonation or waiver of  the illegal strike because, in its opinion, even if there was no such  condonation or waiver and even if it was open  to  the Bank  to rely upon the illegal strike as a valid ground  for dismissing its employees, there was no doubt that the  order of dismissal was illegal having regard to the provisions  of s. 33 of the Act.  The said section furnished a short answer to the Bank’s contention that the appellate tribunal had  no jurisdiction to order reinstatement of the 150 workmen.   In other words, just as the strike of the employees was illegal so was the order of dismissal passed by the Bank illegal and for  a similar reason.  S. 23(b) of the Act made the  strike illegal  while  s.  33 of the Act made  the  dismissal  also illegal.  In the result the appeal preferred by the Bank was dismissed;  and it was held that there was no  substance  in the  plea  of the Bank that the appellate  tribunal  had  no jurisdiction to direct reinstatement of the employees.  This judgment was pronounced on April 10, 1953. The   proceedings   before  the  appellate   tribunal   were subsequently resumed and they terminated on January 4, 1955, when  the appellate tribunal directed the  reinstatement  of the  136  employees and passed incidental orders  about  the payment  of  their  wages.   It  refused  to  reinstate  the remaining  14  employees  but passed  orders  in  regard  to payment  of  compensation even in their cases.   Before  the appellate  tribunal  four general points were sought  to  be raised at this subsequent hearing.  The first was in  regard to  the invalidity of the reference itself.  The second  was

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in regard to 819 the ultra vires character of the relevant provisions of  the Act.   Both these contentions were not allowed to be  raised by  the  appellate  tribunal and they have  not  been  urged before  us  either.  The third contention’ raised  was  that both  the  strikes were not bona fide and  so  the  striking workmen  were  not entitled to reinstatement; and  the  last contention  was  that the pen-down strike  was  illegal  and participation  in it should be considered as a  circumstance disqualifying   the   strikers  from   reinstatement.    The appellate  tribunal  has held that the strikes  in  question were  bona fide and that mere participation in the  pen-down strike  cannot  be treated as a valid  ground  for  refusing reinstatement  to the strikers.  It considered the  evidence led by the parties in regard to the character of the strike, and  it  held that the definite instruction  issued  to  the employees was to continue occupation of their seats till the police intervened and threatened to arrest and so it was not prepared  to  accept the employees’ case that  the  pen-down strikers  "vacated  their seats on the mere  asking  by  the management"  According to the finding, the persons who  took part  in  the pen-down strike not only ceased  to  work  but continued  to  occupy their seats.  The  appellate  tribunal also  found  that  the  pen-down  strikers  were  quiet  and peaceful,  that  no  slogans were  shouted,  no  attempt  at violence or coercion was made and that they simply  occupied their seats without doing any work. It was conceded before the appellate tribunal that  pen-down strike  falls within the definition of strike prescribed  by s.  2(q)  of the Act; but it was urged that the act  of  not vacating  their seats when asked by the management to do  so introduced  an element of illegality and made  the  strikers liable  in  a  civil  court  for  trespass.   The  appellate tribunal  was not impressed with this argument but  it  held that  even if the striking workmen are assumed to have  made themselves  liable for civil trespass that itself would  not be sufficient ground for refusing reinstatement. It  appears that the Bank relied upon several  documents  to show  that the employees were guilty of  subversive  actions during the course of the strike.  The 820 appellate  tribunal was not satisfied that  these  documents were  genuine and could be effectively pressed into  service by  the Bank in support of its case.  It was also  urged  by the  Bank that during the course of the strike  posters  and circulars  were issued which were clearly subversive of  the credit  of the Bank and it was contended that employees  who were  guilty of issuing such posters and circulars  did  not deserve  reinstatement.   The  appellate  tribunal  examined these documents and held that three of them amounted to sub- versive  acts.   They are Exs. 255(a), 255(c) and  302.   In regard  to  Ex. 302 the findings recorded by  the  appellate tribunal  in  two  places  of  its  decision  are   somewhat inconsistent;  but  the operative portion  of  the  decision shows that the appellate tribunal was inclined to hold  that Ex.  302  was also objectionable and that it amounted  to  a subversive  act.   The rest of the documents no  doubt  used strong  and intemperate language but the appellate  tribunal was  not prepared to treat them as  constituting  subversive activity.  On this finding a question which arose before the appellate tribunal was : Who should be held responsible  for the  offending  documents ? The appellate tribunal  was  not prepared to hold all the 150 employees responsible for them. In this connection it considered the statement made by H. N.

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Puri  in  this  evidence and it field that  since  Puri  had admitted that he consulted 11 specified persons in preparing Exs. 255(a) and 255(c) as well as other documents they  must share  the responsibility for the said documents along  with Puri.   Similarly  the  appellate  tribunal  held  that  the persons who were shown to have been responsible for Ex.  302 must  be treated on the same basis.  It was as a  result  of this  finding that the appellate tribunal refused to  direct reinstatement  of 14 employees.  In regard to the  remaining 136 employees the appellate tribunal held that it would  not be right to impute the responsibility for the publication of the  three subversive documents to them merely because  they were  members  of the working committee  or  were  otherwise active  leaders  of the Union.  The appellate  tribunal  the considered  the  voluminous evidence led by the  parties  in respect 821 of each one of the 150 employees, and it held that in regard to  the 136 employees no case had been made out by the  Bank for refusing them reinstatement. It is clear from the decision of the appellate tribunal that it was not at all satisfied with a substantial part ,of  the documentary evidence adduced by, the Bank.  It held that the affidavits  filed  by the Bank were  sometimes  prepared  en masse and the deponents simply put their signatures on them. In  most of the affidavits there were blank spaces  for  the name, parentage and age of the deponents and they have  been subsequently  filled up in ink.  Some of them, though  sworn at different places, used identical language; while in  some others  material  additions and alterations have  been  made which do not bear the initials either of the deponents or of the  oath  commissioner.   It  appeared  to  the   appellate tribunal  that some of the statements made by the  witnesses of  the Bank showed that their affidavits had been  prepared by  the Bank’s lawyers and they simply put their  signatures thereon  and  affirmed them before  the  oath  commissioner. Indeed the appellate tribunal apparently thought that  there was  some  force in the contention raised by  the  employees that  some  of the documents produced by the Bank  had  been manufactured  or  tampered with long after  the  strike  was over,  It  has noticed the argument urged by the  Bank  that even  if it was so the Bank cannot be condemned for the  act or acts of its branch managers in that behalf. This argument did  not  appeal  to,  the  appellate  tribunal.   Thus  the decision of the appellate tribunal substantially upheld  the case  made  by the employees in that it directed  the  rein- statement  of the 136 out of the 150’ employees and  ordered payment   of   compensation  to  the  remaining   14   whose reinstatement was not granted. This  decision has given rise to the three  present  appeals before  us.  Civil Appeal No. 519 of 1958 has been filed  by the  Bank against the order of reinstatement in  respect  of 126  employees  represented by  the  Federation.   Similarly Civil  Appeal  No. 520 of 1958 has been filed  by  the  Bank against the order directing 104 822 the reinstatement of 10 employees represented by the  Union; and  Civil  Appeal  No. 521 of 1958 has been  filed  by  the Federation on behalf of the 14 employees the claim for whose reinstatement has been rejected.  In regard to the first two appeals  preferred by the Bank special leave was granted  to the Bank on February 21, 1958, limited to grounds (b),  (c), (d), (f) and (g) set out in paragraph 162 of its  petitions. These grounds are:-

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(b)  Whether  employees, who have been  propagating  against the stability and solvency of the Bank by propaganda oral as well as written through open letters, posters, leaflets  and hand-bills  amongst  the customers and constituents  of  the Bank  and  the public at large before, during and  after  an illegal strike are entitled to an order of reinstatement ? (c)  Whether  after  the declaration of an  illegal  strike, forcible occupation of the seats and refusal to vacate them, when ordered to do so by the Management, does not constitute as  act  of criminal trespass, it having been  held  by  the appellate tribunal that the employees formed a large riotous assembly  in  and  outside  the premises  of  the  Bank  and delivered fiery and provocative speeches to accompaniment of scurrilous slogans directed against the institution and  its high officers with a view to render impossible the  business of   the   institution,  are  entitled  to   an   order   of reinstatement ? (d)  Whether  a ’pen-down’ strike of such a  character  does not contravene the provisions of the law of the land and  is exempted  under  the  Trade Unions  Act  or  the  Industrial Disputes Act ? (f  ) Whether employees, who, notwithstanding the fact  that they  resorted  to  an illegal strike  and  were  guilty  of rioting, had been invited by the Management to come back and resume  work  and who spurned at this offer and in  so  many words  treated  it  with  contempt  and  whose  places  had, therefore, to be replaced by fresh recruits are entitled  to an order that those fresh recruits be dismissed and replaced by the strikers ?  23 (g)  Whether  it  is open to the employees of a  concern  to raise  with  their Employers a question as  to  whether  the Employers  should  employ in their service  employees  of  a concern  other  than their own and whether such  a  question constitutes  an ’industrial dispute’ within the  meaning  of the Industrial Disputes Act ? It  may  be mentioned that the Bank’s petitions  had  raised several  other grounds in paragraph 162 -but leave  has  not been granted to the Bank to raise any of them. Almost  a  month  and a half after limited  leave  was  thus granted  to the Bank the Federation filed its  petition  for special  leave  on  April  4,  1955,  and  it  applied   for condonation  of delay made in presenting the  petition.   On April 9, 1956, this Court granted the employees’ application for  condonation of delay and gave special leave to them  to prefer their appeal.  This leave has not been limited to any particular  grounds.  Broadly stated these are the  relevant facts which give rise to the three present appeals. Before  dealing  with the merits of these  appeals  we  must consider  two preliminary objections raised by  the  learned Attorney-General on behalf of the employees.  He has claimed that if these objections are upheld the Bank’s appeals would have  to  be  dismissed and the  employees’  appeal  allowed without  considering the merits of the orders under  appeal. In  pressing  these objections he urged that  the  questions raised  were  of  considerable importance,  and,  though  he conceded that some aspects of the matter were covered by the previous decisions of this Court, he requested us to examine the  whole question afresh once more.  We would  accordingly deal with these contentions at some length. The first contention is that as a result of the decision  of this  Court in the appeal preferred by the Bank against  the interlocutary judgment of the appellate tribunal, the  whole of  the  enquiry held by the said tribunal pursuant  to  the said  interlocutary  judgment is  invalid  and  infructuous.

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This Court has held that the dismissal of the 150  employees is illegal having 824 regard  to  the  provisions  of s. 33 of  the  Act;  if  the dismissal is illegal it is void and inoperative and as  such it  cannot  be said to have terminated the  relationship  of master  and  servant  between the Bank  and  its  employees. Despite the said order of dismissal the employees  continued to  be  in the employment of the, Bank and are  entitled  to reinstatement  without  any further enquiry.   That,  it  is said, is the effect of the Bank’s failure to comply with the provisions of s. 33. It is next contended that the Bank does not dispute the fact that  it had held no enquiry into the alleged misconduct  of its  employees  before  it passed the  impugned:  orders  of dismissal  against them.  It is well established  that  even where  an employer is justified in terminating the  services of his employees he is bound to give them a charge-sheet and hold a proper enquiry at which they would have, a chance  to meet the said charge-sheet.  This requirement is universally treated as,consistent with natural justice and fairplay  and since the Bank has not complied with it the impugned  orders of dismissal are wholly invalid for this additional  reason; and  the  result  again would be that the  said  orders  are inoperative  and  void  and the employees  are  entitled  to reinstatement as a matter of course. In support of this argument reliance has been placed on  the decision  of  the  Privy Council in the  case  of  The  High Commissioner  for India and High Commissioner  for  Pakistan and  I.M. Lall (1).  This decision holds that the  order  of dismissal  passed  against a person who is a member  of  the Civil  Service of the Crown in India without complying  with the   mandatory  relevant  provisions  of  s.  240  of   the Government of India Act,  1935, is void and inoperative, and that the Civil Servant against whom such an order is  passed is  entitled to a declaration that he remained a  member  of the  Indian Civil Service at the date of the institution  of the suit in which he challenged the validity of the impugned order.   Similarly in Khem Chand v. The Union  of  India(2), this  Court  has  held that an  order  of  dismissal  passed against  a public servant specified in Art.  311(a)with  out complying with the mandatory (1) 75 1. A. 225. (2) [1958] S.C.R. 1080. 825 provisions  of  Art.  311 (2) is void and  that  the  public servant  sought  to be dismissed by such  an  invalid  order continued  to be a member of the service at the date of  the institution  of  the  suit.  It is in  the  light  of  these decisions that the learned Attorney-General asks us to  hold that  the  relationship between the Bank and  its  employees remains wholly unaffected by the’ orders of dismissal passed by the Bank against them; and so, as soon as the orders  are held to be void nothing more remains to be done but to  make a declaration about the the continuance of the  relationship of  master  and servant between the parties  and  to  direct reinstatement.  Thus presented the argument no doubt appears prima facie to be attractive; but in our opinion, a  careful examination  of the relevant sections of the Act shows  that it is not valid. The three sections of the Act which are relevant are ss. 33, 33A and 10.  Let us first consider s. 33.  This section  has undergone several changes but we are concerned with it as it stood  in  1951.   It provides inter alia  that  during  the pendency of any proceedings before a tribunal in respect  of

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any  industrial  dispute  no  employer  shall  discharge  or punish,  whether  by  dismissal or  otherwise,  any  workman concerned  in such dispute save with the express  permission in  writing of the tribunal.  It is clear that in  cases  to which  this  section applies a ban has been imposed  on  the power  of the employer to dismiss his employees  -save  with the  express  permission in writing of the  ,tribunal.   The object  of  the  Legislature in  enacting  this  section  is obvious.  By imposing the ban s. 33 attempts to provide  for the  continuance and termination of the pending  proceedings in  a  peaceful  atmosphere undisturbed  by  any  causes  of friction  between  the  employer  and  his  employees.    In substance it. insists upon the maintenance of the status quo pending  the disposal of the industrial dispute between  the parties; nevertheless it recognises that occasions may arise when  the  employer  may  be  justified  in  discharging  or punishing  by dismissal his employees; and so it allows  the employer  to take such action subject to the condition  that before doing so he must obtain the 826 express  permission in writing of the tribunal.  It is  true that the ban is imposed in terms which are mandatory and  s. 31(1) makes the contravention of the provisions of s. 33  an offence punishable as prescribed therein.  But the  question which calls for our decision is: What is the effect of  such contravention  on  the decision of  the  industrial  dispute arising from it ? Where  an  application  is  made by  the  employer  for  the requisite  permission  under s. 33 the jurisdiction  of  the tribunal in dealing with such an application is limited.  It has to consider whether a prima facie case has been made out by  the  employer  for  the dismissal  of  the  employee  in question.   If the employer has held a proper  enquiry  into the  alleged misconduct of the employee, and if it does  not appear  that the proposed dismissal of the employee  amounts to victimisation or an unfair labour practice, the  tribunal has to limit its enquiry only to the question as to  whether a  prima  facie  case has been made out or  not.   In  these proceedings  it  is  not open to the  tribunal  to  consider whether  the order proposed to be passed by the employer  is proper  or  adequate  or  whether it errs  on  the  side  of excessive  severity; nor can the tribunal grant  permission, subject to certain conditions, which it may deem to be fair. It  has  merely to consider the prima facie  aspect  of  the matter  and  either  grant  the  permission  or  refuse   it according  as it holds that a prima facie case is or is  not made out by the employer. But it is significant that even if the requisite  permission is granted to the employer under s. 33 that would not be the end  of the matter.  It is not as if the permission  granted under  s.  33 validates the order of dismissal.   It  merely removes  the  ban;  and  so the validity  of  the  order  of dismissal  still  can be, and often is,  challenged  by  the union by raising an industrial dispute in that behalf.   The effect  of compliance with the provisions of s. 33  is  thus substantially  different from the effect of compliance  with s. 240 of the Government of India Act, 1935, or Art.  311(2) of  the  Constitution.  In the latter classes of  cases,  an order of dismissal passed after duly complying with the 827 relevant  statutory provisions is final and its validity  or propriety  is no longer open to dispute; but in the case  of s. 33 the removal -of the ban merely enables the employer to make  an  order of dismissal and thus  avoid  incurring  the penalty  imposed by s. 31(1).  But if an industrial  dispute

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is  raised  on  such a dismissal, the,  order  of  dismissal passed  even with the requiste permission obtained under  s. 33 has to face the scrutiny of the tribunal. The decisions of this Court show that this position is  well established.   In  Atherton West & Co. Ltd.  v.  Suti  Mills Mazdoor Union (1) this Court was dealing with the provisions of  cl.  23 of the relevant U.  P.  Government  notification which  is similar to the provisions of s. 33 of the Act.   " The  enquiry  to be conducted by the  Regional  Conciliation Officer  under the said clause ", observed Bhagwati,  J.,  " was not an enquiry into an industrial dispute as to the non- employment  of  workmen who was sought to be  discharged  or dismissed which industrial dispute would only arise after an employer,  his agent or manager discharged or dismissed  the workman  in accordance with the written permission  obtained from  the officer concerned.  The only effect  of  obtaining permission from the officer concerned was to remove the  ban imposed on the employer.  But the order of dismissal  passed after  obtaining the requisite permission can  still  become the subject-matter of an industrial dispute under s. 2(k) of the  Act  and the workman who has been  dismissed  would  be entitled  to  have the industrial dispute  referred  to  the appropriate authority.  " In The Automobile Products of India, Ltd. v. Rukmaji Bala  & Ors.  (2),  this Court was dealing with  a  similar  problem posed  by the provisions of s. 22 of Act 48 of 1950, and  s. 33  of the Act.  Dealing with the effect of  these  sections this Court held that the object of s. 33 was to protect  the workmen  against  the victimisation by the employer  and  to ensure the termination of the proceedings in connection with the  industrial  disputes in a  peaceful  atmosphere.   That being so, all that the tribunal, exercising its jurisdiction under s. 33, is (1) [1953] S.C.R. 780, (2) [1955] 1 S.C.R. 1241. 828 required to do is to grant or withhold the permission,  that is  to  say, either- to lift or to maintain the  ban.   This section  does  not  confer any power  on  the  tribunal  ’to adjudicate upon any other dispute or to impose conditions as a prerequisite for granting the permission asked for by  the employer.  The same view has been ,expressed in Lakshmi Devi Sugar Mills Ltd. v. Pt.  Ram Sarup (1). In cases where an industrial dispute is raised on the ground of  dismissal  and  it  is  referred  to  the  tribunal  for adjudication,-the  tribunal naturally wants to know  whether the  impugned dismissal was preceded by a proper enquiry  or not.   Where  such  a  proper  enquiry  has  been  held   in accordance  with  the provisions of  the  relevant  standing orders  and it does not appear that the employer was  guilty of  victimisation  or  any  unfair  labour  practice,   that tribunal  is  generally  reluctant  to  interfere  with  the impugned  order.  The limits of the tribunal’s  jurisdiction in dealing with such industrial disputes have been  recently considered  by  this Court in the -Indian Iron &  Steel  Co. Ltd.  v.  Their Workmen (2 ) and it has been held  that  the powers of the tribunal to interfere with cases of  dismissal are  not  unlimited because the tribunal does not act  as  a court of appeal and substitute its own judgment for that  of the  management.  In this judgment this Court has  indicated the  classes  of  cases  in  which  the  tribunal  would  be justified   in  interfering  with  the  impugned  order   of dismissal.  It would and should interfere when there is want of good faith, when there is victimisation or unfair  labour practice,  when  the management has been guilty of  a  basic

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error  or violation of the principle of natural justice,  or when,  on  the materials, the finding of the  management  is completely  baseless  or perverse.  The same view  has  been again  expressed by this Court in O. McKenzie &  Co.,  Ltd., and Its Workmen (3). There  is  another principle which has to be borne  in  mind when  the tribunal deals with an industrial dispute  arising from the dismissal of an employee.  We have already  pointed out that before an employer can (1) [1956] S.C.R. 916.          (2) [1958] S.C.R. 667. (3)  (1959) 1 L.L.J. 285. 829 dismiss  his employee he has to hold a proper  enquiry  into the  alleged  misconduct of the employee and  that  such  an enquiry  must  always begin with the supply  of  a  specific charge-sheet to the employee.  In Lakshmi Devi Sugar  Mills, Ltd.  (1),  it has been held by this Court that  in  dealing with the merits of the dismissal of an employee the employer would  be confined to the’ charge-sheet given by him to  his employee  when  an enquiry was held into  his  conduct.   It would not be open to the employer to add any further charges against  the  employee  and  the  case  would  have  to   be considered on the original charge-sheet as it was framed. It is significant that in the case of Lakshmi Devi Sugar Mills, Ltd.  (1),  this Court was apparently inclined to  take  the view  that the additional acts of insubordination  on  which the appellant-mills wanted to rely would have justified  the employee’s  dismissal;  but even so it was  not  allowed  to raise that plea because the said plea had not been  included in  the original charge-sheet.  It, therefore, follows  that where  a  proper enquiry has been held by the  employer  and findings   are  recorded  against  the  employee  that   the principles  laid  down by this Court in the case  of  Indian Iron  &  Steel  Co.  Ltd. (2)would  be  applicable;  and  in applying the said principles the employer would be  confined to  the grounds set out by him in his  charge-sheet  against the employee. This position is not disputed before us.  Indeed the learned Attorney-General contends that the principles applicable  to the  decision  of  an industrial dispute  arising  from  the dismissal  of  an employee to which we  have  just  referred serve   to  emphasise  the  obligatory  character   of   the limitation  imposed on the employer by s. 33 of the Act  and by the requirements of   natural    justice    that    every dismissal must be preceded    by  a proper  enquiry.   Where the ban imposed by s.    33  of  the  Act  has  been  defied and/or  where a proper enquiry has not been held at all  the action  of the employer in dismissing his employee  must  be treated as void and inoperative.  Such a case (1) [1956] S.C.R. 916. (2) [1958] S.C.R. 667, 105 830 stands  outside the principles which we have  discussed,  so far.   That  in brief is the main contention raised  by  the employees. This  contention  is,  however, untenable  in  view  of  the decisions of this Court where the provisions of s.     33A have been construed and considered, and so we     must   now turn to s. 33A.  This section was inserted in     the Act in 1950.   Before it was enacted the only remedy  available  to the  employees against the breach of s. 33 was to  raise  an industrial   dispute  in  that  behalf  and  to   move   the appropriate Government for its reference to the adjudication of  a  tribunal  under s. 10 of the Act.   The  trade  union

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movement in the country complained that the remedy of asking for  a  reference under s. 10 involved delay  and  left  the redress  of the grievance of the employees entirely  in  the discretion  of the appropriate Government; because  even  in cases  of contravention of s. 33 the appropriate  Government was  not bound to refer the dispute  under s. 10.   That  is why  s. 33A was enacted for making a special  provision  for adjudication as to whether s. 33 has been contravened.  This section enables an employee aggrieved by such  contravention to make a complaint in writing ’in the prescribed manner  to the tribunal and it adds that on, receipt of such  complaint the tribunal shall adjudicate upon it as if it is a  dispute referred to it in accordance with the provisions of the Act. It  also  requires the tribunal to submit its award  to  the appropriate  Government and the provisions of the Act  shall then apply to the said award.  It would thus be noticed that by this section an employee aggrieved by a wrongful order of dismissal  passed against him in contravention of s.  33  is given  a  right  to  move the tribunal  in  redress  of  his grievance  without having to take recourse to s. 10  of  the Act. After this section was thus enacted the scope of the enquiry contemplated by it became the subject matter of  controversy between  the  employers and the employees.  This  Court  bad occasion  to deal with this controversy in the case  of  the Automobile Products of India Ltd. (1).  Das, J., as he  then was, who delivered (1) [1955] 1 S.C.R. 1241. 831 the  judgment of the Court construed s. 33A of the  Act  and the corresponding s. 23 of Act 48 of 1950, which applied  to the  Labour  Appellate  Tribunal  then  in  existence,   and observed that " the scheme of the section clearly  indicates that  the  authority  to whom the complaint is  made  is  to decide   both   the  issues,  viz.,  (1)   the   effect   of contravention, and (2) the merits of the act or order of the employer  ".  "  The  provision  in  the  section  that  the complaint shall be dealt with by the tribunal as if it  were a  dispute  referred to or pending before it  quite  clearly indicates ", said the learned Judge, "that the  jurisdiction of  the  authority is not only to decide whether  there  has been  a  failure on the part of the employer to  obtain  the permission of the authority before taking action but also to go  into the merits of the complaint and  grant  appropriate reliefs (p. 1253) ". It was urged before this Court that  in holding an enquiry under s. 33A the tribunal’s duty was only to find out whether there had been a contravention of s. 33, and if it found that there was Such a contravention to  make a  declaration  to that effect.  The argument  was  that  no further  question  can or should be considered  in  such  as enquiry.  This contention was, however, rejected. The same question was raised before this Court in  Equitable Coal  Co. Ltd. v. Algu Singh (1) and following the  previous decision  of  this  Court  in the  case  of  the  Automobile Products  of India Ltd. (2) it was held that in  an  enquiry under s. 23 two questions fall to be considered: Is the fact of contravention of the provisions of s. 22 proved ? If yes, is  the  order passed by the employer against  the  employee justified  on the merits ?  Thus there can be no doubt  that in an enquiry under s. 33A the employee would not succeed in obtaining  an  order  of  reinstatement  merely  by  proving contravention of s. 33 by the employer.  After such  contra- vention- is proved it would still be open to the employer to justify  the  impugned dismissal on the merits.  That  is  a part  of  the  dispute which the tribunal  has  to  consider

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because the complaint made by the employee is treated as  an industrial dispute and all the relevant (1) A.I.R. 1958 S.C. 761. (2) [1955] 1 S.C.R. 1241. 832 aspects  of the said dispute fall to be considered under  3. 33A.   Therefore, we cannot accede to the argument that  the enquiry  under s. 33A is confined only to the  determination of  the question as to whether the alleged contravention  by the  employer of the provisions of s. 33 has been proved  or not. In  the present case the impugned orders of  dismissal  have given rise to an industrial dispute which has been  referred to  the tribunal by the appropriate Government under s.  10. There can be no doubt that if under a complaint filed  under s. 33A a tribunal has to deal not only with the question  of contravention  but  also  with the merits of  the  order  of dismissal,  the  position  cannot be any  different  when  a reference is made to the tribunal like the present under  s. 10.  What is true about the scope of enquiry under s. 33A is a fortiori true in the case of an enquiry under s. 10.  What is  referred to the tribunal under s. 10 is  the  industrial dispute  between  the Bank and its employees.   The  alleged contravention  by the Bank of s. 33 is no doubt one  of  the points which the tribunal has to decide; but the decision on this  question does not conclude the enquiry.  The  tribunal would  have also to consider whether the impugned orders  of dismissal are otherwise justified; and whether, in the light o  the  relevant  circumstances of the  case,  an  order  of reinstatement  should or should not be passed.  It  is  only after all these aspects have been considered by the tribunal that  it  can adequately deal with  the  industrial  dispute referred to it and make an appropriate award. In this connection it would be relevant to remember that  in dealing with industrial disputes arising out of dismissal of employees  the  tribunal  undoubtedly  has  jurisdiction  to direct  reinstatement in proper cases.  The  question  about the  jurisdiction  of  an  industrial  tribunal  to   direct reinstatement  was  raised  as early  as  1949,  before  the Federal  Coort  in Western India Automobile  Association  v. Industrial  Tribunal, Bombay (1).  In this case the  Federal Court  considered  the larger question about the  powers  of industrial tribunals in (1)  [1949] F.C.R. 321. 833 all  its aspects and rejected the argument of  the  employer that  to invest the tribunal with jurisdiction to order  re- employment amounts to giving it authority to make a contract between  two persons when one of them is unwilling to  enter into  a contract of employment at all.  " This  argument  ", observed  Mahajan, J., as he then was, "overlooks  the  fact that when dispute arises about the employment of a person at the  instance of a trade union or a trade union  objects  to the  employment  of  a certain  person,  the  definition  of industrial dispute would cover both those cases.  In each of those  cases, although the employer may be unwilling  to  do so, there will be jurisdiction in the tribunal to direct the employment  or non-employment of the person by the  employer ". The learned Judge also added that " the disputes of  this character being covered by the definition of the  expression ’industrial  disputes, ’ there appears no logical ground  to exclude  an award of reinstatement from the jurisdiction  of the industrial tribunal." Since this judgment was pronounced the   authority  of  the  industrial  tribunals  to   direct reinstatement   in   appropriate  cases   has   never   been

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questioned. In  exercising its jurisdiction to direct  reinstatement  of dismissed  employees  industrial  tribunals  have  indicated certain  general considerations for their own guidance.   In the case of a wrongful dismissal the normal rule adopted  in industrial  adjudication  is that  reinstatement  should  be ordered.   "But",  observed  the Full Bench  of  the  Labour Appellate Tribunal in Buckingham & Carnatic Mills Ltd.,  And Their Workmen (1), " in so ordering the tribunal is expected to be inspired by a sense of fair play towards the  employee on  the  one hand and considerations of  discipline  in  the concern on the other.  The past record of the employee,  the nature of his alleged present lapse and the ground on  which the  order of the management is set aside are also  relevant factors  for consideration." It is obvious that no hard  and fast  rule  can be laid down in dealing with  this  problem. Each  case  must be considered on its own  merits,  and,  in reaching the (1)  [1951] 11 L.L.J.314. 834 final  decision  an attempt must be made  to  reconcile  the conflicting  claims made by the employee and  the  employer. The  employee is entitled to security of service and  should be protected against wrongful dismissals, and so the  normal rule would be reinstatement in such cases.  Nevertheless  in unusual  or  exceptional  cases the  tribunal  may  have  to consider whether, in the interest of the industry itself, it would be desirable or expedient not to direct reinstatement. As  in  many  other matters arising  before  the  industrial courts  for  their  decision this question also  has  to  be decided  after  balancing the relevant factors  and  without adopting  any legalistic or doctrinaire approach.   No  such considerations  can  be  relevant in cases  where  in  civil courts  the  validity  of dismissals is  challenged  on  the ground  of non-compliance with s. 240 of the  Government  of India Act, 1935 or Art. 311(2) of the Constitution. There is one more point which still remains to be considered and that is the effect of the Bank’s default it not  holding an  enquiry in the present case.  If the Bank has  not  held any enquiry it cannot obviously contend before the  tribunal that it has bona fide exercised the managerial functions and authority  in passing the orders of dismissal and  that  the tribunal  should be slow to interfere with the said  orders. It  is  true  as we have already pointed  out  that  if  the employer holds a proper enquiry, makes a finding in  respect of the alleged misconduct of the employee and then passes an order  of dismissal the tribunal would be glow to  interfere with  such  an  order and would  exercise  its  jurisdiction within  the limits prescribed by this Court in The  case  of Indian Iron & Steel Co. Ltd. (1). But  it follows that 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 ’roved, and  if yes, what would be proper order to make.  In such a case the point  about the exercise of managerial functions  does  not arise at (3)  [1958] S.C.R. 667, 835 all.  This answers the argument which Mr. Sanyal has  raised before us in his appeal. Mr. Sanyal, however, seeks to derive support to his argument from  the decision of the Labour Appellate Tribunal  in  The Madras  Electric  Tramways  (1904)  Ltd.  Madras  And  Their

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Workers (1).  In that case the order of reinstatement passed by  the  tribunal was reversed in appeal  by  the  appellate tribunal  which  observed  that in  dealing  with  cases  of dismissal where the management had acted bona fide and  with knowledge and experience of the problems which confronted in the daily work of the concern it should be considered to  be well qualified to judge what sentence would be  appropriate, and  the sentence imposed by the management should  normally stand  subject  to  the qualification that it  must  not  be unduly  severe.   It  is  obvious  that  in  that  case  the management had held a proper enquiry and the question  which arose   for  decision  was  what  are  the  limits  of   the jurisdiction  of the tribunal in dealing with an  industrial dispute  arising  from an order of dismissal  passed  by  an employer  after  holding a proper enquiry.   The  principles applicable  to such a case have been already  considered  by us;  but  they can have no application to the  present  case where  the employer has held no enquiry at all.   Therefore, this decision on which Mr. Sanyal relies is irrelevant. The  position then is that the effect of the double  default committed by the employer is not to limit the enquiry to the decision  of the sole question as to the commission  of  the said   default,  and  so,  despite  the  said  default   the subsequent  enquiry held by the appellate tribunal  pursuant to its interlocutory judgment was proper and legal.  The two preliminary    objections    raised    by    the     learned Attorney_General must, therefore, fail. Let  us  now  deal with the two appeals filed  by  the  Bank (Civil  Appeals Nos. 519 and 520 of 1958).  We have  already indicated that in dealing with these appeals we have to bear in mind the limitations imposed by the nature of the limited leave granted to (1)  (1951) 11 L L. J. 204. 836 the Bank; it is only the grounds specifically covered by the leave  which fall to be considered, and even  these  grounds will  necessarily have to be dealt with in the light of  the findings  already recorded by the appellate  tribunal  which are  no  longer open to challenge.  The  subsequent  enquiry held  by the appellate tribunal was limited to the  question as  to  whether  the Bank was able  to  prove  any  specific circumstances which disentitled the employees from  claiming reinstatement.   In  other  words, the object  of  the  said enquiry  was  to  ascertain  the  nature  of  the  "positive objections"  which  the Bank had against each one  of  them. The  rest of the matters in dispute between the parties  are concluded  by  the other findings which have  become  final. Considered in the light of these limitations the grounds  on which  leave  has  been granted to the Bank  must  first  be examined.   A  bare perusal of the said grounds  would  show that  some  of  them  are  vague  and  they  are  urged   on assumptions  of  fact  which run  counter  to  the  findings recorded by the appellate tribunal.  That is why when  those appeals were urged before us, Mr. Anand and Mr. Sanyal  have recast  their  contentions  within the  frame,-work  of  the grounds in respect of which leave has been granted and  have urged the following points before us: (1) that participation in  a  pen-down  strike  is itself an  activity  of  such  a subversive character that it disqualifies the employees  who took  part in it from claiming the relief of  reinstatement, (2)  that  the  publication and  circulation  of  subversive documents was the result of a concerted plan and represent a collective activity of all the strikers and as such all  the employees before us should be held responsible for it and on this  ground  reinstatement should be refused to  them,  (3)

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that  the  finding recorded by the appellate  tribunal  that only  14 persons were directly and actively  concerned  with the preparation and publication of the subversive  documents is  opposed to the weight of evidence and is  perverse,  (4) that the appellate tribunal erred in law in not taking  into account the fact that after the 150 employees were dismissed the   Bank  has  engaged  fresh  hands  and  the  order   of reinstatement would, therefore, be unjust and 837 unfair,  and  (5) that the appellate tribunal  was  also  in error  in not taking into account the fact that some of  the employees have in the meanwhile taken employment  elsewhere. It  is these five grounds which we are asked to consider  by the Bank in its present appeals. Before dealing with these contentions we would like to  make one  general observation.  Though not in the, same form,  in substance these contentions were raised before the appellate tribunal in support of the plea that the dismissed employees should  not  be reinstated.  As we have  already  emphasized whether  or not reinstatement should be ordered in cases  of wrongful  or  illegal dismissals is normally a  question  of fact and in deciding it several relevant factors have to  be borne  in mind.  If the appellate tribunal applied its  mind to those relevant factors and came to the conclusion that 14 employees  did  not  deserve  to  be  reinstated  while  the remaining  136 did, we would be reluctant to interfere  with the  said order under Art. 136 unless it is shown  that  the order  suffers  from  an error which  raises  a  general  or substantial question of law. The first contention raised by the Bank is in regard to  the conduct of the employees in entering upon a pen-down  strike and  its  effect  on their  claim  for  reinstatement.   The finding  of the tribunal on this point is that  the  persons who took part in the pen-down strike not only ceased to work but continued to occupy their seats.  A tumultuous crowd had gathered  outside the premises of the Bank and some  persons in the crowd were shouting slogans in support of the strike. The  strikers  had been definitely instructed  to  stick  to their  seats  until  the police  intervened  and  threatened arrest  or  until  orders of discharge  or  suspension  were served  on them.  There has been some argument before us  as to the number of persons who actually took part in this kind of  pen-down strike.  For the Bank Mr. Anand has urged  that the finding, of the appellate tribunal suggests that most of the  strikers  took part in this strike; and in  any  event, according  to him, at least 52 persons took part in it.   He has  filed in this Court a list of these 52  employees.   On the other hand, 106 838 the  learned  Attorney-General  has contended  that  on  the findings recorded by the appellate tribunal not more than 10 persons  can be said to have taken part in it.   In  dealing with  the present contention of the Bank we are prepared  to assume  that most of the strikers participated in  the  pen- down or sit-down strike as generally found by the tribunal. Is  this pen-down strike a strike within s. 2(q) of the  Act or not?  S. 2(q) defines a strike as meaning a cessation  of work by a body of persons employed in any industry acting in combination,  or a concerted refusal, or a refusal  under  a common  understanding, of any number of persons who  are  or have  been  so  employed to continue to work  or  to  accept employment.   It was conceded before the appellate  tribunal that  a  pen-down strike falls within this  definition,  and this  position is not seriously disputed before  us  either.

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On  a plain and grammatical construction of this  definition it  would  be difficult to exclude a  strike  where  workmen enter  the premises of their employment and refuse  to  take their  tools  in hand and start their usual  work.   Refusal under  common understanding to continue to work is a  strike and  if  in  pursuance  of  such  common  understanding  the employees  entered the premises of the Bank and  refused  to take  their  pens in their hands that would no  doubt  be  a strike  under  s. 2(q).  The main grievance of the  Bank  is that these employees not only sat in their places and refus- ed  to work but they would not vacate their seats when  they were  asked  to  do so by  their  superior  officers.   Such conduct may introduce an element of insubordination but that is a different matter.  In our opinion, therefore, the  pen- down  strike  in  which the employees  participated  in  the present  case  cannot be said to be outside s. 2(q)  of  the Act. It was, however, urged that the entry of the strikers in the premises  of  the  Bank amounted  to  civil  trespass.   The argument is that by virtue of their employment the employees had  a  licence to enter the premises of the Bank  but  this licence  is subject to the condition that the employees  are willing to carry out their obligation of the contract and do their allotted work during the, 839 office hours.  If the employees had decided not to work they were  not entitled to the licence in question and  so  their entry into the Bank itself constituted a civil trespass.  On their   hand,   the  employees  contend  that   during   the continuance  of their employment they are entitled to  enter the  premises of the Bank and having thus entered they  were also  entitled to exercise their right of going  on  strike. They  entered  the  premises as employees of  the  Bank  and having  taken  their  seats they exercised  their  right  of striking  work.  If the Bank had suspended the employees  it would  have  been  another  matter;  but  so  long  as   the relationship  of master and servant continued the  employees could not be said to have committed civil trespass when they entered the premises at the time. In  support  of  its  case  the  Bank  has  relied  on   the proposition that " even if a person has a right of entry  on the  land  of another for a specific purpose  he  commits  a trespass  if  he enters for any other purpose or  under  any other  claim or title apart from that under which  he  might lawfully  enter.  As an illustration of this proposition  it is  stated  that if a person having a licence for  entry  on land  enters the land not by virtue of the said licence  but in  order  to  contest the licensor’s title,  he  commits  a trespass  " (1).  " But this proposition is subject  to  the exception that if a person enters for a lawful purpose he is not  a  trespasser  unless  the case is  one  to  which  the doctrine  of  trespass  ab initio applies  "  (2).   So  the decision of this technical point would depend on whether  or not the employees are given a limited or conditional licence to enter the premises and that if they have decided to go on strike the said conditional or limited licence is no  longer available to them.  We do not think it necessary to consider this  academic question in the present proceedings  because, in  our opinion, the appellate tribunal was obviously  right in  holding that even if civil trespass was involved in  the conduct  of the employees that by itself cannot justify  the rejection of their claim for reinstatement.  Incidentally we may add that even (1)  Salmond on Torts, 12th Ed., p. 158. (2)  Salmond on Torts, 12th Ed., p. 159.

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840 in  America  "  the  simple  act  of  trespassing  upon  the employer’s  property is no bar to reinstatement nor  is  the act which at most a civil tort " (1). Does  the conduct of the strikers as found by the  appellate tribunal  constitute  criminal trespass unders. 441  of  the Indian Penal Code?That  is the next point which calls  for decision.It  is  argued that the conduct of  the  employees amountsto  criminal trespass which is an offence  and  as suchthose  who  committed criminal trespass  would  not  be entitled  to  reinstatement.   According  to  the  Bank  the employees  committed the criminal trespass inasmuch as  they either   entered  unlawfully  or  having  lawfully   entered continued to remain there unlawfully with intent thereby  to insult  or  annoy  their superior  officers.   It  would  be noticed that there are two essential ingredients which  must be  established  before  criminal  trespass  can  be  proved against  the employees.  Even if we assume that the  employ- ees’  entry  in  the premises was  unlawful  or  that  their continuance in the premises became unlawful, it is difficult to appreciate the argument that the said entry was made with intent  to insult or annoy the superior officers.  The  sole intention  of the strikers obviously was to put pressure  on the  Bank  to concede their demands.  Even if  the  strikers might  have  known that the strike may annoy or  insult  the Bank’s officers it is difficult to, hold that such knowledge would  necessarily  lead to the inference of  the  requisite intention.   In every case where the impugned  entry  causes annoyance or insult it cannot be said to be actuated by  the intention to cause the said result.  The distinction between knowledge and intention is quite clear, and that distinction must  be  borne in mind in deciding whether or  not  in  the present  case  the strikers were actuated by  the  requisite intention.   The  said intention has always to  be  gathered from  the circumstances of the case and it may be  that  the necessary or inevitable consequence of the impugned act  may be  one  relevant  circumstance.  But it  is  impossible  to accede  to the argument that the likely consequence  of  the act and its possible knowledge (1)  Ludwig   Teller’s   "Labor  Disputes   and   Collective Bargaining" Vol.  11, p.855 841 must necessarily import a corresponding intention.  We think it  is  unnecessary to elaborate this point; we  would  only like to add that the decision of the Patna High Court, in T. H. Bird v. King-Emperor (1) on which reliance was placed  by the  Bank is wholly inconsistent with the contention  raised by  it.  Thus our conclusion is that the Bank has failed  to prove  that  the  conduct of the strikers as  found  by  the appellate tribunal amounted to criminal trespass under s.441 of the Code. In  resisting the employees’ claim for reinstatement on  the ground that participation in a pendown strike creates a  bar against  such  a claim the Bank has strongly relied  on  the decision  of the Supreme Court of America in National  Labor Relations  Board v. Fansteel  Metallurgical  Corporation(2). Both  Mr.  Anand  and Mr. Sanyal have  contended  that  this decision   is   an  authority  for  the   proposition   that participation  in pen-down strikes necessarily  disqualifies the strikers from claiming reinstatement.  It is, therefore, necessary to examine this case carefully.  In this case, the National   Labor   Relations   Board   bad   directed    the reinstatement  of  participants in a sit-down  strike  whom, upon  their  refusal  to leave  the  employer’s  plant,  the employer declared to be discharged.  The Board had held that

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despite  the  illegal  strike and the  consequent  order  of discharge the status of the employees continued by virtue of the definition of the term " employee " in s. 2, sub-s.  (3) of the National Labor Relations Act.  It had also taken  the view that it had jurisdiction to direct reinstatement of the said employees under s. 10(c) of the said act with a view to effectuate the policies of the Act.  Both these  conclusions were  reversed by the Supreme Court by a majority  judgment. According  to the majority view, when the  Congress  enacted the  National  Labor Relations Act it " did  not  intend  to compel   employers  to  retain  persons  in   their   employ regardless of their unlawful conduct,-to invest those who go on  strike  with  an immunity from  discharge  for  acts  of trespass or violence against the employer’s property,  which they (1) (1934) I.L.R. XIII Pat. 268. (2) 306 U.S. 238; 83 Law.  Ed. 627. 842 would  not have enjoyed had they remained at work."  It  was also  held that " the Congress was intent upon  ,.protection of   employees’  right  to  self-organisation  and  to   the selection  of  representatives  of their  own  choosing  for collective  bargaining without restraint or coercion.  "  On the facts the conclusion of the majority was that the strike was  illegal  in its inception and  prosecution.   This  was really not the exercise of the right to strike to which  the Act referred.  It was an illegal seizure of the building  in order  to  prevent  their use by the employer  in  a  lawful manner,  and thus by acts of force and violence  compel  the employer  to submit.  The conclusion, therfore, was that  to provide for the reinstatement or re-employment of  employees guilty  of  the acts which even according to the  Board  had been  committed would not only not effectuate any policy  of the  Act but would directly tend to make abortive  its  plan for peaceable procedure.  Mr. Justice Reed, who delivered  a dissenting judgment thought that both labour and  management had  erred grievously in their respective conduct and so  it would  not be unreasonable to restore both to  their  former status.   That  is why he was not prepared  to  reverse  the order  of  reinstatement  passed by  the  Board.   The  Bank naturally  relies upon the majority decision in  support  of its  contention that its employees who participated  in  the pen-down strike are not entitled to reinstatement. In  considering  the question as to  whether  the  principle underlying  the  majority decision should be, applied  to  a pen-down  strike in India it is necessary to  remember  that the  pen-down strike properly so-called is recognised  as  a strike under s. 2(q) of the Act and so it would not be  safe to  extend the principles of American decisions  bearing  on this  question  without a careful scrutiny of  the  relevant provisions  of the American statute and the facts  on  which the  said  decisions are based.  Let us  then  consider  the facts on which the majority decision was based.  It  appears that  an acrimonious dispute had been going on  between  the Corporation and its employees for some time before  February 17,1937 when the pen-down strike commenced. The  Corporation was not prepared to recognise the 843 outside  union  and had employed a labor spy  to  engage  in espionage  within the union and continued the employment  of the said spy.  It also appears that the, super intendant  of the Corporation when requested to meet the deputation of the union  required that the deputation should consist  only  of employees   of  five  years’  standing.   Subsequently   the superintendent’  refused  to confer with  the  committee  in

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which  the outside Organisation had been included; and as  a punitive  measure he required the president of the union  to work  in  a room adjoining his office with  the  purpose  of keeping  him  away from the other workers.  It was  in  this background of bitter relationship that the strike commenced. In the afternoon of February 17 the union committee  decided upon a sit-down strike by taking over and holding two of the respondent’s  key  buildings.  These were then  occupied  by about  95 employees, as a result of which work in the  plant stopped.   In the evening the superintendent accompanied  by police  officials went to each of the building and  demanded that  the men leave.  They, however, refused  whereupon  the respondent’s counsel who had accompanied the  superintendent announced  in loud tone that all the men in the  plant  were discharged  for the seizure and detention of the  buildings. Even  so  the men continued to occupy  the  buildings  until February  26.   Their  fellow  members  brought  them  food, blankets, stoves, cigarettes and other supplies.   Meanwhile on February 18, the respondent obtained from the state court an  injunction requiring the men to surrender the  premises. The  men refused to obey the order and a writ of  attachment for  contempt was served on them on February 19.   When  the men  refused to submit a pitched battle ensued and  the  men successfully  resisted the attempt by the sheriff  to  evict and  arrest them.  Efforts at mediation failed.   Ultimately on  February  26,  the sheriff with An  increased  force  of deputies made a further attempt and this time, after another battle,  the men were ousted and placed under arrest.   They were subsequently prosecuted and most of them were fined and given jail sentence for violating 844 the  injunctions.   A bare statement of  these  facts  would clearly  bring  out the true character of  the  strike  with which  the Supreme Court was dealing.  It was not merely  an illegal  but violent strike, ; it was a strike  which  began with the wrongful seizure of the employer’s property and his exclusion  from it; a strike accompanied by  violence  which led  to  pitched  battles  between  the  strikers  and   the sheriff’s men; a strike continued by the strikers even after they  were  formally  discharged  from  the  employment  and against an order of injunction by a competent court.  It  is difficult  to  accede  to the  argument  that  the  majority decision  in that case can be extended to the  facts  before us.  As Teller has observed " the strike in question can  be more accurately defined as a strike in the traditional sense to  which is added the element of trespass of  the  strikers upon  the property of the employer ". (1) Therefore, in  our opinion,  this decision does not assist the Bank in  support of its case that mere-participation in the illegal strike in the  present  case  can by itself defeat the  claim  of  the employees for reinstatement. In  this  connection  we may point out  that,  according  to Teller the Fansteel decision marks " what is hoped to be  an end  of  an unfortunate chapter in the history  of  American labor  activity";  he  has added that  "  there  is  danger, however,  in  viewing  the  sitdown  strike  solely  as  the reflection of lawless labour leadership.  The causes of  its emergence  are  deeper.  Indeed labour  has  contended  that capital  and labor share equal responsibility for  its  rise and development.  No analysis of a sit-down strike can claim a  broad  view of the subject, says labor,  without  a  full measure  of  consideration  of the  infamous  Mohawk  Valley methods used by Remington-Rand to break strikes, nor to  the facts  elicited in the recent Rand-Bergoff trial  under  the Byrnes  Act........ The anarchy of law which  resulted  from

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unlawful employer utilisation of instruments of violence and chicanery in disregard of law needed the sit-down (1)  Ludwig   Teller’s  "Labour  Disputes   and   Collective Bargaining", Vol 1, p. 311, s. 106. 845 strike  as an effective counterpoise " ; and so  the  author significantly  concludes  that " it is no  coincidence  that statistics show a precipitate drop in the prevalence of sit- down  strikes  immediately  upon validation  by  the  United States  Supreme Court of the National Labor Relations  Act." It is in the light of this background that the Supreme Court had been( called upon to decide the question of  reinstating employees in the Fansteel case (1). The history of the trade union legislation in England  shows that the trade union movement had to wage a long and  bitter struggle  to secure recognition for the workmen’s  right  to organise themselves into unions and to exercise their  right of  collective  bargaining if necessary by the  use  of  the weapon  of  strikes.   In America a  similar  struggle  took place,  and, as we have just pointed out, it was  marked  by violence on the part of both capital and labour, because the employer’s  theory of " hire and fire "  offered  relentless resistence  to  the workmen’s claim to form  unions  and  to resort  to  strikes for trade union purposes.   In  Williams Truax  v. Michael Corrigan(2) Mr. Justice Brandeis,  in  his dissenting judgment, has given a, very illuminating  account of  the history and progress of the trade union movement  in the   United  States,  in  England  and  the  Colonies.    " Practically every change in the law ", observed Mr.  Justice Brandeis,  " governing the relation of the employer and  the employees  must  abridge  in some  respect  the  liberty  or property  of one of the parties, if liberty and property  is measured by the standard of the law theretofore  prevailing. If such changes are made by acts of the Legislature we  call the  modification  an  exercise of  the  police  power,  and although  the  change  may  involve  an  interference   with existing liberty or property of individuals, the statue will not be declared a violation of the due process clause unless the   court   finds  that  interference  is   arbitrary   or unreasonable,  or that, considered as a means,  the  measure has   no  real  or  substantial  relation  of  cause  to   a permissible end". (1)  306 U.S. 238; 83 Law.  Ed. 627. (2)  66 Law.  Edn. 311 ; 257 U.S. 254. 107 846 In that case the validity of the prohibition of Ariz.  Civil Code 1913, cl. 1464 against the interference ,.by injunction between  employers and employees in cases growing out  of  a dispute  concerning  terms or conditions of  employment  was challenged;  and the challenge was upheld by a  majority  of the  learned  -judges  who  took  the  view  that  the  said provision  was  contrary  to  the  14th  Amendment  of   the Constitution.   Holmes,  Pitney, Clarke and  Brandeis,  JJ., however,  dissented.  The main decision in that case is  not of  direct assistance in the present appeals.  No doubt  Mr. Anand  has attempted to contend that the acts of  which  the strikers  were held guilty in that case are similar  to  the acts  alleged against the employees in the present  appeals; but  this argument would be relevant only if it is shown  by the Bank that the specific subversive acts alleged have been committed  by  the specific individual employees.   To  that point  we  will refer later on.   Incidentally  the  present decision  is  of  some  importance  because  the  dissenting opinion   delivered  by  Mr.  Justice  Brandeis   has   been

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subsequently  treated as an authoritative exposition of  the problem of trade unionism and the history of its growth  and development. Fortunately,  as  the Indian Trade Unions Act 1926,  (16  of 1926), the Industrial Employment (Standing Orders) Act  1946 (20  of 1946), and the Industrial Disputes Act 1947  (14  of 1947)  show, our Legislature has very wisely  benefitted  by the  experiences  of other countries in the  matter  of  the development   of   trade  union  movement,  and   has   made progressive,   just  and  fair  provisions   governing   the important problem of industrial relationships, the formation of trade unions, and the settlement of industrial  disputes, It  can  be  justly claimed that though  we  have  witnessed capital-labour  conflicts  in  our  country,  on  the  whole neither  party  has departed from the  pursuit  of  peaceful methods,  and  both  parties submit  their  disputes  to  be resolved  in accordance with the provisions of the Act.   In dealing with industrial disputes like the present, we  must, therefore,   primarily  consider  the   relevant   statutory provisions and the material Indian decisions, 847 Thus  considered the conclusion is inevitable that the  pen- down  strike  is a strike within s. 2(q) and so  per  se  it cannot  be  treated  as illegal; it has  been  found  to  be illegal   in   this  case  because  it  was   commenced   in contravention of s. 23(b) of the Act; but, as has been  held by this Court in M/s.  Burn & Co. Ltd. v. Their Workmen  (1) mere   participation  in  such  an  illegal  strike   cannot necessarily involve the rejection of the striker’s claim for reinstatement.   As  we  have  already  indicated,  on   the findings  of the appellate tribunal nothing more  than  such participation  has been proved against the  employees  whose reinstatement  has  been ordered; and so,  unless  the  said finding is reversed, the first contention raised by the Bank must fail. It has been strenuously urged before us that in the case  of a  Bank which is a credit institution a pen-down strike,  if continued   for   a  long  period,  is  likely   to   affect prejudicially  the credit of the Bank.  It is  also  pointed out that, even in regard to industrial concerns, if strikers entered the premises of the factory and sit around the plant in large numbers, in the heat of the moment unfortunate  and ugly incidents are likely to happen, and so such pen-down or sit-down  strikes should be positively discouraged.  We  are prepared to concede that in the surcharged atmosphere  which generally accompanies strikes and when passions are aroused, a  large  scale and continuous pen-down strike may  lead  to untoward consequences.  But, on the other hand, even in  the case of such a strike, the employer is not without a remedy. He may bar the entry of the strikers within the premises  by adopting effective and legitimate methods in that behalf  as in fact the Bank did in the present case from April 23.   He may call upon the employees to vacate, and, on their refusal to  do so, take due steps to suspend them  from  employment, proceed  to hold proper enquires according to  the  standing orders,  and pass proper orders against them subject to  the relevant  provisions  of  the Act.  If  the  Bank  had  been properly  advised  to  adopt  such a  course,  many  of  the difficulties which it had to face in the present proceedings would not (1)  A.I.R. 1959 S.C. 529. 848 probably  have arisen.  Therefore, we do not think that  the general hypothetical consideration that pendown strikes  may in  some  cases lead to rowdy demonstrations  or  result  in

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disturbances  or  violence or shake the credit of  the  Bank would  justify the conclusion that even if the strikers  are peaceful  and  non-violent and have done nothing  more  than occupying   their   seats   during   office   hours,   their participation in the strike would by itself disqualify  them from claiming reinstatement. Let  us  then consider the second contention raised  by  the Bank.   It is urged on behalf of the Bank that it is  really unnecessary   to  examine  which  particular  employee   was directly associated with the preparation and circulation  of the  subversive circular or posters.  The offensive  posters and  circulars had been drafted, printed and  circulated  in pursuance of the common object of the strikers, and each one of  them must, therefore, share the responsibility  for  the said  act.  It is really an argument based on the theory  of conspiracy  which makes all conspirators liable for the  act of any one of them. This  argument  is  countered  by  the  employees  with  the contention  that the activities of the Union do not fall  to be  considered  in the present enquiry.  It is the  acts  of individual strikers who have been dismissed that have  given rise to the dispute and the enquiry must be confined to that dispute alone.  The learned Attorney-General seriously asked us  to bear in mind that the application of the doctrine  of conspiracy  to the decision of the present dispute may  have far-reaching  consequences on the future of the trade  union movement  itself, and he suggested that since the Union  and its  activities were not the subject matter of  the  present enquiry  we need not consider the argument of conspiracy  at all.  Besides, according to him, if the theory of conspiracy was  upheld it would mean that if any office bearers of  the Union   were  guilty  of  any  subversive  acts  the   whole membership of the Union would be constructively  responsible and  that  is plainly unreasonable.  In this  connection  he also  referred us to ss. 17, 18 and 19 of the  Indian  Trade Unions Act 1926 849 (16 of 1926).  We have indicated this argument at this place by  anticipation.  In fact this argument has been raised  by the  employees  in their appeal but we thought it  would  be convenient to deal with both these aspects of the matter  in one place. Now  the  answer  to  both  these  technical  and   academic contentions   is  the  same.   In  industrial   adjudication tribunals  should  be  slow  to  adopt  any  doctrinaire  or legalistic  approach.  They should as far as  is  reasonably possible   avoid  the  temptation  of  formulating   general principles  and laying down general rules which  purport  to cover  all cases.  Let us recall the nature of  the  enquiry which the appellate tribunal had directed as a result of its interlocutary  judgment.   This enquiry is confined  to  the question as to whether in’ regard to the case of each one of the  dismissed  employees, the Bank has shown  any  positive circumstances  as a result of which reinstatement, which  is the normal rule, should not be directed.  Thus considered we do  not think it necessary to deal with the academic  points raised by both the parties before us. The  third  argument urged by the bank is in regard  to  the finding  of the tribunal that only 14 employees named by  it are  responsible for the subversive posters and hand  bills. It  is  urged  that this finding is perverse.   We  are  not impressed  by  this argument.  There is no  doubt  that  the three posters Exs. 255 (a), 255 (c) and 302, to which strong exception  has been taken by the Bank are subversive of  the credit of the Bank.  They make imputations about the honesty

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of the management of the Bank and in terms suggest  improper use  of the funds of the Bank for personal purposes.  It  is also  true that a large number of other documents issued  by the   Union   before  and  during  the  strike   have   used exaggerated, and unduly militant intemperate, language,  and in  our  opinion  the appellate tribunal  was  justified  in expressing its disapproval of the use of such language;  but the appellate tribunal thought that none of these  documents could really be taken to be subversive of the credit of  the Bank  and  with that conclusion we are  in  full  agreement. Therefore  the  only question which we have to  consider  is whether 850 the  view  taken by the appellate tribunal that  14  persons were  actively concerned with these offensive documents  can be successfully challenged by the Bank before us. In  making its finding on this point the appellate  tribunal has  substantially  relied on the statement made  by  H.  L. Puri.  He was asked whether the drafts of the letters issued by  him  had  been approved at the meeting  of  the  working committee or on his individual responsibility and he replied that  they were never written on  individual  responsibility but  were  based  on consultation with the  members  of  the working committee.  Then he was asked whether he could  name the  persons whom he consulted in drafting the poster  dated July 5, 1949 (Ex. 222).  In reply to this he enumerated  the names  of 9 persons and added the word " so on." It  appears that  the appellate tribunal asked him several questions  on the same topic and the effect of his admissions clearly  was to  show  that  most of the documents  were  issued  by  the secretary  or  the  president after  he  had  consulted  the persons  named  by Puri.  In this connection Puri  gave  the names of the office bearers of the Federation at Delhi.   It was  in  the light of these admissions  that  the  appellate tribunal came to the conclusion that 14 persons named by him can  be safely taken to have been actively  associated  with the   drafting  and  the  publication  of   the   subversive documents. Mr.   Anand  contends  that  the  list  of  office   bearers separately supplied by Puri includes a much larger number of active workers of the Union and on the evidence of Puri  all these  active workers should have been held responsible  for the said documents.  In this connection he has relied on the affidavit filed by Amar Singh on behalf of the Bank.  We  do not  think  that  this  argument  is  wellfounded.   It   is significant that though the appellate tribunal had  directed the  Bank by its interlocutary judgment to file a  statement giving  particulars of the acts alleged against each one  of the  employees no such statement -was filed.  Besides it  is fairly conceded before us by Mr. Anand that most 851 of  the  employees  who made affidavits  in  the  subsequent enquiry  were  not asked any general  question  about  their alleged subversive activities and no particular question was put to them in regard to the relevant subversive  documents. The  judgment of the appellate tribunal shows that it  first considered  the general points and the evidence relied  upon by  the  parties in that behalf; and  then  it  exhaustively dealt with the whole of the evidence bearing on the case  of each  individual employees.  We are satisfied that the  Bank is  not  justified  in  contending  that  in  excluding  136 employees from the responsibility of direct participation in the drafting and publication of the subversive circulars and hand-bills the appellate tribunal has ignored any  important evidence.  The argument that the said finding is opposed  to

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the  weight of evidence and as such perverse must  therefore be rejected. Then  Mr. Anand has invited us to consider  some  individual cases.  According to him the case against Joshi had not been properly  considered  by the appellate  tribunal.   It  does appear  that  Joshi admitted that he had taken part  in  the drafting  of  documents P. 272, 274, 279, 280 and  286;  but none of these documents has been found to be subversive  and so it is idle to contend that Joshi’s connection with any of the three subversive documents is established.  So there  is no  substance  in the argument that Joshi’s case  should  be reconsidered. Then our attention has been drawn to the cases of five other employees Narain Das, Chuni Lal, Som Datt, Trilok Chand  and Charan  Singh.’  In regard to these  persons  the  appellate tribunal  has found that the Bank had failed to  -prove  any subversive  acts  against them, and that  undoubtedly  is  a question  of fact and the finding of the appellate  tribunal cannot  be  reopened.   But  Mr.  Anand  has  attempted   to challenge the correctness of this finding on the ground that it  is entirely inconsistent with one material  document  on the  record.  This document is the report made by Dina  Nath on April 24 in which the incidents that took place on  April 23  and  24 have been set out and the names of  persons  who took prominent part in the said incidents 852 have  been enumerated.  This list includes the names of  the five  persons in question.  Dina Nath had, however, died  at the  date of the enquiry and so he could not give  evidence. Jagan  Nath,  who  was then the  Superintendent  of  Police, proved  this report.  Mr. Anand’s grievance ’is that  though the  evidence  of  Jagan  Nath  had  been  accepted  by  the appellate  tribunal in a part of its judgment it has  failed to consider his testimony in dealing with the cases of these five  persons.   In our opinion this  argument  is  entirely misconceived.   It is not correct to say that the  appellate tribunal has accepted the whole of Jagan Nath’s evidence  in any  part of its judgment; while dealing with  the  question about  the  conduct  of the  crowd  the  appellate  tribunal considered the evidence of Rajinder Nath, Mehta, Ram  Pratap and  Amar Singh and held that part of their  evidence  which was  corroborated by Jagan Nath and also partially  by  Puri must  be  believed; that is all.  Besides, the  evidence  of Jagan Nath itself does not carry the Bank’s case any further against  the  five  persons.  No doubt,  while  proving  the report of Dina Nath, Jagan Nath first stated that the  facts narrated therein were correct; but in crossexamination  when he  was asked about some details mentioned in the report  he added that the report was written by Dina Nath and he  could not  say anything about it.  Further he also  admitted  that during the course of his visit and stay at the Bank when the strike was going on he only knew three persons who took part in  the  activity which was described by Dina  Nath  in  his reports  Thus the evidence of Jagan Nath does not show  that he  clearly  knew  any of the five employees  and  the  same comment  obviously falls to be made about Dina Nath  himself who  made the report.  Therefore it is not accurate  to  say that  the conclusion of the appellate tribunal in regard  to these, five cases suffers from any infirmity on which it can be  successfully  challenged  before us;  besides  the  Bank apparently  relied  upon other evidence against  these  five persons, and not the report of Dina Nath, and that  evidence has been disbelieved, 853 Mr. Anand has then urged that in directing reinstatement  of

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136 employees the appellate tribunal failed to consider  the fact that in the meanwhile the Bank has employed  additional hands  and  it would be unfair to the Bank  to  direct  that these  dismissed  employees  should  be  taken  back.    The reinstatement order would lead to complications and the Bank may have to face the claims of those who have been  employed in  the meanwhile.  Mr. Anand wanted to prove that the  Bank had  employed  a large number of hands in the  meanwhile  by referring to the statement made by the Union in the bulletin and posters issued during the strike.  These statements seem to  indicate  that  the Union complained  that  pending  the strike  the Bank was employing new hands.  But if  the  Bank wanted to urge this plea seriously it should have proved the relevant facts, e.g., how many employees have been appointed and  on  what terms.  These are matters within  the  special knowledge  of the Bank and they could have been proved  very easily.   The  Bank  did not choose to  prove  these  facts. Indeed  it  does not appear that this plea was  urged  as  a separate plea against the order of reinstatement before  the appellate  tribunal.   In  any  case,  in  the  absence   of satisfactory  materials it would be difficult to  deal  with this plea on the merits.  Besides, if the Bank has failed to establish   its  specific  case  against  any  of  the   136 employees, there is no reason why the normal rule should not prevail  and  the  employees should not get  the  relief  of reinstatement.   The  mere  fact  that  the  Bank  may  have employed  some  other  persons in the  meanwhile  would  not necessarily  defeat such a claim for reinstatement.  As  has been  held  by  this Court in  the  National  Transport  and General Co. Ltd. v. The Workmen (1), however much the  court may sympathise with the employer’s difficulty caused by  the fact  that after the wrongful dismissals in question he  had engaged fresh hands, the court cannot " overlook the  claims of  the  employees  who, on the findings  of  the  tribunals below,  had been wrongly dismissed.  " In the case  of  such wrongful (1)Civil Appeal No. 312 of 1956- Decided by this Court  on January 22, 1957. 108 854 dismissal  the normal rule would be that the employees  thus wrongfully dismissed must be reinstated.  " The hardship  in question ", observed this Court, " has been brought about by the  precipitate  action of the  appellants  themselves  who dismissed their workmen without holding the usual  enquiries after  framing  a proper charge against them.  If  they  had proceeded  in  the  usual  way and given  a  full  and  fair opportunity  to the workmen to place their case  before  the enquiring  authority, the result may not have been so  bard. "  These observations are equally applicable to the  conduct of the Bank in the present appeals. The last argument urged by Mr. Anand is that a large  number of  employees  who  are clamouring  for  reinstatement  have secured employment on a fairly permanent basis and so it  is unnecessary  that they should be forced on the  Bank.   This argument cannot be entertained because it has not been urged before  the appellate tribunal, and though it was sought  to be  raised before us, Mr. Anand fairly conceded that in  the absence of any material it would not be possible for him  to press this point.  Indeed it is the first two general points which were seriously pressed before us by Mr. Anand and  Mr. Sanyal  on  behalf of the Bank.  Mr. Anand no  doubt  raised three  additional subsidiary points in Civil Appeal No.  519 of  1958, in which he appeared, but as we have  pointed  out there  is no substance in any one of them.  In Civil  Appeal

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No.  520 of 1958, in which Mr. Sanyal appeared for the  Bank he did not challenge the findings recorded by the  appellate tribunal  in  respect of the 10 employees concerned  in  the said  appeal.  In the result both the appeals  preferred  by the Bank fail and are dismissed with costs. That takes us to Civil Appeal No. 521 of 1958, filed by  the employees.   In this appeal we are concerned with the  order refusing reinstatement to 14 employees.  In addition to  the two preliminary objections which we have already  considered the  learned Attorney-General raised two general points  for the appellant. The first is that the appellate tribunal  has erred  in law in virtually penalising the 14  employees  for the  activities  of the Union, and in  that  connection  the raised the