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PETITIONER: WORKMEN OF MOTIPUR SUGAR FACTORY (PRIVATE)LIMITED

       Vs.

RESPONDENT: MOTIPUR SUGAR FACTORY

DATE OF JUDGMENT: 30/03/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. RAMASWAMI, V.

CITATION:  1965 AIR 1803            1965 SCR  (3) 588  CITATOR INFO :  R          1972 SC 136  (33)  R          1972 SC 277  (11)  R          1972 SC1031  (51,57)  R          1973 SC1227  (22,42)  R          1975 SC1900  (7)  R          1978 SC1380  (8)  R          1979 SC1652  (18)  RF         1980 SC1896  (68)  R          1984 SC 289  (15)

ACT: Industrial  Disputes--Discharge of workmen on account of  go slow--Reference as to whether discharge justified--Tribunal, if  could  decide go-slow--No enquiry  before  discharge--if discharge could be justified before Tribunal.

HEADNOTE: The workers of the respondent started a go-slow in its sugar factory.  Therefore, the respondent issued a general  notice to those workmen and individually to each workman  notifying that  unless  he recorded his willingness to  discharge  his duties  faithfully  and diligently so as to give  a  certain minimum  output, he will be no longer employed; and that  he must record his willingness in the office by a certain time, failing which he shall stand discharged from the service  of the  respondent   without any further  notice.  Because  the appellants,  who were 119 of such workmen. failed to  record their   willingness,   the  respondent   issued   a   notice discharging their services.  The respondent held no  enquiry as  required by the Standing Orders before  dispensing  with the,  services of the appellants. A general strike  followed resulting in a joint application by both the parties to  the Government  and the Government referred the question to  the Tribunal,   whether  the  discharge  of  the   workmen   was justified.   The Tribunal came to the conclusion that  there was  go-slow during the period, and consequently  held  that the discharge of the workmen was fully justified.  In appeal by  Special Leave the appellant contended that (i) all  that the  Tribunal was concerned with was to decide  whether  the discharge  of the workmen for not giving an undertaking  was

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justified or not, and that it was no part of the duty of the Tribunal  to  decide whether there was go-slow  which  would justify  the order of discharge; (ii) Since  the  respondent held no enquiry as required by the Standing Orders, it could not justify the discharge before the Tribunal and (iii)  the finding  of the Tribunal that go-slow, had been  proved  was perverse  and the Tribunal had ignored relevant evidence  in coming to the conclusion. HELD: The contentions must be rejected. (i)  Taking  into account the wide terms of  reference,  the manner  in which it was understood before the Tribunal,  and the  fact that it must b.e read alongwith the  two  notices, particularly  because  it was made soon  thereafter  at  the joint application of the parties, the Tribunal was  entitled to  go  into the real dispute between  the  parties,  namely whether the discharge was justified on the ground that there was  misconduct  in  the  form of  go-slow  by  the  workmen concerned. [596D] (ii)  No  distinction  can be made between  cases  when  the domestic  enquiry is invalid and those where no enquiry  has in fact been held. This  Court  has  consistently held  that  if  the  domestic enquiry is irregular, invalid or improper, the Tribunal  may give an opportunity 589 to  the  employer  to prove his case and  in  doing  so  the Tribunal tries the merits itself. [598A-C] Case law referred to.     (iii) As the case involved the discharge of 119 workmen, this  Court went into the evidence, and the evidence  showed that  the decision of the Tribunal was not wrong that  there Was  go-slow  and that the discharge  was  fully  justified. [598E]

JUDGMENT: CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 108 of 1964.     Appeal  by  special leave from the Award dated  May  11, 1962, of the Industrial Tribunal, Bihar, Patna in  Reference No. 4 of 1961.     Ranen Roy, Jai Krishan, G.S. Chatterjee, E. Udayarathnam for A.K. Nag, for the appellants.     Niren  De, Addl. Solicitor-General and Naunit  Lal,  for the respondent. The Judgment of the Court was delivered by Wanchoo, J.  This is an appeal by special leave against  the award of the Industrial Tribunal, Bihar.  It relates to  the discharge of 119 workmen of the respondent who were employed as  cane carrier mazdoors or as cane carrier supervisors  or jamadars. All these were seasonal workmen.  It is  necessary to  set out in some detail the circumstances leading to  the discharge.   The  respondent  is a  sugar  factory  and  the crushing season starts usually in the first half of November each  year.   We are concerned in the  present  appeal  with November and December 1960.  It appears that from the season 1956-57, the respondent introduced an incentive bonus scheme in the factory.  The scheme continued thereafter from season to season with certain changes.  It also appears that in the beginning of each season, the respondent used to put forward the incentive bonus scheme and consult the workmen. The same thing was done when the season 1960-61 was about to start in November  1960.  But the scheme for this season proposed  by the   respondent  contained  certain  changes   which   were apparently  not  acceptable  to the  workmen.   One  of  the

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features  in the scheme was that the crushing of sugar  cane per  day should be 32,000 maunds.  The general secretary  of the  union of the workmen suggested certain alterations  for the consideration of the respondent on November 7, 1960, and one of the main alterations suggested was that the norm  for per  day’s  crushing should be 125,000 maunds  of  cane  and thereafter  incentive  bonus should be given  at  a  certain rate.   No agreement seems to have reached on the  incentive bonus  scheme, and the complaint of the respondent was  that the secretary incited the workmen to go slow in  consequence of  the change in the scheme.  Consequently mild go-slow  in cane the carrier department which is the basic department in a  sugar  mill began from the very start of  the  season  on November 10, 1960. The L/P(N)4SCI 590 respondent’s case further was that on November 27, 1960, the workmen   in   the  cane  carrier  department   started   in combination  with  one another to go-slow  deliberately  and wilfully  and  in  a planned manner  and  thus  reduced  the average daily crushing to 26,000 maunds cane which was  much less  than the average crushing in previous  seasons.   This conduct of the workmen was said to be highly prejudicial  to the  respondent  and besides being technically  unsafe,  had brought  into  existence  an  acute  shortage  in  the  fuel position which might have resulted in the complete  stoppage of the mill and a major breakdown of the machinery. When the position  became  serious the respondent  issued  a  general notice  on December 15, 1960 inviting the attention  of  the workmen  concerned to this state of affairs which  had  been continuing of any rate since November 27, 1960.  This notice was in the following terms:--               "At  the instigation of Shri J.  Krishna,  the               General Secretary of your Union, you since the               very  beginning  of  this  season,  have  been               failing  in your duty to ensure  adequate  and               regular loading of the cane carrier, and  with               effect  from the 27th November, 1960, you,  in               combination with each other, have deliberately               and  wilfully  resorted to a  clear  ’go-slow’               tactics, a fact openly admitted by the  above-               named  General  Secretary  of  your  Union  in               presence  of  the  Labour  Superintendent  and               Labour  Officer  Muzzffarpur,  in  course   of               discussions held on the subject in the  office               of  the Assistant Labour Commissioner  on  the               6th  December,  1960.  You  have  deliberately               reduced the average daily crushing to more  or               less  26,000  maunds out of  which  more  than               2,000  maunds is due to the  newly  introduced               device  of direct feeding of the cane  carrier                             by  cane  carts weighed during nights and  not               attributable to any effort on your part.  Thus               the   actual   crushing  given   by   you   is               practically   something  between  23,000   and               24,000    maunds   only   which   is    highly               uneconomical  and technically unsafe for  this               factory  with the installed crushing  capacity               of more than 1,200 tons a day.               "About  14,000 bales of extra bagasse kept  in               stock as reserve have already been consumed in               the past 12 days or so and now the factory  is               faced with a situation when at any moment  its               boilers  may  go  out of  steam  for  want  of

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             bagasse-fuel  leading to  an  abrupt  stoppage               of  the  mills and finally  resulting  into  a               major breakdown of machineries.                   "It  is  therefore  hereby  notified  that               unless you voluntarily record your willingness               individually   to   discharge   your    duties               faithfully and  diligently by feeding the cane               carrier so as to give a minimum average  daily               crush  of 32,000 maunds,  excluding  stoppages               other than those               591               due  to  overloading or under loading  of  the               cane carrier, you will be considered to be  no               longer  employed  by  the  company.  You  must               record  your willingness in the office of  the               Factory  Manager  on  or  before  4  P.M.   of               Saturday  the  17th  December,  1960,  failing               which  you  shall stand  discharged  from  the               service  of  the company without  any  further               notice  with effect from 18-12-1960  and  your               place  will  be  filled  by  recruiting  other               labour to man the cane carrier station." This   notice  was  put  on  the  notice-board  along   with translations  in  Hindi  and  Urdu  and  it  was  also  sent individually  to the workmen in cane carrier department.   A copy  was also sent to the Secretary of the union  with  the workmen  concerned to submit their willingness as desired by the respondent in the notice in question either individually or even collectively through the union. The secretary of the union  replied to this notice on the same day and said  that it   was   "full  of  maliciously  false   and   mischievous statements". The secretary also denied that the workmen  had adopted  go-slow tactics or that he had advised the  workmen to  adopt such tactics.  Finally the secretary said that  it was simply fantastic to ask a worker to give an  undertaking to   crush   at  least  32,000 maunds per  day  and  if  the service of any workman was terminated on his  not giving the undertaking,  the  responsibility  would  be  that  of   the respondent itself.  The  respondent’s  case  was that  three workmen  gave undertakings as required in the  notice  while the  rest did not. Thereafter the situation in  the  factory deteriorated  and the workmen grew more and more unruly  and even  started  entering  the factory  without  taking  their attendance  token.  In consequence of this attitude  of  the workmen,  the  respondent  issued  a notice  at  5  p.m.  on December 17, 1960 which was in the following terms:               "The  following  workers of the  cane  carrier               station who failed to record their willingness               in factory manager’s office by 4 p.m. this day               the  17th December, 1960, to  work  faithfully               and   diligently   in  accordance   with   the               management’s  notice dated  15-12-1960,  stand               discharged  from  the  company’s  service  and               their  names  have been struck off  the  rolls               with effect from 18th December 1960.  From now               on, the workers concerned have forfeited their               right  to go to and occupy their former  place               of  work  and any action contrary to  this  on               their   part   will  make   them   liable   to               prosecution for criminal trespass.               "Their final account will be ready for payment               by 4 p.m. on the 19th December 1960, when,  or               whereafter, they may present themselves at the               company’s  Office  for  receiving  payment  of               their  wages  and other dues, if  any,  during

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             working hours", and then mentions the names of               119 workmen of the cane carriers department. 592 Thus the services of the workmen concerned stood  discharged from December 18, 1960 under this notice. This was  followed by a general strike in pursuance of the notice served on the respondent  by  the union on December 17, 1960.  The  strike continued  upto  December 22, 1960 when as a  result  of  an agreement  it  was decided that the case of  the  discharged workmen  and the question of wages for the strike period  be referred to adjudication.  Consequently a joint  application by  both  parties  was made to Government  on  December  21, 1960.  The Government then made a reference of the following two questions to the tribunal on January 25, 1961:--               1. Whether the discharge of workmen  mentioned               in  the  Appendix  was  justified.   If   not,               whether they should be re-instated and/or they                             are entitled to any other relief?                    2. Whether the workmen be paid wages  for               the period 16-00 hrs. on December 18, 1960  to               8-00 hours on December 22, 1960? It may be mentioned that the respondent had held no  enquiry as  required by the standing Orders before  dispensing  with the services of the workmen concerned.  Therefore, when  the matter went before the tribunal, the question that was tried was whether there was go-slow between November 27, 1960  and December. 15, 1960.  The respondent led evidence, which  was mainly documentary and based on the past performance of  the factory  to  show  that there was in  fact  go-slow  by  the workmen concerned during this period.  The appellants on the other  hand  also relying on the record  of  the  respondent tried  to  prove that the cane carrier department  had  been giving  normal work in accordance with what had happened  in the  past in connection with cane crushing. That is how  the tribunal  considered  the  question  on  the  basis  of  the relevant  statistics supplied by both parties and also  oral evidence  whether  there was go-slow during this  period  or not.   After  considering all the evidence it  came  to  the conclusion  that  there  was go  slow  during  this  period. Consequently  it held that the discharge of the workmen  was fully  justified.  It therefore answered the first  question referred  to  it in favour of the  respondent.   The  second question with respect to wages for the strike period was not pressed  9n  behalf  of the  appellants  and  was  therefore decided against them. Thereafter the appellants came to this Court and obtained special leave; and that is how the matter has come up before us.     We  are  concerned in the present appeal only  with  the first question which was referred to the tribunal.   Learned counsel for the appellants has raised three main contentions before  us in support of the appeal.  In the first place  it is contended that the tribunal misdirected itself as to  the Scope  of the reference and that all that the  tribunal  was concerned  with was to decide whether the discharge  of  the workmen for not giving an undertaking was justified 593 or not, and that it was no part of the duty of the  tribunal to  decide  whether there was go-slow between  the  relevant dates which would justify the order of discharge.  Secondly, it  is urged that the respondent had given no  charge-sheets to the workmen concerned and had held no enquiry as required by  the Standing Orders. Therefore, it was not’ open to  the respondent to justify the discharge before the tribunal, and the  tribunal had no jurisdiction to go into the  merits  of the  question relating to go-slow. Lastly it is  urged  that

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the finding of the tribunal that go-slow had been proved was perverse  and the tribunal had ignored relevant evidence  in coming  to  that  conclusion.  We  shall  deal  with   these contentions seriatim. Re. (1)..     We  have already set out the relevant term of  reference and  it will be seen that ’it is wide and general  in  terms and asks the tribunal to decide whether the discharge of the workmen concerned was justified or not.  It does not mention the  grounds on which the discharge was based and it is  for the  tribunal to investigate the grounds and decide  whether those  grounds justify discharge or not. So if the  tribunal finds  that  the  discharge was due to the  use  of  go-slow tactics  by  the workmen concerned it will  be  entitled  to investigate the question whether the use of go-slow  tactics by the workmen had been proved or not. But  the  argument on behalf of the appellants is  that  the notice of December 17 gives the reason for the discharge and the  tribunal  confined  only  to that  notice  and  has  to consider  whether  the  reason  given  in  that  notice  for discharge is justified.  We have already set out-that,notice and it certainly says that the workmen mentioned at the foot of the notice had failed to record their willingness to work faithfully   and   diligently   in   accordance   with   the respondent’s notice of December 15, 1960, and therefore they stood  discharged from the respondent’s services  and  their names had been struck off the rolls from December 18,  1960. So  it is argued that the reason for  the discharge  of  the workmen  concerned  was  not go-slow but  their  failure  to record their willingness to work faithfully and diligently.. The  tribunal had therefore to see whether this  reason  for the  discharge of the workmen was justifiable, and  that  it had no jurisdiction to go beyond this and to investigate the question of go-slow.     We  are  of  opinion  that there is  no  force  in  this argument.  Apart from the question that both parties  before the   tribunal  went  into  the  question  of  go-slow   and voluminous evidence was led from both sides either to  prove that  there was go-slow or to disprove the same, it  appears to  us that it would be taking much too technical a view  to hold that the discharge was due merely to the failure of the workmen  to  give the undertaking and that the  go-slow  had nothing  to do with the discharge.  We are of  opinion  that the  two notices of December 15 and December 17 have  to  be read  together and it may be pointed out that the notice  of December  17th does refer to the earlier notice of  December 15th.  If we read the two 594 notices  together, there can be in our opinion be  no  doubt that though the discharge is worded as if it was due to  the failure  to record their willingness to work faithfully  and diligently, it was really due to the workmen concerned using go-slow tactics. Notice of December 15, is in two parts. The first  part sets out the facts and states what  the  workmen had  been  doing from the very beginning of the  season  and particularly  from November 27, 1960. It states that on  the instigation  of the secretary of the union, the workmen  had been  failing in their duty to ensure adequate  and  regular loading  of the cane carrier from the very beginning of  the season. It further charges that with effect from November 27 they  had in combination with one another  deliberately  and wilfully  resorted to a clear go-slow, a fact said  to  have been openly admitted by the secretary in the presence of the Labour  Superintendent and Labour Officer,  Muzaffarpur,  in course  of discussions held in the office of  the  Assistant

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Labour  Commissioner on December 6, 1960.  The  notice  then says that the average daily crushing is 26,000 maunds out of which more than 2,000 was due to the newly introduced device of direct feeding of the cane carrier by cane carts  weighed during  nights  and not attributable to any  effort  on  the workmen’s   parts;  thus  the  actual  crushing   had   been practically  reduced to something between 23,000  to  24,000 maunds   per   day,  which  was  highly   uneconomical   and technically  unsafe for the factory which had  an  installed crushing  capacity of more than 1,200 tons a day  i.e.  over 32,000 maunds a day.  The notice also says that about 14,000 bales of extra bagasse kept in stock as reserve and  already been  consumed in the last twelve days and the  factory  was faced with a situation when at any moment its boilers  might go  out  of  steam for want of bagasse-fuel  leading  to  an abrupt stoppage of the mill and finally resulting in a major break-down of machinery.     These  facts which were given in the first part  of  the notice dated December 15, 1960 really show the charge  which the  respondent was making against the  workmen   concerned. Having  made this charge of go-slow in the manner  indicated in  the  first part of the notice (and it may  be  mentioned that  this notice was not only put on the  notice-board  but was given to each workmen individually), the respondent then indicated  in  the second part what action  it  intended  to take.   In  this  part  the  respondent  told  the   workmen concerned  that  unless  they  voluntarily  recorded   their willingness   individually   to   discharge   their   duties faithfully and diligently by feeding the cane carrier so  as to  give  a minimum average daily crush  of  32,000  maunds, excluding stoppages other than those due to over-loading  or under-loading of the cane carrier, they would be  considered to be no longer employed by the respondent. They were  given time  up  to  4 p.m. on December 17, 1960  to  record  their willingness  failing which they would stand discharged  from the  respondent’s  service without any further  notice  with effect  from  December  18, 1960.  The second  part  of  the notice thus indicated to the workmen concerned how much they had to crush every 595 day  to avoid the charge of go-slow.  It  further  indicated that  the respondent was prepared to let bygones be  bygones if   the  workmen  concerned  were  prepared  to   give   an undertaking  in  the  manner  desired.  Assuming  that  this course   adopted  by  the respondent  was  unjust  and  even improper, reading of the two parts of the notice of December 15, 1960 shows that in the opinion of the respondent was the normal cane crushing per day and what was the charge of  the respondent  against the workmen concerned in the  matter  of go-slow  and what the respondent was prepared to  accept  if the  workmen were agreeable to the claim of the  respondent. It  is  clear therefore from the notice which was  given  on December  15, 1960 that the respondent thought  that  32,000 maunds  should  be  the normal  crush  every  day  excluding stoppages  other  than those due to over-loading  or  under- loading  of the cane  carrier.  It also charged the  workmen with  producing  much  less than this for  the  period  from November  27,  1960  to December 15,  1960,  though  it  was prepared to 1st bygones be bygones, provided the workmen  in future  undertook to give normal production.  It is  in  the background  of  this  charge  contained  in  the  notice  of December  15,  1960  that  we have to  read  the  notice  of December  17,  1960. That notice says that the  workmen  had failed  to record their willingness to work  faithfully  and diligently  in  accordance with the notice of  December  15,

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1960  and therefore they stood discharged,  meaning  thereby that the respondent was charging the workmen with go slow as indicated  in  the notice of December 15, 1960 and  that  as they  were  not prepared to give normal production  even  in future  they  were being discharged.  Therefore,  though  in form the notice of December 17, 1960 reads as if the workmen were  being  discharged for not giving  the  undertaking  as desired,  the  real  basis of the  notice  of  discharge  of December  17,  1960 is the use of goslow which  had  already been  indicated in the notice of December 15 given  to  each workman individually also. The  reference  was made on the joint  application  of  both parties.  If  all that the workmen desired  in  their  joint application  for  reference  was  that  it  should  only  be considered whether the discharge of the workmen for refusing to  give an undertaking was justified, there was nothing  to prevent the workmen to insist that in the joint  application this  matter should be specifically mentioned. In the  joint application  the  first matter which was  specified  was  in these terms:               "Whether the discharge of workmen mentioned in               the  appendix was justified? If  not,  whether                             they  should  be  reinstated  and/or they  are               entitled to any other relief?" Now  if all that was  desired was that the tribunal   should go into the question whether the discharge of the workmen on the  ground that they had  failed to give  the   undertaking should be investigated, it would have been easy to put  this term  only in the reference in the joint  application  thus; "Whether  the  discharges of the workmen  mentioned  in  the appendix on the 596 ground   of  their  failure  to  give  an  undertaking   was justified?"  The very fact that the matter specified  as  in dispute was put in the wide words already quoted above shows that the parties did not wish to confine their dispute  only to  the  question  whether the discharge on  the  ground  of failure  to give an undertaking was justified.   Further  we have  already  indicated that both  parties  understood  the dispute to be whether go-slow was justified or not and  that is why voluminous evidence was led before the tribunal.  The wide  terms in which the reference was made along  with  the notice  of  December 17th read with the notice  of  December 15th leave no doubt in our mind that the reference  included investigation  of  any  cause which might have  led  to  the discharge  of  the workmen. There is no doubt in  this  case that  even though notice of discharge was pharsed as if  the discharge  was being made on account of the failure to  give an  undertaking the real reason for the discharge  was  that the  workmen had been guilty of go-slow between November  27 and  December  15  and were not prepared  in  spite  of  the respondent’s giving them a chance to improve to show  better results.   Therefore taking into account the wide  terms  of reference, the manner in which it was understood before  the tribunal,  and the fact that it must be read along with  the two  notices  of  December 15  and  17,  1960,  particularly because it was made soon thereafter at the joint application of  the  parties,  we have no doubt that  the  tribunal  was entitled  to go into the real dispute between  the  parties, namely  whether  the discharge was justified on  the  ground that  there  was misconduct in the form of  go-slow  by  the workmen   concerned  between  November  27,   1950   workmen therefore on this head must be rejected. Re. 11).

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   Then we come to the question whether it was open to  the tribunal  when  there  was  no  enquiry  whatsoever  by  the respondent  to hold an enquiry itself into the  question  of go-slow.  It was urged on behalf of the appellants that  not only there was no enquiry in the present case but there  was no charge either.  We do not agree that there was no  charge by the respondent against the workmen concerned.  The  first part of the notice of December 15, 1960 which was served  on each  individual  workmen  was certainly  a  charge  by  the respondent  telling  the workmen concerned  that  they  were guilty  of  go-slow for the period between November  27  and December  15,  1960.   It is true that the  notice  was  not headed  as a charge and it did not specify that  an  enquiry would  follow,  which is the usual procedure when  a  formal charge  is  given. Even so, there can be no doubt  that  the workmen  concerned  knew what was the  charge  against  them which  was  really  responsible  for  their  discharge  from December 18, 1960. It  is  now well-settled by a number of  decisions  of  this Court  that where an employer has failed to make an  enquiry before dismissing or discharging a workman it is open to him to  justify  the action before the tribunal by  leading  all relevant evidence before it,         597 In   such  a case the employer would not  have  the  benefit which  he  had in cases where domestic inquiries  have  been held.   The entire matter would be open before the  tribunal which will have jurisdiction not only to go into the limited questions  open  to a tribunal where domestic   inquiry  has been  properly  held (see Indian Iron & Steel Co.  v.  Their workmen(1)  but also to satisfy itself on the facts  adduced before it by the employer whether the dismissal or discharge was  justified, We may in this connection refer to M/s  Sasa Musa  Sugar Works (P) Limited v. Shobrati Khan(2),  Phulbari Tea  Estate v.  Its Workmen(3) and the Punjab National  Bank Limited  v.  Its Workman(4) There three cases  were  further considered  by this court in Bharat Sugar Mills Limited.  v. Shri  Jai  Singh(5),  and reference was  also  made  to  the decision  of the Labour  Appellate  Tribunal  in   Shri  Ram Swarath  Sinha v. Belaund Sugar Co. (6) It was  pointed  out that "the import effect of commission to hold an enquiry was merely  this: that the tribunal would not have  to  consider only  whether there was a prima facie case but would  decide for itself on the evidence adduced whether the charges  have really  been  made  out".  It is true that  three  of  these cases,  except  Phulbari  Tea  Estate’s  case(3),  were   on applications  under  s. 33 of the Industrial  Disputes  Act, 1947.  But  in principle we see no  difference  whether  the matter comes before the tribunal for approval under s. 33 or on  a reference under s. 10 of the Industrial Disputes  Act, 1947.  In either case if the enquiry is defective or  if  no enquiry  has been held as required by Standing  Orders,  the entire  case  would  be open before  the  tribunal  and  the employer  would  have to justify on facts as well  that  its order  of  dismissal or discharge was proper.  Phulbari  Tea Estate’s(9)  was on: a reference under s. 10, and  the  same principle was applied there also, the only difference being. that  in  that  case, there was an  enquiry  though  it  was defective. A defective enquiry in our opinion stands on  the same  footing as no enquiry and in either case the  tribunal would  have  jurisdiction  to  go into  the  facts  and  the employer  would have to satisfy the tribunal that  on  facts the order of dismissal or discharge was proper.     If  it  is  held  that  in  cases  where  the   employer dismisses  his  employee  without holding  an  enquiry,  the

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dismissal must be set aside by the industrial tribunal  only on  that ground, it would inevitably mean that the  employer will  immediately  proceed to hold the enquiry and  pass  an order  dismissing  the employee once again.  In  that  case, another  industrial  dispute would arise  and  the  employer would be entitled to rely upon the enquiry which he had held in  the mean-time. This course would mean delay and  on  the second  occasion it will entitle the employer to  claim  the benefit  of the domestic enquiry given.  On the other  hand, if  in  such cases the employer is given an  opportunity  to justify the  (1)  [1958] S.C.R. 667.  (2)  [1959] Supp. S.C.R. 836. (3)  [1960] IS.C.R. 32. (4)  [1960] I.S.C.R.806. (5)  [1962] 3 S.C.R.684. (6)  [1954] L.A.C.697. 598 impugned   dismissal  on  the  merits  of  his  case   being considered by the tribunal for itself and that clearly would be  to the benefit of the employee.  That is why this  Court has  consistently  held  that if  the  domestic  enquiry  is irregular,  invalid  or  improper,  the  tribunal  give   an opportunity  to the employer to prove his case and in  doing so  the  tribunal  tries the merits itself.   This  view  is consistent  with the approach which industrial  adjudication generally  adopts  with  a view to do  justice  between  the parties without relying too much on technical considerations and  with  the object of avoiding delay in the  disposal  of industrial  disputes.  Therefore, we are satisfied  that  no distinction  can  be made between cases where  the  domestic enquiry  is invalid and those where no enquiry has  in  fact been held.  We must therefore reject the contention that  as there  was  no enquiry in this case it was not open  to  the respondent to justify the discharge before the tribunal. Re. (iii)     The question whether there was go-slow during the period from November 27 to December 15, 1960 is a question of  fact and  the tribunal has come to the conclusion that there  was go-slow during this period.  Ordinarily this Court does  not go into findings of fact recorded by a tribunal unless there are  special reasons, as, for example, where the finding  is based on no evidence,--which of course is not the case here. Learned  counsel for the appellants however urges  that  the finding  of  the tribunal that the  workmen  concerned  were guilty  of go-slow is perverse and that evidence  which  was relevant  and  material  has  been  ignored.   As  the  case involves  the  discharge of as many as 119 workmen  we  have decided  to go broadly into the evidence to see whether  the finding of the tribunal is patently wrong. For  this purpose we may first refer to the past history  of the working of the respondent factory. It appears that  till this court condemned the practice of go-slow in the case  of Bharat  Sugar Mills(1). It was not unusual in the  State  of Bihar for workmen to give notice of go-slow to employers  as if  it  was  a legitimate weapon to be used  in  matters  of dispute  between  the  employers and the  workmen.   In  the present  case the respondent had complained as far  back  at 1950 that go-slow was being resorted to. In 1950 a court  of enquiry was constituted to enquire into this question and it made a report that there was a slow-down on the part of  the workman  for several days in February-March 1950.   It  also came  to the conclusion that the  slow-down  was  instigated and  sponsored by union leaders. In 1951, the  workmen  gave notice  of go-slow in case their demands were not  fulfilled

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(vide Ex. A-1) Similar notices were given in 1952 (vide  Ex. A-2), In 1954 (vide Ex. A-3 and A-4) and in 1955 (vide  Exs. A-5,  A-6 and A-7 and on some occasions threats  of  go-slow did   actually  materialise.  Besides  these   notices   the management had occasion to complain in 1955. 1957, and  1958 more than once that go-slow was being (x) [1962] 3 S.C.R,. 684. 599 resorted  to  at  the cane carrier.  Thus  it  appears  that resorting to go-slow was a common practice in this factory. It  is in the background of this persistent attitude of  the workmen that we have to see what happened in November  1960. We  have already referred to the fact that the workmen  were dissatisfied with the new incentive bonus scheme proposed by the  respondent.  It is not necessary to go into the  merits of  this  new scheme which was proposed in  September  1960. But  it appears that when there was dispute in  the  1959-60 season  on the question of how much cane should be  crushed, the secretary of the union had accepted in a conference with the  Assistant  Labour Commissioner that there had   been  a drop  in  the amount of cane crushed, though  he  maintained that it was still the average crush. He had also stated then that the workmen were dissatisfied with the incentive  bonus scheme  in that season and had withdrawn the  extra  efforts they were putting in after the introduction of the incentive scheme  for  the  first time in  1956-57.   Further  it  was admitted  by  the secretary in his evidence  that  when  the bonus  scheme was proposed in 1960-61, it was considered  by the workmen in a meeting and it was decided that if the  new system  was  introduced without the consent of  the  workmen they would not put in any extra effort for giving more  than what  was the normal crush in the mill.  The  evidence  also shows  that there were conferences about the new scheme  and at  one stage the respondent suggested that the norm  should be 30,000 maunds crush per day while the union was agreeable to  29,500  maunds per day.  But there was no  agreement  in this  behalf and so that workmen carried out  their  resolve not  to put in extra efforts to give more than  the  average normal  crushing  per day.  Thus the season which  began  in November  1960 started with the withdrawal of extra  efforts by  the workmen which in plain terms means that the  workman were  not  prepared to do what they had been doing  in  this previous season 1959-60 and were slowing down production  as compared to what it was in 1959-60.  It is in the background of  this  history and this admission that we  have  to  look broadly  into  the evidence to see  whether  the  tribunal’s conclusion that there was go-slow is justified. The  main  contention on behalf of the  respondent  in  this connection is that one has to see is that is called crushing speed  for a day of 24 hours and it is this  crushing  speed which  would determine whether there was go-slow during  the period in dispute. It has been urged that crushing speed per 24  hours is different from the actual crushing per  day  or the  average crushing for a period, for the actual  crushing per day from which the crushing speed is arrived at  depends on  a  number  of factors, particularly it  depends  on  the amount  of stoppages that take place during the day  and  if there are more stoppages the actual crushing on a particular day  would necessarily go down. Crushing speed  per  twenty- four hours on the other hand is arrived at by excluding  the stoppages  and then working out what would be the amount  of cane 600 crushed  in  24 hours if there had been no  stoppages.   The case  of  the respondent further is that when  it  gave  the

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notice  on  December 15, 1960 asking for a crush  of  32,000 maunds per day it really meant that the workmen should  work in  such a way as to give a crushing speed of 32,000  maunds per day, though the words "crushing speed" were not actually used  in  the notice.  It is however pointed  out  that  the notice  when it mentions 32,000 maunds as the  normal  crush expected per day excluded stoppages other than those due  to over-loading   or   under-loading  of  the   cane   carrier. Therefore,  the  respondent  wanted the workmen  to  give  a crushing speed of 32,000 maunds per day which would  exclude stoppages,  the only exception being stoppages due to  over- loading or underloading, which, according to the respondent, is due to the deliberate action of the cane carrier  workmen to  cause stoppages, We think that this explanation of  what the  respondent  meant when it gave the  notice  of  average daily  crush  of  32.000 maunds is  reasonable,  for  it  is impossible to accept that 32,000 maunds were required to  be crushed irrespective of stoppages, beyond the control of the workmen.  Further it is not in dispute that the labour force was   more  or  less the same throughout  these  years,  and therefore  we  have to see whether  during the  period  from November  27 to December 15, 1960 there was any  significant drop in the crushing speed.  If there was such a significant drop  that could only be due to go-slow tactics  which  have been euphemistically called withdrawal of extra efforts.     It is necessary therefore to took at the charts produced in  this  case to determine this question.   The  appellants mainly  relay on chart Ex. W-3. That is however a  chart  of actual  crushing per day during the period from  1954-55  to 1960-61  and has nothing to do with crushing speed which  in our  opinion would be the determining factor in finding  out whether there was go-slow.  The actual crush may vary as  we have  already said due to so many factors, particularly  due to  stoppages for one reason or the other.   The  respondent produced   another  chart Ex. W-4 which shows  the  crushing speed  for  the entire season from 1954-55  to  1959-60.  We consider that it would not be proper to take the figures for the years 1956-57 to 1959-60 in which years incentive  bonus schemes  were  in force and which according to  the  workmen resulted in extra efforts on their part.  But the figures of 1954-55 and 1955-56 would be relevant because in these years there  was no incentive bonus scheme and no night  weighment ’of  carts. The workmen have also produced a  chart  showing cane crushed, actual crushing days and crushing per day; but this  chart  does not show the crushing speed and  does  not take into account the stoppages.  It merely shows the actual number of working days and the average per day. That however would not be an accurate way of finding out whether in  fact there  was  go-slow  during the period  with  which  we  are concerned.  The respondent’s chart Ex. W-4 while showing the same amount of actual crushing also shows what would be  the crushing 601 speed per 24 hours after excluding stoppages.  This chart in our  opinion  is the proper chart  for  determining  whether there   was  go  slow  during  the  revelant  period.    Now according to this chart (Ex. W-4) the daily average crushing speed  in 1954-55 was 29,784 maunds and in  1955-56,  30,520 maunds  without incentive bonus and without night  weighment of carts.  It appears that from the middle of 1959-60 season night  weighment of carts started and it is not  in  dispute that resulted in an increase in the daily crushing and  this increase  is  put  at  over 2,000’ maunds  per  day  by  the respondent;  the secretary of the union admitted  that  this would  result in an increase of about 2,500 maunds per  day.

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We  have already said that in the years 1954 and 1955  there was no incentive bonus and if these figures are accepted  as giving the average crushing speed per day (when there was no incentive bonus and no weighment of carts at night) it would in  our opinion be not improper to accept that the  crushing speed  with  night  weighment  of  carts  would  be  in  the neighbourhood  of  32,000  maunds per day  in  view  of  the admission  that  night  weighment of carts  resulted  in  an increase  of crushing by about-2,000 maunds to 2,500  maunds per  day.   Therefore, when the respondent  gave  notice  on December  15, 1960 that the average crushing per day  should be  32,000 maunds excluding stoppages (except those  due  to over-loading or underloading of the cane carrier, for  which the workmen would be responsible) it Cannot be said that the respondent  had  fixed something which was abnormal.  It  is true that when negotiations were taking place in  connection with  the incentive bonus scheme for the year  1960-61,  the respondent was prepared to accept a crushing speed of 30,000 maunds per day above which the incentive bonus scheme  would apply.  That  is  however easily  understood  for  a  proper incentive bonus scheme always fixes a norm which is slightly lower  than the average in order that there may  be  greater incentive to labour to produce more than the average.   Even so,  when  the incentive bonus scheme for 1960-61,  was  not acceptable  to the workmen and they had already  decided  to withdraw what they called extra effort, the respondent would not  be unjustified in asking for the full average  crushing speed based on the production of the years 1954-55 and 1955- 56,  when there was no incentive bonus scheme and  no  night weighment of carts. It  has  been  urged on behalf of the  appellants  that  the crushing  speed  of  32,000  maunds  per  24  hours  is  not correctly arrived at for it does not take into account  half hour’s rest per shift which is permissible under s. 55(1) of the  Factories Act, No. 63 of 1948. Thus, according  to  the appellants,  crushing speed should be worked out on  22  1/2 hours  per day and the crushing will then be less by  1/16th and  will only come to 30,000 maunds per day.   Reliance  in this connection is placed on s. 55(2) of the Factories  Act, which  lays down that "the State Government  ......  may  by written order and for the reasons specified therein,  exempt any  factory  from  the provisions  of  sub-section  (1)  so however  that the total number of hours worked by  a  worker without an interval does not exceed 602 six.   It is therefore urged that the workmen were  entitled to  half  an hour’s rest per shift in any case  because  the shift was for eight hours.  The respondent on the other hand relies on s. 64(2) (d) for the Factories Act and its case is that  the  State  Government  had  made  rules  under   that provision in connection with sugar factories, which apply to it.  Section 64(2) (d) is in these terms:--               "The  State  Government  may  make  rules   in               respect   of   adult  workers   in   factories               providing  for the exemption, to  such  extent               and  subject  to  such conditions  as  may  be               prescribed--                   (d)  of workers engaged in any work  which               for  technical  reasons  must  be  carried  on               continuously  from the provisions of  sections               51, 52, 54, 55 and 56; We are of opinion that this provision in s. 64(2) (d)  being a special provision will over-ride both sub-ss. (1) and  (2) of  s.  55, for it gives power to the  State  Government  by making  rules to exempt certain types of factories from  the

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application  of  the  whole  of  s.  55,  subject  to   such conditions and to such extent as the rules may provide.   It appears  that  rules  were  framed in  this  behalf  by  the Government  of Bihar in 1950 by which sugar  factories  were exempted  from  the  application of s. 55  for  purposes  of handling and crushing of cane, among others. subject to  the condition  that  the workers concerned shall be  allowed  to take  light  refreshment  or meals at  the  place  of  their employment, or in a room specially reserved for the purposes or  in  a canteen provided in the factory, once  during  any period exceeding four hours.  Thus cane crushing  operations are  exempt  from  s.  55(1) and s.  55(2)  subject  to  the condition  mentioned above.  We may also refer to  s.  64(5) which lays down that the rules made under this section shall remain in force for not more than three years.  The rules to which  reference  has been made are of 1950;  but  there  is nothing  to show that these rules were not  continued  after every  interval  of three years and the  position  that  the exemption applies to sugar factories even now as provided in these rules was not disputed.  We shall therefore proceed on the  basis that the exemption applied to sugar factories  in Bihar.   In view of this, the workmen cannot claim  half  an hour’s  rest  per  shift as urged on  their  behalf,  though sometime  must be allowed for refreshment or light meals  as provided  in the provision granting exemption.   This  means that  a few minutes would be allowed to each  individual  in turn in each shift for light refreshment or meals in such  a way  that  the  work  does not stop.  If  we  make  a  total allowance  of  half an  hour or so in  this  connection  the average  crushing  speed would be reduced to  slightly  over 31,000  maunds per day and that is all the  adjustment  that the  appellants can claim in view of the exemption under  s. 64(2) (d).     Let us now turn to the actual position between  November 27  and December 15, 1960.  This will appear from chart  Ex. W-7.          603 That  chart shows a crushing speed of 29,859 maunds per  day from  November 10 to 26, when, according to the  respondent, there was only mild go-slow.  We are however concerned  with the  period  from November 27 to December 15, 1960  and  the crushing  speed for 24 hours during that period was  27,830. Now  if we take the average crushing speed as 32,000  maunds per  24 hours without any adjustment or even a  little  over 31,000  maunds  with  adjustment  following  upon  the  rule relating  to  exemption  from s. 55, there  is  certainly  a significant  drop  in  average crushing  speed  during  this period.  Further  we find that there is a  significant  drop even  as compared to the period between November 10  to  26, 1960,  inasmuch as the drop was over 2,000 maunds  per  day. Therefore it cannot be said that the tribunal was  incorrect in  its  conclusion that there had been go-slow  during  the period  from  November 27 to December 15.  It may  be  added that  when  comparisons are made on the  basis  of  crushing speed  and labour force is more or less constant, as is  the ease  here, other minor factors to which our  attention  was drawn  on  behalf of the appellants during argument  do  not matter at all.  Even if we take the figure of 30,000  maunds as  the crushing speed which the respondent had put  forward at the time of the discussion on the incentive bonus scheme, we find that though there was not much difference during the period  from  November  10  to  November  26,  there  was  a significant drop of over 2,000 maunds per day from  November 27  to  December 15.  Looking at the matter  in  this  broad way--and that is all that we are prepared to do, for we  are

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examining  a finding of fact of the tribunal--we cannot  say that its conclusion that there was go-slow between  November 27 and December 15 is not justified.     Finally,  it  is  urged that notice  was  given  to  the workmen on December 15 and they were discharged on  December 17, 1960 without giving them a change to give the  necessary production as desired in the notice.  But as we have already indicated, the charge in the notice of December 15 was  that the  workmen had been going slow from November 27  and  they were  asked  to  give  an undertaking  to  improve  and  the respondent  was apparently willing to overlook  the  earlier lapse.  Even assuming that the demand of an undertaking  was unjustified, it does appear that the attitude of the workmen was that they would do no better; and in those circumstances they  were discharged on December 17, 1960 on the  basis  of misconduct  consisting  of go-slow between November  27  and December 16, 1960.  That misconduct has been held proved  by the  tribunal  and  in  our opinion  that  decision  of  the tribunal  cannot be said to be wrong.  In the  circumstances the tribunal was justified in coming to the conclusion  that the discharge was fully justified     In  this  view of the matter, the appeal  fails  and  is hereby dismissed.  In the circumstances we order parties  to bear their own costs. Appeal dismissed. 604