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PETITIONER: WORKMEN OF THE MOTOR INDUSTRIES CO.  LTD.

       Vs.

RESPONDENT: MANAGEMENT OF MOTOR INDUSTRIES CO.  LTD.,BANGALORE

DATE OF JUDGMENT: 15/04/1969

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.

CITATION:  1969 AIR 1280            1970 SCR  (1) 304  1969 SCC  (2)  13  CITATOR INFO :  RF         1972 SC1216  (3)

ACT: Industrial Dispute-Strike by workmen without notice  against terms  of  settlement  between  workmen’s  association   and management-Strike  whether saved from being illegal  because call  not given by association-Strike in breach of terms  of settlement  is  illegal under s. 29 of  Industrial  Disputes Act, 1947-Distinction between illegality under s. 24 and  s. 29-Unfair labour practice-Victimisation-Findings of  enquiry officer whether perverse.

HEADNOTE: There  was  settlement  entered into on  December  23,  1964 between  the Motor Industries Company Employees  Association and  the  management  of the company.  Under el.  5  of  the agreement it was agreed inter alia that the workmen will not go  on strike without at least four days’ notice.   How,ever on May 11, 1966 the workmen went on strike without notice as a  protest  against the suspension of one  of  the  workmen. Later in the day after discussions the workmen resumed work. On  May  18,  1966 the  establishment  officer  submitted  a complaint  to  the Chief Personnel Officer as  a  result  of which  charge-sheets alleging stoppage of  work,  abandoning place  of work and inciting clerks and officers to join  the strike were served upon five of the workmen.  Against one of them  the charge of disorderly conduct and intimidation  was also  made.  The enquiry officer held three of  the  charged workmen  guilty of acts of misconduct under  standing  order 22(2), (3), (13) and (18).  The management passed orders  of ,dismissal  against  the  three  workmen.   The   industrial dispute thus arising was referred to, the Labour Court which held  that  the said enquiry was validly held and  that  the management   were  justified  in  passing  the   orders   of dismissal. In  appeal by special leave the following  contentions  were raised  on behalf of the workmen-appellants : (i)  that  the said association not having given a call for the said strike the  said  charges  were  misconceived  and  the  orders  of dismissal  were consequently not sustainable; (ii) that  the

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said strike, which was spontaneously staged by the  workmen, was  not illegal under s. 24 of the Industrial Disputes  Act nor  was  it  in contravention of any  law  as  required  by standing   order  22(2)  and  (3);  (iii)  that   the   said disciplinary  proceedings  were  in  contravention  of   the agreement  arrived  at on May 11, 1966, and  therefore,  the dismissal  following such disciplinary proceedings  amounted to unfair labour practice; (iv) that the orders of dismissal were passed on charges including that of intimidation though the misconduct of intimidation was not found by the  enquiry officer and hence the said orders were illegal; (v) that  to punish only three workmen when a large number of workmen had taken  part in staging the strike and in inciting others  to join it constituted victimisation, (vi) that the finding  of the  enquiry  officer  were based on  no  evidence  or  were perverse  in that no reasonable body of persons  could  have arrived at them on the evidence before him. HELD  :  (i) Clause 5 of the settlement dated  December  23, 1964   did  not  contemplate  any  dichotomy   between   the association and the workmen                             305 as   suggested  on  behalf  of  the  appellants.   Such   an interpretation   is  repugnant  to  the  principle  that   a settlement  once  arrived  at by  the  association  must  be regarded as one made by it in its representative  character, and  therefore binding on the workmen.  Therefore,  although the  settlement mentioned in cl. 5 the  management,  workmen and  the association, the expression ’workmen’  therein  was unnecessary, for without that expression also it would  have been  as  efficaciously  binding on the workmen  as  on  the association.   This conclusion was strengthened by the  fact that  the  settlement  mentioned  the  management  and   the association  on  behalf of the workmen only as  the  parties thereto  and  the  signatories thereto also  were  only  the representatives of the two bodies. [309 F-H] Further,  the appellants’ contention if accepted would  lead to a surprising result, namely, that though a strike at  the instance  of the association required four days’  notice,  a notice by the workmen without any call from the  association would  not require any such notice and that  the  settlement left  complete  liberty to the workmen to  launch  a  sudden strike.   The first contention on behalf of the workmen  had therefore to be rejected. [309 D]  (ii) Read in the context of the other provisions of Part  I of  the settlement of which it was part, cl. 5 was  intended to  prohibit (a) direct action without notice by or  at  the instance  of  the  association and (b)  strikes  by  workmen themselves  without  the approval of the  association.   The words ’in no case’ used in the clause emphasized that direct action by either party without notice should not be resorted to ’for any reason whatsoever.  There could be no doubt that the  settlement  was  one  as defined  by  s.  2(p)  of  the Industrial Disputes Act and was binding on the workmen under s. 18(3) of the Act until it was validly terminated and  was in force when the said strike took place.  The strike was  a lightning one, was resorted to without notice and though  it was not at the call of the association, it was in breach  of cl. 5. [311 A--C] The  strike  was in the matter of suspension of one  of  the workmen  pending  a domestic enquiry against him,  a  matter which  obviously was -not one of the matters covered by  the said  settlement.  It was, therefore, not a  strike  illegal under  s.  24  read with s. 23(c).  However  being  in  con- travention  of  cl.  5  of  the  said  settlement  and  that settlement  being binding on the workmen concerned  and  in,

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operation  at  the  time  was punishable  under  s.  29  and therefore. illegal under that section. [312 F] The strike being illegal, standing order 22 would apply  and participating  in or inciting others to join such  a  strike would  amount  to misconduct for which  the  management  was entitled to take disciplinary action.  The second contention on behalf of the workmen must also, therefore, fail. [313 D] The Tata Engineering & Locomotive Co. Ltd. v. C. B.  Mitter, C.A. No. 633/1963 dt. 2-4-1964, referred to. (iii)     The  Labour  Court on the evidence held  that  the association  failed to prove that the management had  agreed in  order  to end the strike on May 11, 1966,  not  to  take action  against  any of the workmen in connection  with  the strike, though it may be that they might have agreed not  to victimise  any workmen for participating in the strike.   In fact  the management did not impose any penalty against  any workman  for joining the strike, not even against the  three concerned  workmen.  This finding being purely one  of  fact and the Labour Court having given cogent reasons for it this Court would not interfere with it.  The contention  alleging unfair labour practice must also therefore fail. [313 G-H] 306 (iv) Although in his report the enquiry officer did not  use the expression ’intimidation’ the evidence which he accepted was  that  the workman in question thumped his hand  on  the table  and  used  threatening words to .an  officer  of  the company.   The  Enquiry  officer’s  finding  of   disorderly behaviour  must  therefore  be  held  to  include  acts   of intimidation.  Accordingly the contention that the orders of dismissal  were  bad as they took to account the  charge  of intimidation of the company’s officers although the  enquiry officer  had  found  that charge was  not  proved,  must  be rejected. 13 14 B--G] (V)  The  evidence showed that the three  workmen  concerned were  in  the  forefront  of the  crowd  which  entered  the premises of the company and committed and incited disorderly behaviour.   In taking action against them and not the  rest of   the  workmen  there  was  no  discrimination   and   no victimisation. [315 C] Burn   &  Co.  Ltd.  v.  Workmen,  [1959]  1   L.L.J.   450, distinguished. (vi) There  was  no  substance in the  contention  that  the findings of the enquiry officer were based on no evidence or were perverse.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2123 of 1968. Appeal by special leave from the Award dated March 23,  1968 of the Labour Court, Bangalore in Reference No. 39 of 1967. M.   K. Ramamurthi, B. R. Dolia, S. Pappu and Vineet  Kumar, for the appellants. H.   R.  Gokhale, C. Doraswamy and D. N. Gupta, for  respon- dent No. 1. The Judgment of the Court was delivered by Shelat, J This appeal, founded on special leave, arises  out ,of an industrial dispute between the respondent-company and the Motor Industries Company Employees Association which the Government   of  Mysore  referred  to  the   Labour   Court, Bangalore,  for  adjudication  under S. 10 (1)  (c)  of  the Industrial  Disputes Act, 1947.  The dispute related to  the dismissal by the management of three workmen, Sandhyavoo, G. Prabhakar  and  M.  V. Vasudevan out  of  the  five  workmen against  whom the management had held a domestic enquiry  at

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which they were found guilty of acts; of misconduct  charged against them. The facts leading to the said dispute and the reference  are as follows : On  August 24, 1964 the said association handed over to  the management  a charter of demands.  Negotiations between  the parties  having  failed, the demands were taken  before  the conciliation   officer  when  the  parties  arrived   at   a settlement dated December 23, 1964.  On April 29, 1966,  the management  issued a notice suspending for a day, i.e.,  May 4, 1966, one B. G. Shenoy                             307 as  and by way of penalty.  In consequence of a  protest  by the  association, the said suspension was postponed  and  on May  10,  1966,  the management served  -a  charge-sheet  on Shenoy  and  suspended him pending an enquiry.  On  May  11, 1966  the  association  demanded  withdrawal  of  the   said suspension  and  the said  charge-sheet.   Discussions  took place  on that day from 9.45 A.M. to 12.30 P.M. between  the association  and the management and the  parties  thereafter adjourned  at 1 P.M. for lunch having decided to resume  the talks  at 2.30 P.M. At 2 P.M. the first shift ended and  the workers of the second shift began to come, in.  The  workmen of  the  first shift, however, stayed on and  those  of  the second  shift  along with the workmen of the  general  shift joined them and all of them went on strike.  The discussions which  were resumed at 2.30 P.M. ended in an agreement at  5 P.M. and the workmen returned to work.  On May 18, 1966  the assistant establishment officer submitted a complaint to the chief personnel officer alleging certain acts of  misconduct by  a crowd of workmen mentioning therein the names of  five of  them including the said three workmen.  On May 25,  1966 charge-sheets  alleging  stoppage of  work,  abandoning  the place  of  work,  inciting  clerks  and  officers  of  G.  2 department  to  join the said strike,  disorderly  behaviour including intimidation and assault on one, A. Lakshman  Rao, were   served  upon  those  five  workmen.    Correspondence -thereafter   ensued   between  the  association   and   the management  wherein  the association protested  against  the management’s  decision to adopt disciplinary action  against the  said five workmen despite the agreement arrived  at  on May  11, 1966.  Thereafter, a domestic enquiry was  held  on June 30, 1966 which was completed on July 27, 1966 when  the enquiry  officer  made  his report holding  the  said  three workmen, Sandhyavoo, Prabhakar and Vasudevan, guilty of acts of  misconduct  under standing order 22(2),  (3),  (13)  and (18).   He  exonerated the other two workmen except  on  the charge  of participating in the strike and  loitering  about under  clauses (2) and (18) of the said standing order.   On August  12, 1966, the management, agreeing with the  report, passed  orders of dismissal against the said  three  workmen which  gave rise to the said reference.  On March  23,  1968 the  Labour  Court  gave its award  holding  that  the  said enquiry  was  validly  held and  that  the  management  were justified in passing the said orders of dismissal. Mr.  Ramamurthi, appearing for the  association,  challenged the said award on the following grounds : (1) that the  said association not having given a call for the said strike, the said  charges were misconceived and the orders of  dismissal were consequently not sustainable; (2) that the said strike, which  was  spontaneously  staged by the  workmen,  was  not illegal under s. 24 of the Industrial Disputes Act, nor  was it in contravention of any law as 308 required by standing order 22(2) and (3); (3) that the  said

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disciplinary  proceedings  were  in  contravention  of   the agreement  arrived -at on May 11, 1966, and  therefore,  the dismissal  following such disciplinary proceedings  amounted to unfair labour practice; (4) that the orders of  dismissal were passed on charges including that of intimidation though the  misconduct of intimidation was not found proved by  the enquiry officer and hence the said orders were illegal;  (5) that  to  punish only three workmen when a large  number  of workmen had taken part in staging the strike and in inciting others  to join it constituted victimisation; and  (6)  that the  findings  of  the  enquiry officer  were  based  on  no evidence  or  were perverse in that no  reasonable  body  of persons  could have arrived at them on the  evidence  before him. The  argument  on which the first contention was  based  was that  the settlement dated December 23, 1964 was arrived  at between  three parties, the management, the association  and the men, and that the association being the union registered under  the Trade Unions Act was an entity distinct from  the workmen.   Under  cl.  5  of  the  settlement  it  was   the association  which was obliged to give four days’ notice  if it  decided  to resort to strike, go-slow tactics  or  other coercive  action.  The said clause did not impose  any  such obligation on the workmen.  The workmen thus having no  such obligation  and  the said strike being  a  spontaneous  one, without  any call for it from the association, it could  not be  said  to  be  in breach  of  the  said  settlement,  and therefore, would not fall under the mischief of s. 23 of the Act,  the  first condition of which is that  to  be  illegal under  s.  24 read with s. 23 it must be, in  breach  of  -a contract.  Standing order 22 requires that participating  in a  strike  would be misconduct if it is in  breach  of  some provision   of   law.   But  as  the  strike  was   not   in contravention  of s. 23, it would not constitute  misconduct under  that standing order.  Therefore, the charges  against the  said three workmen were misconceived and the orders  of dismissal  passed against them on the basis that they  stood established  were bad.  In our view this argument cannot  be sustained.   The  construction of cl. 5  of  the  settlement suggested by Mr. Ramamurthi is contrary to (a) the tenor  of that  settlement,  (b)  the  provisions  of  the  Industrial Disputes Act under which a settlement arrived at between  an employer  and  a  union representing  the  employees  during conciliation  proceedings is binding not only on such  union but  also  the  workmen  whom  it  represents  and  (c)  the principles of collective bargaining recognised by industrial law.   The settlement was a package settlement by which  the management  and  the  workmen,  through  their  association, arrived at certain terms in the presence of the conciliation officer.   The  settlement,  besides  settling  the  demands contained  in  the  said charter of demands,  sets  out  the necessity of harmonious relations and of cooperation between the 309      management and the workmen so as to promote higher  and better  production.   It  was to achieve  this  object  that direct action on the part of either of them such as a strike by the workmen and a lockout by the employer without  notice was  prohibited.   Evidently the provision  for  four  days’ notice before any direct action was taken by either of  them was  provided for so that during that period if.  there  was any grievance it could be ironed out by negotiations.  Cl. 5 of  the settlement falls in two parts : (I) the  substantive part,  and (2) the corollary thereof.  The first part  inter alia   provided  that  neither  the  association   nor   the

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management  would  resort  to any  direct  action,  such  as strike,  go-slow  tactics or lock-out or any  such  coercive action without giving to the other a four days’ notice.  The second  part  provided  an undertaking on the  part  of  the association  to cooperate with the management, if there  was any  strike by workmen without any call therefore  from  the association,  if  the management were to  take  disciplinary action  against the workmen.  If the construction of  cl.  5 suggested  by  Mr. Ramamurthi were to be accepted  it  would lead to a surprising result, namely, that though a strike at the instance of the association required four days notice, a strike by the workmen without any call from the  association would  not require any such notice and that  the  settlement left  complete  liberty to the workmen to  launch  a  sudden strike.  Such a construction appears on the very face of  it contrary  to  the object and purpose of the  settlement  and particularly  cl. 5 which envisages a notice period of  four days  to  enable  the parties to resolve  a  dispute  before direct action on its account is resorted to by either  them. The suggested construction is also untenable, for surely the association  irrespective  of the workmen cannot  by  itself resort.  to any direct action.  How can, for  instance,  the association resort to go-slow tactics without giving a  call for it to the workmen ?  It is obvious, therefore, that  cl. 5 does not contemplate any dichotomy between the association and  the  workmen as suggested by, Mr.  Ramamurthi,  besides being  repugnant to the principle that a settlement  arrived at by the association must be regarded as one made by it  in its representative character, and therefore, binding, on the workmen.   Therefore, although the settlement  mentions  in, cl.  5  the  management, workmen and  the  association,  the expression  ’workmen’ therein was unnecessary, for,  without that expression     also it would have been as efficaciously binding  on  the  workmen  as.  on  the  association.   This conclusion  is strengthened by the fact that the  settlement mentions  the management and the association, on  behalf  of the workmen only as the parties thereto and the  signatories thereto also are only the representatives of the two bodies. None  of  the workmen, nor any one  separately  representing them  affixed  his signature to it.  If  a  lighting  strike without  notice  is illegal under any provision  of  law  (a question which we shall presently consider standing order 22 would  come  into operation and starting or joining  such  a strike and inciting others to L    13 Sup.C.I,/69-6. 310 join  it would amount to misconduct for  which  disciplinary action by the management would be possible. The  next question is whether the management  could  validly take  disciplinary action against the workmen  concerned  in respect  ,of  the  said strike.  The recitals  of  the  said settlement  show  that  as  a  result  of  the   association presenting the said charter of demands negotiations  between the  management and the association took place on  the  said demands as also on certain proposals made by the management, that on their failure conciliation proceedings took place in the  course  of  which  the  parties  arrived  at  the  said settlement   which,   as  aforesaid,  was  signed   by   the representatives of the management and the association in the presence  of the conciliation officer.  The settlement  thus was  one under S. 12(3) of the Industrial Disputes  Act  and rule  59 of the Rules made thereunder by the  Government  of Mysore.   It was to come into force as from January 1,  1965 and  was  to  remain  in  force  for  three  years  and  was thereafter to continue to be in force until its  termination

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by  either side.  It is clear from Part I thereof  that  the object  with  which it was made was  to  promote  harmonious relations   and   cooperation  between  the   company,   the association  and the workmen so that the company may on  the one hand be able to achieve increased production and on  the other  be  in a position to afford maximum  opportunity  for continued  employment.   To  accomplish these  aims  it  was agreed  that  the company on its part should be  managed  on sound  and  progressive lines and the  association  and  the workmen  on their part should combat any wasteful  practices adversely  affecting workmanship and production  and  assist the management in apprehending persons responsible for  acts such as theft, sabotage and other subversive activities.  As cl.  5 of the settlement itself states it was "in  order  to ensure continuation of smooth working" that the company  and the association agreed that in no case would either of  them resort to direct action such as lock-outs, strikes,  go-slow and other coercive action without four days, notice and that should one or more workmen resort to any such direct  action without  the  approval of the association,  the  association Would cooperate with the company in any disciplinary  action which  the  company would take against such  workmen.   Then follows  the agreement on the said demands of  the  workmen, and  the proposals made by the management in the details  of which it is not necessary to go, and finally, the  agreement that the parties would adhere to the code of discipline  and the  grievance  procedure  annexed as  annexure  IV  to  the -settlement.   The said code also inter alia  provided  that there  should be no strike or lock-out without notice,  that neither  party  should  resort  to  coercion   intimidation, victimisation  or  go-slow tactics, that  they  would  avoid litigation,  sit-down and stay-in strikes and lock-outs  and would not -permit demonstrations which are: not peaceful  or rowdyism.  Read 311 in  the  context of the other provisions of Part  1  of  the settlement  of  which  it is part, cl. 5  was  intended,  to prohibit  (a)  direct  action without notice by  or  at  the instance  of  the association, and (b)  strikes  by  workmen themselves  without  the approval of the  association.   The words "in no case" used in the clause emphasise that  direct action by either the party without notice should not be  re- sorted to for any reason whatsoever.  There can be no  doubt that  the  settlement was one as defined by s. 2(p)  of  the Industrial Disputes Act and was binding on the workmen under s. 18 (3) of the Act until it was validly terminated and was in force when the said strike took place.  The strike was  a lightning one, was resorted to without notice and was not at the call of the association and was, therefore, in breach of cl. 5. Could  the management then take disciplinary action  against the concerned workmen in respect of such a strike ? Standing order  22 enumerates various acts  constituting  misconduct. Cls. 2, 3, 13 and 18 provide that striking either singly  or in   combination  with  others  in  contravention   of   the provisions of any Act, inciting any other workmen to  strike in contravention of any law, riotous or disorderly behaviour or  any act subversive of discipline and’  loitering  within the  company’s  premises while on duty  or  absence  without permission  from  the  appointed place  of  work  constitute misconduct.   The  point  is whether  participation  in  and incitement  to  join the said strike were in  respect  of  a strike  which  was  in  contravention of  any  Act  or  law. Section   23  provides  that  no  workman  employed  in   an industrial  establishment  shall go on strike in  breach  of

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contract  and during the period in which a settlement is  in operation, in respect of any of the matters covered by  such a  settlement.  The prohibition against a workman  going  on strike  thus  envisages two conditions; (a) that  it  is  in breach of a contract and (b) that it is during the period in which a settlement is in operation and is in respect of  any of  the  matters  covered  by  such  settlement.   The  said settlement  was  a  contract between  the  company  and  the association   representing  the  workmen  -and  it  was   in operation  on  May  11, 1966.  But was it in  respect  of  a matter  covered by the settlement ? Under s. 24 a strike  is illegal  if  it  is commenced in  contravention  of  s.  23. Section  26  inter  alia  provides  that  any  workman   who commences,  continues or otherwise acts in furtherance of  a strike which is illegal under the Act shall be punished with imprisonment for a term extending to one month or with  fine which  may  extend  to  Rs. 50 or  with  both.   Section  27 provides  punishment of a person who instigates or  incites- others  to take part in or otherwise acts in furtherance  of an  illegal  strike,  The  strike  envisaged  by  these  two sections  is  clearly the one which is illegal under  s.  24 read  with s. 23.  A strike in breach of a  contract  during the  operation  of a settlement and in respect of  a  matter covered  by  that  settlement falls under s.  23  (c).   But whereas s. 26 312 punishes a workman for going on an illegal strike or for any act  in furtherance of such a strike,, s. 29 lays  down  the penalty for a person, not necessarily a workman, who commits breach of a term of a settlement which is binding under  the Act.  It is, therefore, an offence for any person on whom -a settlement  is  binding  under the Act to  commit  a  breach thereof  and  the  legislature has viewed it to  be  a  more serious  offence,  for,  it  has  a  higher  punishment   of imprisonment extending to six months than the punishment for commencing  etc.  an  illegal strike  under  s.  26.   Thus, commencing,  a  strike  or acting in furtherance  of  it  in breach  of  a  settlement  binding on  the  -person  who  so commences  it  or  acts in its  furtherance  is  an  offence punishable under s. 29. It is clear that there is a distinction between a strike in- visaged  by  s. 23 (c) in respect of a matter covered  by  a settlement and a strike in breach of a settlement  envisaged by s. 29.  That position was conceded by Mr. Gokhale for the management.   But  his  argument  was  that  the  strike  in question was, firstly, in respect of a matter covered by the said  settlement,  namely, its  prohibition  without  notice while that settlement was in force and secondly that it  was in  breach  of  that settlement, and  consequently,  it  was illegal  both under s. 24 and s. 29.  This  contention  does not  seem correct, firstly, because though an agreement  not to  resort to a strike without notice would be  the  subject matter of a settlement, a strike in contravention of such an agreement is not in respect of any of the matters covered by such  settlement.  Secondly, such a construction would  mean as   if  Parliament  intended  to  provide   two   different penalties,  one under s. 26 and the other under s.  29,  for the  very  same  offence,  one higher  than  the  other,  an intention  difficult  to attribute.  The strike was  in  the matter  of  the  suspension of the  said  Shenoy  pending  a domestic enquiry -against him, a matter which obviously  was not  one of the matters covered by the said settlement.   It was, therefore, not a -strike illegal under s. read with  s. 23(c).  However, the strike was in contravention of cl. 5 of the said settlement and that settlement being binding on the

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workmen  concerned and in operation at the time was  punish- able under s. 29, and therefore, illegal under that section. The question whether a strike in contravention of a  similar clause  in  a  settlement  was illegal  arose  in  The  Tata Engineering  and Locomotive Co. Ltd. v. C. B. Mitter &  Anr. (1) As in cl. 5 of the settlement before us, the  settlement there  also  provided that "in no case"  would  the  parties thereto  resort to direct action such as lockouts,  strikes, go-slow  and other direct action without four days’  notice. The strike in question was commenced in respect of a  demand by a workman for a pair of gum-boots, a demand (1)  C.A.No. 633 of 1963, dec. on April 2,1964.                             313 not  covered by the settlement.  It was common  ground  that the strike would not fall within the ambit of s. 24 but  the -controversy  was  whether  it was  otherwise  illegal,  the workmen’s  contention  being that it was not,  as  the  said clause against. a strike without notice applied only to  one declared for enforcing one or the other demands which formed the  subject matter of the settlement and since  the  strike arose  out of a matter not covered by the  settlement,  that clause  was inapplicable.  This Court negatived the  conten- tion  and  held that the words "in no case" in  that  clause meant  a  strike  for  whatever reason  and  though  it  was conceded  that  it  was not illegal under  s.  24,  it  was, nevertheless,  held  to  be illegal not because  it  was  in respect  of  a  matter covered by the  said  settlement  but because it was in contravention of the settlement which  was binding on the concerned workmen, which meant that the Court held the strike to be illegal under s. 29.  In our view  the decision  in the present case must be the same.  The  strike was  illegal  not  under  s.  24  but  because  it  was   in contravention  of  the  settlement binding  on  the  workmen concerned.  Consequently, standing order 22 would apply  and participating  in or inciting -others to join such a  strike would  amount to misconduct for which ,the  management  were entitled to take disciplinary action. But  against  that  position,  the  argument  was  that  the agreement dated May 11, 1966 under which the workmen  called off  the  strike also provided that no  disciplinary  action would be taken against any workmen in respect of the  strike on that day and that therefore the proceedings taken against the three workmen in violation of that agreement amounted to unfair labour practice.  The agreement was oral.   According to Bernard, Secretary of the association, the agreement  *as that (a) the charges and the suspension order passed against the  said Shenoy should be withdrawn (b) the company  should pay  the  wages  for  the 31 hours  period  ,of  the  strike provided the workmen made good the loss of production during that  period, and (c) the management would take  no   action against  any  one  for going on  strike.   The  evidence  of Martin, the company’s technical director, on the other hand, was  that  the company agreed only not to  punish  the  said Shenoy  and  to consider paying wages for the hours  of  the strike.   The  Labour Court on this evidence held  that  the association  failed to prove that the management had  agreed not to take action against any of the workmen in  connection with the strike though it may be that they might have agreed not  to  victimise  any workman  for  participating  in  the strike.  In fact, the management did not impose any  penalty against any workman for joining the strike, not even against the three concerned workmen.  This finding being purely  one of fact and the Labour Court having given cogent reasons for it  we  would  not  interfere with  it  without  the  utmost reluctance.  We have been taken through the evidence and the

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correspondence between the 314 parties  but  we fail to see any error on the  part  of  the Labour Court in reaching that finding. The  next contention was that the orders of  dismissal  were bad as they took into account the charge of intimidation  of the  company’s  officers although the  enquiry  officer  had found  that that charge was not proved.  The  charge-sheets, exs.  M/4A, M/5A -and M/6A against the three workmen alleged in express terms disorderly behaviour and intimidation.  The report  of  the enquiry officer against the  said  Vasudevan clearly  stated  that  the  enquiry  officer  accepted   the evidence  of  the management’s witnesses and  that  on  that evidence  -all the charges against him stood proved.   While summarising those charges, he, no doubt, did not in so  many words  use the expression "intimidation".  But the  evidence which  he, as aforesaid, accepted, was that Vasudevan  along with  other workmen entered the G. 2 department at  about  3 P.M.  on that day and thumping his hand on the table of  the said  Lakshman Rao threatened that officer in the  following words  :  "now  I am in the forefront of  the  crowd].   You cannot do anything.  You ask your people to come out and you also come out.  Otherwise you can see what we can do for you now".   The said Lakshman Rao had also deposed that  he  was surrounded  by the workers who started pushing  and  pulling him.   The evidence of other officers was that as the  crowd which  forced its way into this department got  unruly  they were  also  forced  to  leave their  places  of  work.   The evidence against Prabhakar was that he too was in the  fore- front  of  that crowd which squeezed Lakshman Rao  and  some members  thereof inflicted kicks on him.   Similarly,  there was  the  evidence  of one  Raja,  the  assistant  personnel officer, and others that Sandhyavoo was one of those in  the forefront  of  that crowd.  According to  Raja.   Sandhyavoo tried to lift him from his seat with a view to force him  to leave  his  table  and finding that  the  crowd  had  become restive  he left his place.  Acceptance of this evidence  by the enquiry officer must necessarily mean acceptance of  the version of these officers that they were intimidated by  the crowd  which  forced its way into their  department  led  by these three workmen.  Though the enquiry officer has not, in so  many  words,  used  the  expression  ’intimidation’  his finding of disorderly behaviour must be held to include acts of intimidation. Lastly,  were  the  orders of dismissal  against  the  three workmen acts of victimisation on the part of the  management when  admittedly  a large number of workmen had  staged  the strike  and  also incited others to join that strike  ?  The orders against the three workmen being identical in terms we take  the  orders passed against Vasudevan  as  a  specimen. That  order  sets out four acts of misconduct  by  him;  (1) striking  or  stopping work, (2) inciting, (3)  riotous  and disorderly behaviour and (4) loitering -about in the                             315      company’s  premises.   Though each one of  these  acts, according  to  the  order, was  misconduct  punishable  with dismissal, the order states that so far as acts 1 and 4 were concerned,  the management. did not wish to take  a  serious view  of them as a large number of "misguided"  workmen  had stopped   work  and  left  their  places  of  work   without permission.  The management, therefore, took action only  in respect  of  acts failing under cls. 3 and 13  of  standing. order  22  evidently  for the reason  that  they  considered incitement,   intimidation   and  riotous   and   disorderly behaviour  as "very grave in nature".  We do not think  that

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in  taking this view the, management  discriminated  against the  three  workmen concerned as against. the rest  or  that they  dismissed  them with the object of  victimising.   The evidence  in  the enquiry clearly disclosed  that  when  the crowd forced its way into the G. 2 department it was led  by these  three  workmen,  all of whom were  in  the  forefront thereof and two of them had defiantly forced the officers to leave their tables.  One. of them had threatened as to  what he and the others who were behind him in that crowd could do to him if he did not comply and the other had tried even  to lift  another officer from his chair to compel him to  leave his  place of work.  In these circumstances. the  management cannot  be blamed if they took a serious view of these  acts of  the  three  workmen concerned, who had  taken  up  their position  in  the  forefront  of  that  crowd,  a   position indicative  of  their  having  led,  that  crowd  into  that department  and  having, acted as its leaders.   An  act  of discrimination  can  only  occur if  amongst  those  equally situated an unequal treatment is meted out to one or more of them.   Having  been found to be the leader& of  the  crowd, action  taken  against  them  cannot  on  any  principle  be regarded as discriminatory or unequal.  The decision in Burn &  Co.  Ltd. v. Workmen(1) relied on by Mr.  Ramamurthi  has no, bearing on the facts of this case and cannot assist him. Once a    misconduct graver than that of the rest was  found proved  against  these  three  workmen  and  for  which  the punishment  is dismissal, victimisation cannot  legitimately be  attributed  to the management.. It is relevant  in  this connection to remember that so far as their participation in the  strike and loitering about were concerned, no,,  action was  taken  against these three workmen on the  ground  that those  acts  were  common  with those of  the  rest  of  the workmen.   In view of these facts it is  not  understandable how the impugned’ orders of dismissal could be characterised as  acts of victimisation.  It is also not possible  to  say that  the finding of incitement and disorderly behaviour  of these  three workmen was perverse or such, as no  reasonable body  of persons could come to on the evidence on record  on the ground only that the others also were guilty of    those acts.  For, there would be nothing wrong if those who misled or  misguided other workmen were selected  for  disciplinary action (1)  [1959] 1 L.L.J. 450. and  not the victims of their persuasion, who  in  following their A precept did similar acts. In  our  judgment  the orders of  dismissal,  based  on  the findings  in the domestic enquiry which did not suffer  from -any  infirmity,  could not be successfully  impeached,  and therefore,  the  Labour Court was right in  upholding  them. The  appeal fails and is dismissed.  There will be no  order as to costs. Appeal dismissed. 317