Civil Appeal No86 of 1958
Appeal by special leave from the Award dated November 15 1956 of the Industrial Tribunal Assam at Dhubri
M C Setalvad Attorney General for India section N Mukherjee and B N Ghose for the appellants
Niharendu Dutt Mazumdar and Dipak Dutta Choudhri for the respondents
October 14
The Judgment of the Court was delivered by SINHA C J
This is an appeal by special leave from the Award dated November 15 1956 made by the Industrial Tribunal Assam
The dispute arose between the employers the Indian General Navigation 3  Railway Company Limited carrying on business at No 4 Fairlie Place Calcutta and the Rivers Steam Navigation Company Limited carrying on business at No 2 Fairlie Place Calcutta which will be referred to in the course of this judgment as the appellants  and their workmen at Dhubri Ghat represented by the Dhubri Transshipment Labour Union and Dhubri Local Ghat Transhipment Labour Union Dhubri which will be referred to hereinafter as the respondents 
The Award aforesaid was published in the Assam Gazette on December 19 1956
It is necessary to state the following facts in order to appreciate the points arising for decision in this case The appellants carry on business of inland water transport in North East India and in Pakistan in association with each other and are commonly known as the Joint Steamer Companies
The appellants jointly maintain a large number of wharves jetties godowns etc at different river stations in India and in Pakistan for the purposes of their business
One such station is at Dhubri in Assam
At that station a large number of workmen are employed for the purpose of loading and unloading the appellant s vessels and for transshipping goods from railway wagons to the appellants  vessels and vice versa
Before May 1954 such workmen were employed by a contractor called the Assam Labour Supply Syndicate which will hereinafter be referred to as the Syndicate 
Those workmen were organized under two labour unions called 1 the Dhubri Transhipment Labour Union which was affiliated to the Indian National Trade Union Congress which is a Federation of Trade Unions and 2 the Dhubri Local Ghat Transhipment Labour Union
There were differences between the Syndicate and its employees who made certain demands and has threatened to go on strike to enforce their demands
Conciliation proceedings under the industrial Disputes Act 1947 which will hereinafter be referred to as the Act took place in the course of which certain agreements to be referred to in greater detail hereinafter were reached between the Syndicate and the respondents on 4 February 23 1953 and March 30 1953
On May 3 1954 by virtue of a Memorandum of that date an agreement was arrived at between the appellants and the respondents whereby the appellants agreed that instead of employing a contractor to handle the work of loading and unloading and transhipment of goods the appellants would employ supervisors and agents to handle the work  pending the proposed Tripartite Conference to decide the issue of permanent direct employment of employees for the future 
The appellants also agreed to maintain continuity of service of the workmen and the existing terms and conditions of their service
The Tripartite Conference contemplated by the Agreement was to consist of the represent
natives of the appellants the workmen and the Government of Assam
As a result of the Tripartite Con ference held on July 9  10 1954 an agreement was reached between the appellants and the Indian National Trade Union Congress which was incorporated in the form of a letter dated July 16 1954 from the General Secretary of the Congress Assam Branch Dhubri Ghat to the several Unions at different stations including Dhubri
As a result of this agreement the appellants agreed inter alia to introduce permanent direct employment at all the transhipment ghats of Assam progressively without prejudicing the agreement of May 3 1954
It will be necessary hereinafter to consider some of the terms of this agreement in detail when dealing with the several points in controversy between the parties
After the agreement aforesaid there arose certain differences amongst the workmen represented by the two Unions aforesaid in respect of the election of their office bearers
As a result of those internal dissensions amongst the employees two rival groups each claiming to represent a section of the workmen came into existence
The appellants thereupon notified the Indian National Trade Unions  Congress that recognition to the Dhubri Transhipment Labour Union was being withdrawn pending satisfactory settlement of the internal differences
Thus came into existence a new Trade Union known as the 5 Dhubri Transhipment Workers  Union in or about July 1955
Meanwhile between May 2 1955 and July 31 1955 the appellant s on five different occasions and on different charges dismissed eight of their employees after making such inquiries as they thought necessary against those workmen and after giving them each an opportunity of explaining their conduct
On July 21 1955 one B Chakravarty Secretary Dhubri Transhipment Labour Union served a notice on the appellants under sub section
i of section 22 of the Act that  I propose to call a strike on the 11th August 1955 from zero hours if the following demands be not fulfilled within fourteen days on receipt of this notice
Then followed an annexure containing ten demands which need not be set out here
A similar notice was also served by the Secretary Dhubri Local Ghat Transhipment Labour Union on the same date  the annexure in this case containing eleven demands
On July 26 1955 the Conciliation Officer of the Government of Assam received the notice of the strike
He held conciliation proceedings on August 6 1955 but those proceedings ended abruptly without arriving at any settlement
On August 8 1955 the said Conciliation Officer who was the Labour Officer of Gauhati by his letter bearing the same date informed the Labour Commissioner Assam about the failure of the conciliation proceedings and forwarded copies of that letter to the appellants and the workmen s Union at Dhubri
Without waiting for the statutory period of seven days from the date of failure of the conciliation proceedings a large number of workmen concerned went on strike with effect from the mid night of August 10 1953 in pursuance of the notices of strike aforesaid
They were alleged by the appellants not only to have gone on strike but also to have forcibly entered the appellants  jetties and other working places and prevented the loyal workmen who were willing to carry on the transhipment work from carrying on their normal work
The strike is therefore alleged to have been illegal
On August 11 1955 the District Magistrate Goal para promulgated an order under 6 section 144 of the Code of Criminal Procedure prohibiting the holding of any meetings demonstrations pro cessions or causing threat obstructions annoyance or injury directed against the persons lawfully employed in the following areas in the Dhabri Town and its suburbs
Then followed a specification of the ghats to which the prohibition applied This order was to remain in force till September 10 1955 In consequence of the aforesaid strike which was treated by the appellants as illegal they declared a lock out on August 11 1955 in respect of 91 workmen named in the notice issued to them
Another lock out notice was issued on August 13 1955 in respect of a much larger number of workmen in different groups described as belonging to a particular Sardar s gang
The legality of these lock out notices was seriously challenged by the respondents
The Workers  Union called off the strike with effect from August 19 and the appellants lifted the lock out with effect from August 27
The appellants took proceedings against those employees who had taken part in the strike
They suspended those workmen who were alleged to have not only taken part in the strike but also had obstructed those workmen who were willing to work
But those workmen who were alleged to have only participated in the strike were not suspended during the inquiry
On September 8 1955 37 of the employees were convicted under section 188 of the Indian Penal Code for violation of the aforesaid order under section 144 of the Criminal Procedure Code with the result that on September 9 they were Dismissed by the appellants
Another batch of 52 employees were convicted under a 143188 of the Indian Penal Code on February 171956
Meanwhile on September 13 1955 the Government of Assam bad constituted a Board of Conciliation consisting of three persons namely 1 Labour Commissioner of Assam as the Chairman 2 D N Sarma of Gauhati as representing the interest of the employees and 3 P J Rayfield as representing the interest of the employers with a view to promoting settlement of the dispute between the appellants and their workmen 7 at Dhubri
The appellants alleged that they had dismissed their workmen as a result of the inquiry held by their nominee into the conduct of the persons who had participated in the alleged illegal strike and or had caused obstruction before they became aware of the constitution of the Board of Conciliation as aforesaid
On coming to know of the constitution of the said Board of Conciliation the appellants subsequently passed orders holding the order of dismissal of the two hundred and twenty three employees in abeyance pending the disposal of their application to the Board for permission to dismiss the said two hundred and twenty three employees
The Board of Conciliation by majority P J
Rayfield dissenting came to the conclusion that as regard the dismissal of the thirty seven workmen the Management had violated section 33 of the Act because in their opinion the proceedings of the Board of Conciliation had commenced from August 26 and not from September 13
As regards the permission sought by the Management to dismiss the suspended two hundred and twenty three workmen by a similar majority it was held that although the strike prima facie was illegal it was not unjustified
The dissenting member P J Rayfield recorded his note of dissent to the effect that the conciliation proceedings commenced on September 13 1955 and not earlier as decided by the majority and consequently the dismissal of thethirty seven workmen  discharge  of 37 workmen as stated in the note of dissent was not in contravention of section 33 of the Act and that the permission to dismiss the two hundred and twenty three workmen on the ground that they had been found guilty by a departmental inquiry of participating in an illegal strike and forcibly preventing others from attending work should have been granted
This conclusion was sought to be based on the alleged legal position that the Board had no power to withhold the permission applied for and had not the power to decide as to the kind of punishment to be imposed upon the workmen who had admittedly taken part in a strike which had unanimously been held to be illegal
The dissenting note also sought to 8 show that the finding of the majority of the Board that the strike was justified was not based on a proper appreciation of the facts of the case
The report of the Board of Conciliation was published on Decem ber 5 1955
As the parties had come to a stalemate the Government of Assam by its order dated December 7 1955as subsequently amended by its order dated January 23 1956 referred the dispute to Shri Radhanath Hazarika as an Industrial Tribunal for the adjudication of the dispute on the following issues  1 a Are the Management of RSN  IGN Railway Company Limited justified in dismissing the following eight workers Manzoor Hussain Sudam Singh ldrish Tazmal Hussain So SK Gaffur Jahangir Sardar Keayamat Hossain Panchu Shah and Ram Ekbal Singh b If not what relief if any are they entitled to  2 a Are the Management of RSN  IGN Railway Company Limited justified in dismissing andor suspending as the case may be 260 workers at Dhubri Ghat on or about the 29th August 1955 b If not to what relief if any are the workers entitled   The parties to the dispute filed their written statement before the Tribunal and tendered both oral and documentary evidence before it
The Tribunal made its Award which was published in the Assam Gazette on December 19 1956 as already stated
The Tribunal held that the strike though illegal was justified but that in the absence of standing orders whereby participation in any illegal strike could justify a punishment of dismissal the appellants were not entitled to dismiss those workmen whose case was before the Tribunal
The Tribunal by its Award directed reinstatement of 208 out of 260 workmen whom the appellants had dismissed or had sought permission to dismiss
The remaining 52 workmen were ordered to be refused reinstatement on the ground that they had been convicted under section 143 of the Indian Penal Code which implied an offence involving 9 use of criminal force
It also directed the appellants to pay full wages and allowances from August 20 1955 till the date of reinstatement of the workmen who had been directed to be reinstated
The Tribunal also held that the dismissal of the eight workmen who were the subject matter of the issue 1a aforesaid of the Reference was bad and therefore those 8 workmen were also ordered to be reinstated with back wages
The present appeal by special leave is directed against the said Award of the Tribunal
Before we deal with the merits of the controversy between the parties it is convenient at this stage to deal with certain arguments by way of preliminary objections to the maintainability and competence of the appeal raised on behalf of the respondents
Those objections are of a three fold character 1 no appeal lies 2 the appellants did not exhaust their statutory remedies under section 17A of the Act and 3 the appeal is not competent also for the reason that the Government of Assam has not been impleaded as party respondent to the appeal In our opinion there is no substance in any one of these objections
With reference to the first ground the argument runs as follows The Tribunal made its Award on November 15 1956 and submitted the same to the Assam Government under section 15 of the Act
On December 8 of that year the Government of Assam directed the said Award to be published in the Assam Gazette and it was so published on December 19 1956
According to the order of the State Government the Award became enforceable under section 17A on the expiry of 30 days from the date of publication namely December 19 1956
Accordingly the Award became enforceable on January 181957 and acquired the force of law by the operation of the statute
By virtue of section 172 of the Act the Award became  final and shall not be called in question by any court in any manner whatsoever  subject to the provisions of section 17A
It was therefore further contended that in the events which had happened before January 18 1957 the Award had become enforceable and had 2 10 acquired the force of law by operation of the statute had thus passed beyond the pale of litigation and adjudication by any court of law
This argument has only to be stated to be rejected in view of the provisions of the Constitution
It is manifest that the provisions of the Act are subject to the paramount law as laid down in the Constitution
Article 136 of the Constitution under which this Court grants special leave to appeal in this case from a determination of the Tribunal cannot be read as subject to the provisions of the Act as the  argument on behalf of the respondents would postulate
The provisions of the Act must be read subject to the over riding provisions of the Constitution in this case article 136
Therefore whatever finality may be claimed under the provisions of the Act in respect of the Award by virtue of sections 17 and 17A of the Act it must necessarily be subject to the result of the determination of the appeal by special leave
It was further contended that the Award had merged in the orders of the Government on publication in the Official Gazette under section 17 of the Act but this is the same argument stated in another form and any argument based on the provisions of the Act making the Award final and enforceable must always be read as being subject to the decision of this Court in the event of special leave being granted against such determination by the Tribunal and as adopted by the Government
The same argument was advanced in still another form namely that the appellants should have moved this Court before the lease of the time contemplated by section 17 and section 17A of the Act that is to say before January 18 1957
Apart from the consideration that this argument tends to curtail the period of limitation prescribed by this Court by statutory rules the operation of sections 17 and 17A of the Act is not automatically stayed by making an application for special leave
It is only by virtue of specific orders made by this Court staying the operation of the Award or some such order that the appellant becomes for the time being immune from the operation of those provisions of the 11 Act which impose penalties for the infringement of the terms of the Award
Adverting to the second branch of the preliminary objection it appears that the provisions of section 17A particularly the provisos have been sought to be pressed in aid of the respondents  contention without realizing that the Award in question in this case does not come within the purview of either of those provisos
The State Government was not a party to the Industrial dispute nor was it an Award given by a National Tribunal
Hence there is no substance in the contention that the appellants did not exhaust their statutory remedies under section 17A of the Act
The third branch of the preliminary objection is based on the contention that the Government of Assam was a necessary and proper party as it had acted under delegated powers of legislation under the Act in making the Award enforceable and giving it the force of law
It is a little difficult to appreciate how the State Government became a necessary or proper party to this appeal
The State Government does not play any part in the proceedings except referring the dispute to the Tribunal under section 10 of the Act
The publication of the Award under section 17 is automatic on receipt of the same by the Government
Its coining into operation is also not subject to any action on the part of the State Government unless the case is brought within the purview of either of the provisos to section 17A
In view of these considerations it must be held that there is no merit in the preliminary objection
The appeal must therefore be determined on its merits
On the merits of the controversy between the parties it has been argued by the learned counsel for the appellants that the Tribunal having held the strike to be illegal has erred in holding that it was justified that an illegal strike could never be justified and that the Tribunal was wholly in error in losing sight of the fact that the appellants were carrying on what had been notified as a public utility service
In this connection it was further argued that in view of 12 the proviso to section 101 of the Act the State Government was bound to make a Reference of the dispute to an Industrial Tribunal when notice of strike under section 22 of the Act had already been given and that therefore the failure of the employer to enter into direct negotiations with the employees upon receipt of the strike notice could not be used by the Tribunal for coming to the finding that the strike was justified
It was also urged that the Tribunal had clearly erred in holding that the lock out declared by the appellants was illegal and that in coming that conclusion it had over looked the provisions of section 243 of the Act
The Tribunal it was further argued had erred in holding that in the absence of standing orders to the effect that participation in an illegal strike is a gross misconduct an employer could not dismiss its workmen for mere participation in an illegal strike
Assuming that the last stated argument was not well founded it was argued that the standing orders governing the relations between the Syndicate and the workmen would also govern the relations between the appellants and the workmen as a result of the agreement aforesaid whereby the appellants undertook all the liabilities of the Syndicate in relation to the workmen and guaranteed to them the same conditions of service
In this connection it was also argued that the Tribunal bad made a serious mistake of record in treating the standing orders of the Syndicate as a mere draft and therefore of no binding force as between the employers and the employees that the Tribunal erred while considering the case of the eight workmen dismissed before the commencement of the strike in proceeding upon an unfounded assumption that no charge sheets had been served upon those workmen during the inquiry against them and that therefore the Award in so far as it related to those 8 workmen was entirely erroneous
As against the two hundred and eight workmen ordered by the Tribunal to be reinstated it was argued that the departmental inquiry held by the appellants had resulted in the distinct finding that they bad not only participated in the illegal strike but had also instigated loyal workmen 13 to join in the illegal strike and had obstructed tranship ment work by loyal workmen
In this connection it was also argued that in any view of the matter the thirty seven persons who had been convicted by the criminal court under section 188 of the Indian Penal Code for having transgressed the prohibitions contained in the prohibitory order under section 144 of the Code of Criminal Procedure were clearly liable to be dismissed on the findings of the criminal court itself apart from any other considerations bearing on the regularity of the inquiry against them that the Tribunal was in error in holdidg that the inquiry against the dismissed workmen was not in accordance with the prescribed procedure and lastly that this was not a case of reinstatement of the dismissed workmen and that only compensation should have been awarded to them
On behalf of the respondents their learned counsel besides raising the preliminary objection already dealt with urged that the Tribunal was fully justified in holding that the strike though illegal was  perfectly justified  and virtually provoked by the appellants
Though in the statement of the case the argument had been raised that the strike could not be illegal because the notification declaring the service at the ghats to be public utility service was ultra vires that argument was not persisted in before us but it was vehemently argued that there were no standing orders either of the Syndicate or of the appellants which could govern the service conditions of the workmen and that in any event mere participation in an illegal strike would not entitle the employers to dismiss those workmen who had joined the strike that the dismissal orders in all cases were sheer acts of victimization and unfair labour practice
It was also sought to be argued that the lock out was entirely illegal and that in any view of the matter its continuance after the strike had been called of was wholly unjustified and against the principles of  social justice 
Further it was urged that the appellants had dismissed andor suspended 260 workmen without framing any specific charges against them that the dismissal of the eight workmen 14 in view of the incidents before the commencement of the strike was also illegal and in any event irregular because it was urged no specific charges had been framed against them
It was also sought to be argued that the notice  inviting the workmen to join their work being unconditional without any reservations amounted to a condonation of the strike and therefore the dismissal orders against the two hundred and sixty workmen were bad in law
Some other arguments also were advanced on behalf the respondents but we do not propose to take notice of them because they were ultimately found to be without any foundation in the record of the case
As a matter of fact the arguments on behalf of the respondents were not marked by that strict adherence to the record of the case or the case made out before the Tribunal as ought to be the case before courts of justice generally and certainly before the highest Court in the land
Now turning to the merits it is better to deal with the first issue first that is to say whether the dismissal of the eight workmen named in the Issue as amended was justified and if not to what relief they were entitled
The Tribunal dealt with the individual cases of those workmen and came to the conclusion that the dismissal of none of them was justified and that therefore all of them were entitled to reinstatement with all their back wages and other benefits accruing to them from the date of their suspension and subsequent dismissal until the date of their reinstatement minus what had been paid to them
Thus the first issue in both the parts was decided entirely in favour of the workmen
We have therefore to examine how far the determination of Tribunal on the first issue is open to question
The cases of Manzoor Hussain Sudama Singh Idrish and Tazmal Hussain have been dealt with together by the Tribunal below
These four workmen had been dismissed by the appellants upon a report made by Rayfield the enquiring officer under the appellants on the allegation that they had assaulted their Labour Supervisor section P Tevari on May 2 1955
This charge against those four workmen was examined by 15 a Magistrate who tried them for the alleged assault on Tewari
The Magistrate found them not guilty and acquitted them by his judgment given in April 1956
The departmental inquiry by Rayfield was held on May 17 1955 when a member of witnesses were examined by him on behalf of the appellants
In their joint written statement these four workmen stated that as the police case was pending against them in regard to these very charges they were not in a position to make any further statement in their defence
The Tribunal came to the conclusion that on the material before it had not been made out that Tewari had been actually assaulted while on duty and that the dismissal order was passed  possibly with a view to frighten the other workmen and to satisfy the whims of Tewari 
We have examined the record and we do not find any justification for differing from the conclusions of the Tribunal
With reference to the case against Panchu Shah and Ram Ekbal Singh it appears that the Tribunal definitely came to the conclusion that their dismissal order was vitiated because it was an act of victimization and was mala fide
In the face of this clear findingwe do not think that we can interfere with the determination of the Tribunal in respect of these two workmen
But the case against Jahangir Sardar and Keayamat Hussain stands on a different footing
The charge against Jahangir was two fold namely 1 wilful insubordination and disobedience and 2 conduct prejudicial to good order and discipline
To these charges Jahangir demurred and objected saying he could not  understand the reasons for the charge sheet 
On this demurrer a letter dated May 7 1955 was issued to him giving him the details of the acts charged against him with reference to the time date and place
The charge against Keayamat was similarly a two fold one namely 1 disorderly behaviour and inciting others to disturbance and violence and 2 conduct prejudicial to good order and discipline
Keayamat also demurred to the charge in the same way that it was vague and that 16 he was not aware of anything wrong having been done by him
On May 7 Keayamat was also given a similar letter explaining to him the details of the charge aforesaid with reference to the time place and date of the acts which formed the gravamen of the charge against him
A number of witnesses were examined by Raymond who held the inquiry
In both these cases the Tribunal refused to accept the result of the inquiry chiefly on the ground that no specific charge had been laid against them and that the allegations were much too vague
In recording this finding the Tribunal has fallen into a grievous error of record
It has completely omitted to consider the letter issued to both these workmen on May 7 giving full particulars of the charges against them
If it had considered that letter issued to both these workmen it would not have fallen into this serious error which has vitiated its award in respect of them
The Tribunal further proceeded to comment on the evidence led before the inquiring officer and remarked that the evidence was meager or insufficient
It also observed that the  degree of proof even in the departmental enquiry is the same as required in a Court of Law 
In our opinion the Tribunal misdirected itself in looking into the sufficiency of proof led before the inquiring officer as if it was sitting in appeal on the decision of the employers
In the case of these two employees there is no finding by the Tribunal that the order of dismissal against them was actuated by any mala fides or was an act of victimization
In view of these considerations the dismissal order made by the appellants on a proper inquiry after giving the workmen concerned sufficient opportunity of explaining their conduct must be upheld
The appeal in respect of these two workmen must therefore be allowed and the order of the Tribunal in respect of them accordingly set aside
The order of the Tribunal in respect of the other six workmen is confirmed
Having dealt with the orders of dismissal in respect of the incidents before the strike of August 11 1955 17 we now turn to the strike itself The first question that arises in this connection is whether the strike was illegal as alleged by the appellants and as found by the Tribunal
The learned counsel for the respondents sought to reopen the finding about the illegality of the strike basing his submissions mainly on the contention that there were no conciliation proceedings pending either in fact or in law on the date of the strike and that therefore the finding of the Tribunal was not correct
It was not disputed on behalf of the respondents that the notices of the strike given by the workmen on July 21 1955 had been duly received by the Conciliation Officer on July 26 1955 and that the conciliation proceedings were commenced on August 6 1955
What was contended on their behalf was that the proceedings had to be stopped as it appears from the record of those proceedings without any settlement of the dispute as the workers  representative expressed their inability to take further part in the proceedings on a question of leave to their other representatives
We shall examine the question later as to which party was to blame for the break down of the conciliation proceedings at the very outset
It is enough to observe that under section 20 of the Act the conciliation proceedings must be deemed to have commenced on July 26 1955 when the notice of the strike was received by the Conciliation Officer and those proceedings shall be deemed to have concluded when the report of the Conciliation Officer is received by the Government
In this case the report to the Government was made by the Conciliation Officer on August 8 1955
It is not absolutely clear as to when this report of the Conciliation Officer was actually received by the Government
It is clear therefore that the conciliation proceedings certainly lasted between July 26 and August 8 1955
The strike having commenced on August 11 was clearly illegal in view of the provisions of section 22 of the Act
We must therefore hold in agreement with the Tribunal that the strike was clearly illegal
The Tribunal having held that the strike was illegal proceeded to discuss the question whether it 3 18 was justified and came to the conclusion that it was perfectly justified
In the first place it is a little difficult to understand how a strike in respect of a public utility service which is clearly illegal could at the same time be characterized as perfectly justified
These two conclusions cannot in law co exist
The law has made a distinction between a strike which is illegal and one which is not but it has not made any distinction between an illegal strike which may be said to be justifiable and one which is not justifiable
This distinction is not warranted by the Act and is wholly misconceived specially in the case of employees in a public utility service
Every one participating in an illegal strike is liable to be dealt with departmentally of course subject to the action of the Department being questioned before an Industrial Tribunal but it is not permissible to characterize an illegal strike as justifiable
The only question of practical importance which may arise in the case of an illegal strike would be the kind or quantum of punishment and that of course has to be modulated in accordance with the facts and circumstances of each case
Therefore the tendency to condone what has been declared to be illegal by statute must be deprecated and it must be clearly understood by those who take part in an illegal strike that thereby they make themselves liable to be dealt with by their employers
There may be reasons for distinguishing the case of those who may have acted as mere dumb driven cattle from those who have taken an active part in fomenting the trouble and instigating workmen to join such a strike or have taken recourse to violence
Apart from the basic error of treating the illegal strike to be perfectly justified the Tribunal has indulged in language which is not characteristic of a judicial approach
The following observations by the Tribunal in the course of its inordinately long Award covering about 42 pages in print are illustrative of the attitude of the Tribunal towards the appellants   By this letter the Company s Joint Agent at Dhubri instead of taking a friendly attitude approached the District Magistrate asking for police help
19 If the Company s Agent at Dhubri had the honest intention he could have immediately moved the appropriate authority to come immediately to the spot to stop the proposed strike
But instead of that he has provoked the Union by adopting this back door policy to suppress the demands of the workers
It was really unfair on the part of the Agent
It seems that he bad mala fide intention For this outburst of the Tribunal justification is sought in the letter which D J Milner the Joint Agent of the appellants wrote to the Secretary to the Government of Assam Transport and Industries Department Labour Commissioner Government of Assam Superintendent of Police Goalpara District Labour Officer Lower Assam and General Secretary INTUC Assam Branch on August 9 1955 informing them of the threatened strike
The last paragraph of the letter explained the reasons for the long letter addressed by the Joint Agent  In the interest of maintaining this vital link in Assam s flood stricken communications and protecting our property and that of the Railway as well as our own staff Railway Staff and loyal laborers we have to request that adequate police be available at each of our Ghats from shortly prior to midnight on the 10th instant in order that unlawful damage may not be caused by these illegal strikers who will be acting in defiance of Government regulations and accepted industrial dispute procedure
We see nothing sinister in this letter justifying the remarks by the Tribunal quoted above
It was the usual request for the maintenance of public peace and for the prevention of acts of violence by misguided persons
It was also addressed to the INTUC the guardian of Labour
On the same date that is August 91955 B Chakravarty the Secretary of the Dhubri Transhipment Labour Union addressed a letter to the Superintendent of Police Goalpara and Deputy Commissioner Goalpara alleging that the Joint Agent of the appellants had instructed the officers in charge of the jetties at the Ghats to raise a  hallah  after the zero hour of August 11 1955 that the labourers of the 20 Transhipment Department were looting the goods of the ship when they would go for picketing purposes to strengthen their strike
Those allegations of the Secretary the Tribunal has taken as proof of those allegations and has observed  it is clear that Mr Milner hatched a plan to create a trouble and the Secretary of the Union got scent of all the secret arrangements made by the Company to create disturbance at the Ghats just immediately after the strike is declared
 This is the first reason assigned by the Tribunal for coming to the conclusion that the strike was perfectly justified
The second reason for coming to this conclusion according to the Tribunal is to be found in the Conciliation Officer s report that the appellants did not agree to grant leave to the labour representatives to sit in the conciliation proceedings which were held on August 6 1955
The Tribunal has observed that it appeared also from the appellant s attitude in refusing to grant leave to the five representatives of the Union that the appellants were not inclined to give facilities for the conciliation proceedings
Is this observation justified on the record as it stands  As already indicated the Conciliation Officer received a copy of the strike notice on July 26 1955
He fixed August 6 1955 10 am at Dhubri for the conciliation proceedings
The parties to the dispute were apprised of this meeting of August 6 1955 on August 1 1955 ext
O p 119
From the proceedings of the Conciliation Officer it appears that the Union applied to the appellants for leave to five workmen officials of the Union to enable them to represent the workmen in the conciliation proceedings
The attitude of the appellants was that they were agreeable to grant leave even on a verbal request if the request came from those individual workmen either direct or through the Union but the appellants were not prepared to grant leave on a petition from the Union alone
On the other hand the Union was not agreeable that the petition for leave should be made by the workmen themselves and the Union insisted that it had the right to apply for leave on behalf of those workmen
Upon this the Union 21 did not take any further part in the proceedings
It would be a travesty of facts to suggest that the appellants were not prepared to grant leave to those five workmen
In the first instance leave should have been applied for before the date fixed for the commencement of the conciliation proceedings
Secondly the application should have been made by the workmen concerned either direct or through the Union
The Tribunal seems to have been under the impression that this attitude of the appellants amounted to a breach of one of the terms of the agreement as a result of the Tripartite Conference aforesaid
That again is an assumption which is not justified by the terms of the Agreement
Secondly the five workmen selected for representing the workmen in the conciliation proceedings should have applied in good time to their employers for leave for the purpose but what we find is that an application ext
M at p 118 was made on August 6 1955 not by those workmen themselves but by the Secretary of the Union and a copy of the application was forwarded to the Labour Officer and to the Deputy Commissioner for information
Apparently the Union was treating the matter as of sufficient importance but they did not think it necessary to put in the application in time on behalf of the workmen themselves even though the application might have been made through the Union
That the appellants were not to blame for the attitude they took in the matter of the procedure for application for leave to particular workmen becomes clear on a reference to the terms of the Agreement dated February 23 1953 between the Syndicate and their workmen represented by the Dhubri Transhipment Labour Union at p 75 Part 1 of the record
The Demand 5f was agreed to in these terms   All leave applications be submitted by a representative of the Union on Tuesday or Friday in a week before the Management and the decision be communicated to the Union the next day of submission of the application
 On the other band in respect of leave the terms of the Agreement reached between the Syndicate and the 22 Dhubri Local Ghat Transhipment Labour Union on March 13 1953 are as follows  It is agreed that the workers will submit leave applications to the management who will communic ate their decision to the workers direct within three days of receipt of the applications and a copy thereof will he sent to the Union for information
It is clear thereforethat the conciliation proceedings stopped abruptly not because the Management was to blame for not granting leave to the five chosen representatives of the workmen but because B Chakravarty insisted that the leave application would not be made by individual workmen but only by the Union
Even that application was made too late and in the teeth of the terms of the Agreement quoted above
If the Secretary had not taken this unreasonable attitude and if he had been anxious that the conciliation proceedings should continue the easiest thing for him to have done was to get those five workmen to make their applications for leave which the Management was prepared to grant even at that late hour
In our opinion the conciliation proceedings failed because the Secretary took an unreasonable attitude
The Tribunal therefore was in error in throwing the blame for the failure of the conciliation proceedings on the Management
The third ground of attack on the bona fides of the appellants was said to have been the attempt of the Management to interfere in the internal affairs of the Unions
The following remarks of the Tribunal are another instance of its intemperate language with which the Award bristles  Curiously enough it appears that the Company s Joint Agent at Dhubri dabbled in politics and meddled in internal administration of the Unions
He propped up another Union and backed it up to stand as a rival Union
 On an examination of the record of the case it appears that the Indian National Trade Unions  Congress to which the Unions were affiliated was not in favour of the strike
That would be an indication of the fact that the relation between the employers 23 and the employees had not come to the breaking point and that the Congress naturally expected that conditions of service of the employees could be improved more effectively by peaceful negotiations than by taking recourse to a strike in respect of a service which had been declared by the Government to be a public utility service 
But the Secretary of one of the Unions B Chakravarty aforesaid appears to have brought matters to a head without giving the Conciliation Officer a reasonable chance as already indicated of bringing about a reconciliation between the view points of the employers and the employees
The appellants had only recently taken over the workmen under their direct employment and the Tripartite Conference between them the representatives of the employees and the Government was yet to settle all the outstanding Questions between the parties
Hence the fact that two rival Unions had come into existence could not be laid at the door of the appellants as an act of unfair labour practice
The Tribunal was not therefore in our opinion justified in holding that the Management had either meddled in the internal administration of the Unions or dabbled in politics and had thus been guilty of unfair labour practice
The Tribunal has been rather generous to the workmen without being just to the appellants
This is also shown by the fact that after having held the strike to be illegal the Tribunal considered the legality of the lock out declared by the appellants on August 11 1955 in respect of one Ghat and on August 13 1955 in respect of the other Ghat
In this connection the conclusion of the Tribunal may best be stated in its own words to demonstrate its attitude to the appellants  In this case the Company used the weapon of lock out just to intimidate and put pressure on the employees to withdraw the demands
The lock out is also prohibited under Section 222d of the Act
Therefore both lock out and strike are illegal
The Company had no justification whatsoever to declare a lock out
 24 Apparently the Tribunal ignored the provisions of section 243 of the Act
The lock out was clearly not illegal
It is another question whether there was a justification for the appellants to continue the lockout even after the strike had been called off on August 19
The Joint Agent of the appellants by his letter dated August 17 1955 to the two Unions had intimated to them that in view of the illegal strikes lockout had been declared at the local Ghat on August 11 and at the Transhipment Ghat on August 13 and that the lock out  will remain in force until disciplinary action can be instituted against those of our employees chiefly responsible for leading and continuing the illegal strikes 
The continuance of the lock out after August 19 may be unjustified but that does not make the lock out itself illegal
It was in pursuance of that order of the Joint Agent that proceedings were taken against the socalled leading strikers leading upto their dismissal
Those orders of dismissal to be presently discussed are the main points in controversy between the parties in this Court
But before those orders of dismissal were passed the Management issued a notice on August 26 1955 lifting the lock out with effect from the next day
It required the employees to report for duty to the Joint Agent personally at his office between the hours of 9 and 10 am
It also contained the threat that any employee who did not report for duty on August 30  will in the absence of a letter of explanation and good reason be treated as having voluntarily terminated his services R N Biswas was then appointed the Inquiry Officer by the appellants and he held the inquiry in batches the first batch consisting of 26 workmen the second of 114 the third of 68 the fourth of 17 and the fifth of 7
These inquiries related to different incidents in connection with the strikes
Biswas appears from the record as placed before us to have recorded the statements of Milner Rayfield C R Das and section P Tewari officers of the appellants in proof of the allegations against the strikers
We do not think any useful purpose will be served by 25 going into the details of the evidence given by those witnesses because we have come to the conclusion that those several inquiries suffer from the fundamental defect that there is no satisfactory evidence on the record that charges giving the details of the acts of violence or obstruction against the strikers were served upon the workmen against whom those inquiries had been instituted
As a result of each one of these inquiries the Inquiry Officer R N Biswas reported that the charge against each one of the workmen had been proved to his satisfaction
But before the inquiry was held the Joint Agent on September 9 1955 informed the thirty seven workmen who had been convicted as aforesaid of the criminal charge under section 188 of the Indian Penal Code that their services were terminated from that date and that they were to call at his office by the 15th of the month to collect their dues and to vacate the quarters of the appellants
As regards the remaining two hundred and twenty three workmen orders were passed on September 16 to the effect that as the departmental inquiry made against them had resulted in the charges against them being proved they were dismissed from the service of the appellants with effect from August 29 1955
They were called upon to call at the Labour Office on September 18 to collect their dues and to vacate the quarters of the appellants
Realising that as the Government had appointed a Board of Conciliation on the 13th instant to resolve the dispute between the parties the orders aforesaid of dismissal or termination of services of the thirty seven workmen and of the two hundred and twenty three workmen as aforesaid would be illegal the Joint Agent informed the workmen on September 20 1955 that those orders would be held in abeyance pending permission from the Board to dismiss them and they would be deemed to be under suspension
It may be recalled that the Government had constituted a Board of Conciliation consisting of three persons viz H P Duara the Labour Commissioner of Assam as the Chairman and D N Sarma and P J Rayfield as members representing the interests of the employees and the employers 4 26 respectively
The Board of Conciliation considered the question of the dismissal or suspension of those thirty seven plus 223 workmen along with the application of the Management asking permission to dismiss 223 workmen for their having taken part in the illegal strike and forcibly preventing willing workmen from attending work
Two of the three persons constituting the Board namely the Chairman and D N Sarma came to the conclusion that as regards the dismissal of the thirty seven workmen the order of dismissal was illegal as in their opinion the conciliation proceedings had commenced from August 26 and not from September 13
On the question of suspension of 223 workmen the Board was of the opinion that suspension without pay pending the permission of the Board to dismiss the workmen was no punishment and therefore no action was called for
As regards the permission sought by the Management to dismiss the suspended two hundred and twenty three workmen again by a majority those two members were of the opinion that although the strike was prima facie illegal it was not unjustified and therefore the permission sought could not be given
Rayfield the other member of the Board as already stated submitted his Minute of dissent
He pointed out that the conciliation proceedings commenced on September 13 and therefore the discharge of the thirty seven workmen was not in contravention of section 33 of the Act
He further held that the Board had no power to withhold the permission asked for to dismiss 223 workmen on the ground that they had been found guilty on a departmental inquiry of having participated in an illegal strike and of having forcibly prevented workmen from attending work
He added that the grant of the permission would not debar the Union from raising an industrial dispute in that matter
It may be added that the Board unanimously agreed that dismissal  is an appropriate punishment for participation in an illegal and unjustified strike
 The Tribunal also took the same view of the legal position when it observed  If the strike is not justified and at the same time it contravenes the provisions of 27 Section 22 of the Act ordinarily the workmen participating in it are not entitled to any relief
 As a matter of fact the Tribunal has closely followed the findings of the majority of the Board of Conciliation
But as we have already pointed out there can be no question of an illegal strike being justified
We have further held in agreement with the Tribunal that the strike was illegal and that it was not even justified in disagreement with the Tribunal assuming that such a situation could be envisaged in accordance with the provisions of the Act
We have therefore to determine the question what punishment if any should be meted out to those workmen who took part in the illegal strike
To determine the question of punishment a clear distinction has to be made between those workmen who not only joined in such a strike but also took part in obstructing the loyal workmen from carrying on their work or took part in violent demonstrations or acted in defiance of law and order on the one hand and those workmen who were more or less silent participators in such a strike on the other hand
It is not in the interest of the Industry that there should be a wholesale dismissal of all the workmen who merely participated in such a strike
It is certainly not in the interest of the workmen themselves
An Industrial Tribunal therefore has to consider the question of punishment keeping in view the over riding consideration of the full and efficient working of the Industry as a whole
The punishment of dismissal or termination of services has therefore to be imposed on such workmen as had not only participated in the illegal strike but had fomented it and had been guilty of violence or doing acts detrimental to the maintenance of law and order in the locality where work had to be carried on
While dealing with this part of the case we are assuming without deciding that it is open to the Management to dismiss a workman who has taken part in an illegal strike
There was a great deal of argument at the Bar on the question whether the Management in this case was entitled to dismiss the workmen who had taken part in the illegal strike
28 A good deal of argument was devoted to the further question whether there were certified standing orders as between the Syndicate and the workmen or later as between the appellants and the workmen and Whether even apart from such standing orders it was open to the employers to deal so drastically with their employees who had taken part in the illegal strike
In our opinion it is not necessary to decide those general questions in view of our conclusion to be presently stated on the question of the regularity of the inquiry held in different batches as indicated above by Biswas the officer appointed by the appellants to hold the departmental inquiry
In order to find out which of the workmen who had participated in the illegal strike belong to one of the two categories of strikers who may for the sake of convenience be classified as 1 peaceful strikers and 2 violent strikers we have to enquire into the part played by them
That can only be done if a regular inquiry has been held after furnishing a charge sheet to each one of the workmen sought to be dealt with for his participation in the strike
Both the types of workmen may have been equally guilty of participation in the illegal strike but it is manifest that both are not liable to the same kind of punishment
We havetherefore to look into the nature of the inquiry alleged to have been held by or on behalf of the appellants
On the one hand the workmen took the extreme position that no inquiry had at all been held and on the other hand the employers took up the position that the Inquiring Officer had held a regular inquiry after furnishing a charge sheet to each one of the workmen against whom the inquiry was held
That there was an inquiry held by Biswas admits of no doubt
The proceedings before him and the evidence recorded by him have been placed on record
But the most serious question that we have to determine is whether a charge sheet giving notice to each workman concerned as to what the gravamen of the charge against him was had or had not been furnished to him
On this part of the case the record is admittedly incomplete
The appellants relied upon the following observations 29 of the Tribunal in support of their case that the inquiry had been entirely regular  The charges are for fomenting and participating in an illegal strike from the 11th August 1955 and forcibly preventing other labourers from working on the same day
 On the other hand reliance was placed on behalf of the workmen on the following passage in the Award of the Tribunal  In this case the Company has not framed any specific charge against those 260 workers alleging that they indulged in violence or acts subversive of discipline
 The finding of the Tribunal is that no such individual charge sheet was delivered to the workmen
This conclusion of the Tribunal was assailed on behalf of the appellants on the ground that as this point had not been specifically made in the written statement of the workmen the appellants did not put in those charge sheets in evidence and had contented themselves with only producing the record of proceedings before the Inquiring Officer
As we naturally attached a great deal of importance to this question we were inclined to give another opportunity to the appellants to remove the lacunas in the evidence bearing upon that question even at this late stage
More than once during the course of the arguments by the learned Attorney General we suggested that he might put in those charge sheets if they were in existence as additional evidence in this Court so that we might be satisfied that there had been a regular inquiry according to the requirements of natural justice
After making the necessary investigation the learned Attorney General informed us on the last day of the arguments that no such documents were in existence
It was alleged that the entire bundle of documents containing those individual charges had been lost and that therefore there were no means of satisfying this Court by documentary evidence that there were in fact such individual charge sheets delivered to the workmen concerned
We find therefore no good reasons for displacing the finding of the 30 Tribunal that there were no such individual chargesin spite of apparently conflicting observations made by it as quoted above
The position therefore is that the strikes were illegal that there was no question of those strikes being justified and that assuming that the strikers were liable to be punished the degree and kind of punishment had to be modulated according to the gravity of their guilt
Hence it is necessary to distinguish between the two categories of strikers
The Tribunal attempted to make such a distinction by directing that the 52 workmen who had been convicted under section 143 read with section 188 of the Indian Penal Code were not entitled to reinstatement and the remaining 208 workmen were so entitled
Dealing with the case of the thirty seven workmen who had been convicted only under section 188 of the Indian Penal Code for transgression of the prohibitory orders under section 144 of the Code of Criminal Procedure the Tribunal put those workmen on the same footing as the rest of the workmen
But in our opinion those 37 workmen do not stand on the same footing as the others
Those 37 workmen who were convicted under section 188 of the Indian Penal Code had been found to have violated the prohibitory orders passed by the public authorities to keep the public peace
Those convictions were based upon evidence adduced before the Magistrate showing that the workmen had proceeded to the steamer flat through the jetty in defiance of the orders promulgated under section 144
We have examined the record and we find that there is sufficient indication that those 37 workmen were among the violent strikers and could not be placed in the category of peaceful strikers
Hence it is clear that those workmen not only joined the illegal strike by abstaining from their assigned duty but also violated regularly promulgated orders for maintaining peace and order
Such personsapparentlycannot be said to be peaceful strikers and cannottherefore be dealt with as lightly as the Tribunal has done
The Tribunal in our opinion is wrong in taking the view that the appellants had nothing to do with the violation of the order under section 144 of the 31 Code of Criminal Procedure promulgated by the District Magistrate with a view to maintaining peace and order at the site of work
These 37 workmen therefore should not have been ordered to be reinstated
As regards the remaining workmen the question is whether the Tribunal was entirely correct in ordering their reinstatement with full back wages and allowances on and from August 20 1955 till reinstatement
This would amount to wholly condoning the illegal act of the strikers
On the findings arrived at before us the workmen were guilty of having participated in an illegal strike for which they were liable to be dealt with by their employers
It is also clear that the inquiry held by the appellants was not wholly regular as individual charge sheets had not been delivered to the workmen proceeded against
When the blame attaches to both the parties we think that they should divide the loss half and half between them
We therefore direct that those workmen whose reinstatement by the Tribunal is upheld by us should be entitled only to half of their wages during the period between the date of the cessation of the illegal strike ie from August 20 1955 and the date the Award became enforceable
After that date they will be entitled to their full wages on reinstatement
In this connection it has also got to be borne in mind that those workmen as observed in the judgments of the criminal courts which inflicted nominal fines on them on their conviction were  day labourers who earned their livelihoods by day to day labour 
It is only natural that during all these years that the workmen have not been employed by the appellants the workmen should have been earning their living by doing day to day labour
It must therefore be assumed that they were working for their living and were not wholly unemployed
Therefore the burden of the back wages for the long period that has elapsed between the date of the end of the strike and the date of the Award ordering their reinstatement should be divided half and half between the parties
The appeal is therefore allowed in part as indicated above that is to say 1 the order of reinstatement 32 in respect of Jahangir Sardar and Keayamat Hussainis set aside 2 similarly the order of reinstatement in respect of the thirty seven workmen who had been convicted under section 188 of the Indian Penal Code is also Set aside and 3 the order for payment of full back wages etc is modified by reducing those amounts by half for the period aforesaid
As success between the parties has been divided they are directed to bear their own costs in this Court
Appeal allowed in part


Summary:
The employees of the appellant Bank commenced pen down strikes which were followed by a general strike pending arbitration of an industrial dispute between them
The Government of India intervened and as the result of an agreement that followed the Bank reinstated all the employees except 150 against whom it had positive objections and the Government referred their cases under section 10 of the Industrial Disputes Act 1047 to the Industrial Tribunal for adjudication
The two issues before the Industrial Tribunal were whether the 150 employees had been wrongly dismissed and what wages and allowances would the 807 employees be entitled to on reinstatement
The case of the employees was that the Bank wanted to penalise the active trade union workers by the said dismissals while the Bank maintained that the employees were guilty of participation in illegal strikes intended to paralyse its business and scare away its customers
The Industrial Tribunal did not hear evidence and by its final award held that the strikes being illegal the Bank was on that ground alone justified in dismissing the employees
Even so it directed the Bank to make certain payments to the employees on compassionate grounds
The Bank as well as the employees appealed
The Labour Appellate Tribunal held that even though the strikes were illegal under section 23b read with section 241 of the  the Bank had by entering into the agreement with the Government of India waived its right to take penal action against the employees for joining the illegal strikes and that therefore an enquiry should be held on additional evidence to decide the disputes on merits
Against this interlocutory order the Bank appealed to this Court and it was held by this Court that while the strikes were no doubt illegal under section 23b of the Act the orders of dismissal passed by the Bank were no less so under section 33 of the Act and it dismissed the appeal
The Appellate Tribunal thereafter heard the cases on merits directed the reinstatement of 136 of the said employees but refused to reinstate the rest whom it found guilty of issuing posters and circulars subversive of the credit of the Bank
Both the parties appealed to this Court
Preliminary objections were raised on behalf of the said employees that 1 in view of the decision of this Court dismissing the Bank s appeal against the said interlocutory order the subsequent inquiry by the Tribunal and the orders of dismissal must be held to be void and 2 no charges having been admittedly framed nor any proper enquiry held by the Bank against the employees the orders of dismissal were wholly invalid
It was urged inter alia on behalf of the Bank in the appeals that participation in a pen down strike by itself amounted to misconduct sufficient to disentitle an employee to reinstatement and that the entire body of strikers being collectively responsible for the publication of the subversive documents in question the dismissed employees could by no means escape liability
Held per curiam that the preliminary objections must be negatived and the decision of the Appellate Tribunal affirmed with this modification that in view of its inconsistent findings the appeal of one of the employees must be allowed
Per Sinha and Gajendragadkar JJ
The purpose the Legislature had in view in enacting section 33 of the  was to maintain the status quo by placing a ban on any action by the employer pending adjudication
But the jurisdiction conferred on the Industrial Tribunal by section 33 of the Act was a limited one
Where a proper enquiry had been held and no victimisation or unfair labour practice had been 808 resorted to the Tribunal in granting permission had only to satisfy itself that there was a Prima facie case against the employee and not to consider the propriety or adequacy of the proposed action
But to such permission when granted the Tribunal could attach no conditions it can either grant or refuse it
The effect of such permission was only to remove the ban imposed by section 33 of the Act
It could neither validate a dismissal nor prevent it from being challenged in an industrial dispute but in such a dispute when raised the employer could justify its action only on such grounds as were specified in the original charge sheet and no others
There was substantial difference between non compliance with section 33 of the Act and that with article 3112 of the Constitu tion
Compliance with section 33 only avoided the penalty under section 311 of the Act while compliance with article 3112 of the Constitution made the order of dismissal final
Atherton West  Co Ltd V Suti Mills Mazdoor Union   The Automobile Products of India Ltd vs Rukmaji Bala   Lakshmi Devi Sugar Mills Ltd vs Pt
Ram Sarup   Indian lron and Steel Co Ltd vs Their Workmen  and McKenzie  Co Ltd vs Its Workmen referred to
It was not therefore correct to contend that non compliance with section 33 of the Act could render the orders of dismissal wholly void or take away the jurisdiction of the Tribunal to hold the enquiry
Nor could the failure to hold a proper enquiry have that effect
Under section 33A of the Act as construed by this Court the jurisdiction of the Tribunal was not limited to an enquiry as to the contravention of section 33 of the Act
Even if such contravention was proved the employer could still justify the impugned dismissal on merits and there was no difference in this regard between a reference under section 10 of the Act and a dispute raised under section 33A of the Act
The Automobile Products of India Ltd vs Rukmaji Bala  and Equitable Coal CoLtd
vs Algu Singh AIR 1958 S C 761 referred to
Although there can be no doubt that in proper cases the Industrial Tribunal has the power to direct reinstatement in disputes arising out of dismissal of employees it is not possible to Jay down any hard and fast rule to be applied to such cases
In coming to its decision the Industrial Tribunal has to reconcile the conflicting claims of the employer and the employee the latter s right to protection against wrongful dismissal and in such a case the normal rule is reinstatement and the interest and safety of the industry itself
Its approach to such a problem cannot therefore be legalistic or doctrinaire or as is permissible 809 in a civil court deciding the validity of dismissals under section 240 of the Government of India Act 1935 or article 3112 of the Constitution
Western India Automobile Association vs Industrial Tribunal Bombay and Buckingham  Carnatic Mills Ltd vs Their Workmen  referred to
If no enquiry is held by the employer before it passes an order of dismissal the propriety of such dismissal can be adjudged by the Tribunal on evidence and no employer can be allowed to object to it on the ground that it interferes with the exercise of its managerial function
The Madras Electric Tramways 1904 Ltd Madras vs Their Workers  distinguished and held inapplicable
The propriety of reinstatement in a case of wrongful or illegal dismissal is normally a question of fact and where the Industrial Tribunal on a proper consideration of the relevant factors refuses to pass such an order this Court would be reluctant in absence of any general or substantial question of law to interfere under article 136 of the Constitution
A pen down strike falls within the definition of a strike contained in section 2q of the Industrial Disputes Art 1947 and is not Per se illegal
Even if it might involve an element of civil trespass as in the present case that cannot disentitle an employee to reinstatement
Ms Burn  Co Ltd vs Their Workmen AIR 1959 SC 529 referred to
It is not safe to extend principles of American decisions to such a strike without a careful scrutiny of the relevant provisions of the American Statute and the facts on which the said decisions are based
National Labour Relations Board vs Fansteel Metallurgical Corporation 306 US 238 considered and held inapplicable
William Truax vs Michael Corrigan  referred to
Since in the instant case the peaceful and non violent conduct of the strikers as found by the Appellate Tribunal could not amount to criminal trespass within the meaning of section 441 of the Indian Penal Code mere participation in the pen down strike did not disentitle them to reinstatement
T H Bird vs King emperor 1934 LR XIII Pat
268 held inapplicable
The mere fact that the employer had engaged new hands during the strike was not sufficient to defeat the claim to reinstatement of such employees as were subsequently found to have been wrongfully dismissed
National Transport and General Co Ltd vs The Workmen CA NO
312 of 1956 decided on January 22 1957 referred to
810 But where as in the instant case the Appellate Tribunal took a common sense view of the matter of evidence and held certain office bearers and leaders of the union liable for subversive acts and refused to extend such liability to the entire body of strikers on theoretical and academic grounds no principles of natural justice could be said to have been contravened by it