Appeals Nos 746 and 747 of 1957
Appeals by special leave from the judgments and orders dated June 3 1955 and May 21 1956 of the Labour Appellate Tribunal of India Calcutta in Appeal No Cal 36652 and Misc
Case No 145 of 1955 respectively arising out of an Award dated September 22 1952 of the Industrial Tribunal Bihar and published in the Bihar State Government Gazette on October 21 1952
M C Setalvad Attorney General for India and R C Prasad for the appellant
The respondent did not appear
April 29
The Judgment of the Court was delivered by WANCHOO J
These are two appeals by the management by special leave in an industrial matter arising out of two applications under section 33 of the Industrial Disputes Act hereinafter called the Act
The facts of the case are briefly these  The appellant Messrs Sasa Musa Sugar Works Private Ltd is a sugar factory in District Saran Bihar
The factory was established in 1932
In June 1942 a trade union was formed in this factory
In July 1943 trouble arose between the workmen and the management resulting in the discharge of three office bearers of the union including one Shams ud din who was then the 838 joint secretary
That matter as referred to adjudication and the discharged workmen were ordered to be reinstated in the beginning of 1944
In December 1944 there was trouble again and a large number of workmen were dismissed including Shams ud din who had by now become the president of the union
This dispute was again referred to an Industrial Tribunal which again ordered reinstatement of the dismissed workmen in August 1947
There was peace for some time after this
But in June 1951 the management again discharged seventeen workmen including Shams ud din who was at that time secretary of the union
The trouble continued up to December 1951 when an agreement was arrived at between the union and the management as a result of which twelve of the workmen were reinstated but five including Shams ud din were not and their cases were to be referred to adjudication
It appears however that another reference between the management and its workmen was already pending since September 8 1951 before an Industrial Tribunal when this agreement was arrived at
Thereafter the work in the factory proceeded smoothly for some time
But on January 1 1952 a notice was issued by the union to the management enlisting as many as 40 demands and it was threatened that if the demands were not met within seven days the union would have to advise the work men to adopt go slow and call upon them to offer passive resistance with effect from January 9 1952 and take all legitimate means to see that the decision of go slow was carried out till the demands of the union were fulfilled
This notice was received by the management on January 4 which immediately contacted the officers of the Labour Department as well as the Sub Divisional Magistrate at Gopalganj
On January 8 the Deputy Labour Commissioner wrote to the union that as the conciliation officer was busy in the general elections the status quo should be maintained till the elections were over so that the matter might be looked into by the conciliation officer
The union however gave no heed to this advice and go slow began from January 9 and 839 was continued till January 12 1952
Then the Labour Commissioner himself came to the factory on January 12 and advised Shams ud din who was the s moving spirit behind all this to call off the go slow as it was proposed to start conciliation proceedings at Patna on January 17 1952
Conciliation proceedings then began on January 17 and an agreement was arrived at as to some of the demands on January 23 and it was decided that further conciliation proceedings would be held in February
But in spite of this agreement go slow was again resorted to from January 24 to January 31
In the meantime the Labour Officer had arrived at the factory on January 28 1952 and further talks took place
The workmen however did not pay heed to the advice of the Labour Officer
He therefore reported on January 31 to the Labour Commissioner that go slow was still continuing
The Labour Commissioner then ordered the Labour Officer to tell the workmen that no further conciliation proceedings would take place until the goslow was called of
The Labour Officer then informed the management that it could take disciplinary action against the workmen concerned with the permission of the Industrial Tribunal
Consequently the management suspended thirty three workmen by a notice given on the night of January 31 as from February 1
It was said in the notice that these thirty three workmen had been found taking a leading part in the unjustified go slow which was in contravention of the Act and they were therefore suspended from service until further orders
This notice had some good effect and work improved for four days but from February 5 goslow was started again
Consequently the management suspended seven more workmen from February 6 and eight more from February 7 by giving notice to them in the same terms in which the notice had been given to the thirty three workmen on January 31
As adjudication proceedings were pending since September 1951 between the management and its workmen the former applied on February 6 1952 under section 33 of the Act for permission to dismiss the thirty three workmen and on February 11 1952 for permission to 840 dismiss the remaining fifteen workmen who had been suspended later
The forty eight workmen in their turn applied on March 29 1952 under section 33 A of the Act to the Industrial Tribunal and their case was that they had been suspended as a measure of punishment and that as this was done without the sanction of the Industrial Tribunal the management had committed a breach of section 33
The three applications were tried together by the Industrial Tribunal and the contentions raised before it were these  1 The management s applications under section 33 had not been preceded by any enquiry into the misconduct of the workmen and were therefore liable to be rejected  2 The order of suspension in this case amounted to punishment and therefore section 33 had been contraven ed and 3 There was an unjustified go slow by the workmen in January and February 1952
On the first point the Industrial Tribunal found that Do enquiry had been held by the management before the two applications under section 33 were made but it held that all the evidence which could have been taken in the enquiry by the management had been led before it and it was in full possession of the facts and no question of any prejudice to the workmen arose as it would be open to it on a review of the entire evidence before it to decide whether the applica tions for permission to dismiss should be granted or not
On the second point it held that the order of suspension was not as a measure of punisment in the circumstances of this case and that it was an order pending enquiry by the management and proceedings under section 33 before the tribunal and that as there were no Standing Orders as to suspension in this factory the management s liability to pay the workmen their wages during the period of suspension remained
On the third point the Industrial Tribunal after an elaborate discussion of the evidence came to the  conclusion that there was a deliberate go slow resorted to by the workmen in January and February 1952 and 841 that it was unjustified as it took place while conciliation proceedings were pending
Having given these findings the Industrial Tribunal had then to decide what orders it should pass on the applications under section 33 and section 33 A
It held that there was no evidence to show that of the forty eight workmen concerned sixteen workmen named by it had taken part in the go slow or instigated it
It therefore refused the application under section 33 with respect to these sixteen workmen
As to the remaining thirtytwo workmen it held that as some Standing Orders which were under contemplation at the time provided either dismissal or suspension for seven days in case of misconduct it was proper to grant leave to the management to suspend the workmen for seven days in view of some opinion expressed by a Go Slow Committee appointed some time before by the Bihar Central Standing Labour Advisory Board
In effect therefore it rejected the prayer of the management for dismissal with respect to these thirty two workmen also
Finally it rejected the application under section 33 A
This award led to two appeals before the Labour Appellate Tribunal one was by the management against the entire award so far as it related to its applications under section 33 and the other by the workmen against the dismissal of their application under section 33 A and against the award relating to the applications of the management under section 33
When the matter came up for hearing before the Appellate Tribunal the workmen withdrew their appeal with respect to their application under section 33 A and it was consequently dismissed
The result of the dismissal of the appeal of the workmen was that the finding of the Industrial Tribunal that the suspension was not a punishment and was only pending enquiry by the management and the proceedings before the tribunal stood confirmed
As to the appeal by the management with respect to the applications under section 33 it was contended on its behalf before the Appellate Tribunal that the Industrial Tribunal had gone wrong on two substantial questions of law namely 1 the Industrial Tribunal could either grant or 106 842 refuse permission to dismiss on an application for such permission under section 33 and it could not substitute its own judgment about the quantum of punishment and 2 it was wrong in rejecting the applications against sixteen workmen on the ground that there was no evidence
The Appellate Tribunal was of the opinion that the contention of the management on both these points was correct and that the appeal involved substantial questions of law
It also found that the Industrial Tribunal s finding that the workmen had resorted to go slow was not perverse and could be the only finding on the evidence
It then went on to say that go slow was insidious in nature and could not be countenanced and that it was serious misconduct normal punishment for which was dismissal
It also held that the Industrial Tribunal was not right in relying upon the recommendations of the Go Slow Committee and the contemplated Standing Orders which were not till then in force
Having said all this we should have expect ed that the Appellate Tribunal would set aside the order of the Industrial Tribunal and grant permission to the management to dismiss the workmen for what was serious misconduct of an insidious nature which could not be countenanced
But it went on to say that it was well settled that where an employer could not punish a workman without obtaining permission from the tribunal under section 33 an application for permission would be mala fide if it was made after any punishment had already been meted out to the workman
It held that in the present case the suspension of the workmen by the management was substantive punishment because the notice did not in so many words state that it was pending enquiry and therefore the applications for permission having been made after punishment had been meted out were mala fide
In coming to this conclusion the Appellate Tribunal seems to have forgotten that it had already dismissed the appeal of the workmen from the order of the Industrial Tribunal on their application under section 33 A which in effect amounted to confirming the order of the Industrial Tribunal that the suspension was not a punishment but was rightly made pending enquiry by 843 the management and proceedings before the tribunal
The Appellate Tribunal supported its decision on this question of punishment by stating that the mala fides of the management were clear from the fact that though the suspensions had been made between January 31 and February 7 1952 the application was filed by the management on March 29 1952 after the application by the workmen under section 33 A had been filed
This observation was clearly wrong for the applications under section 33 were filed on February 6 and 11 by the management and it was the application of the workmen under section 33 A which was filed on March 29
Having thus inverted the order in which the applications were made to the Industrial Tribunal the Appel
late Tribunal held that the applications of the management under section 33 were Dot bona fide
It then dismissed the appeal of the management thus upholding the order of the Industrial Tribunal so far as the suspension of thirty two workmen for seven days was con cerned on the ground that the workmen had withdrawn their appeal though in the earlier part of the judgment all that was said was that the workmen had withdrawn their appeal against the order under section 33 A
As the Appellate Tribunal had obviously made a mistake and inverted the order in which the applications under sections 33 and 33 A had been made a review application was filed by the management
It however held that though the dates had been wrongly mentioned by accident it saw no reason to review its order
That is how the management filed two special leave petitions in this Court
We are of opinion that on the findings of the Industrial Tribunal on the three points formulated by it which have not been upset by the Appellate Tribunal the only order possible on the applications of the management under section 33 was to permit it to dismiss the forty eight workmen provided there was evidence against them all
It was not open to the Industrial Tribunal when it was asked to give permission to dismiss to substitute some other kind of punishment and give permission for that
The Industrial Tribunal was satisfied that there was misconduct and that finding has been upheld by the Appellate Tribunal
As such 844 if there was evidence that these forty eight workmen were guilty of misconduct the Industrial Tribunal was bound to accord permission asked for
We cannot agree with the Appellate Tribunal that the suspension in this case was substantive punishment and was not an interim order pending enquiry and proceedings before the Industrial Tribunal under section 33
We have already pointed out that the Labour Officer told the management on January 31 1952 that it was free to take disciplinary action with the permission of the Industrial Tribunal
It was thereafter that thirtythree workmen were suspended on January 31 and the notice clearly said that the suspension was pending further orders thus intimating to the workmen that the order of suspension was an interim measure
This notice of January 31 was followed by an application on February 6 to the Industrial Tribunal for permission to dismiss the thirty three workmen involved in it and this also clearly shows that the suspension was pending enquiry if any by the management and proceedings before the Industrial Tribunal
Similarly the suspension notices of February 5 and 6 relating to fifteen workmen said that they were suspended till further orders and were followed on February II by an application under section 33 to the Industrial Tribunal for permission to dismiss them
In the circumstances it is quite clear that suspension in this case was not a punishment but was an interim measure pending enquiry and proceedings before the tribunal
We have already pointed out that this was the finding of the Industrial Tribunal on the basis of which the application under section 33 A was dismissed and this finding stood confirmed when the workmen withdrew their appeal with respect to their application under section 33 A
The Appellate Tribunal therefore was clearly in error in holding 
that the suspension was punishment
The only question that remains is about the sixteen workmen about whom the Industrial Tribunal held that there was no evidence to connect them with the go slow
The Appellate Tribunal s view in this matter was that the contention of the management that the Industrial Tribunal was wrong in holding that there was no evidence against these sixteen workmen was 845 correct
It has been shown to us that evidence against these sixteen workmen is of exactly the same witnesses and of the same kind as the evidence against the remaining thirty two
The finding therefore of the Industrial Tribunal that there was no evidence against the sixteen workmen is patently perverse for there was the same evidence against them as against the remaining thirty two
It follows therefore that all the forty eight workmen two of whom are since said to have died are exactly in the same position
As held by the
Appellate Tribunal go slow is serious misconduct which is insidious in its nature and cannot be countenanced
In these circumstances as these fortyeight workmen were taking part in the go slow and were thus guilty of serious misconduct the management was entitled to get permission to dismiss them
But as the management held no enquiry after suspending the workmen and proceedings under section 33 were practically converted into the enquiry which normally the management should have held before applying to the Industrial Tribunal the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under section 33 see the decision of this Court in the Management of Ranipur Col liery vs Bhuban Singh 1 
As already pointed out this is the view taken by the Industrial Tribunal while dealing with the application under section 33 A which stood confirmed by the dismissal of the appeal by the workmen in that behalf
The management will therefore have to pay the wages during the period of suspension till the award of the Industrial Tribunal
We therefore allow the appeals and set aside the orders of the two Tribunals so far as the applications under section 33 are concerned and grant the appellant the permission sought for by it in these applications subject to the workmen being paid all their wages during the period of suspension up to the date of the award of the Industrial Tribunal i e 22 9 1952
As the workmen did not appear to contest these appeals we pass no order as to costs
Appeals allowed
1 1959 Suppl
2 SCR 719


Summary:
Clause 16 of the General Order No 65 made by the Governor on March I5 195 under the Uttar Pradesh  947 provided that the decision of the Tribunal or 972 Adjudicator shall be pronounced within 4o days from the date of reference
By orders dated August 19 1952 and January 20 1953 the Governor referred two industrial disputes for adjudication
The references did not specify the time within which the awards were to be submitted but stated that the disputes were to be adjudicated in accordance with the provisions of Order No 615
In the first reference the period for making the award was extendad from time to time up to March 10 1953 but in the second reference the time was not extended
On February 18 1953 before the awards were made cl 16 of Order No 615 was amended and the time Of 4o days was altered to 18o days
The award in the first case was made on April 17 1953 beyond 180 days of the reference and in the second case on June 26 953 beyond 40 lays of the reference but within 180 days thereof
On May 22 1953 the Uttar Pradesh Industrial Disputes Amendment Ordinance 1951 came into force which conferred with retrospective effect power on the State Government to enlarge from time to time the period for making an award and which also validated certain awards not made within the time originally fixed for making them
The Labour Appellate Tribunal held that the two awards were not valid in law as they had not been made within time
It was contended by the appellant that as cl 16 of the Order No 6I5 had been amended the orders of reference must be construed as specifying 180 days within which the awards were to be submitted and that in any case the awards were validated by section 3 of the Ordinance
Held that the award in the first case was submitted beyond time and was invalid and could not be validated by section 3 Of the Ordinance but that the award in the second case though submitted beyond time was validated by section 32 of the Ordinance
The Act required the awards to be submitted within a speci fied time and although the orders of reference specified no time it was stated therein that the references were to be decided in accordance with the provisions of Order No 615 and as such the orders must be read as specifying 4o days as the time within which the awards had to be submitted
The subsequent amendment of cl 16 whereby 180 days were substituted for 4o days could not affect an order of reference previously made as cl 16 as amended could not be held to have retrospective operation
On a true construction Of section 3 Of the Ordinance cl
1 must be held to validate all orders of extension of time for submission of awards made prior to the commencement of the Ordinance cl
3 applies to proceedings pending at the commencement of the Ordinance and makes section 6 A of the Act introduced by the Ordinance applicable to such proceedings and cl
2 validatesawards against which no judicial proceedings were pending at the commencement of the Ordinance and not only awards which had become final
Consequently the award in the first case against which an appeal had been filed before the commencement of the 973 Ordinance and to which cl
3 Of section 3 of the Ordinance applied was bad as it was made beyond the last date of the enlargement of time
But the award in the second case against which the appeal was filed after the commencement of the Ordinance was validated by el
2 Of section 3 of the Ordinance