Civil Appeal Nos 1212 2089 and 2237 of 1978
From the Judgment and order dated 15 6 1978 of the Gujarat High Court in Special Civil Application No 1150 of 1976
YS Chitale JC Bhatt AK Sen JM Nanavati DC Gandhi AG Menses KJ John and KK Manchanda for the Appellants in CA 1212 and 223778 and RR
1 in CA 2089
VM Tarkunde YS Chitale PH Parekh and NJ Mehta for the Appellant in CA 2089 and R 1 in CA 1212
MC Bhandare and B Datta for the Intervener in CA 1212 Ahmedabad Nagar Employee Union
RK Garg Vimal Dave and Miss Kailash Mehta for the Intervener Gujarat Steel Tubes Mazdoor Sabha in CA 1212
The Judgment of VR Krishna Iyer and DA Desai JJ was delivered by Krishna Iyer JAD Koshal J gave a dissenting Opinion
154 KRISHNA IYER J
Every litigation has a moral and these appeals have many the foremost being that the economics of law is the essence of labour jurisprudence
The case in a nutshell An affluent Management and an indigent work force are the two wings of the Gujarat Steel Tubes Ltd which manufactures steel tubes in the outskirts of Ahmedabad city and is scarred by an industrial dispute resulting in these appeals
This industry started in 1960 went into production since 1964 and waggled from infancy to adulthood with smiling profits and growing workers punctuated by smouldering demand strikes and settlements until there brewed a confrontation culminating in a head on collision following upon certain unhappy happenings
A total strike ensued whose chain reaction was a wholesale termination of all the employees followed by fresh recruitment of workmen de facto breakdown of the strike and dispute over restoration of the removed workmen
This cataclysmic episode and its sequel formed the basis of a Section 10A arbitration and award a writ petition and judgment inevitably spiralling up to this Court in two appeals one by the Management and the other by the Union which have been heard together and are being disposed of by this common judgment
The arbitrator held the action of the Management warranted while the High Court reversed the Award and substantially directed reinstatement
The Judge Perspective A few fundamental issues factual and legal on which bitter controversy raged at the bar settle the decisional fate of this case
A plethora of precedents has been cited and volumes of evidence read for our consideration by both sides
But the jural resolution of labour disputes must be sought in the law life complex beyond the factual blinkers of decided cases beneath the lexical littleness of statutory texts in the economic basics of industrial justice which must enliven the consciousness of the court and the corpus juris
This Court has developed Labour Law on this road basis and what this Court has declared holds good for the country
We must first fix the founding faith in this juristic branch before unravelling the details of the particular case
Viewing from this vantage point it is relevant to note that the ethical roots of jurisprudence with economic overtones are the clan vital of any country s legal system
So it is that we begin with two quotations one from the old Testament and the other from Gandhiji the Indian New Testament as perspective setters
After all 155 industrial law must set the moral legal norms for the modus vivendi between the partners in management namely Capital and Labour
Cain reported when asked by God about his brother Abel in the Old Testament Am I my brother s keeper   Yes  was the implicit answer in God s curse of Cain
In the fraternal economics of national production worker is partner in this biblical spirit
In our society Capital shall be the brother and keeper of Labour and cannot disown this obligation especially because Social Justice and Articles 43 and 43A are constitutional mandates
Gandhiji to whom the Arbitrator has adverted in passing in his award way back in March 1946 wrote on Capitalism and Strikes h the Harijan How should capital behave when labour strikes  This question is in the air and has great importance at the present moment
One way is that of suppression named or nicknamed American 
It consists in suppression of labour through organised goondaism
Everybody would consider this as wrong and destructive
The other way right and honorable consists in considering every strike on its merits and giving labour its due not what capital considers as due but what labour itself would so consider and enlightened public opinion acclaims as just
In my opinion employers and employed are equal partners even if employees are not considered superior
But what we see today is the reverse
The reason is that the employers harness intelligence on their side
They have the superior advantage which concentration of capital brings with it and they know how to make use of it
Whilst capital in India is fairly organised labour is strike in a more or less disorganised condition in spite of Unions and Federation
Therefore it lacks the power that true combination gives
Hence my advice to the employers would be that should willingly regard workers as the real owners of the concerns which they fancy they have created
Tuned to these values are the policy directives in Articles 39 41 42 43 and 43A
They speak of the right to an adequate means of livelihood the right to work humane conditions of work living wage ensuring a decent standard of life and enjoyment of leisure and participation of workers in management of industries
De hors these man 156 dates law will fail functionally
Such is the value vision of Indian Industrial Jurisprudence
The Matrix of facts A Pre view The nidus of facts which enwomb the issues of law may be elaborated a little more at this stage
In the vicinity of Ahmedabad City the appellant is a prosperous engineering enterprise which enjoys entrepreneureal excellence and employs over 800 workmen knit together into the respondent Union called the Gujarat Steel Tubes Mazdoor Sabha the Sabha for short
Fortunately the industry has had an innings of escalating profits but the workmen have had a running complaint a raw deal
Frequent demands for better conditions followed by negotiated settlements have been a lovely feature of this establishment although the poignant fact remains that till the dawn of the seventies the gross wages of the workmen have hovered round a harrowing hundred rupees or more in this thriving Ahmedabad industry
The course of this precarious co existence was often ruffled and there was now and then some flare up leading to strike conciliation and even reference under Section 10
When one such reference was pending another unconnected dispute arose which alter some twists and turns led to an industrial break down and a total strike
The episodic stages of this bitter battle will have to be narrated at length a little later
Suffice it to say that the Management jettisoned all the 853 workman and recruited some fresher to take their place and to keep the wheels of production moving
In the war of attrition that ensued labour lost and capitulated to Capital
At long last between the two a reference to arbitration of the disputes was agreed upon under Section 10A of the the Act for short
The highlight of the dispute referred for arbitration was whether the termination orders issued by the Management against the workmen whose names were set out in the annexure to the reference were legal proper and justified if not whether the workmen were entitled to any reliefs including the relief of reinstatement with continuity of service and full back wages 
The arbitrator s decision went against the Sabha while on a challenge under Article 226 the High Court s judgment virtually vindicated its stand
This is the hang of the case
The substantial appeal is by the Management while the Sabha has a marginal quarrel over a portion of the judgment as disclosed in its appeal
The jetsam  workmen a few hundred in number have been directed to be reinstated with full or partial back pay and this is the bitter bone of contention
157 A stage by stage recapitulation of the developments is important to get to grips with the core controversy
Sri Ashok Sen for the appellant Management and Sri Tarkunde for the respondent Sabha have extensively presented their rival versions with forceful erudition
Sri RK Garg of course for some workmen has invoked with passion the socialist thrust of the Constitution as a substantive submission and as justificatory of the workmen s demands relied on the glaring contrast between the soaring profits and the sagging wages while Sri Bhandare has pressed the lachrymose case of the several hundreds of interregnal  employees whose removal from service on reinstatement of the old might spell iniquity
Olive Branch Approach At this stage we must disclose an effort at settlement we made with the hearty participation of Sri Ashok Sen and Sri Tarkunde at the early stages of the hearing
The golden rule for the judicial resolution of an industrial dispute is first to persuade fighting parties by judicious suggestions into the peace making zone disentangle the differences narrow the mistrust gap and convert them through consensual steps into negotiated justice
Law is not the last word in justice especially social justice
Moreover in our hierarchical court system the little man lives in the short run but most litigation lives in the long run
So it is that negotiation first and adjudication next is a welcome formula for the Bench and the Bar Management and Union
This olive Branch  approach brought the parties closer in our court and gave use a better understanding of the problem although we could not clinch a settlement
So we heard the case in depth and felt that some of the legal issues did merit this court s declaratory pronouncement settlement or no settlement
Mercifully counsel abbreviated their oral arguments into an eight day exercise sparing us the sparring marathon of 28 laborious days through which the case stretched out in the High Court
Orality ad libitem may be the genius of Victorian era advocacy but in our needy  Republic with crowded dockets forensic brevity is a necessity
The Bench and the Bar must fabricate a new shorthand form of court methodology which will do justice to the pockets of the poor who seek right and justice and to the limited judicial hours humanly available to the court if the delivery system of justice is not to suffer obsolescence
The facts Back to the central facts
Proof of the efficient  management of the Gujarat Steel Tubes Ltd is afforded by the testimony of larger turnover and profits year after year from the beginning down 158 to date
The mill was commissioned in January 1964 but by the accounting year 1971 72 the turnover had leapt to Rs 560 lakhs
It scaled to Rs 680 lakhs the next year to Rs 1136 lakhs the year after and to Rs 20 crores in 1974 75
This enterprise entered the export trade and otherwise established itself as a premier manufactory in the line
Steel shortage is the only shackle which hampers its higher productivity
But its increasing shower of prosperity was a sharp contrast according to Sri Garg to the share of the wage bill
The worker star ted on a magnificent sum per mensem of Rs 100 in toto even as late as 1970 although some workmen with more service were paid some what higher
The extenuatory plea of the Management justificatory of this parsimony was that other mill hands were receiving more niggardly wages in comparable enterprises
Probably unionisation under these luridly low paid circumstances caught on and a workers  union was born somewhere around 1966
A sensible stroke of enlightened capitalism persuaded the Management to enter into agreements with the Union somewhat improving emoluments and ameliorating conditions
By 1968 the Sabha a later union came into being and commanded the backing of all or most of the mill hands
By March 1969 the Sabha presented a charter of demands followed by resistance from the Management and strike by the workers
By July 1969 a settlement with the Sabha was reached
Agreements relating to the various demands brought quiet and respite to the industry although it proved temporary
A vivid close up of the sequence and consequence of the dramatic and traumatic events culminating in the reference to arbitration and the impugned award is essential as factual foundation for the decision of the issues
Even so we must condense since labyrinthine details are not needed in a third tier judgment
Broad lines with the brush bring out the effect not minute etches which encumber the picture
An agreement of futuristic import with which we may begin the confrontational chronicle is that of April 1970
Clause 6 thereof runs thus Management of the Company agrees to implement recommendations of the Central Wage Board for Engineering Industries as and when finally declared and all the increments granted to workmen from time to time under this agreement shall be adjusted with those recommendations provided that such adjustment shall not adversely affect the wages of workman
 The engineering industry where India is forging ahead was apparently exploitative towards labour and to make amends for this un 159 healthy position the Central Wage Board was appointed in 1964 although it took six long years to recommend revision of wages to be implemented with effect from 1 1 1969
Meanwhile the masses of workers were living below the broad line  Saintly patience in such a milieu was too much to expect from hungry demands and pressing for the recommendations of the Wage Board to be converted into immediate cash
But as we will presently unravel Wage Board expectations  were proving teasing illusions and premises of unreality because of non implementation viewed from the Sabha s angle
The Management on the other hand had a contrary version which we will briefly consider
Luckily agreed mini increases in wages were taking place during the years 1970 1971 and 1972
Likewise bonus was also the subject of bargain and agreement
But in September 1971 an allegedly violent episode broke up the truce between the two spawned criminal cases against workers led to charges of go slow tactics and lock outs and burst into suspension discharge and dismissal of workmen
The crisis was tided over by continued conciliations and two settlements
We are not directly concerned with the cluster of clauses therein save one
64 workmen had been discharged or dismissed of whom half the number were agreed to be reinstated
The fate of the other half 32 workers was left for arbitration by the Industrial Tribunal
The dark clouds cleared for a while but the sky turned murky over again although the previous agreement had promised a long spell of normalcy
The Sabha in October 1972 met and resolved to raise demands of which the principal ones were non implementation of the Wage Board recommendations bonus for 1971 and wages during the lockout period
The primary pathology of industrial friction is attitudinal
The Management could have and indeed did with a new Union solved these problems had they regarded the Sabha as partner not saboteur
Had the bitter combativeness of the Sabha been moderated may be the showdown could have been averted
Apportioning blame does not help now but we refer to it here because Sri Ashok Sen with feeling fury fell foul of the criticism by the High Court that the Management had acted improperly in insisting on arbitration and argued that when parties disagreed arbitral reference was the only answer and the workers  fanatical rejection of arbitration made no sense We need not delve into the details of the correspondence relied on by either side to reach the truth
For the Unions case is that in the prior settlement between the two parties arbitral reference came only after negotiations failed
That was why they 160 pressed the Management to reason together avoiding wrestling with each other before a slow moving umpire
Sri Tarkunde for the Sabha urged that the workmen were not intransigent but impatient and pleaded for a negotiated settlement since the main point in dispute namely the implementation of the Central Engineering Wage Board s recommendations was too plain to admit of difference given good faith on both sides
We will examine the substance of this submission later but it needs to be emphasised that workmen surviving on starving wages and with notoriously fragile staying power are in no mood for adjudicatory procedures arbitral or other if the doors of negotiation are still ajar
The obvious reason for this attitude is that the litigative length of the adjudicatory apparatus be it the tribunal the court or the arbitrator is too lethargic and long winded for workmen without the wherewithal to survive and is beset with protracted challenges either by way of appeal upon appeal or in the shape of writ petitions and thereafter appeals upon appeals
The present case illustrates the point
Where workmen on hundred rupees a month demand immediate negotiation the reason is that privations have no patience beyond a point
Now and here by negotiation is the shop floor glamour
In this very matter although the controversy before the arbitrator fell within a small compass he took a year and ninety printed pages to decide inevitably followed by a few Years and hundred and thirty printed pages of judgment in the High Court and a longer spell in this Court with slightly lesser length of judgment
Which workman under Third World Conditions can withstand this wasting disease while hunger leaves no option save to do or die  Raw life not rigid logic is the mother of law
After the demands were raised by the Union the main issue being implementation of the Wage Board recommendations a stream of correspondence meetings and inchoate settlements ensued but the crucial question which would have meant cash and carry  for the workmen baffled solution
Do negotiate since the application of the Wage Board recommendations are beyond ambiguity was the Sabha s peremptory plea
We differ therefore go to arbitration was the Management s firm response
A stalemate descended on the scene
No breakthrough being visible the Sabha charged the Management by its letter of January 25 1973 with breach of clause 6 of the Agreement of August 4 1972 which ran thus That the parties agree that for a period of 5 years from the date of this settlement all disputes will be solved by mutual negotiations or failing that by joint arbitration under 161 Section 10A of the ID Act 1947
Neither party shall take any direct action including go slow strike and lock out for a period of 5 years from the date of this settlement Various aspersions of anti labour tactics were included in the Sabha s letter but the most money loaded item was the grievance about the Wage Board recommendations
The temper by now was tense
The Management on the same day January 25 1973 set out its version on the notice board and the High Court s summary of it runs thus 
The notice stated that during the course of the meeting with the representatives of the Sabha held on January 20 1973 the Company had expressed its willingness to implement the Wage Board recommendations according to its interpretation on and with effect from January 1 1969 without prejudice to the rights and contentions of the workmen and leaving it open to the parties to take the matter to arbitration for resolution of the points of dispute
The Sabha however had turned down this suggestion and it came to the notice of the Company that workmen were being instigated by making false representations
The Company clarified that on and with effect from January 1 1972 every workman would be entitled to the benefits of Wage Board recommendations irrespective of whether the concerned workman had put in 240 days attendance The Sabha s answer was a strike two days later
This event of January 27 was countered quickly by the Management restating its attitude on the Wage Board recommendations asserting that the strike was illegal and in breach of the settlement of August 4 1972 and wholly unjustified because the offer of reference to arbitration negotiations failing had been spurned by the Sabha
The notice wound up with a command and a caveat If the workmen do not immediately resume duty the Company would not be under any obligation to continue in service those 32 workmen who have been taken back in service pursuant to the settlement dated August 4 1972
Besides if the workmen continue causing loss to the Company from time to time in this manner the Company will not also be bound to implement the Wage Board recommendations on and with effect from January 1 1969 which may also be noted
The Company hereby withdraws all its proposals unless the Workmen withdraw the strike and resume work within two days
 162 This threat was dismissed by the workmen as a brutum fulmen and the strike continued
The Management therefore came up on the notice board castigating the Sabha with irresponsible obduracy in waging an illegal and unjustified strike
A warning of the shape of things to come was given in this notice
The High Court has summed it up thus The Company gave an intimation that in view of such obstinate attitude on the part of the Sabha and the workmen it had decided to withdraw its earlier offer to implement the Wage Board recommendations on and with effect from January 1 1969 as already cautioned in the notice dated January 27 1973
The said decision must be taken to have been thereby communicated to the workmen and Sabha
The notice further stated that having regard to the obdurate unreasonable and illegal attitude adopted by the workmen and Sabha the Company had decided to take disciplinary proceedings against the defaulting workmen
In this connection the attention of the workmen was drawn to the fact that the strike was illegal not only because of the terms of the settlement dated August 4 1972 but also because of the pendency of the reference relating to reinstatement of 32 workmen before the Industrial Court and that therefore the Company was entitled to take disciplinary action against them
Finally the Company appealed to the workmen to withdraw their illegal and unjustified strike forthwith and to resume work These exercises notwithstanding the strike raged undaunted the production was paralysed and the Management retaliated by an elaborate notice which dilated on its preparedness to negotiate or arbitrate and the Sabha s unreason in rejecting the gesture and persisting on the war path
The stern economic sanction was brought home in a critical paragraph By this final notice the workmen are informed that they should withdraw the strike and resume work before Thursday February 15 1973
If the workmen resume duty accordingly the management would be still willing to pay salary according to the recommendations of the Wage Board on and with effect from January 1 1969
Furthermore the management is ready and willing to refer to the arbitration of the Industrial Tribunal the question as to whether the management has implemented the settlement dated August 4 1972 and all other labour problems
In spite of this if the workmen do not resume duty before Thursday February 15 1973
then the Company will terminate the services of all workmen who are on strike and thereafter it will run the 163 factory by employing new workmen
All workmen may take note of this fact
 The count down thus began
February 15 1973 arrived and the Management struck the fatal blow of discharging the strikers all the labour force 853 strong and recruiting fresh hands and thus work was resumed by February 19 1973
This public notice was allegedly sent to the Sabha and circulated to such workmen as hovered around the factory
It is common case that the notice of February 151973 was not sent to individual workmen but was a signal for action
The drastic consequence of disobedience was spelt out in no uncertain terms The workmen are hereby informed that they should resume duty on or before Monday February 19 1973 failing which the Management will presume that the workmen want to continue their strike and do not wish to resume work until their demands as aforesaid are accepted by the management
Parallel negotiations were going on even while mailed fist manoeuvres were being played up thanks to the basic goodwill and tradition of dispute settlements that existed in this company
Even amidst the clash of arms bilateral diplomacy has a place in successful industrial relations
The Management and the Sabha allowed the talks to continue which at any rate clarified the area of discord
One thing that stood out of these palavers was that both sides affirmed the pre condition of negotiations before arbitration over differences although the content accent and connotation of negotiations  varied with each side
No tangible results flowed from these exercises and the inevitable happened on February 21 1973 when the Management blotted out the entire lot of 853 workmen from the roster by separate orders of discharge from service couched in identical terms
The essential terms read thus  Your services are hereby terminated by giving you one month s salary in lieu of one month s notice and accordingly you are discharged from service
You should collect immediately from the cashier of the factory your one month s notice pay and due pay leave entitlements and gratuity if you are entitled to the same
The payment will be made between 12 noon and 5 pm
If and when you desire to be employed you may apply ill writing to the Company in that behalf and on receipt of the application a reply will be sent to you in the matter 164 Casual workmen were issued separate but similar orders
The Management did record its reasons for the action taken on February 20 1973 and forwarded them to the Sabha and to the individual workmen on request
The anatomy of this proceeding is of critical importance in deciding the character of the action
Was it a harm less farewell to the workmen who were unwilling to rejoin or a condign punishment of delinquent workmen  The separate memorandum of Reasons refers to the strike as illegal and unjustified and narrates the hostile history of assault by workmen of the officers their go slow tactics and sabotage activities their contumacious and a host of other perversities vindicating the drastic action of determining the services of all the employees
The concluding portion reads partly stern and partly non committal In the interest of the Company it is decided to terminate the services of all the workmen who are on illegal and unjustified strike since 27th January 1973
Under the circumstances it is decided that the services of all the workmen who are on illegal and unjustified strike should be terminated by way of discharge simpliciter
These workmen however may be given opportunity to apply for employment in the Company and in case applications are received for employment from such employees such applications may be considered on their merits later on
It may be mentioned here that while arriving at the aforesaid decision to terminate the services of the workmen various documents notices correspondence with the Union and others records of production etc have been considered and therefore the same are treated as part of the relevant evidence to come to the conclusion as aforesaid
FINAL CONCLUSION The services of all the workmen who are on illegal and unjustified strike since 27 1 1973 should be terminated by way of discharge simpliciter and they should be offered all their legal dues immediately
The Administrative Manager is hereby directed to pass orders on individual workers as per draft attached
We thus reach the tragic crescendo when the Management and the workmen fell apart and all the workmen s services were severed
Whether each of these orders using in the contemporaneous reasons 165 the vocabulary of misconduct but in the formal part the expression discharge simpliciter  should be read softly as innocent termination or sternly as penal action is one of the principal disputes demanding decision
We may as well complete the procession of events before taking up the major controversies decisive of the case
The total termination of the entire work force of 853 employees was undoubtedly a calamity of the first magnitude in a country of chronic unemployment and starving wages
Nevertheless under certain circumstances discharge of employees may well be within the powers of the Management subject to the provisions of the Act
With all the strikers struck off the rolls there was for a time the silence of the grave
The conditional invitation to the employees to seek de novo employment by fresh applications which would be considered on their merits left the workers cold
So the factory remained closed until April 28 1973 when with new workers recruited from the open market production recommenced
Among the militants the morale which kept the strike going remained intact but among the others the pressure to report for employment became strong
Re employment of discharged workmen began and slowly snowballed so that by July 31 1973 a substantial number of 419 returned to the factory
The crack of workman s morale was accelerated by escalating reemployment and the Management s restoration of continuity of service and other benefits for re employed hands
The Employer relied on this gesture as proof of his bond fides
Meanwhile there were exchanges of letters between and trading  of charges against each other
The Management alleged that the strikers were violent and prevented loyalists  return while the Sabha was bitter that goondas were hired to break the strike and promote blacklegs
These imputations have a familiar ring and their impact on the legality of the discharge of workmen falls for consideration a little later
The stream of events flowed on
The Sabha protested that the Management was terrorising workmen exploiting their sagging spirit and illegally insisting on fresh applications for employment while they were in law continuing in services
With more old workers  trickling back for work and their discharge orders being cancelled the strike became counter productive
Many overtures on both sides were made through letters but this epistolary futility failed to end the imbroglio and brought no bread
The worker wanted bread job and no phyrric victory
A crescent of hope appeared on the industrial sky
The Management but out a final offer  on May 31 1973 calling on all workmen 166 to rejoin last the remaining vacancies also should be filled by fresh recruits
The Sabha responded with readiness to settle and sought some clarifications and assurances
The employer informed  Our offer is open till 10 6 1973
From 11 6 1973 we shall recruit new hands to the extent necessary
Thereafter workers who will not have reported for work shall have no chance left for re employment with us
We repeat that those workers who will report for work will be taken back in employment with continuity of their services that the orders of discharge passed against them on 21 2 1973 shall be treated as cancelled and they will also be paid the difference in wages from 1969 as per the recommendations of the Wage Board
 The Sabha was willing and wrote back on June 8 1973 but sought details about the attitude of the Management to the many pending demands
Meanwhile the sands of time were running out and so the Sabha telegraphed on 9th June that the workers were willing to report for work but were being refused work
They demanded the presence of an impartial observer
The reply by the Management repelled these charges but there was some thaw in the estrangement since the time for return to work of the strikers was extended upto 16 6 73
An apparent end to a long strike was seemingly in sight with the Sabha sore but driven to surrender
On 13 6 73 the Sabha Secretary wrote back This is a further opportunity to you even now to show your bona fides
If you confirm to take all the workmen discharged on 21 2 1973 as stated in your various letters and to give them intimation and reasonable time to join l will see that your offer is accepted by the workmen
 Here at long last was the Management willing to welcome  back all the former employees and the Sabha limping back to the old wheels of work
Was the curtain being finally drawn on the feud  Not so soon in a world of bad blood and bad faith or may be new developments make old offers obsolete and the expected end proves an illusion
Anyway the victor was the Management and II the vanquished the Sabha and the re employment offered was watered down
In our materialist cosmos often Might is Right and victory dictates morality  167 Hot upon the receipt of the Sabha s letter accepting the offer the Management back tracked or had second thoughts on full re employment
For they replied with a long catalogue of the Sabha s sins set out the story of compulsion to keep the production going and explained that since new hands had come on the scene full re employment was beyond them
In its new mood of victorious righteousness the Management modified the terms of intake of strikers and saddled choosy conditions on such absorption suggestive of breaking the Sabha s solidarity As on the present working of the Company the Company may still need about 250 more workers including those to be on the casual list as per the employment position prior to the start of the strike
You may therefore send to us immediately per return of post the list of the workers who can and are willing to join duty immediately so as to enable us to select and employ the workmen as per the requirement of the Company
Further it would also be necessary for you to state in your reply that you have called off the strike and have advised the workers to resume the work as otherwise it is not clear from your letter as to whether you are still advocating the continuance of the strike or that you have called off the strike
Therefore unless we have a very definite stand known from you on this issue it may not be even now possible for us to enter into any correspondence with you
We may again stress that if your tactics of prolonging the issue by correspondence are continued the management would be constrained to fake new recruits and in that case at a later date it may not be even possible to employ as many workmen as may be possible to employ now
 Nothing is more galling says Sri Tarkunde than for a Union which has lost the battle and offered to go back to work to be told that it should further humiliate itself by formally declaring the calling off of the strike
Sentiment apart the Sabha had agreed to go back but then the Management cut down the number to be re employed to 250 and even this on a selective basis
This selection could well be to weed out Union activists or to drive a wedge among the Union members
These sensitive thoughts and hard bargains kept the two apart
The Sabha wounded but not wiped 168 out did not eat the humble pie
The Management on account of the intervening recruitments and injuries inflicted by the strike did not budge either
At this point we find that out of 853 employees who had been sacked 419 had wandered back by July 31 leaving 434 workmen at flotsam
Their reinstatement became the focus of an industrial dispute raised by the Sabha
A few more were left out of this jobless mass and through the intercession of the Commissioner of Labour both sides agreed to resolve their disagreement by arbitral reference under Sec
10A of the Act confining the dispute to reinstatement of 400 workmen discharged on February 21 1973
A reference under Sec
10A materialised
The Labour litigation  began in May 1975 and becoming at each remove a lengthening chain  laboured from deck to deck and is coming to a close hopefully by this decision
Is legal justice at such expensive length worth the candle or counter productive of social justice Is a streamlined alternative beyond the creative genius of Law India An aside As urgent as an industrial revolution is an industrial law revolution if the rule of law were at all to serve as social engineering
The current forensic process needs thorough overhaul because it is over judicialised and under professionalised lacking in social orientation and shop floor know how and by its sheer slow motion and high price defects effective and equitable solution leaving both Managements and Unions unhappy
If Parliament would heed we stress this need
Industrial Justice desiderates specialised processual expertise and agencies
This factual panorama omitting a welter of debatable details and wealth of exciting embellishments being not germane to the essential issues leads us to a formulation of the decisive questions which alone need engage our discussion
The Management might have been right in its version or the Sabha might have been wronged as it wails but an objective assessment of the proven facts and unbiased application of the declared law will yield the broad basis for working out a just and legal solution
Here it must be noticed that a new Union now exists even though its numerical following is perhaps slender
We are not concerned whether it is the favoured child of the Management although it has received soft treatment in several settlements which have somewhat benefited the whole work force and suggests a syndrome not unfamiliar among some industrial bosses allergic to strong unions
169 The central problem on the answer to which either the award of the arbitrator or the judgment of the High Court can be sustained as sound is whether the discharge of the workmen en masse was all innocuous termination or a disciplinary action
If the latter
the High Court s reasoning may broadly be invulnerable
Secondly what has been mooted before us is a question as to whether the evidence before the Arbitrator even if accepted at its face value establishes any misconduct of any discharged workman and further whether the misconduct if any made out is of such degree as to warrant punitive discharge
Of course the scope of Section 11A as including arbitrators the power of arbitrators given sufficiently wide terms of reference to examine the correctness and propriety of the punishment inter alia deserve examination
Likewise the rules regarding reinstatement retrenchment back wages and the like fall for subsidiary consideration
Prefatory to this discussion is the appreciation of the constitutional consciousness with regard to Labour Law
The Constitution of India is not a non aligned parchment but a partisan of social justice with a direction and destination which it sets in the Preamble and article 38 and so when we read the evidence the rulings the statute and the rival pleas we must be guided by the value set of the Constitution
We not only appraise Industrial Law from this perspective in the disputes before us but also realise that ours is a mixed economy with capitalist mores only slowly wobbling towards a socialist order notwithstanding Sri Garg s thoughts
And after all ideals apart law can never be higher than the economic order and the cultural development of society brought to pass by that economic order 
The new jurisprudence in industrial relations must prudently be tuned to the wave length of our constitutional values whose emphatic expression is found in a passage quoted by Chief Justice Rajamannar of the Madras High Court
The learned judge observed  The doctrine of laissez faire  which held sway in the world since the time of Adam Smith has practically given place to a doctrine which emphasises the duty of the state to interfere in the affairs of individuals in the interests of the social well being of the entire community
As Julian Huxley remarks in his essay on Economic Man and Social Man Many of our old ideas must be retranslated so to speak into a new language
The democratic idea of freedom for instance must lose its nineteenth century meaning of individual liberty in the economic sphere and become adjusted to new conception of social duties and responsibilities
170 When a big employer talks about his democratic rights to individual freedom meaning thereby a claim to socially irresponsible control over a huge industrial concern and over the lives of tens of thousands of human beings whom it happens to employ he is talking in a dying language Homo economicus can no longer warp the social order
Even so the Constitution is ambitiously called socialist but realists will agree that a socialist transformation of the law of labour relations is a slow though steady judicial desideratum
Until specific legislative mandates emerge from Parliament the court may mould the old but not make the new law Interstitially from the molar to the molecular  is the limited legislative role of the court as Justice Holmes said and Mr Justice Mathew quoted see 1976 2 SCC at p 343
The Core Question Right at the forefront falls the issue whether the orders of discharge are as contended by Sri Tarkunde de facto dismissals punitive in impact and therefore liable to be voided if the procedural imperatives for such disciplinary action are not complied with even though draped in silken phrases like termination simpliciter 
It is common case that none of the processes implicit in natural justice and mandated by the relevant standing orders have been complied with were we to construe the orders impugned as punishment by way of discharge or dismissal
But Sri Ashok Sen impressively insists that the orders here are simple terminations with no punitive component as on their face the orders read
To interpret otherwise is to deny to the employer the right not to dismiss but to discharge when the law gives him option
An analysis of the standing orders in the background of disciplinary jurisprudence is necessitous at this point of the case
The Model Standing orders prescribed under Section 15 of the  apply to this factory
Order 23 clauses 1 and 4 relate to termination of employment of permanent workmen
Termination of their services on giving the prescribed notice or wages in lieu of such notice is provided for
But clause 4A requires reasons for such termination of service of permanent workmen to be recorded and if asked for communicated
This is obviously intended to discover the real reason for the discharge so that remedies available may not be defeated by clever phraseology of orders of termination
Clause 7 permits the services or non permanent workmen to be terminated without notice 171 except when such temporary workmen are discharged by way of punishment
Punitive discharge is prohibited unless opportunity to show cause against charges of misconduct is afforded Standing order 15
Orders of termination of service have to be by the Manager and in writing and copies of orders shall be furnished to the workmen concerned
Standing order 24 itemizes the acts and omissions which amount to misconduct According to clause b of the said Standing order going on an illegal strike or abetting inciting instigating or acting in furtherance thereof amounts to misconduct
Standing order 25 provides for penalty impossible on a workman guilty of misconduct
Accordingly amongst other punishments a workman could be visited with the penalty of discharge under order 23 of dismissal without notice for a misconduct see sub clauses f and g of clause  1  j Clause 3 provides that no order of dismissal under sub clause g of clause 1 shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause 4
Clause 4 provides for giving to the concerned workman a charge sheet and an opportunity to answer the charge and the right to be defended by a workman working in the same department as himself and production of witnesses and cross examination of witnesses on whom the charge rests
Under clause 6 in awarding punishment the Manager has to take into account the gravity of the misconduct the previous record if any of the workman and any other extenuating or aggravating circumstances
 The finding of the Arbitrator that the workmen went on a strike which was illegal and in which they had participated is not disputed
In this background the application of the procedural imperatives before termination of services of the workmen in the circumstances of the present case has to be judged
This in turn depends on the key finding as to whether the discharge orders issued by the management were punitive or non penal
The anatomy of a dismissal order is not a mystery once we agree that substance not semblance governs the decision
Legal criteria are not so slippery that verbal manipulations may outwit the court
Broadly stated the face is the index to the mind and an order fair on its face may be taken at its face value
But there is more to it than that because sometimes words are designed to conceal deeds 172 by linguistic engineering
So it is beyond dispute that the form of the order or the language in which it is couched is not conclusive
The court will lift the veil to see the true nature of the order
Many situations arise where courts have been puzzled because the manifest language of the termination order is equivocal or misleading and dismissals have been dressed up as simple termination
And so judges have dyed into distinctions between the motive and the foundation of the order and a variety of other variations to discover the
true effect of an order of termination
Rulings are a maze on this question but in sum the conclusion is clear
If two factors coexist an inference of punishment is reasonable though not inevitable
What arc they  If the severance of service is effected the first condition is fulfilled and if the foundation or causa causans of such severance is the servant s misconduct the second is fulfilled
If the basis or foundation for the order of termination is clearly not turpitudinous or stigmatic or rooted in misconduct or visited with evil pecuniary effects then the inference of dismissal stands negated and vice versa
These canons run right through the disciplinary branch of master and servant jurisprudence both under Article 311 and in other cases including workmen under managements The law cannot be stultified by verbal haberdashery because the court will lift the mask and discover the true face
It is true that decisions of this Court and of the High Courts since Dhingra s case  have been at times obscure
if cited de hors the full facts
In Samsher Singh s case the unsatisfactory state of the law was commented upon by one of us per Krishna Iyer J quoting Dr Tripathi for support In some cases the rule of guidance has been stated to be the substance of the matter  and the foundation  of the order
When does motive  trespass into foundation   When do we lift the veil of form to touch the substance   When the Court says so
These Freudian  frontiers obviously fail in the work a day world and Dr Tripathi s observations in this context are not without force
He says As already explained in a situation where the order of termination purports to be a mere order of discharge without
173 stating the stigmatizing results of the departmental enquiry a Search for the substance of the matter  will be indistinguishable from a search for the motive real unrevealed object of the order
Failure to appreciate this relationship between motive the real but unrevealed object and from the apparent or officially revealed object in the present con text has lead to an unreal inter play of words and phrases wherein symbols like motive  substance  form  or direct  parade in different combinations without communicating precise situations or entities in the world of facts  The need in this branch of jurisprudence is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty
After all between unsuitability  and misconduct  thin partitions do their bounds divide 
And over the years in the rulings of this Court the accent has shifted the canons have varied and predictability has proved difficult because the play of legal light and shade has been baffling
The learned Chief Justice has in his judgement tackled this problem and explained the rule which must govern the determination of the question as to when termination of service of a probationer can be said to amount to discharge simpliciter and when it can be said to amount to punishment so as to attract the inhibition of Art 311
 Masters and servants cannot be permitted to play hide and seek with
the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover ups or by appeal to psychic processes but must be grounded on the substantive reason for the order whether disclosed or undisclosed
The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is
If thus scrutinized the order has a punitive flavour in cause or consequence it is dismissal
If it falls short of this test it cannot be called a G punishment
To put it slightly differently a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant it is a dismissal even if he had the right in law to terminate with an innocent order under the standing order or otherwise
Whether in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature
Nor the fact that after being satisfied of the guilt the master abandons the enquiry and proceeds to 174 terminate
Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal
even if full benefits as on simple termination are given and non injurious terminology is used
On the contrary even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with
He may not like to investigate nor take the risk of continuing a dubious servant
Then it is not dismissal but termination simpliciter if no injurious record of reasons or punitive pecuniary cut back on his full terminal benefits is found
For in fact misconduct is not then the moving factor in the discharge
We need not chase other hypothetical situations here
What is decisive is the plain reason for the discharge
not the strategy of a non enquiry or clever avoidance of stigmatizing epithets
If the basis is not misconduct the order is saved
In Murugan Mills this Court observed The right of the employer to terminate the services of his workman under a standing order like cl
17a in the present case which accounts to a claim to hire and fire  an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication
came up for consideration before the Labour Appellate Tribunal in Buckingham and Carnatic Co Ltd vs Workers of the Company
The matter then came up before this before this Court also in Chartered Bank vs Chartered Bank Employees Union3 and the Management of UB Dutt  Co vs Workmen of U B Dutt  Co4 Wherein the view taken by Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirements of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimization or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination
The form of the order in such a case is not conclusive and the Tribunal can go behind the order to find the reasons which led to the 175 order and then consider for itself whether the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice
If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice
it would have the jurisdiction to intervene and set aside such termination
 Again in Chartered Bank vs Employees Union his Court emphasised  
The form of the order of termination is not conclusive of the true nature of the order for it is possible that the form may be merely a camouflage for an order of misconduct
It is therefore always open to the Tribunal to go behind the form and look at the substance and if it comes to the conclusion for example that though in form the order amounts to termination simpliciter it in reality cloaks a dismissal for misconduct it will be open to it to set it aside as a colourable exercise of the Power
 A rain of rulings merely adds to the volume not to the weight of the proposition and so we desist from citing all of them
A bench of seven judges of this Court considered this precise point in Shamsher Singh s case and Chief Justice Ray ruled The form of the order is not decisive as to whether the order is by way of punishment
Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311
In such a case the simplicity of the form of the order will not give any sanctity
That is exactly what has happened in the case of Ishwar Chand Agarwal
The order of termination IS illegal and must he set aside Simple termination or Punitive Discharge  We must scan the present order of discharge of 853 workmen and ask the right questions to decide whether they are punishments or innocent terminations
Neither judicial naivete nor managerial ingenuity will put the court off the track of truth
then are the diagnostic factors in the orders under study  An isolated reading of the formal notices terminating their services reveals no stigma no penalty no misconduct
They have just been told 176 off
But the Management admits that as required by the Standing orders it has recorded reasons for the discharge
There several pages of damnatory conduct have been heaped on the workers collectively accounting for the resort of the Management to the extreme step of discharging the whole lot there being no alternative
Sri A K Sen took us through the various appeals made by the Management the losses sustained
the many offers to negotiate and arbitrate the Sabha s deaf obduracy and resort to sudden strike and violent tactics and worst of all its attempts to persuade the Central Government to take over the factory as a sick  mill
These ordeals were described by Sri Ashok Sen graphically to justify the submission that the Management had no choice caught between Scylla of strike and Charybdis of take over but to get rid of the strikers and recruit new workers
If the employer did not discharge the strikers they were adamant and would not return to world and the very closure compelled by the Sabha was being abused by it to tell the Central Government that for three months there had been no production and so the mill qualified to be taken over as sick  under the Industries Development and Regulation Act
If the Management discharged the workers to facilitate fresh recruitment and save the factory from statutory takeover the cry was raised that the action was dismissal because an elaborate enquiry was not held
The Management had avoided injury to the workmen argued Sri Sen by merely terminating their services without resort to disciplinary action and recording the uncomplimentary grounds in a separate invisible order
He also underscored the fact that the strike was illegal and unjustified as concurrently held by the Arbitrator and the High Court
We agree that industrial law promotes industrial life not industrial death Any realism is the soul of legal dynamics
Any doctrine that destroys industrial progress interlaced with social justice is lethal juristic and cannot be accepted
Each side has its own version of the role of the other which we must consider before holding either guilty
Sri Tarkunde told us the tale of woe of the workmen
In 3 country where the despair of Government is appalling unemployment it is a terrible tragedy to put to economic death 853 workmen
And for what For insisting that the pittance of Rs 100 per month be raised in terms of the Central Wage Board recommendations as long ago agreed to by the Management but put off by the tantalizing but treacherous offer of arbitration
When the point admitted of easy negotiated solution
Arbitration looks nice but
since 1969 the hungry families have been yearning for a morsel more he urged
Blood toil sweat and tears for the workers and all the profits  and production for the Management was the industrial irony Knowing that every arbitral or other adjudicatory agency in 177 India especially when weak Labour is pitted against strong Capital in the sophisticated processual system consumes considerable time the lowly working class is allergic to this dilatory offer of arbitration
They just don t survive to eat the fruits
Such was his case
The story of violence was also refuted by Sri Tarkunde since the boot was on the other leg
Goondas were hired by the Management to sabotage the fundamental right to strike and with broken hearts several of them surrendered
When at last the Sabha agreed to see that all workmen reported for work within the extended time the Management took to the typical tactics of victimisation of refusing work for all as first offered and of picking and choosing even for the 250 vacancies
Moreover other conditions were put upon the Sabha calculated to break unionism which those familiar with trade union movements would painfully appreciate
This insult and injury apart the orders of termination were painly dismissals for a series of alleged misconducts which were chronicled in separate proceedings
The formal order was like a decree the grounds recorded contemporaneously were like the judgment to use court vocabulary
It was obvious that the foundation for the termination was the catena of charges set out by the Management
The true character of the order could not be hidden by the unfair device of keeping a separate record and omitting it from the normal communication
Law is not such an ass as yet and if the intent and effect is damnatory the action is disciplinary
Between these two competing cases presented by counsel we have to gravitate towards the correct factual legal conclusion
A number of peripheral controversies have been omitted from this statement for brevity s sake
When two high tribunals have spread out the pros and cons it is supererogation for this Court to essay likewise and miniaturization is a wise husbandry of judicial resources
First we must decide whether the order of termination was a punitive discharge or a simple discharge
Here we reach the dilemma of the law for discovering unfailing guidelines to distinguish between discharge simpliciter and dismissal sinister
The search for infallible formulae is vain and only pragmatic humanism can help navigate towards just solutions
We have earlier explained that from Dhingra s case to Shamsher Singh s case the law has been dithering but some rough and ready rules can be decocted to serve in most situations
Law in this area is a pragmatist not a philologist and we have set out the dual diagnostic tests applicable in such cases
178 It was not retrenchment according to the Management
Then what was it  If there was work to be done why terminate services of workmen except as punishment  Because argued Sri Sen the workers did not work being on strike and the Management bent on keeping the factory going needed workmen who work
To recruit fresh hands into the lists and to keep the old hands on the roster was double burden and therefore the strikers had to be eased out to yield place to new recruits
The object was not to punish the workmen but to keep the factory working Accepting this plea as it were the award of the arbitrator has exonerated the Management of the charge of dismissal while the High Court has held the action to be dismissal for misconduct and therefore bad in law
In our opinion the facts of the case before us speak for themselves Here are workmen on strike
The strike is illegal
The Management is hurt because production is paralyzed
The strikers allegedly indulge ill objectionable
activities
The exasperated Management hits back by ordering their discharge for reasons set out in several pages in the appropriate contemporaneous proceeding
Misconduct after misconduct is flung on the workers to justify the drastic action In all conscience and common sense the discharge is the punishment for the misconduct
The Management minces no words
What is explicity stated is not a colourless farewell to make way for fresh hands to work the factory until the strike is settled but a hard hitting order with grounds of guilt and penalty of removal
The inference is inevitable however ingenious the contrary argument that precisely because the Management found the workmen refractory in their misconduct they were sacked
Maybe the management had no other way of working the factory but that did not change the character of the action taken
Once we hold the discharge punitive the necessary consequence is that enquiry before punishment was admittedly obligatory and confessedly not undertaken
The orders were bad on this score alone
Sri A K Sen urged that in a dismissal the employee is denied some of the retiral and other benefits which he gets in a simple discharge and here all the employees were offered their full monetary benefits so that it was wrong to classify the orders of discharge as punitive
Maybe a dismissed servant may well be disentitled to some at least of the financial benefits which his counterpart who is simply discharged may draw
But that is not a conclusive test
Otherwise the master may cashier  his servant and camouflage it by offering full retiral benefits
Dismissal is not discharge plus a price
The substance of 179 the action is the litmus test
In the present case the penal core tied 4
in tooth and claw shows up once we probe and the non committal frame of the formal order is a disguise
For a poor workman loss of his job is a heavy penalty when inflicted for alleged misconduct for he is so hungry that in Gandhiji s expressive words he sees God Himself in a loaf of bread
Before we leave this part of the case a reference to some industrial law aspects and cases may be apposite though a little repetitive Standing orders certified for an industrial undertaking or the model Standing orders framed under the Industrial Employment Standing orders Act provide for discharge simpliciter a term understood in contradistinction to punitive discharge or discharge by way of penalty
It is not unknown that an employer resorts to camouflage by garbing or cloaking a punitive discharge in the innocuous words of discharge simpliciter
Courts have to interpose in order to ascertain whether the discharge is one simpliciter or a punitive discharge and in doing so the veil of language is lifted and the realities perceived
In the initial stages the controversy raised was whether the courttribunal had any jurisdiction to lift such a veil
Prove and penetrate so as to reveal the reality but this controversy has been set at rest by the decision in Western India Automobile Association vs Industrial Tribunal Bombay
The wide scope of the jurisdiction of industrial tribunal  court in this behalf is now well established
If standing orders or the terms of contract permit the employer to terminate the services of his employee by discharge simpliciter without assigning reasons it would be open to him to take recourse to the said term or condition and terminate the services of his employee but when the validity of such termination is challenged in industrial adjudication it would be competent to the industrial Tribunal to ensure whether the impugned discharge has been effected in the bona fide exercise of the power conferred by the terms of employment
If the discharge has been ordered by the employer in bona fide exercise of his power then the industrial tribunal may not interfere with it but the words used in the order of discharge and the form which it may have taken are not conclusive in the matter anl the industrial tribunal would be entitled to go behind the words and form and decide whether the discharge is a discharge simpliciter or not If it appears that the purported exercise of power to terminate the Services of the employee was in fact the result of the misconduct alleged against him
then the tribunal would be justified in dealing with the dispute on the basis that despite its appearance to the contrary
the order of discharge is in effect an order of dismissal
In the exercise of this power the 180 courttribunal would be entitled to interfere with the order in question see Assam Co vs Its Workmen
In the matter of an order of discharge of an employee as understood within the meaning of the the iron of the order and the language in which it is couched are not decisive
If the industrial court is satisfied that the order of discharge is punitive or that it amount to victimisation or unfair labour practice it is competent to the Courttribunal to set aside the order in a proper case and direct reinstatement of the employee see Tata oil Mills Co Ltd vs Workmen
The form used for terminating the service is not conclusive and the tribunal has jurisdiction to enquire into the reasons which led to such termination In the facts of the case it was found that Standing orders provided that an employee could ask for reasons for discharge in the case of discharge simpliciter
Those reasons were given before the tribunal by the appellant viz that the respondents services were terminated because he deliberately resorted to go slow and was negligent in the discharge of his duty
It was accordingly held that the services of the employee were terminated for dereliction of duty and go slow in his work which clearly amounted to punishment for misconduct and
therefore
to pass an order under cl
17a of the Standing orders permitting discharge simpliciter in such circumstances was clearly a colorable exercise of power to terminate services of a workman under the provision of the Standing orders
In these circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondent s services could be sustained vide Management of Murugan Mills Ltd vs Industrial Tribunal Madras  Anr
This view was affirmed in Tata Engineering  Locomotive Co Ltd vs section C Prasad  Anr4
After approving the ratio in Murugan Mills case this Court in L Michael  Anr
vs Ms Johnson Pumps India Ltd observed that the manner of dressing up an order did not matter
The slightly different observation in Workmen of Sudder office Cinnamare vs Management was explained by the Court and it was further affirmed that since the decision of this Court in the Chartered Bank vs The Chartered Bank Employee s Union it has taken the consistent view that if the termination of service is a colourable exercise of power vested in the management or is a result of victimization 181 or unfair labour practice the courttribunal would have jurisdiction to intervene and set aside such termination
It was urged that a different view was taken by this Court in Municipal Corporation of Greater Bombay vs P section Malvenkar  ors
The employee in that was discharged from service by paying one month s wages in lieu of notice This action was challenged by the employee before the Labour Court and it was contended that it was a punitive discharged
The Corporation contended that wider Standing order No 26 the Corporation had the power to discharge but there was an obligation to give reasons if so demanded by the employee
The Corporation had also the power to discharge by way of punishment
The Court in this connection observed as under Now one thing must be borne in mind that these are two distinct and independent powers and as far as possible either should be construed so as to emasculate the other cr to render it ineffective
One is the power to punish an employee for misconduct while the other is the power to terminate simpliciter the service of an employee without any other adverse consequence
proviso i to clause 1 of Standing order 26 requires that the reason for termination of the employment should be given in writing to the employee when exercising the power of termination of service of the employee under Standing order 26
Therefore when the service of an employee is terminated simpliciter under Standing order 26 the reason for such termination has to be given to the employee and this provision has been made in the Standing order with a view to ensuring that the management does not act in an arbitrary manner
The management is required to articulate the reason which operated on its mind in terminating the service cf the employee
But merely because the reason for terminating the service of the employee is required to be given and the reason must obviously not be arbitrary capricious or irrelevant it would not necessarily in every case make the order or termination punitive in character so as require compliance with the requirement of clause 2 of Standing order 21 read with Standing order 23
Otherwise
the power of termination of service of an employee under Standing order 26 would be rendered meaningless and futile for in no case it would be possible to exercise it
Of course if misconduct of the employee constitutes the 182 foundation for terminating his service then even if the order of termination is purported to be made under Standing order 26 it may be liable to be regarded as punitive in character attracting the procedure of clause 2 of Standing order 21 read with Standing order 23 though even in such a case it may be argued that the management n has not punished the employee but has merely terminated his service under Standing order 26
 It does not purport to run counter to the established ratio that the form of the order is not decisive and the Court can lift the veil
How ever it may be noted that there was an alternative contention before the Court that even if the order of discharge was considered punitive in character the employer corporation had led evidence before the labour court to substantiate the charge of misconduct and that finding was also affirmed
We are satisfied that the Management whatever its motives vis a vis keeping the stream of production flowing did remove from service on punitive grounds all the 853 workmen
The law is trite that the Management may still ask for an opportunity to make out a case for dismissal before the Tribunal
The refinements of industrial law in this branch need not detain us because the arbitrator did investigate and hold that the workmen were guilty of misconduct and the sentence  of dismissal was merited even as the High Court did reappraise and reach on both counts the reverse conclusion
The sweep of Article 226 Once we assume that the jurisdiction of the arbitrator to enquire into the alleged misconduct was exercised was there any ground under Article 226 of the Constitution to demolish that holding  Every wrong order cannot be righted merely because it is wrong
It can be quashed only if it is vitiated by the fundamental flaws of gross miscarriage of justice absence of legal evidence perverse misreading of facts serious errors of law on the face of the order jurisdictional failure and the like
While the remedy under Article 226 is extraordinary and is of Anglo Saxon vintage it is not a carbon copy of English processes
Article 226 is a sparing surgery but the lancet operates where injustice suppurates
While traditional restraints like availability of alternative remedy hold back the court and judicial power should not ordinarily rush in where the other two branches fear to tread judicial daring is not daunted where glaring injustice demands even affirmative action
183 The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the court s province and the remedy is appropriate to the judicial process
There is native hue about Article 226 without being anglophile or anglophobic in attitude
Viewed from this jurisprudential perspective we have to be cautious both in not overstepping as if Article
226 were as large as an appeal and not failing to intervene where a grave error has crept in
Moreover we sit here in appeal over the High Court s Judgement
And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong
The difference is real though fine
What are the primary facts which have entered the Tribunal s verdict in holding the strikers guilty of misconduct meriting dismissal  We must pause to remove a confusion and emphasise that the dismissal order is not against the Union but the individual workers
What did each one do  Did his conduct when sifted and scrutinised have any exculpation or extenuation  Not strikers in the mass but each worker separately must be regarded as the unit of disciplinary action
Each one s role and the degree of turpitude his defence on guilt and punishment must be adjudged before economic death sentence is inflicted
A typical trial process instance will illumine the point
Suppose there is case of arson and murder in a village because of communal faction and a hundred men from the aggressive community are charged in court with serious offences
Suppose further that convincing testimony of the provocation and aggression by that community is produced
Can any single member of the violent community be convicted on mass  evidence without specific charges of participation or clear proof of constructive involvement  Judicial perspicacity clears this common fallacy
It is dangerous to mass convict on the theory of community built
Anger sometimes brings in this error
In our assessment the arbitrator has been swayed by generalities where particularities alone would have sufficed
A long story may be made short by skipping the details and focussing on essentials
We must in fairness state that the Arbitrator an experienced and accepted tribunal in labour disputes has exhaustively brought into the Award all available details pro and con with over emphasis here and there
There are only a few confusions in his long award but regrettably they happen to be on a few fundamentals
The foremost of course is a mix up between mob misconduct and individual guilt
The next is getting lost in the oceanic evidence while navigating towards a 1 specified port
The High Court too has excelled in marshalling the details and handling the legal issues although even there shortcomings 184 on basic issues have been pointed out by Sri A K Sen We too are apt to err and reverse ourselves although we try our best to avoid error
The Supreme Court is final not because it is infallible it is infallible because it is final
propose to examine the essential issues from the perspective We have set out and in their proper jurisprudential bearings
If misconduct was basic to the discharge and no enquiry precedent to the dismissal was made the story did not end there in favour of the workmen
The law is well settled that the Management may still satisfy the tribunal about the misconduct
As a fact the arbitrator held misconduct proved
He further found that the circumstances justified dismissal though he decided the order to mean discharge simpliciter Was misconduct proved against each discharged worker at least before the arbitrator  If it was did every worker deserve punitive discharge  Dual jurisdictional issues arise here which have been argued at some length before us
The position taken up by Sri Sen was that the High Court could not under Article 226 direct reinstatement and even it felt that the arbitrator had gone wrong in refusing reinstatement the court could only demolish the order and direct the arbitrator to reconsider the issue
What belonged as a discretionary power to a tribunal or other adjudicatory body could not be wrested by the writ court
To put it pithily regarding the relief of reinstatement the arbitrator could but would not and the High Court would but could not
We will deal later with the point that the arbitrator had himself no power under Section 11 A of the Act but did have it in view of the wide terms of reference The basis of this submission as we conceive it
is the traditional limitations woven around high prerogative writs
Without examining the correctness of this limitation we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide bound British processes of yore
We are what we are because our Constitution framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions
Heritage cannot hamstring nor custom constrict where the language used is wisely wide
The British paradigms are not necessarily models in the Indian Republic
So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court
The very width of the power and the disinclination to meddle except where gross injustice or fatal illegality and the like are present inhibit the exercise but do not abolish the power
185 We may dilate a little more on Article 226 vis a vis awards of arbitrators
The first limb of the argument is that when there is a voluntary joint submission of an industrial dispute to an Arbitrator named by them under section 10A of the  he does not function as a Tribunal and is not amenable to the jurisdiction of that Court under Article 227 or under Article 226
Without further elaboration this contention can be negatived on a decision of this Court in Rohtas Industries Ltd  Anr
vs Rohtas Industries State Union ors
1 This Court observed that as the Arbitrator under section 10A has the power to bind even those who are not parties to the reference or agreement and the whole exercise under section 10A as well as the source of the force of the Award on publication derived from the statute it is legitimate to regard such an arbitrator now as part of the infrastructure of the sovereigns dispensation of justice thus falling within the rainbow of statutory tribunals amenable to judicial review
The second limb of the argument was that a writ of certiorari could not be issued to correct errors of facts
In this connection after affirming the ratio in Engineering Mazdoor Sabha vs Hind Cycle Ltd this Court observes that what is important is a question of law arising on the face of the facts found and its resolution ex facie or sub silentio
The Arbitrator may not state the law as such even then such acute silence confers no greater or subtler immunity on the award than plain speech
We do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grounds to set aside an arbitration award thin partition do their bounds divide  on the facts and circumstances of the present case
Broadly stated the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi judicial tribunals or administrative bodies exercising the quasi judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act
So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can he no ground for interference
The power of judicial supervision of the High Court under Article 227 of the Constitution as it then stood is not greater than those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority see Nagendra Nath Bora  Anr
vs The Commissioner of Hills Division  Appeals Assam  orsa 
This led to a proposition that in 186 exercising jurisdiction under Article 226 the High Court is not constituted a Court of appeal over the decision of authorities administrative or quasi judicial
Adequacy or sufficiency of evidence is not its meat
It is not the function of a High Court in a petition for a writ under Art 226 to review the evidence and to arrive at an independent finding on the evidence
See State of Andhra Pradesh vs section Shree Rama Rao  A constitution Bench of this Court in P H Kalyani vs Ms 
Air France Calcutta  succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition
It was said that in order to justify a writ of certiorari it must be shown that an order suffers from an error apparent on the face of the record
It was further pointed out that in the finding of fact is made by the impugned order and it is shown that it success from an error of law and not of fact a writ under Article 226 would issue and while so saying the decision in Nagendra Nath Bora s case was affirmed
Following the aforementioned decision the Gujarat High Court in Navinchandra Shakerchand Shah vs Manager Ahmedabad Coop
Department Stores Ltd observed that the amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived
Even apart from but while approving the Gujarat ruling in 19 GLR p 108 cited before us we are satisfied that the writ power is larger given illegality and injustice even if its use is severely discretionary as decided cases have repeatedly laid down
We over rule the objection of invalidity of the High Courts order for want of power
The more serious question is whether the arbitrator had the plenitude of power to re examine the punishment imposed by the Management even if he disagreed with its severity
In this ease the arbitrator expressed himself as concurring with the punishment
But if he had disagreed as the High Court in his place did could he have interfered Armed with the language of Sec
11A which confers wide original power to the tribunal to re fix the sentence  Sri Sen argued that an arbitrator was uncovered by this new Section
So even if he would he could not
And in this case if he could he would not
There the matter ended was the argument
We disagree
Even if he could
he would not true but that did not preclude the High Court from reviewing the order in exercise of its extraordinary constitutional power
Moreover Sec
11A did clothe the arbitrator with similar 187 power as tribunals despite the doubt created by the abstruse absence A of specific mention of arbitrator  in Sec
11A This position needs closer examination and turns on interpretational limitations
At this stage to facilitate the discussion we may read the provision 11A Where an industrial dispute relating to the discharge or dismissal of a workmen has been referred to a 1 Labour Court Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings the Labour Court Tribunal or National Tribunal as the case may be is satisfied that the order of discharge or dismissal was not justified it may as it thinks fit or give such other relief to the Workman on such terms and conditions if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require Provided that in any proceeding under this section the Labour Court Tribunal or National Tribunal as the case may be shall rely on the materials on record and shall not take any fresh evidence in relation to the matter
11A was introduced in purported implementation cf the ILO recommendation which expressly referred inter alia to arbitrators
The Statement of objects and Reasons which illumines the words of the legislative text when it is half lit even if it cannot directly supplement the section does speak of the ILo recommendations and in terms of tribunals and arbitrators
When it came to drafting Section 11A the
word arbitrator  was missing
Was this of deliberate legislative design to deprive arbitrators who discharge identical functions as tribunals under the  of some vital powers which vested in their tribunal brethren  For what mystic purpose could such distinction be  Functionally tribunals and arbitrators being to the same brood
The entire scheme from its ILO genesis through the objects and Reasons fits in only with arbitrators being covered by Section 11A unless Parliament cheated itself and the nation by proclaiming a great purpose essential to industrial justice and for no rhyme or reason and wittingly or unwittingly withdrawing one vital word
Every reason for clothing tribunals with Sec
11A powers applies a fortiori to arbitrators
Then why omit  Could it be a synopic omission which did not affect the semantics because a tribunal in its wider connotation embraced every adjudicatory organ including an arbitrator  An economy of words is a legislative risk before a judiciary accustomed to the Anglo Saxon meticulousness in 188 drafting
We may easily see meaning by one construction
A tribunal  is merely a seat of justice or a judicial body with jurisdiction to render justice
If an arbitrator fulfils this functional role and he does how can he be excluded from these scope of the expression  A caste distinction between courts tribunals arbitrators and others is functionally fallacious and in our context stems from confusion
The Section makes only a hierarchical not functional difference by speaking of tribunals and national tribunals
So we see no ground to truncate the natural meaning of Tribunal  on the supposed intent of Parliament to omit irrationally the category of adjudicatory organs known as arbitrators
To cut down is to cripple and the art of interpretation makes whole not mutilates furthers the expressed purpose not hampers by narrow literality
Section 2r defines Tribunal thus Tribunal  means an Industrial Tribunal constituted under Section 7A and includes an Industrial Tribunal constituted before the 10th day of March 1957 under this Act Prima facie it is a different category from arbitrators but all statutory definitions are subject to contextual changes
It is perfectly open
to the court to give the natural meaning to a word defined in the Act if the context in which it appears suggests a departure from the definition because then there is something repugnant in the subject or context
Then what is the natural meaning of the expression Tribunal A tribunal  literally means a seat of justice
May be justice is dispensed by a quasi judicial body an arbitrator a commission a court or other adjudicatory organ created by the State
All these are tribunals and naturally the import of the word embraces an arbitration tribunal
Stroud s Judicial Dictionary Vol
4 p 3093 speaks of Tribunal in this wider sense and quoted Fry LJ in Dawkins vs Rokeby LR 8 QB 255 affirmed I accept that with this qualification that I do not like the word tribunal 
The word is ambiguous because it has not like court  any ascertainable meaning in English law Royal Acsuarium vs Parkinson  cited COURT 
There is a reference to the bishop s commission of enquiry as judicial tribunal and significantly specific mention has been made in these terms
189 Disputes between employers and employees are A referred to such tribunals as the Civil Service Arbitration Tribunal National Arbitration Tribunal and the Industrial Disputes Tribunal
Stroud s Judicial Dictionary p 3094 We have hardly any doubt that tribunal  simpliciter has a sweeping signification and does not exclude arbitrator 
Here we come upon a fundamental dilemma of interpretative technology vis a vis the judicative faculty
What are the limits of statutory construction  Does creativity in this jurisprudential area permit travel into semantic engineering as substitute for verbalism  It is increasingly important for developing countries where legislative transformation of the economic order is an urgent item on the national agenda to have the judiciary play a meaningful role in the constitutional revolution without ferreting out laws in the draftsman once the object and effect are plain
Judges may not be too anglo phonic  lest the system fail
It is edifying to recall from Robert Stevens  Law and Politics of the House of Lords as a judicial body Moreover Macmillan who began to specialize in the increasingly frequent tax appeals continued to develop this highly artificial approach in Inland Revenue Commissioner vs Ayrshire Employers Mutual Insurance Association when Parliament had clearly intended to make the annual surpluses of mutual insurance companies subject to tax Macmillan found a particularly formalistic argument to show that this had not been the effect of section 31 of the Finance Act of 1933
He was then happily able to announce The Legislature has plainly missed
Of this decision Lord Diplock was later to say that if as in this case the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit not merely to record that it has been missed
Here is judicial legislation at its worst
3  We would rather adopt Lord Diplock s thought and have the court help hit the legislative target within limits than sigh relief that the legislative fire has missed the bull s eye
Of course the social philosophy of the Constitution has as ruled by this court in several cases a role in interpretative enlightenment and judicial value vision
190 We may reinforce this liberal rule of statutory construction being a matter of importance in the daily work of the Court by reference even to Roman Law from Justinian s days down to the American Supreme Court
Not all special cases can be contained in the laws and resolutions of the Senate said the Roman jurist Jullianus but where their meaning is manifest in some case the one who exercises jurisdiction must apply the provision analogously and in this way administer justice Prof Bodenheimer has explained that Civil Law does not regard words as the sole basis of law but allows it to be modified by purpose Celsus added the following admonition to these general principles of interpretation The laws should be liberally interpreted in order that their intent be preserved Samuel Thorne has shown that during certain periods of English medieval history the position of the Common Law towards the construction of statutes was similar to the general attitude of the Roman and Civil Law
Statutes were frequently extended to situations not expressly covered by them
3 Plowden pointed out that when the words of a statute enact one thing they enact all other things which are in the like degree Plowden demonstrated that a statutory remedy at that time was deemed to be merely illustrative of other analogous cases that deserved to be governed by the same principle our law like all others consists of two parts viz OF body and soul the letter of the law is the body of the law and the sense and reason of the law is the soul of the law
And it often happens that when you know the letter you know not the sense for sometimes the sense is more confined and contracted than the letter and sometimes it is more large and extensive5 Prof Bodehheimer states that the American trend is towards a purpose oriented rather than a plain meaning rule in its rigid orthodoxy
In United States vs American Trucking Association
The US Supreme Court wrote When the plain meaning has led to absurd or futile results  this Court has looked beyond the words to the Purpose of the Act
Frequently however even when the 191 plain meaning did not produce absurd results but merely an unreasonable one plainly at variance with the policy of the legislation as a whole this Court has followed that purpose rather than the literal words
When aid to construction of the meaning of words as used in the statute is available there can certainly be no rule of law which forbids its use how ever clear the words may be on superficial examination
 B In the present case as the narration of the facts unfolded the reference of the dispute was to an arbitrator
He reinvestigated and reassessed the evidence bearing on the guilt of the discharged workmen after giving an opportunity to both sides to adduce evidence thereon Admittedly he had this power
But had he the follow up power if he held the men guilty of punitive misconduct to reweigh the quantum of punishment having regard to the degree of culpability  This jurisdiction he enjoys if Sec
11A includes arbitrators 
This in turn flows from our interference as to whether the word tribunal  takes in an adjudicatory organ like the arbitrator
It is plain that the expression arbitrator  is not expressly mentioned in Section 11A
Nevertheless if the meaning of the word tribunal  is wider rather than narrower it will embrace arbitrator as well
That is how the dynamics of interpretation are in one sense decisive of the fate of the present appeal
Competing interpretative angles have contended for judicial acceptance English preferences apart Indian socio legal conditions must decide the choice in each situation
Sometimes Judges are prone to castigate creative interpretation in preference to petrified literality by stating that Judges declare the law and cannot make law
The reply to this frozen faith is best borne out by Lord Radcliffe s blunt words  There was never a more sterile controversy than that upon the question whether a judge makes law
Of course he does
How can he help it 
Judicial law is always a reinterpretation of principles in the light of new combinations of facts
Judges do not reverse principles once well established but they do modify them extend them restrict them and even deny their application to the combination in hand
Lord Devlin in his Samples of Lawmaking agreed that Judges are fashioners of law if not creators out of material supplied to them and went on to observe If the House of Lords did not treat itself as bound by its own decisions it might do its own lopping and pruning 192  and perhaps even a little grafting instead of leaving all that for the legislature
But it could not greatly alter the shape of the tree
 Even so eminent a Judge as Lord Reid leaned to the view that the law should be developed since it was not static and in this limited sense Judges are law makers although this view prevented technical minded Judges from pressing precedents to their logical conclusions
On the whole a just and humanist interpretative technique meaning permitting is the best
We do not mean to conclude that Judges can take liberties with language ad libitem and it is wholesome to be cautious as Lord Reid in Shaw vs DPP warned Where Parliament fears to tread it is not for the courts to rush in
 We are persuaded that there is much to learn from Lord Denning s consistent refrain about the inevitable creative element in the judicial process in the interpretative area
We permit ourselves a quote from Lord Denning because Shri A K Sen did draw our attention to straightening the creases as permissible but not stitching the cloth making a critical reference to the controversial activism of which Lord Denning was a leading light The truth is that the law is uncertain
rt does not cover all the situations that may arise
Time and again practitioners and judges are faced with new situations where the decision may go either way
No one can tell what the law is until the courts decides it
The judges do every day make law though it is almost heresy to say so
If the truth is recognized then we may hope to escape from the dead hand of the past and consciously mould new principles to meet the needs of the present Mr Justice Mathew in Kesavananda Bharti s case referred with approval and so do we to the observations of Justice Holmes
I recognize without hesitation that Judges do and must legislate
but they can do so only interstitially they are confined from molar to molecular motions
 193 Arthur Selwyn Miller writes Some have called it the Supreme A Court the highest legislative chamber in the nation
Although there is no question that the Court can and does make law and does so routinely  
Assuming the above approach to be too creatively novel for traditionalism let us approach the same problem from a conventional angle authenticated by case law
The question of construction of section 11A was argued at length as to whether an omission of any reference to Arbitrator appointed under section 10A in section 11A would suggest that the Arbitrator under section 10A notwithstanding the terms of reference would not enjoy the power conferred on all conceivable industrial adjudicators under section 11A
It was said after referring to the objects and reasons in respect of the bill which was moved to enact section 11A in the  that while the ILO had indicated that an arbitrator selected by the parties for adjudication of industrial dispute must be invested with power by appropriate legislation as found in section 11A the Parliament while enacting the section in its wisdom did not include the Arbitrator even though other adjudicators of industrial disputes have been conferred such power and therefore it is a case of Sasus omissions
Reliance was placed on Gladstone vs Bower where the question arose whether a reference to a tenancy from year to year in section 21 of the Agricultural Holdings Act 1948 would also cover a tenancy for 18 months which could be terminated at the end of the first year
The submission was that even though no notice was necessary at common law because the tenancy would automatically terminate at the expiry of the specified period of tenancy the tenancy took effect as tenancy from year to year by virtue of section 21 of the Act so that it continued until terminated by notice to quit and therefore the landlord was not entitled to possession without notice
It was further contended that if a tenancy from year to year was to get the protection of the Act it is inconceivable that tenancy for a longer duration would not qualify for that protection
Court of Appeal negatived this contention holding that this is a case simply of casus omissus and the Act is defective
The court further held that if it were ever permissible for the Court to repair a defective Act of Parliament the Court would be very glad to do so in this case so far as the Court could
The Court will always allow the intention of a statute to override the defects of wording buts the Court s ability to do so is limited by the recognised canons of interpretation
The Court may for example prefer an alternative construc 194 tion which is less well fitted to the words but better fitted to the intention of the Act
But here for the reasons given by the learned Judge there is not alternative construction it is simply a case of something being overlooked
The Court cannot legislate for a casus omissions
To do so would be to usurp the function of the legislature see Magor  St Mellons Rural District Council vs Newport Corporation
Where the Statute s meaning is clear and explicit words cannot be interpolated
Even where the meaning of the statute is clear and sensible either with or without the omitted word interpolation is improper since the primary source of the legislative intent is in the language of the statute see Crawford s Construction of Statutes
1940 Edn p 269 extracted in section Narayanaswami vs G Panneerselvam Undoubtedly the Court cannot put into the Act words which are not expressed and which cannot reasonably he implied on any recognised principles of construction
That would be a work of legislation not of construction and outside the province of the Court see Kamalaranjan vs Secretary of State3 Similarly where the words of the statute are clear it would not be open to the Court in order to obtain a desired result either to omit or add to the words of the statute
This is not the function of the Court charged with a duty of construction
This approach has however undergone a sea change as expressed by Denning I J in Seaford Court Estates Ltd vs Asher wherein he observed as under When a defect appears a Judge cannot simply fold his hands and blame the draftman
He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give force and life  to the intention of legislature   A judge should ask himself the question how if the makers of the Act had themselves come across this ruck in the texture of it they would have straightened it out  He must then do as they would have done
A judge must not alter the material of which the Act is woven but he can and should iron out the creases Approved in State of Bihar  Anr
vs Dr Asis Kumar Mukherjee  ors
where in he observed as under 195 This long excursion has become important because once in a while social legislation which requires sharing of social philosophy between the Parliament and the Judiciary meets with its Waterloo in the 
higher courts because the true role of interpretation shifts from Judge to Judge
We are clearly of the view that statutory construction which fulfills the mandate of the statute must find favour with the Judges except where the words and the context rebel against such  flexibility
We would prefer to be liberal rather than lexical when reading the meaning of industrial legislation which develops from day to day in the growing economy of India
The necessary conclusion from this discussion is that the expression tribunal  includes in the statutory setting an arbitrator also
Contemporaneous par legislative material may legitimately be consulted when a word of wider import and of marginal obscurity needs to be interpreted
So viewed we are not in a sound proof system  and the ILO recommendation accepted by India
and the objects and Reasons of the amending Act leave no doubt about the sense policy and purpose
Therefore Section 11A applies to the arbitrator in the present case and he has the power to examine whether the punishment imposed in the instant case is excessive
So has the High Court if the Award suffers from a fundamental flaw
A study of the lengthy award discloses no mention of Section 11A and presumably the authority was unmindful of that provision while rendering the verdict
In a limited sense even prior to Section 11A there was jurisdiction for a labour tribunal including an arbitrator to go into the punitive aspect of the Management s order
This Court has in a catena of cases held that a mala fide punishment is bad in law and when the punishment is grotesquely condign or perversely harsh or glaringly discriminatory an easy inference of bad faith unfair labour practice or victimisation arises
The wider power tn examine or prescribe the correct punishment belongs to tribunalarbitrator even under Sec 11 in no enquiry or a defective enquiry which is bad and therefore can be equated with a no enquiry  situation has been held by the Management
For then there is no extant order of guilt or punishment and the tribunal determines it fresh
In such a virgin situation both culpability and quantification of punishment arc within the jurisdiction of the tribunalarbitrator
The present is such a case
Volleys of rulings from both sides were fired during arguments the target being the limited area of the tribunal s power to overturn the quantum of punishment awarded by the Management
We do not think it necessary to re gurgitate all that has been said by this Court 196 upto now since it is sufficient to bring out the correct law in the light of the leading citations
It is incontrovertible that where as here no enquiry has been held by the Management the entire subject is at large and both guilt and punishment in equal measure may be determined without inhibition of jurisdiction by the tribunal
Lastly as rightly urged by counsel for the Sabha an arbitrator has all the powers the terms of reference to which both sides are party confer
Here admittedly the reference is very widely worded and includes the nature of the punishment
The law and the facts do not call for further elaboration and we hold that in any view the arbitrator had the authority to investigate into the propriety of the discharge and the veracity of the misconduct
Even if section 11A is not applicable an Arbitrator under section 10A is bound to act in the spirit of the legislation under which he is to function
A commercial arbitrator who derives his jurisdiction from the terms of reference will by necessary implication be bound to decide according to law and when one says according to law  it only means existing law and the law laid down by the Supreme Court being the law of the land an Arbitrator under section 10A will have to decide keeping in view the spirit of section 11A See Union of India vs Bungo Steel Furniture Pvt
Ltd 1967 1 SCR 324
The Jurisdictional hurdles being thus cleared we may handle the basic facts and the divergences between the Arbitrator and the High Court before moulding the final relief
Prefatory to the discussion about the factum of misconduct and its sequel we must remind ourselves that the strike was illegal having been launched when another industrial dispute was pending adjudication
23 a appears at a verbal level to convey such a meaning although the ambit of sub clause a may have to be investigated fully in some appropriate case in the light of its scheme and rationale
It looks strange that the pendency of a reference on a tiny or obscure industrial dispute and they often pend too long should block strikes on totally unconnected yet substantial and righteous demands
The constitutional implications and practical complications of such a veto of a valuable right to strike often leads not to industrial peace but to seething unrest and lawless strikes
But in the present case both before the arbitrator and the High Court the parties have proceeded on the agreed footing that the strike was illegal under Section 23a
We do not reopen the issue at this late stage and assume the illegality of the strike
The Fatal Flaw in the Award The Achilles heel of the arbitrator s award is where he makes as a substitute for specific and individuated findings of guilt and 197 appropriate penalty vis a vis each workmen a wholesale survey of A the march of events from tension to breakdown from fair settlement to illegal and unjustified strike from futility of negotiation to readiness for arbitration from offer of full re employment to partial taking back on application by workmen in sack cloth and ashes by picking and choosing after a humble declaration that the strike has been formally buried from episodes of violence and paralysis of production to backstage manoeuvres to get the factory taken over as a sick mill  and after a full glimpse of this scenario holds that the Sabha was always in the wrong and inevitably the Management was surely reasonable AND ergo every employee must individually bear the cross of misconduct and suffer dismissal for the sins of the Sabha leadership its secretary was not an employee of the mill by some sub conscious doctrine of guilt by association Non Sequitur
Each link in the chain of facts has been challenged by the respondents but let us assume them to be true to test the strength of the legal fibre of the verdict
We may mention by way of aside D that the Company seems to be a well managed one The cardinal distinction in our punitive jurisprudence between a commission of enquiry and a Court of Adjudication between the cumulative causes of a calamity and the specific guilt of a particular person is that speaking generally we have rejected as a nation the theory of community guilt and collective punishment and instead that no man shall be punished except for his own guilt
Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency
Blanket attainder of a bulk of citizens on any vicarious theory for the gross sins of some only is easy to apply but obnoxious in principle
Here the arbitrator has found the Sabha Leadership perverse held that the strikers should have reasonably reported for work and concluded that the Management had for survival to make do with new recruits
Therefore what  What at long last is the answer to the only pertinent question in 6
a disciplinary proceeding viz what is the specific misconduct against the particular workmen who is to lose his job and what is his punitive desert Here you can t generalise any more than a sessions judge can by holding a faction responsible for a massacre sentence every denizen of that factions village to death penalty
The legal error is fundamental although lay instinct may not be outraged
What did worker A do  Did he join the strike or remain at home for fear of vengeance against blacklegs in a para violent situation  Life 198 and limb are dearer than loyalty to the common run of men and discretion is the better part of valour
Surely the Sabha complained of Management s goondas and the latter sought police aid against the unruly core of strikers
In between the ordinary rustic workmen might not have desired to be branded blacklegs or become martyrs and would not have reported for work
If not being heroic in daring to break through the strike cordon illegal though the strike be were misconduct the conclusion would have been different
Not reporting for work does not lead to an irrebuttable presumption of active participation in the strike
More is needed to bring home the mens rea and that burden is on the prosecutor to wit the Management
Huddling together the eventful history of deteriorating industrial relations and perverse leadership of the Sabha is no charge against a single worker whose job is at stake on dismissal
What did he do  Even when lawyers did go on strike in the higher Courts or organize a boycott legally or illegally even top law officers of the Central Govt
did not attend court argued Shri Tarkunde and if they did not boycott but merely did not attend could workers beneath the bread line be made of sterner stuff
There is force in this pragmatic approach
The strike being illegal is a non issue at this level
The focus is on active participation
Mere absence without more may not compel the conclusion of involvement
Likewise the further blot on the strike of being unjustified even if true cuts no ice
Unjustified let us assume so what The real question is did the individual worker who was to pay the penalty actively involve himself in this unjustified misadventure  or did he merely remain a quiescent non worker during that explosive period  Even if he was a passive striker that did not visit him with the vice of activism in running an unjustified strike
In the absence of proof of being militant participant the punishment may differ
To dismiss a worker in an economy cursed by massive unemployment is a draconian measure as a last resort
Rulings of this Court have held that the degree of culpability and the quantum of punishment turn on the level of participation in the unjustified strike
Regrettably no individualised enquiry has been made by the Arbitrator into this significant component of delinquency
Did any dismissed worker instigate sabotage or indulge in vandalism or violence  The Management s necessity to move the mill into production for fear of being branded a sick unit  is understandable
Of course collective strike is economic pressure by cessation of work and not exchange of pleasantries
It means embarrassing business
Such a quandary cannot alter the law
Here the legal confusion is obvious
199 No inquest into the Management s recruitment of fresh hands is being made at this stage
The inquiry is into the personal turpitudes of particular workmen in propelling an illegal and unjustified strike and the proof of their separate part therein meriting dismissal
The despair of the Management cannot by specious transformation of logic be converted into the despair of each of the 853 workmen
Sympathies shall not push one into fallacies
We may now concretize this generalised criticism of the otherwise well covered award
The crowd of documents and camping attitudes must have added to the strain on the Arbitrator
A voluminous record of documents and correspondence has been produced before me by both sides
There have been allegations and counter allegations made by both sides not only against each other but even against the Police the Department of Labour and persons in Authority
The history has been sought to be traced right from the inception of the Company in 1966 or 1967 by the Company to show that their conduct has been always proper and above reproach and by Sabha to establish that not only the Gujarat Steel Tubes Ltd were not fair to the employees but that every action of theirs good or bad was ill motivated was executed with some sinister ulterior motives
 The Award set out the history of the Company its vicissitudes the hills and valleys the lights and shadows of industrial relations with mob fury and lock outs and allied episodes often ending in settlements and pious pledges
Then the Arbitrator stressed Clause 6 of the Agreement of December 1971 which bespoke a no strike zone for five years
There was reference to the Management s promise to implement the Wage Board recommendations
The Arbitrator was upset that despite Clause a strike was launched but was not disturbed that despite the Wage Board proposals negotiations were being baulked and an interminable arbitral alternative was being offered by the Management
He exclaimed If such a settlement arrived at was not respected and implemented the machinery provided by law would lose all meaning and so also the sanctity of the word of the Management or the word of the union
It is therefore essential tn ascertain who was responsible for the breach of the agreement so solemnly entered into
Serious breach by management is alleged and this is given as a reason or is made as an cause for getting rid of the obligations 200 arising out of the agreement which specifically could not be terminated for five years
 The narration continues and the following conclusion is reached It is thus very clear that the company had fully discharged its obligation under the agreement in respect of 64 discharged or dismissed workmen and the other workmen and the allegation made by the Sabha of the company having made a breach thereof is not correct
 We thus see that at this stage the arbitrator has merely made r a generalised approach as if a commission of inquiry were going into the conduct of the Management and the Sabha to discover who was blameworthy in the imbroglio
The award then swiveled round to a study of the case of the Sabha vis a vis the triple grievances the Sabha had I shall first deal with the grievance regarding demands for implementation of the recommendations of the Wage Board
The long and sterile correspondence was set out and the arbitrator arrived at the conclusion that the insistence on reference to arbitration as against negotiation was justified on the part of the Management I therefore have accepted the version of the Management and disbelieved the motivated denial of the Sabha in this respect
 The culmination of the protracted discussion on the atmosphere and environment rather than on the actual charge against each worker was recorded in the Award I have exhaustively perhaps more exhaustively than even necessary dealt with the allegations made by the Sabha that the Management had committed breach of agreement by refusing to accede to the demand of the Sabha for implementation of recommendations of the Wage Board
There appears to be no doubt that the Management had agreed to implement the recommendation of the Wage Board
There is also not the least doubt the Management was ready and willing to implement the recommendations of the Wage Board it was because it was prevented by 
the Sabha from doing so 201 An analysis of the Management s conduct in the matter of non implementation of the Wage Board recommendation was thereafter made by the Arbitrator and he wound up thus  I am satisfied that the Company had not committed any breach of the settlement dated 4 8 1972 at least so far as implementation of the recommendations of the Wage Board is concerned
 The question of bonus for the year 1971 was also considered and dismissed and the Sabha s case to that extent was negatived
Again the plea for wages for the period of the lock out was also negatived with the observations  I fail to see how the Sabha can allege breach of the agreement dated 4 8 1972 in view of the clear unequivocal terms contained in clause 4 of that Agreement
 In this strain the Award continued and the refrain was the same that the Sabha was in the wrong
The Award even went to the exaggerated extent of morbidly holding that the workers were wearing printed badges which along with other circumstances amounted to a breach of the agreement  The Award then moved on to the strike of January 27 1973 because it led to the dismissal of all the workmen
Until this stage the arbitrator was merely painting the background and at any rate did not engage himself in isolating or identifying any worker or any misconduct
He merely denounced the Sabha which is neither here nor there in the matter of disciplinary proceedings against each individual workman
He missed the meat of the matter
The relevant portion of the Award based on generalisation proved this error  I am concerned herein with the question whether the discharge or dismissal of the 400 workmen was legal and proper or not and what relief to grant to them
Approached from any point of view the action of the Company appears to me to be legal proper and justified and the demands on behalf of these workmen must be rejected
 A condemnation of the Sabha and an approval of the Management s handling of the strike are miles away from the issue on hand
202 We observe here also an unfortunate failure to separate and scan the evidence with specific reference to charges against individual workman
On the contrary all that we find in the award is an autopsy of the strike by the Sabha and a study of its allegedly perverse postures
A disciplinary inquiry resulting in punishment of particular delinquents cannot but be illegal if the evidence is of mass misconduct by unspecified strikers led by leaders who are perhaps not even workmen
We are constrained to state that pointed consideration of facts which make any of the 400 workmen guilty is a search in vain
The award being ex facie blank from this vital angle the verdict must prima facie rank as void since vicarious guilt must be brought home against the actively participating members of a collectivity by positive testimony not by hunch suspicion or occult intuition
The short position is this
Is there a punishment of any workman  If yes has it been preceded by an enquiry  If not does not the Management desire to prove the charge before the tribunal  If yes what is the evidence against whom of what misconduct  If individuated proof be forthcoming and relates to an illegal strike the further probe is this  was the strike unjustified  If yes was the accused worker an active participant therein  If yes what role did he play and of what acts was he author  Then alone the stage is set for a just punishment
These exercises as an assembly line process are fundamental
Generalisation of a violent strike of a vicious Union leadership of strikers fanatically or foolishly or out of fear failing to report for work are good background material
Beyond that these must be identified by a rational process the workmen their individual delinquency and the sentence according to their sin
Sans that the dismissal is bad
Viewed from this perspective the Award fails
The Arbitrator comes to grips with the core question of discharge simpliciter versus dismissal as punishment but not with the identification of delinquents and delinquency
After referring to Order 23 of the Model Standing Orders he goes on to state the law correctly by extracting observations from the Assam Oil Company case
Another vital facet of industrial law is that when no enquiry has been held by the Management before imposing a punishment or the enquiry held is defective and bad the whole field of delinquency and consequent penalty is at large for the tribunal
Several rulings support this logic
We are constrained to hold that a certain observation made per incuriam by Mr Justice Vaidyalingam strongly relied on by Sri A K Sen does not accurately represent the law although the learned 203 Judge had earlier stated the law and case law correctly if we may say so with respect
A selective study of the case law is proper at this place
Before we do this a few words on the basis of the right to strike and progressive legal thinking led by constitutional guidelines is necessitous
The right to unionise the right to strike as part of collective bargaining and subject to the legality and humanity of the situation the right of the weaker group viz labour to pressure the stronger party viz capital to negotiate and render justice are processes recognised by industrial jurisprudence and supported by Social Justice
While society itself in its basic needs of existence may not be held to ransom in the name of the right to bargain and strikers must obey civilised norms in the battle and not be vulgar or violent hoodlums Industry represented by intransigent Managements may well be made to reel into reason by the strike weapon and cannot then squeal or wail and complain of loss of profits or other ill effects but must negotiate or got a reference made
The broad basis is that workers are weaker although they are the producers and their struggle to better their lot has the sanction of the rule of law
Unions and strikes are no more conspiracies than professions and political parties are and being far weaker need succour
Part IV of the Constitution read with article 19 sows the seeds of this burgeoning jurisprudence
The Gandhian quote at the beginning of this judgement sets the tone of economic equity in Industry
Of course adventurist extremist extraneously inspired and puerile strikes absurdly insane persistence and violent or scorched earth policies boomerang and are anathema for the law
Within these parameters the right to strike is integral to collective bargaining
Responsible trade unionism is an instrument of concerted action and the laissez faire law that all strikes are ipso facto conspiracies is no longer current coin even in Adam Smith s English country
Lord Chorley in Modern Law Review Vol 28 1965 p 451 is quoted as saying that law must be altered as a consequence of Rookes vs Barnard so as to remove the effects of decisions of conspiracy and intimidation
He goes on to state that Allen vs Flood and Quinn vs Leathem taking the conspiratorial view must never be permitted to be quoted in courts
In contrast reference was made to Willis on Constitutional Law pp 878 879 wherein the Supreme Court of America reflects the impact of capitalistic development and the economic views of the judges and the fact that the judges are members of a social order and a social product and the decisions are due more to the capitalistic system and the world of ideas in which the judges live
Our Constitution is clear 204 in its mandate what with article 39A superadded and we have to act in tune with the values enshrined therein
The benign attitude towards strike being what we have outlined the further question arises whether in the light of the accepted finding that the strike as such was illegal and further was unjustified all the strikers should face the penalty of dismissal or whether individual cases with special reference to active participation in the strike should be considered
A rapid but relevant glance at the decided cases may yield dividends
In India General Navigation and Railway Co Ltd vs Their Workmen supra this court did observe that if a strike is illegal it cannot be called perfectly justified 
But between perfectly justified  and unjustified  the neighbourhood is distant
More illegality of the strike does not per se spell unjustifiability
For in Crompton Greaves Ltd vs Workmen supra this Court held that even if a strike be illegal it cannot be castigated as unjustified unless the reasons for it are entirely perverse or unreasonable an aspect which has to be decided on the facts and circumstances of each case
In that decision this Court awarded wages during the strike period because the Management failed to prove that the workmen resorted to force and violence
Even in India General Navigation and Railway Co Ltd supra where the strike was illegal and affected a public utility service this Court observed that 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
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 The court after holding that the strike was illegal and that it was not even justified made a pregnant observation  To determine the question of punishment a clear distinction has to be made between those workmen who are 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 205 interest of the workmen themselves
An Industrial Tribunal therefore has to consider the question of punishment keeping in view the overriding 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 After noticing the distinction between peaceful strikers and violent strikers Sinha J in that case observed 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
 The same line of dichotomy is kept up  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
 Significantly the Court stressed the need for individual chargesheet being delivered to individual workmen so that the degree of misconduct of each and the punitive deserts of each may be separately considered
We may as well refer to a few more rulings since considerable argument was expended on this point
This Court in Ms Burn  Co Ltd vs Their Workmen  Ors1 clearly laid down that mere participation in the strike would not justify the suspension or dismissal of workmen particularly where no clear distinction can be made between those persons and the very large number of workmen who had been taken back into service although they had participated in the strike
After referring to the ratio in Ms Burn  Co Ltd case this Court in Bata Shoe Co P Ltd vs D N Ganguly  Ors2 observed that there is no doubt that if an employer makes an unreasonable discrimination in the matter of taking back employees there may in certain circumstances be reason for the industrial tribunal to interfere but the circumstances 206 of each case have to be examined before the tribunal can interfere with the order of the employer in a properly held managerial inquiry on the ground of discrimination
The Court then proceeded to determine the facts placed before it
Sri Sen specifically pointed out that in the Bata Shoe Co s case this Court distinguished the decision in India General Navigation  Railway Co Ltd s and observed that the decision in that case was on the facts placed before the Court
In fact Bata Shoe Co s case does not lay down any distinct proposition about the treatment to be meted out to participants in strike and actually it is a decision on its own facts
In The Swadeshi Industries Ltd vs Its Workmen1 the Management after holding that the strike was illegal terminated the services of 230 workmen without framing any chargesheet or holding any enquiry
It was contended that the strike was not legal
The Court observed that collective bargaining for securing improvement on matters like basic pay dearness allowance bonus provident fund and gratuity leave and holidays was the primary object of a trade union and when demands like these were put forward and thereafter a strike was resorted to in an attempt to induce the company to agree to the demands or at least to open negotiations the strike must prima facie be considered justified
As the order of termination was found to be illegal it was held that reinstatement with back wages must follow as a matter of course not necessarily because new hands had not been inducted
In I M H Press Delhi vs Additional Industrial Tribunal Delhi  Ors
2 this Court was called upon to examine the ratio in Model Mills3 case and India General Navigation  Railway Co Ltd case and this Court in terms affirmed the ratio in India General Navigation  Railway Co Ltd case observing that mere taking part in an illegal strike without anything further would not justify the dismissal of all the workmen taking part in the strike
In Indian Iron  Steel Co Ltd  Anr
vs Their Workmen4 this Court observed that the management of a concern has power to direct its own internal administration and discipline but the power is not unlimited and when a dispute arises Industrial Tribunals have been given the power to see whether the termination of service 207 of a workman is justified and to give appropriate relief
It may be noticed that the decision is prior to introduction of section 11A
It would thus appear that the important effect of omission to hold an enquiry was merely this that the tribunal would have to consider not only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have been made out
A defective enquiry in this connection stood on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the entire matter and the employer would have to satisfy the tribunal that on the facts the order of dismissal or discharge was proper
see Workmen of Motipur Sugar Factory Pvt Ltd vs Motipur Sugar Factory1 and Provincial Transport Service vs State Industrial Court 2
Once therefore it was held that the enquiry was not proper it was irrelevant whether the workman withdrew from the enquiry or participated in it the decision had to be on appraisal of evidence and if it was found that the enquiry was not proper the whole case was open before the labour court to decide for itself whether the charge of misconduct was proved and what punishment should be awarded see Imperial Tabacco Company of India Ltd vs Its Workmen 3
As against the above propositions Sri Sen relied upon the observations of this Court in Oriental Textile Finishing Mills Amritsar vs Labour Court Jullundur  Ors4
We fail to see how it runs counter to the established principle
The Court in fact held that even where the strike is illegal before any action was taken with a view to punishing the strikers a domestic enquiry must be held
Even though the Standing Orders prescribing enquiry before punishment did not provide for any such enquiry the Court held that nonetheless a domestic enquiry should have been held in order to entitle the management to dispense with the service of the workmen on the ground of misconduct viz participation in the illegal strike
After so saying the Court agreed with the view of the Court in Indian General Navigation  Railway Co Ltd case and reaffirmed the principle that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all the workers taking part in the strike and that if the employer before dismissing a workman gave him sufficient opportunity of explaining his conduct and no question of mala fides or victimisation arose 208 it was not for the tribunal in adjudicating the propriety of such dismissal to look into the sufficiency or otherwise of the evidence led before the enquiry officer or insist on the same degree of proof as was required in a court of law as if it were sitting in appeal over the decision of the employer
Another aspect of this case emphasised that it could not be dogmatised as a matter of law that an overt act such as intimidation or instigation or violence was necessary in order to justify termination of service for participating in an illegal strike
On the facts of that case even though it was found that no domestic enquiry was held reinstatement was refused on the ground that misconduct was made out
Sri Sen of course relied on this judgment to show that where a strike was resorted to and the workers were called upon to join service within the stipulated time on their failure it was open to the company to employ new hands
This is reading more into the ruling than is warranted
We cannot agree that mere failure to report for duty when a strike is on necessarily means misconduct
Many a workman as a matter of prudence may not take the risk of facing the militant workmen or the Management s hirelings for fear especially when there is evidence in the case from the Sabha that the Management had hired goondas and from the Management that the striking vanguard was violent
It is also possible in the absence of evidence to the contrary that several workmen might not be posted with the Management s notice of recall or the terms on which they were being recalled
In this view we are not able to uphold the conclusion of the arbitrator that the punishment of dismissal was appropriate for the entire mass of workmen whose only guilt as proved was nothing more than passive participation in the illegal and unjustified strike by not reporting for duty
The verdict is inevitable that the discharge is wrongful
The only comment we reluctantly make about the otherwise thorough award of the Arbitrator is that omnibus rhetoric about the obnoxious behaviour of a class may not make do for hard proof of specific acts of particular persons where a punitive jurisdiction is exercised
What then is the normal rule in the case of wrongful dismissal when the workmen claim reinstatement with full back wages  The High Court has held the discharge wrongful and directed restoration 209 with an equitable amount of back wages
The following rulings of this Court et al deal with this subject  The recent case of Hindustan Tin Works vs Its Employees 1 sets out the rule on reinstatement and back wages when the order of this Court et al deal with this subject  It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service
The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt this branch of law
The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid
It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings
If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated the employer could not shirk his responsibility of paying the wages which the workmen has been deprived of by the illegal or invalid action of the employer
Speaking realistically where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when law s proverbial delay has become stupefying
If after such a protracted time and energy consuming litigation during which period the workman just sustains himself ultimately he is to be told that though he will be reinstated he will be denied the back wages which would be due to him the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved
Ordinarily therefore a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness
That is the normal rule
Any other view would be a premium on the unwarranted litigative activity of the employer
If the employer terminates the service illegally and the termination is motivated as in this 210 case viz to resist the workmen s demand for revision of wages the termination may well amount to unfair labour practice
In such circumstances reinstatement being the normal rule it should be followed with full back wages
Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect  
In the very nature of things there cannot be a strait jacket formula for awarding relief of back wages
All relevant considerations will enter the verdict
More or less it would be a motion addressed to the discretion of the Tribunal
Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure
At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances
 Dealing with the complex of considerations bearing on payment of back wages the new perspective emerging from article 43A cannot be missed as explained in Hindustan Tin Works Labour is no more a mere factor in production but a partner in Industry conceptually speaking and less than full back wages is a sacrifice by those who can best afford and cannot be demanded by those who least sacrifice their large wages  though can best afford if financial constraint is the ground urged by the latter Management as inability to pay full back pay to the former
The morality of law and the constitutional mutation implied in article 43A bring about a new equation in industrial relations
Anyway in the Hindustan Tin Works  case 75 per cent of the past wages was directed to be paid
Travelling over the same ground by going through every precedent is supererogatory and we hold the rule is simple that the discretion to deny reinstatement or pare down the quantum of back wages is absent save for exceptional reasons
It must be added however that particular circumstances of each case may induce the court to modify the direction in regard to the quantum of back wages payable as happened in the India General Navigation and Railway Co Ltd vs Their Workmen Supra
We may therefore have to consider when finally moulding the relief what in this case we should do regarding reinstatement and back wages
A Sum up We may now crystallise our conclusions in the light of the long discussion
The basic assumption we make is that the strike was not only illegal but also unjustified
On the latter part a contrary 211 view cannot be ruled out in the circumstances present but we do not reinvestigate the issue since the High Court has proceeded on what both sides have taken for granted
The Management in our view did punish its 853 workmen when it discharged them for reasons of misconduct set out in separate but integrated proceedings even though with legal finesse the formal order was phrased in harmless verbalism
But fine words butter no parsnips and law in its intelligent honesty must be blunt and when it sees a spade must call it a spade
The action taken under the general law or the standing orders was illegal in the absence of individualised chargesheets proper hearing and personalised punishment if found guilty
None of these steps having been taken the discharge orders were still born
But the Management could as in this case it did offer to make out the delinquency of the employees and the arbitrator had in such cases the full jurisdiction to adjudge de novo both guilt and punishment
We hold that sec
11A does take in an arbitrator too and in this case the arbitral reference apart from sec
11A is plenary in scope
In the second chapter of our sum up the first thing we decide is that article 226 however restrictive in practice is a power wide enough in all conscience to be a friend in need when the summons comes in a crisis from a victim of injustice and more importantly this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand
What the tribunal may in its discretion do the High Court too under article 226 can if facts compel do
Secondly we hold that the Award suffers from a fundamental flaw that it equates an illegal and unjustified strike with brazen misconduct by every workman without so much as identification of the charge against each the part of each the punishment for each after adverting to the gravamen of his misconduct meriting dismissal
Passive participation in a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive discharge
There must be active individual excess such as master minding the unjustified aspects of the strike eg violence sabotage or other reprehensible role
Absent such gravamen in the accusation the extreme economic penalty of discharge is wrong
An indicator of the absence of such grievous guilt is that the Management after stating in strong terms all the sins of the workmen took back over 400 of them as they trickled back slowly and beyond the time set with continuity of service suggestive of the dubiety of the inflated accusations and awareness of the minor role of the mass of workmen in the Engineers strike
Furthermore even though all sanctions short of 212 punitive discharge may be employed by a Management in our current conditions of massive unemployment low wages and high cost of living dismissal of several hundreds with disastrous impact on numerous families is of such sensitive social concern that save in exceptional situations the law will inhibit such a lethal step for the peace of the Industry the welfare of the workmen and the broader justice that transcends transient disputes
The human dimensions have decisional relevance
We hold the discharge orders though approved by the Arbitrator invalid
The last part of our conclusions relates to the relief which must be fashioned with an eye on mutual equities
We cannot ignore a few raw realities since law is not dogmatics but pragmatics without temporising on principle
The Management s limitations in absorbing all the large number of discharged employees all at once when steel the raw material is scarce is a problem
Likewise their inability to pay huge sums by way of back wages or otherwise without crippling the progress of the industry cannot be overlooked but cannot be overplayed after Hindustan Tin Works
Another factor which cannot be wished away is the presence of over a couple of hundred workmen with varying lengths of service who may have to be sacked if the old workmen are to be brought back
It is a problem of humanist justice
Lastly the rugged fact of life must not be missed that some of the workmen during the long years of desperate litigation might have sought jobs elsewhere and most of them perhaps have for sheer survival made at least a starving wage during the prolonged idle interval
This factor too is a weak consideration tested by the reasoning in Hindustan Tin Works
Moreover rationalisation of re absorption of the removed workmen requires attention to the classification of permanent workmen and their casual counterparts
Every proposal must be bottomed on the basic economic fact that the beneficiaries are from the many below the destitution line
This Court has in a very different context though has drawn attention to the Gandhian guideline Whenever you are in doubt  apply the following test
Recall the face of the poorest and the weakest man whom you may have seen and ask yourself if the step you contemplate is going to be of any use of him
 It is apt here
This perspective informs our decision
What did the High Court do regarding reinstatement and should we modify and why If the discharge is bad reinstatement is the rule
In India General Navi 213 gation Punjab National Bank and Swadeshi Industries et al restoration despite large numbers was directed
But most rules have exceptions wrought by the pressure of life and Oriental was relied on to contend that reinstatement must be denied
There is force in the High Court s reasoning to distinguish Oriental as we hinted earlier and we quote There were only 22 workmen involved in that case
The management had made genuine and persistent efforts to persuade the concerned workmen to call of the strike and join work
Those efforts were made at three different stages namely 1 immediately after the workers went on the lightening strike and before chargesheets were issued 2 after the charges were dropped and individual notices were sent to the workmen asking them to resume work by specified dates and 3 after the orders of termination were served and conciliation proceedings were commenced pursuant to the demand notice
But this is not all
Even the Labour Officer and Labour Inspector had tried to persuade the concerned workmen to joint duty before the charge sheet came to be issued
As against these repeated bona fide attempts on the part of the management and an outside agency to persuade the erring workmen they not only did not resume work but also failed to acknowledge or send a reply to the individual notices served upon them requesting them to resume work and they appear to have made it a condition precedent to their joining duty that the suspended workmen should also be taken back
Even under such circumstances the management did not straightaway terminate their services but gave individual notices requiring the concerned workmen to show cause why their names should not be struck off and asked them to submit their reply by a certain date
Even those notices were not replied
It is only thereafter that the services of the concerned workmen came to be terminated
It is against this background that the Supreme Court held that there was a persistent and obdurate refusal by the workmen to joint duty notwithstanding the fact that the management has done everything possible to persuade them and give them opportunities to come back to work and that they had without any sufficient cause refused to do so which constituted misconduct so as to justify the termination of their services
214 
If the workmen had been approached individually not only those amongst them who were unwilling to join strike but were prevented from joining work would have taken courage to resume duty but even those amongst them who were undecided could also have been won over
That apart those notices as their contents disclose were hardly persuasive efforts
They were a mixture of ultimatums threats complaints and indictment of the workmen and the Sabha
Was it therefore a genuine effort on the part of a keenly desirous employer to offer an olive branch In Oriental orders of termination were passed only after giving individual notices to the concerned workmen to showcause why their names should not be struck off
Besides those notices were given after charges formally served upon each workmen earlier were dropped and persuasive efforts made in the meantime had failed
None of those steps was taken herein
All that happened was that in one of the notices meant for mass consumption and circulation such intimation was given
 Even so during the several years of the pendency of the dispute surely some workmen would have secured employment elsewhere as was conceded by counsel at a certain stage and it is not equitable to recall them merely to vindicate the law especially when new workmen already in precarious service may have to be evicted to accommodate them
In the course of the debate at the Bar we gained the impression that somewhere around a hundred workmen are likely to be alternatively employed
Hopefully there is no hazard in this guess
Another facet of the relief turns on the demand for full back wages
Certainly the normal rule on reinstatement is full back wages since the order of termination is non est
see Lad s case1 and Panitole Tea Estate s case2
Even so the industrial court may well slice off a part if the workmen are not wholly blameless or the strike is illegal and unjustified
To what extent wages for the long interregnum should be paid is therefore a variable dependent on a complex of circumstances
See for eg paras 3 and 4
We are mindful of the submission of Sri Tarkunde urged in the connected appeal by the Sabha that where no enquiry has preceded 215 a punitive discharge and the tribunal for the first time upholds the punishment this Court has in D C Roy vs The presiding Officer Madhya Pradesh Industrial Court Indore  Ors1 taken the view that full wages must be paid until the date of the award
There cannot be any relation back of the date of dismissal to when the Management passed the void order
Kalyani2 was cited to support the view of relation back of the Award to the date of the employer s termination orders
We do not agree that the ratio of Kalyani corroborates the proposition propounded
Jurisprudentially approval is not creative but confirmatory and therefore relates back
A void dismissal is just void and does not exist
If the Tribunal for the first time passes an order recording a finding of misconduct and thus breathes life into the dead shall of the Management s order predating of the nativity does not arise
The reference to Sasa Musa in Kalyani enlightens this position
The latter case of D C Roy vs The Presiding Officer Madhya Pradesh Industrial Court Indore  Ors
supra specifically refers to Kalyani s case and Sasa Musa s case and holds that where the Management discharges a workmen by an order which is void for want of an enquiry or for blatant violation of rules of natural justice the relation back doctrine cannot be invoked
The jurisprudential difference between a void order which by a subsequent judicial resuscitation comes into being de novo and an order which may suffer from some defects but is not still born or void and all that is needed in the law to make it good is a subsequent approval by a tribunal which is granted cannot be obfuscated
We agree that the law stated in D C Roy supra is correct but now that the termination orders are being set aside the problem does not present itself directly
Even the other alternative submission of Sri Tarkunde that if the plea of the Management that the order is a discharge simpliciter were to be accepted the result is a retrenchment within the meaning of section 200 which in this case is in violation of section 25F and therefore bad is not a point urged earlier
We are disposed to stand by the view that discharge even where it is not occasioned by a surplus of hands will be retrenchment having regard to the breadth of the definition and its annotation in  But the milieu in which the order was passed in February 1973 is not fully available viewed from this new angle
So we decline to go into that contention
216 Final Relief We are concerned with 400 workmen some of whom have been claimed by death or other irreversible causes casualties of litigative longevity  are 370 workmen are left behind of whom 239 are admittedly permanent
We have already stated that 100 out of them are probably fixed up elsewhere
So we exclude them and direct that the remaining 139 alone will be reinstated
A list of the aforesaid 100 workmen will be furnished to the Management by the Sabha within two weeks from today
That shall be accepted as correct and final
While reinstatement is refused for these 100 workmen when shall they be deemed to have ceased to be in service for drawal of terminal benefits  Their discharge orders having been quashed they remain in service until today
We concluded the arguments on August 3 1979 and on the eve of the closure of counsel s submissions certain inconclusive settlement proposals were discussed
We therefore consider August 3 1979 as a pivotal point in the calender with reference to which the final relief may be moulded
We direct that the 100 workmen for whom reinstatement is being refused will be treated as in service until August 3 1979 on which date they will be deemed to have been retrenched
We direct this step with a view to pragmatise the situation in working out the equities
These 100 will draw all terminal benefits plus 75 per cent of the back wages
This scaling down of back pay is consistent with the assumption that somewhere in the past they had secured alternative employment
The long years and the large sum payable also persuade us to make this minor cut
Of course in addition they will be entitled to retrenchment benefits under section 25F of the Act and one month s notice pay
The remaining 139 will be awarded 50 per cent of the back wages since we are restoring them
The High Court has adopted this measure and so we do not depart from it
The case of the hundred stands on a slightly different footing because some compensation in lieu of refusal of reinstatement is due to them and that also has entered our reckoning while fixing 75 per cent for them
The computation of the wages will be such as they would have drawn had they continued in service and on that the cut directed will be applied
We have disposed of the case of the permanent workmen except to clarify that in their case continuity of service will be maintained and accrual of benefits on that footing reckoned
The next category relates to casual employees 131 in number of whom 57 have less 217 than nine months  service
The policy of the Act draws a distinction between those with service of 240 days and more and others with less
The casuals with less than nine months service are 57 in number and we do not think that this fugitive service should qualify for reinstatement especially when we find a number of intermediate recruits with longer though untenable service have to be baled out
We decline reinstatement of these 57 hands
The other 74 must be reinstated although nationally but wrongly they are shown as casual
In the life  sense all mortals are casuals but in the legal sense those with a record of 240 days on the rolls are a class who have rights under industrial law
We direct the 74 long term casuals aforesaid to be reinstated but not the 57 short term ones
To this extent we vary the High Court s order
We adopt the directive of the High Court regarding the back wages to both categories of casuals except that for the lesser class of 57 casuals a flat sum of 1000 more will be paid as a token compensation in lieu of reinstatement
The reinstated casuals 74 of them will be put back as casuals but will be confirmed within six months from the date of rejoining since it is meaningless to keep them as casual labourers when they are by sheer length of service on the regular rolls
Two issues remain When are the workmen to be retaken and what is to happen in the meanwhile  How is the amount payable by the Management to be discharged and on what terms  Many years have flowed by thanks to the long drawn out litigation
Further delay in putting back the workers will be unfair
But the Management pleads that steel shortage cuts into the flesh of the factory s expansion without which additional intake of workers is beyond their budget unless considerable time for reabsorption were given
But the lot of the workmen is unspeakable while the overall assets and outlook of the Company are commendable enough to bear an increased wage bill
Divas cannot complain when Lazarus asks for more crumbs
Even if a slight slant be made in favour of the Management the direction to them to take back in order of seniority the first 70 out of the 139 permanent workmen on or before December 31 1979 and the rest on or before March 31 1980 is the least that is just
Until those dates the workmen will be paid 23rd of their wages as now due
Of course if any workmen fails to report for work within 15 days of service of written notice to him with simultaneous copy to the Sabha he will not be eligible for any more reinstatement or wages
218 The back wages run into a large sum but a good part has been paid under the stay order of this Court
We make it clear that the payments made will be given credit and the balance if paid as directed below and within the time specified will not carry interest
If default is made the sums in default will carry 10 per cent interest
The figures of amounts due will be worked out by both sides and put into Court in 10 days from now
Half the amount determined by the Court after perusing both statements will be paid directly to the workmen or deposited with the Industrial Tribunal who will give notice and make disbursements on or before 31 3 1980 and the other half on or before 30 9 1980
The conclusions may be capsulated for easier consumption
Out of 370 workmen directed to be reinstated by the High Court 239 are permanent
It is assumed that 100 have found alternative employment and are not interested any more in reinstatement and they are to be excluded from the direction of reinstatement
The Company must therefore reinstate 139 permanent workmen and the list of 100 workmen who are not to be reinstated would be supplied by the Sabha within two weeks from the date of this judgment
The discharge order in respect of 100 workmen herein before mentioned would be set aside and they are deemed to be in service till August 3 1979 when they will be retrenched and they will be paid retrenchment compensation as provided in section 25F plus one month s pay in lieu of notice the compensation to be worked out on the basis of the wages that will be admissible under the recommendations of the Engineering Wage Board as applicable to the Company
This amount will be paid in lieu of reinstatement and they will also be paid 75 per cent of the back wages
The remaining 139 permanent employees would be paid 50 per cent of the back wages as directed by the High Court
3 70 out of 139 permanent workmen directed to be reinstated should be provided actual employment on or before December 31 1979 and the rest on or before March 31 1980
During this period and till the actual reinstatement each one of these 139 workmen should be paid 23 of the monthly wages from August 9 1979 when the hearing in this case concluded
50 per cent of the amount that becomes payable to each workmen under the directions herein above given will be paid on or before March 31 1980 and the balance on or before September 30 1980 and till then the amount will carry interest at the rate of 10 per cent
219 4
In respect of casual workmen whose service was less than 9 months on the date of dismissal it would not be proper to grant reinstatement
They are 57 in number
The remaining casual workmen 74 in number shall be reinstated
In case of 57 casual workmen to whom reinstatement is refused the direction of the High Court is confirmed with the further addition that each one will be paid Rs 1000 over and above the amount payable under the direction of the High Court and this would be in lieu of reinstatement
Casual workmen 74 in number and having service of more than 9 months on the date of dismissal will be treated as confirmed within six months of the date of their rejoining and they will be offered reinstatement by March 31 1980 and the High Court s direction for back wages in their respect in confirmed
With these modifications we dismiss both the appeals
The Management appellant will pay the costs of the Sabha respondent advocates fee being fixed at Rs 5000 
An Afterword This litigation involving many workmen living precariously on post wages amidst agonising inflation and a Management whose young budget what with steel scarcity may well be shaken by the burden of arrears points to the chronic pathology of our Justice System the intractable and escalating backlog in the Forensic Assembly Line that slowly spins Injustice out of Justice and effectually wears down or keeps out the weaker sector of Indian life
This truma is felt more poignantly in Labour litigation and the legislature fails functionally if it dawdles to radicalise streamline and simplify the conflict resolution procedures so as to be credibly available to the common people who make up the lower bracket of the nation
The stakes are large the peril is grave the evils are worse than the prognostics of Prof Lawrence Tribe of the Harvard Law School  If court backlogs grow at their present rate Our children may not be able to bring a lawsuit to a conclusion within their lifetime
Legal claims might then be willed on generation to generation like hillbilly feuds and the burdens of pressing them would be contracted like a hereditary disease
 Law may be guilty of double injustice when it is too late and too costly for it holds out remedial hopes which peter out into sour dupes and bleeds the anaemic litigant of his little cash only to tantalise him into a system equal in form but unequal in fact
The price of 220 this promise of unreality may be the search by the lowly for the reality of revolutionary alternatives
Compelled by the crisis in the Justice System we sound this sombre judicial note
We direct payments and reinstatements as spelt out earlier within the specificated time and hopefully leave the case with the thought that given better rapport between the partners in production the galvanic Gujarat Steel Tubes Ltd will forge ahead as a paradigm for the rest
KOSHAL J I have had the advantage of going through the judgment of my learned brother Iyer J but after giving the same my most serious consideration I regret that I find myself unable to endorse it as I hold a different opinion in relation to three important findings arrived at by him namely a that the discharge of workmen amounted really to their dismissal because the motivation for it was their alleged misconduct
b that an arbitrator would fall within the ambit of the term Tribunal as used in sub section 2 of section 11A of the hereinafter called the 1947 Act and c that the High Court acted within the four corners or its jurisdiction under article 227 of the Constitution of India while interfering with the finding of the arbitrator that the workmen were correctly punished with dismissal if the orders of discharge could be construed as such
I am therefore appending this note which may be read in continuation of that judgment
The parties are admittedly governed by the hereafter referred to as the SO Act section 152 of which empowers the appropriate Government to make rules inter alia setting out model standing orders for the purposes of that Act
The expression standing orders  is defined in section 2g of the SO Act to mean rules relating to the matters set out in the schedule thereto items 8 and 9 of which run thus  8
Termination of employment and the notice therefor to be given by the employer and workmen
221 9
Suspension or dismissal for misconduct and acts or omissions which constitute misconduct
 The appropriate Government in this case the Government of Gujarat has prescribed Model Standing Orders MSOs
for short under section 152 of the SO Act
The relevant part of MSO 23 is extracted below  23
1 Subject to the provisions of the Industrial disputes Act 1947 the employment of a permanent workman employed on rates other than the monthly rates of wages may be terminated by giving him fourteen days  notice or by payment of thirteen days  wages including all admissible allowances in lieu of notice
2      3      4 The employment of a permanent workman employed on the monthly rates of wages may be terminated by giving him one month s notice or on payment of one month s wages including all admissible allowances in lieu of notice 4 A The reasons for the termination of service of a permanent workman shall be recorded in writing and communicated to him if he so desires at the time of discharge unless such communication in the opinion of the Manager is likely directly or indirectly to lay any person open to civil or criminal proceedings at the instance of the workman 5      6      7 All classes of workmen other than those appointed on a permanent basis may leave their service or their service may be terminated without or pay in lieu of notice  Provided that services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Standing Order 25 8       9       222 MSO 24 enumerates 25 kinds of acts or omissions on the part of a workman which amount to misconduct
Clauses a and b of the MSO describe two of such acts thus  a willful insubordination or disobedience whether or not in combination with another of any lawful and reasonable order of a superior b going on illegal strike or abetting inciting instigating or acting in furtherance thereof MSO 25 lays down the manner in which a workman guilty of misconduct may be dealt with
It states  25
1 A workman guilty of misconduct may be a        b        c        d        e        f discharged under Order 23 g dismissed without notice 2        3 No order of dismissal under sub clause g of clause 1 shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause 4 4 A workman against whom an inquiry has been held shall be given a charge sheet clearly setting forth the circumstances appearing against him and requiring explanation
He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself
Except for reasons to be recorded in writing by the officer holding the inquiry the workman shall be permitted to produce witnesses in his defence and cross examine any witnesses on whose evidence the charge rests
A concise summary of the evidence led on either side and the workman s plea shall be recorded 5         
 Clauses 3 and 4 of MSO 25 speak of an inquiry only in the case of an order falling under sub clause g of clause 1 of 223 that MS
It is thus quite clear and this is not disputed that the only sub clause of clause 1 of MSO 25 to which the provisions of clauses 3 and 4 of that MSO would be attracted is sub clause g and that if an order of discharge falls under MSO 23 an inquiry under clauses 3 and 4 of MSO 25 would not be a prerequisite thereto even though such an order is mentioned in subclause f of clause 1 of that MSO
And that is why it has been vehemently urged on behalf of the workmen who were discharged en masse and who were not taken back by the Management that the orders of discharge made in relation to them amount really to orders of dismissal and are bad in law by reason of the fact that no inquiry of the type above mentioned was held before they were passed
Under MSOs 23 and 25 the Management has the power to effect termination of the services of an employee by having recourse to either of them
In action taken under MSO 23 no element of punishment is involved and the discharge is a discharge simpliciter and that is why no opportunity to the concerned employee to show cause against the termination is provided for
Dismissal however which an employer may order is in its very nature a punishment the infiction of which therefore has been made subject to the result of an inquiry having the semblance of a trial in a criminal proceeding
Exercise of each of the two powers has the effect of the termination of the services of the concerned employee but must be regarded because of the manner in which each has been dealt with by the MSOs as separate and distinct from the other
It was vehemently argued on behalf of the workmen that once it was proved that the order of discharge of a workman was passed by reason of a misconduct attributed to him by the management the order cannot but amount to an order of dismissal
But this argument to my mind is wholly without substance and that for two reasons
For one thing clause 1 of MSO 25 specifically states in sub clause f that a workman guilty of misconduct may be discharged under MSO 23
This clearly means that when the employer is satisfied that a workman has been guilty of misconduct he may apart from visiting the workman with any of the punishments specified in sub clauses a b c d and e of clause 1 of MSO 25 either pass against him an order of discharge for which no inquiry precedent as provided for in clauses 3 and 4 of MSO 25 would be necessary or may dismiss him after holding such an inquiry
Which of the two kinds of order the employer shall pass is left entirely to his own discretion
224 It is true that the employer cannot pass a real order of dismissal in the garb of one of discharge
But that only means that if the order of termination of services of an employee is in reality intended to punish an employee and not merely to get rid of him because he is considered useless inconvenient or troublesome the order even though specified to be an order of discharge would be deemed to be an order of dismissal covered by sub clause g of clause 1 of MSO 25
On the other hand if no such intention is made out the order would remain one of discharge simpliciter even though it has been passed for the sole reason that a misconduct is imputed to the employee
That is how in my opinion MSOs 23 and 25 have to be interpreted
The argument that once an alleged misconduct is shown to have been the motive for the passage of an order of discharge the same would immediately and without more amount to an order of dismissal is not warranted by the language used in MSO 25 which specifically gives to the employer the power to get rid of a workman guilty of misconduct by passing an order of his discharge under MSO 23 5
Secondly the reasons for the termination of service of a permanent workman under MSO 23 have to be recorded in writing and communicated to him if he so desires under clause 4 A thereof
Such reasons must obviously consist of an opinion derogatory to the workman in relation to the performance of his duties and whether such reasons consist of negligence work shirking or of serious overt acts like theft or embezzlement they would in any case amount to misconduct for which he may be punished under MSO 25
It is difficult to conceive of a case in which such reasons would not amount to misconduct
The result is that MSO 23 would be rendered otiose if termination of service thereunder for misconduct could be regarded as a dismissal and such a result strikes at the very root of accepted canons of interpretation
If it was open to the Court to lift the veil and to hold an order of discharge to amount to a dismissal merely because the motive behind it was a misconduct attributed to the employee the services of no employee could be terminated without holding against him an inquiry such as is contemplated by clauses 3 and 4 of MSO 25 6
The interpretation placed by me on MSOs 23 and 25 finds ample support in Bombay Corporation vs Malvankar1 of which the 225 facts are on all fours with those in the present case
Miss P section Malvankar respondent No 1 in that case was a clerk in the employment or the Bombay Electric Supply and Transport Undertaking which was being run by the Bombay Corporation
Her services were terminated on the ground that her record of service was unsatisfactory
It was however stated in the order of termination of her services that she would be paid one month s wages in lieu of notice and would also be eligible for all the benefits as might be admissible under the Standing Orders and Service Regulations of the Undertaking
Those Standing Orders correspond to the standing orders with which we are here concerned
Thereunder two powers were conferred on the employer one being a power to impose punishment for misconduct following a disciplinary inquiry under clause 2 of Standing Order 21 read with Standing Order 23 and the other one to terminate the service of the employee by one calendar month s written notice or pay in lieu thereof under Standing Order 26
The question arose as to which power had been exercised by the employer in the case of Miss Malvankar and Jaswant Singh J delivering the judgment of the Court on behalf of himself and Bhagwati J was answering that question when he made the observations reproduced from his decision by my learned brother Iyer J This Court was then clearly of the opinion that a the power to terminate the services by an order of discharge simpliciter is distinct from and independent of the power to punish for misconduct and the Standing Orders cannot be construed so as to render either of these powers ineffective and b reasons for termination have to be communicated to the employee and those reasons cannot be arbitrary capricious or irrelevant but that would not mean that the order of termination becomes punitive in character just because good reasons are its basis
The Court further remarked that if the misconduct of the employee constituted the foundation for terminating his service then it might be liable to be regarded as punitive but this proposition was doubted inasmuch as even in such case it may be argued that the management has not punished the employee but has merely terminated his service under Standing Order 26
So all that remains to be determined in this connection is as to when would misconduct be the foundation  of an order of dis 226 charge
Merely because it is the reason which weighed with the employer in effecting the termination of services would not make the order of such termination as one founded on misconduct for such a proposition would run counter to the plain meaning of clause 1 of MSO 25
For an order to be founded  on misconduct it must in my opinion be intended to have been passed by way of punishment that is it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to the concerned worker
If such an intention cannot be spelled out of the prevailing circumstances the order of discharge or the reasons for which it was ostensibly passed it cannot be regarded as an order of dismissal
Such would be the case when the employer orders discharge in the interests of the factory or of the general body of workers themselves
That this is what was really meant by the judicial precedents which use the word foundation  in connection with the present controversy finds support from a number of decisions of this Court
In The Chartered Bank Bombay vs The Chartered Bank Employees  Union1 this Court held that if the termination of service is a colourable exercise of the power vested in the management or is a result of victimization or unfair labour practice the Industrial Tribunal will have jurisdiction to intervene and set aside such termination
Applying this principle to the facts of the case before it this Court ruled  We are satisfied that the management has passed the order of termination simpliciter and the order does not amount to one of dismissal as and by way of punishment emphasis supplied
This case was followed in The Tata Oil Mills Co Ltd vs Workmen2 where Gajendragadkar CJ who delivered the judgment of the Court stated the law thus  The true legal position about the Industrial Courts  jurisdiction and authority in dealing with cases of this kind is no longer in doubt
It is true that in several cases contract of employment or provisions in Standing Orders authorise an industrial employer to terminate the service of his employees after giving notice for one month on paying salary for one month in lieu of notice and normally an employer may in a proper case be entitled to exercise the said power
But where an order of discharge passed by an 227 employer gives rise to an industrial dispute the form of the order by which the employees  services are terminated would not be decisive industrial adjudication would be entitled to examine the substance of the matter and decide whether the termination is in fact discharge simpliciter or it amounts to dismissal which has put on the cloak of a discharge simpliciter
If the Industrial Court is satisfied that the order of discharge is punitive that it is mala fide or that it amounts to victimization or unfair labour practice it is competent to the Industrial Court to set aside the order and in a proper case direct the reinstatement of the employee
In some cases the termination of the employee s services may appear to the Industrial Court to be capricious or so unreasonably severe that an inference may legitimately and reasonably be drawn that in terminating the services the employer was not acting bona fide
The test always has to be whether the act of the employer is bonafide or not
If the act is mala fide or appears to be a colourable exercise of the powers conferred on the employer either by the terms of the contract or by the standing orders then notwithstanding the form of the order industrial adjudication would examine the substance and would direct reinstatement in a fit case 
The same test was laid down for determining whether an order of discharge could be construed as one ordering dismissal in The Tata Engineering and Locomotive Co Ltd vs section C Prasad1 by Shelat and Bhargava JJ  No doubt the fact that the order was couched in the language of discharge simpliciter is not conclusive
Where such an order gives rise to an industrial dispute its form is not decisive and the tribunal which adjudicates that dispute can of course examine the substance of the matter and decide whether the termination is in fact discharge simpliciter or dismissal though the language of the order is one of simple termination of service
If it is satisfied that the order is punitive or mala fide or is made to victimise the workmen or amounts to unfair labour practice it is competent to set it aside
The test is whether the act of the employer is bona fide
If it is not and is a colourable 228 exercise of the power under the contract of service or standing orders the Tribunal can discard it and in a proper case direct reinstatement
 The Chartered Bank Bombay vs The Chartered Bank Employees  Union supra was followed by this Court in Workmen of Sudder Office Cinnamore vs Management1 and therein stress was laid on the employer s right to terminate the services of a workman by an order of discharge simpliciter under the terms of the contract where there was no lack of bona fides unfair labour practice or victimization
So the real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order that is the intention with which it was passed
If the intention was to punish that is to chastise the order may be regarded as an order of dismissal and for judging the intention the question of mala fides which is the same thing as a colourable exercise of power becomes all important
If no mala fides can be attributed to the management the order of discharge must be regarded as one having been caused under MSO 23 even though the reason for its passage is serious misconduct
It is in light of the conclusion just above arrived at that the discharge of the workmen in the instant case has to be judged
The question of intention or mala fides is really one of fact of which the arbitrator was in my opinion the sole judge unless his finding on the point was vitiated by perversity in which case alone it was liable to be reviewed by the High Court
The discussion of the evidence by the arbitrator in his award is not only full and logical but in my opinion also eminently just
At all material times the Management was out to placate the Sabha and therefore the workmen and gave to it a long rope throughout
The attitude of the Sabha on the other hand was one of intransigence and obduracy
According to the settlement of the 4th of August 1972 it was not open to the workmen to resort to a strike till the expiry of a period of five years nor could the Management declare a lock out till then
Any disputes arising between the parties according to the terms arrived at were to be sorted out through negotiations or failing that by recourse to arbitration
A dispute was raised by the Sabha soon thereafter over the implementation of the recommendations of the Central Engineering Wage Board hereinafter called the Board the payment of bonus 229 for the year 1971 and wages for an earlier lock out
In paragraph 747 of its award the Board had made the following recommendations  747
After considering the problem in its entirety we agreed to divide the industry into five regions or areas as under and in doing so we have also considered the prevailing wage levels at different places and the cost of living at important centres in these places
1 Bombay City and Greater Bombay including Thana Ambarnath  Kalyan Industrial Areas 2
Calcutta Greater Calcutta Howrah Industrial area Jamshedpur Industrial area Durgapur Asansol and Ranchi industrial areas
Madras industrial area Bangalore industrial area Hyderabad industrial area Poona Chinchwad industrial area Delhi industrial area and Ahmedabad 4
Coimbatore Nagpur Bhopal Kanpur Baroda and Faridabad industrial areas
The rest of the country
 This classification was made for the purpose of granting area allowance  which varied with the category in which the area of the situation of a factory fell
No allowance was to be paid to the factories falling in category 5 and on the basis of the phraseology used by the Board the Management contended that Ahmedabad industrial area in which its factory was situated fell within that category
This interpretation of the categorisation made by the Board was not acceptable to the Sabha who claimed that the factory was covered by category 3 and this was an issue on which the Sabha was not prepared to climb down
Similarly the Sabha was adamant on the question of bonus for the year 1971 which it claimed at 16 per cent over and above 833 per cent allowed by statute with the plea that bonus at that rate had been paid in the earlier year
This being the position and negotiations between the parties held at two meetings convened on 14 12 1972 and 20 1 1973 having ended in a fiasco the Management offered to have the disputes resolved by arbitration but that again was a course not acceptable to the Sabha which however accused the Management of flouting the settlement dated the 4th of August  1972 by not coming to the negotiating table
The attitude adopted by the Sabha was to say the least most unreason 230 able
It could not have its own way in taking certain matters as final and non negotiable
Nor can it be said that stand taken by the management was unreasonable
Paragraph 747 of the award of the Board categorized various factories with reference to the areas which were either described by the names of the cities in which they were situated or by the names of certain industrial areas
Ahmedabad was mentioned as such and so was Calcutta while the other areas were mentioned as such and such industrial areas
It was thus a very reasonable plea put forward on behalf of the Management that only Ahmedabad city and not Ahmedabad industrial area was included in category 3 and that that industrial area fell within category 5
On the other hand the Sabha interpreted the word Ahmedabad  occurring in category 3 to include Ahmedabad industrial area in which lay the factory in question and demanded area allowance for its workers on that score
The reasonableness of the plea of the Management is obvious and it was the attitude of the Sabha which lacked reason in that on the failure of the negotiations they spurned the offer of the Management for arbitration on the question of interpretation of the categorisation
It can also not be said that the objection regarding payment of bonus raised by the Management was not a reasonable one
The argument that the stand of the Management that the negotiations between them and the Sabha on the questions of interpretation of the Board s award and bonus having failed as there was no meeting ground on either of them they could be referred to arbitration lacked reason is wholly unacceptable
The attitude of the Sabha in insisting on negotiations being held only on the basis of certain propositions formulated by it amounted really to a refusal to negotiate the points in dispute and the Management was therefore not left with any alternative except to suggest an arbitration as envisaged in the settlement dated the 4th of August 1972
Later developments reveal a similar state of affairs in so far as the attitude of the Sabha is concerned
Over and over again it was asked not to precipitate a strike and to act within the terms of the settlement but the advice fell on deaf ears
Even after the strike which it is admitted on all hands was illegal and certainly not envisaged by the settlement of the 4th of August 1972 the Management continued to make requests to the Sabha to send back the workers but again no heed was paid to those requests
On the other hand the Sabha began making suggestions to the Government to take over the factory
Ultimately when the Management was faced to adopt means to rehabilitate the factory by reports to fresh 231 recruitment they had no option except to terminate the services of its workmen
Each one of the orders of termination of services which were actually passed was on the face of it wholly innocuous inasmuch as it did not stigmatise in any manner whatsoever the concerned workman
The Management had however to record reasons for the discharge in pursuance of the provisions of clause 4A of MSO 25 and those reasons did charge each worker with misconduct inasmuch as he had taken part in the illegal strike and had refused to resume duty inspite of repeated demands made by the Management in that behalf
All the same the Management made it clear that inspite of such misconduct it had no intention of punishing the workers who were given not only the benefit of an order of discharge simpliciter but also the option to come back to work within a specified period in which case they would be reinstated with full benefits
An intention not to punish could not be expressed in clearer terms and is further made out from the fact that more than 400 workers who resumed duty were reinstated without break in service
In passing the orders of discharge therefore the Management did nothing more than act under MSO 23 and its action cannot be regarded as amounting to dismissal in the case of any of the workers
They had the right to choose between a discharge simpliciter and a dismissal and in the interests of the factory and the members of the Sabha and perhaps on compassionate grounds also they chose the former in unequivocal terms
The intention to punish being absent the finding of the High Court that the order of discharge amounted to one of dismissal cannot be sustained
I now turn to the interpretation of sub section 2 of section 11A of the 1947 Act
It is a well settled canon of interpretation of statutes that the language used by the legislature must be regarded as the only source of its intention unless such language is ambiguous in which situation the preamble to the Act the Statement of Objects of and Reasons for bringing it on the Statute book and the purpose underlying the legislation may be taken into consideration for ascertaining such intention
That the purpose of the legislation is to fulfil a socio economic need or the express object underlying it does not come into the picture till an ambiguity is detected in the language and the court must steer clear of the temptation to mould the written word according to its own concept of what should have been enacted
That is how I propose to approach the exercise in hand
For the sake of convenience of reference I may set out the provisions of clauses aa and r of section 2 of sub sections 1 232 and 2 and the opening clause of sub section 3 of section 11 and of the whole of section 11A of the 1947 Act 2
aa arbitrator  includes an umpire 2
r Tribunal  means an Industrial Tribunal constituted under section 7A and includes an Industrial Tribunal constituted before the 10th of March 1957 under this Act 11
1 Subject to any rules that may be made in this behalf an arbitrator a Board Court Labour Court Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit 2 A conciliation officer or a member of a Board or Court or the presiding officer of a Labour Court Tribunal or National Tribunal may for the purpose of inquiry into any existing or apprehended industrial dispute after giving reasonable notice enter the premises occupied by any establishment to which the dispute relates 3 Every Board Court Labour Court Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908
when trying a suit in respect of the following matters namely    11A
Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings the Labour Court Tribunal or National Tribunal as the case may be is satisfied that the order of discharge or dismissal was not justified it may by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require Provided that in any proceeding under this section the Labour Court Tribunal or National Tribunal as the case may be shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter
 Section 2 of the Act specifically lays down that unless there is anything repugnant in the subject or context the expressions defined 233 therein would have the meanings attributed to them
Throughout the Act therefore while arbitrator  would include an umpire a Tribunal  would not include an arbitrator but would mean only an Industrial Tribunal constituted under the Act unless the context makes it necessary to give the word a different connotation
In sub section 1 of section 11 it is conceded the word Tribunal  has been used in accordance with the definition appearing in clause r of section 2 because an arbitrator is separately mentioned in that sub section
In sub sections 2 and 3 of that section a Board a Labour Court a Tribunal and a National Tribunal have been invested with certain powers
Would a Tribunal as contemplated by sub sections 2 and 3 then include an arbitrator  My reply to the question is all emphatic no 
It is well settled that if a term or expression is used in a particular piece of legislation in one sense at one place the same sense will pervade the entire legislation wherever the term is used unless an intention to the contrary is expressed
Here the word Tribunal  has been used in three sub sections of the same section and no reason at all is fathomable for the proposition that it means one thing in sub section 1 and something different in sub sections 2 and 3
It may also be mentioned here that in all the three sub sections the word Tribunal  has a capital T  which is also part of the expression Tribunal  as occurring in clause r of section 2 and thus connotes a proper noun rather than the generic word tribunal  as embracing all institutions adjudicating upon rights of contending parties
A third and perhaps a clinching reason for this interpretation is available in the use of the expression National Tribunal along with the word Tribunal in all the three sub sections which militates against the argument that the word Tribunal as used in sub sections 2 and 3 means an institution of that type
If the word Tribunal as used in sub sections 2 and 3 means such an institution then the use of the expression National Tribunal would be redundant and redundancy is not one of the qualities easily attributable to a legislative product
In that case in fact other words used in the two sub sections last mentioned namely Court  and Labour Court  would also become redundant
In this view of the matter the word Tribunal as used in all the first three sub sections of section 11 must be held to have been used in the sense of the definition occurring in clause r of section 2 12
Section 11A is just the next succeeding section and therein a part of the arrangement adopted is the same as in sub sections 2 and 3 of section 11 so that powers are conferred by it on a Labour 16 868SCI79 234 Court Tribunal or National Tribunal which arrangement is repeated in the section thrice over
That the word Tribunal as used in section 11A has the same meaning as it carries in the three sub sections of section 11 is obvious and I need not repeat the reasons in that behalf for they are practically the same as have been set out by me in relation to section 11 13
In my opinion the language employed in section 11A sufferers from no ambiguity whatever and is capable only of one meaning ie that the word Tribunal  occurring therein is used in the sense of the definition given in clause r of section 2
It is thus not permissible for this Court to take the Statement of Objects and Reasons or the purpose underlying the enactment into consideration while interpreting section 11A I may mention here however that a perusal of the Statement of Objects and Reasons forming the background to the enactment of section 11A leads me to the same conclusion
In that Statement a reference was specifically made to tribunals as well as arbitrators in terms of the recommendations of the International Labour Organization
But inspite of that the word arbitrator  is conspicuous by its absence from the section
What is the reason for the omission  Was it consciously and deliberately made or was it due to carelessness on the part of the draftsmen and a consequent failure on the part of the legislature  In my opinion the Court would step beyond the field of interpretation and enter upon the area of legislation if it resorts to guess work however intelligently the same may be carried out and attributes the omission to the latter cause in a situation like this which postulates that the pointed attention of the legislature was drawn to the desirability of clothing an arbitrator with the same powers as were sought to be conferred on certain courts and tribunals by section 11A and it did not accept the recommendation
I would hold in the circumstances that the omission was deliberately made
It follows that the powers given to a Tribunal under section 11A are not exercisable by an arbitrator who therefore cannot interfere with the punishment awarded by the employer in case he finds misconduct proved
The last point on which I differ with the finding of my learned brother relates to the exercise by the High Court of its powers under article 227 of the Constitution of India
As pointed out by him the High Court while discharging its functions as envisaged by that article does not sit as a court of appeal over the award of the arbitrator but exercises limited jurisdiction which extends only to 235 seeing that the arbitrator has functioned within the scope of his legal authority
This proposition finds full support from Nagendra Nath Bora and Another vs The Commissioner of Hills Division and Appeals Assam and Others1 P H Kalyani vs Ms Air France Calcutta2 state of Andhra Pradesh vs section Sree Rama Rao3 and Navinchandra Shakerchand Shah vs Manager Ahmedabad Cooperative Department Stores Ltd4 all of which have ben discussed at length by him and require no further consideration at my hands
In this view of the matter it was not open to the High Court to revise the punishment if the discharge is regarded as such meted out by the Management to the delinquent workmen and left in tact by the arbitrator whose authority in doing so has not been shown to have been exercised beyond the limits of his jurisdiction
I need not go into the other aspects of the case
In view of my findings a that the orders of discharge of the workmen could not be regarded as orders of their dismissal and were on the other hand orders of discharge simpliciter properly passed under MSO 23 b that the arbitrator could not exercise the powers conferred on a Tribunal under section 11A of the 1947 Act and could not therefore interfere with the punishment awarded by the Management to the workmen even if the discharge could be regarded a punishment and c that in any case the High Court exceeded the limits of its jurisdiction in interfering with the said punishment purporting to act in the exercise of its powers under article 227 of the Constitution of India the judgment of the High Court must be reversed and the order of the arbitrator restored
The three appeals are decided accordingly the parties being left to bear their own costs throughout
O R D E R The appeals are dismissed substantially with such modifications as are indicated in the decretal part of the judgment of the majority
VDK Appeals dismissed


Summary:
The appellant manufactures steel tubes in the outskirts of Ahmedabad city
It started its business in 1960 went into production since 1964 and waggled from infancy to adulthood with smiling profits and growling workers punctuated by smouldering demands strikes and settlement until there brewed a confrontation culminating in a head on collision following upon certain unhappy happenings
A total strike ensued whose chain reaction was a whole sale termination of all employees followed by fresh recruitment of workmen defacto breakdown of the strike and dispute over restoration of the removed workmen
As per the last settlement between the management and the workmen of 4th August 1972 it was not open to the workmen to resort to a strike till the expiry of a period of five years nor could the management declare a lock out till then
Any dispute arising between the parties according to the terms arrived at were to be sorted out through negotiation or failing that by recourse to arbitration
The matter was therefore referred to an arbitrator and the arbitrator by his award held the action cf the management warranted
The respondent challenged the decision of the arbitrator under Article 226227 of the Constitution and the High Court of Gujarat reversed the award and substantially directed reinstatement
Hence the appeals both by the Management and the workmen
Dismissing the appeals and modifying the awards substantially the Court  HELD By Majority Per Iyer J
On behalf of D A Desai J and himself
i The basic assumption is that the strike was not only illegal but also unjustified
210 H 147 ii The management did punish its 853 workmen when it discharged them for reasons of misconduct set out in separate but integrated proceedings even though with legal finesse the formal order was phrased in harmless verbalism
211 A iii The action taken under the general law or the standing orders was illegal in the absence of individualised charge sheets proper hearing and personalise punishment if found guilty
None of these steps having been taken the discharge orders were still born
But the management could as in this case it did offer to make out the delinquency of the employees and the arbitrator had in such cases the full jurisdiction to adjudge de novo both guilt and punishment
211 B C iv Section 11A of the does take in an arbitrator too and in this case the arbitral reference apart from section 11A is plenary in scope
211 C D v Article 226 of the Constitution however restrictive in practice Is a power wide enough in all conscience to be a friend in need when the summons comes in a crisis from a victim of injustice and more importantly this extra ordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand
What the Tribunal may in its discretion do the High Court too under Article 226 can if facts compel so
211 D E vi The Award in the instant case suffers from a fundamental flaw that it equates an illegal and unjustified strike with brozen misconduct by every workman without so much as identification of the charge against each after adverting to the gravamen of his misconduct meriting dismissal
Passive participation in a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive discharge
There must be active individual excess such as master minding the unjustified aspects of the strike eg violence sabotage or other reprehensible role
Absent such gravamen in the accusation the extreme economic penalty of discharge is wrong
An indicator of the absence of such grievous guilt is that the management after stating in strong terms all the sins of workmen took back over 400 of them as they trickled back slowly and beyond the time set with continuity of service suggestive of the dubiety of the inflated accusations and awareness of the minor role of the mass of workmen in the lingering strike
Furthermore even though all sanctions short of punitive discharge may be employed by a Management low wages and high cost of living dismissal of several hundreds with disastrous impact on numerous families is of such sensitive social concern that save in exceptional situations the law will inhibit such a lethal step for the peace of the industry the welfare of the workmen and the broader justice that transcends transcient disputes
The human dimensions have decisional relevance
The discharge orders though approved by the Arbitrator are invalid
211 E H 212 A B HELD FURTHER 1
In a society capital shall be the brother and keeper of labour and cannot disown this obligation of a partner in management especially because social justice and Articles 43 and 43A are constitutional mandates
The policy directions in Articles 39 41 42 43 and 43A speak af the right to an adequate means of livelihood the right to work humane conditions of work living wages ensuring a decent standard of life and enjoyment of leisure and participation of workers in management of industries
De hors these 148 mandates law will fail functionally
Suck is the value vision of Indian Industrial Jurisprudence
155 B G H 156 A 2
Jural resolution of labour disputes must be sought in the law life complex beyond the factual blinkers of decided cases beneath the lexical littleness of statutory tests in the economic basics of industrial justice which must enliven the consciousness of the Court and the corpus juris
154 F G The golden rule for the judicial resolution of an industrial dispute is first to persuade fighting parties by judicious suggestions into the peace making zone disentangle the differences narrow the mistrust gap and convert them through consensual steps into negotiated justice
Law is not the last word in justice especially social justice
Moreover in an hierarchical system the little man lives in the short run but most litigation lives in the long run
So it is that negotiation first and adjudication next is a welcome formula for the Bench and the Bar the Management and Union
157 C E The anatomy of a dismissal order is not a mystery once it is agreed that substance not semblance governs the decision
Legal criteria are not so slippery that verbal manipulations may outwit the Court
The fact is the index of the mind and an order fair on its face may be taken at its face value
But there is more to it than that because sometimes words are designed to conceal deeds by linguistic engineering
The form of the order of the language in which it is couched is not conclusive
The Court will lift the veil to see the the nature of the order
171 G H 172 A If two factors motive and foundation of the order co exist an interference of punishment is reasonable though not inevitable
If the severance of service is effected the first condition is fulfilled and if the foundation or causa causans of such severance is the servant s misconduct the second is fulfilled
If the basis or foundation for the order of termination is clearly not turpitudes or stigmatic or rooted in misconduct or visited with evil pecuniary effects then the inference of dismissal stands negated and vice versa
These canons run right through the disciplinary branch of master and servant jurisprudence both under Article 311 and in other cases including workmen under managements
The law cannot be stultified by verbal haberdashery because the Court will lift the mask and discover the true face
172 C E Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover ups or by appeal to psychic processes but must be grounded on the substantive reason for the order whether disclosed or undisclosed
The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is
If thus scrutinised the order has a punitive flavour in cause or consequence it is dismissal
If it falls short of this test it cannot be called a punishment
A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant it is a dismissal even if he had the right in law to terminate with an innocent order under the standing order or otherwise
Whether in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature
Nor the fact that after being satisfied of the guilt the master abandons the enquiry and proceeds to terminate
Given 149 an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal even if full benefits as on simple termination are given and non injurious terminology is used
173 E H 174 A On the contrary even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with
He may not like to investigate nor take the risk of continuing a dubious servant
There it is not n dismissal but termination simpliciter if no injurious record of reasons or punitive pecuniary cut back on his full terminal benefits is found
For in fact misconduct is not then the moving factor in the discharge What is decisive is the plain reason for the discharge not the strategy of a non enquiry or clever avoidance of stigmatising epithets
If the basis is not misconduct the order is saved
174 B D Management of Murugan Mills vs Industrial Tribunal   Chartered Bank vs Employees  Union   Western India Automobile Association vs Industrial Tribunal Bombay  Assam Oil Co vs Workmen   Tata Oil Mills Co vs Workmen   130 Tata Engineering  Locomotive Co Ltd vs SC Prasad  Anr  L Michael and Anr
vs Ms Johnson Pumps India Ltd  Workmen of Sudder Office Cinnamore vs Management  Municipal Corporation of Greater Bombay vs PS Malvankar   referred to
Every wrong order cannot be righted merely because it was wrong
It can be quashed only if it is vitiated by the fundamental flaws of gross miscarriage of justice absence of legal evidence perverse misreading of facts serious errors of law on the face of the order jurisdictional failure and the like
182 P G While the remedy under article 226 is extraordinary and is of Anglosaxon vintage it is not a carbon copy of English processes
Article 226 is a sparing surgery but the lancet operates where injustice suppurates
While traditional restraints like availability of alternative remedy hold back the Court and judicial power should not ordinarily rush in where the other two branches fear to tread
judicial daring is not daunted where glaring injustice demands even affirmative action
The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court s province and the remedy is appropriate to the judicial process
There is a native hue about article 226 without being anglophilic or anglophobic in attitude
Viewed from this jurisprudential perspective the Court should be cautious both in not over stepping as if Article 226 were as large as an appeal and not failing to intervene where a grave error has crept in
And an appellate power interferes not when the order appealed is not right but only when it is dearly wrong
The difference is real though fine
182 G H 183 A B The principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi judicial powers within the leading sings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under the Act
So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can be no ground for interference
The power of judicial supervision of the High Court under Article 227 of tho Constitution as it then stood is not 150 greater than those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority
The writ power is large given illegality and injustice even if its use is severely disciplinary
The amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived
15 E G 1 86 D E Navinchandra Shanker Chand Shah vs Manager Ahmedabad Cooperative Department Stores Ltd  140 approved
Rohtas Industries  Anr
vs Rohtas Industries Staff Union and Ors  followed
Nagendranath Bata and Anr
vs The Commissioner of Hills Divisions and Appeals Assam  Ors
   Engineering Mazdoor Sabha vs Hind Cycle Lrd
1963 Suppl
1 SCR 625 State of AP vs Sreeeama Rao   33 P H Kalyani vs Ms Air France Calcutta   referred to Tribunal simpliciter has a sweeping signification and does not exclude Arbitrator
A tribunal literally means a seat of justice may be a commission a Court or other adjudicatory organ created by the State
All these are tribunal and naturally the import of the word in Section 2r of the  embraces an arbitration tribunal
188 E F H 189 A Dawking vs Rokely LR 8 QB 255 quoted with approval
An Arbitrator has all the powers under the terms of reference to which both sides are party confer
In the instant case the Arbitrator had the authority to investigate into the propriety of the discharge and the veracity of the mis conduct
Even if section 11A of the is not applicable an Arbitrator under Section 10A is bound to act in the spirit of the legislation under which he is to function
A commercial Arbitrator who derives his jurisdiction from the terms of reference will by necessary implication be bound to decide according to law and when one says according to law it only means existing law and the law laid down by the Supreme Court being the law of land an Arbitrator under section 10A will have to decide keeping in view the spirit of section 11A 196 B D Union of India vs Bungo Steel Furniture P Ltd   referred to
Per Koshal J Contra 1
The orders of discharge could not be regarded as orders of their dismissal and were on the other hand orders of discharge simpliciter properly passed under Model Standing order 23
235 C D a Clauses 3 and 4 of MSO 25 speak of an inquiry only in the case of an order falling under sub clause g of clause 1 of that MSO The only sub clause of clause 1 of MSO 25 to which the provisions of clauses 3 and 4 of that MSO would be attracted is sub clause g and if an order of discharge falls under MSO 23 an inquiry under clauses 3 and 151 4 of MSO 25 would not be a pre requisite thereto even though such an a older is mentioned in sub clause f clause 1 of that MSO 222 H 223 A b Under MSOs
23 and 25 the Management has the powers to effect termination of the services of an employee by having recourse to either or them
In action taken under MSO 23 no element of punishment is involved and the discharge is a discharge simpliciter and that is why no opportunity to the concerned employee to show cause against the termination is provided for
Dismissal however which an employer may order is in its very nature a punishment the infliction of which therefore has been made subject to the result of an inquiry having the semblance of a trial in a criminal proceeding
Exercise of each of the two powers has the effect of the termination of the services of the concerned employee but must be regarded because of the manner in which each has been dealt with by the MSO as separate and distinct from the other
223 C E c To contend that once it was proved that the order of discharge of a workman was passed by reason of a misconduct attributed to him by the management the order cannot but amount to an order of dismissal is wrong for two reasons
For one thing clause 1 of MSO 25 specifically states in sub clauses f that a workman guilty of misconduct may be discharged under MSO 23
This clearly means that when the employer is satisfied that a workman has been guilty of misconduct he may apart from visiting the workman with any of the punishments specified in sub clauses a b c d and e of clause 1 of MSO 25 either pass against him an order of discharge for which no inquiry precedent as provided for in clauses 3 and 4 of MSO 25 would be necessary or may dismiss him after holding such an inquiry which of the two kinds of order the employer shall pass is left entirely to his discretion
223 E H It is true that the employer cannot pass a real order of dismissal in the garb of one of discharge
But that only means that if the order of termination of services of an employee is in reality intended to push an employee and not merely to get rid of him because he is considered useless inconvenient or troublesome the order even though specified to be an order of dismissal covered by sub clause g of clause 1 of MSO 25
On the other hand if no such intention is made out the order would remain one of discharge simpliciter even though it has been passed for the sole reason that a misconduct is imputed to the employee
That is how MSOs 23 and 25 have to be interpreted
MSO 25 specifically gives to the employer the power to get rid of a workman guilty of misconduct  by passing an order of his discharge under MSO 23
224 A D Secondly the reasons for the termination of service of a permanent workman under MSO 23 have to be recorded in writing and communicated to him if he so desires under clause 4 A thereof
Such reasons must obviously consist of an opinion derogatory to the workman in relation to the performance of his duties and whether such reasons consist of negligence work shirking or of serious overt acts like theft or embezzlement they would in and case amount to misconduct for which he may be punished under MSO 25
There being no case in which such reasons would not amount to misconduct the result is that MSO 23 would be render otiose if termination of service thereunder for misconduct could be regarded as a dismissal and such a result strikes at the very root of accepted canons of interpretation
If it was open to the Court to
lift 152 the veil and to hold an order of discharge to amount to dismissal merely because the motive behind it was a misconduct attributed to the employee the services of an employee could be terminated without holding against him an inquiry such as is contemplated by clauses 3 and 4 of MSO 25
224 D G Bombay Corporation vs Malvankar   applied
Merely because it is the reason which weighed with the employer in effective the termination of services would not male the order of such termination as one founded on misconduct for such a proposition would run counter to the plain meaning of clause 1 of MSO 25
For an order to be founded an misconduct it must be intended to have been passed by way of punishment that is it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to the concerned worker
If such an intention cannot be spelled out of the prevailing circumstances the order of discharge or the reasons for which it was ostensibly passed it cannot be regarded as an order of dismissal
Such would be the case when the employer orders discharge or the interests of the factory or of the general body of workers
226 A C Chartered Bank Bombay vs The Chartered Bank Employees Union   The Tata Oil Mills Co Ltd 1964 2 SCR p 123 The Tara Engineering and Locomotives Co Ltd vs SC Prasad  Workmen of Sudder Office Cinnamore vs Management followed
The real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order that is the intention with which it was passed
If the intention was to punish that is to chastise the order may be regarded as an order of dismissal and for judging the intention the question of mala fides which is the same thing as colourable exercise of power becomes all important
If no mala fides can be attributed to the management the order of discharge must be regarded as one having been passed under MSO 23 even though the reason for its passage is serious misconduct
2 The arbitrator could not exercise tho power conferred on a Tribunal under section 11A of the 1947 Act and could not therefore interfere with the punishment awarded by the Management to the workmen even if the discharge could be regarded a punishment
235 D E Throughout the ID Act while arbitrator  would include an umpire a Tribunal would not include an arbitrator but would mean only an Industrial Tribunal constituted under the Act unless the context makes it necessary to give the word a different connotation
In sub section 1 of section 11 the word Tribunal  has been used in accordance with the definition appearing in clause r section 2 because an arbitrator is separately mentioned in that sub section
In sub sections 2 and 3 of that section a Board a Labour Court a Tribunal and a National Tribunal have been invested with certain powers
A Tribunal as contemplated by sub sections 2 and 3 then would not include an arbitrator
233 A B It is a well settled canon of interpretation of statutes that the language used by the Legislature must be regarded as the only source of its intention unless such language is ambiguous in which situation the Preamble to the Act the statement of objects of and Reasons for bringing it on the statute book and 153 the purpose underlying the legislation may be taken into consideration for ascertaining such intention
That the purpose of the legislation is to fulfil a socio economic need or the express object underlying it does not come into the picture till an ambiguity is detected in the language and the Court must steer clear of the temptation to mould the written word according to its own concept of what should have been enacted
It is thus not permissible for the Supreme Court to take the statements of objects and Reasons or the purpose underlying the enactment into consideration while interpreting section 11A of the ID Act
231 F G 234 Cl 3
The High Court exceeded the limits of its jurisdiction in interfering with the said punishment in the instant case purporting to act in the exercise of its powers under Article 227 of the Constitution of India
235 E F The High Court while discharging its functions as envisaged by that Article does not sit as a Court of Appeal over the Award of the Arbitrator but exercises limited jurisdiction which extends only to seeing that the arbitrator has functioned within the scope of his legal authority
In this view of the matter it was not open to the High Court to revise the punishment if the discharge is regarded as such meted out by the Management to the delinquent workmen and left intact by the arbitrator whose authority in doing so has not been shown to have been exercised beyond the limits of his jurisdiction
234 G E 235 A C Nagendra Nath Bora and Anr
vs The Commissioner of Hills Division and Appeals Assam and Ors
   P H Kalyani vs Ms Air France Calcutta   of AP vs Sree Rama Rao   Navinchandra Shakerchand Shakerchand Shah vs Manager Ahmedabad Cooperative Stores Ltd  referred to