Appeal No 958 of 1966
Appeal by special leave from the Award dated September 16 1965 of the Labour Court Allahabad in Adjudication Case No 78 of 1965
GR Gokhale OP Malhotra and 1
B Dadachanji for the appellant
R Vasudev Pillai and Subodh Markandeya for respondents Nos
2a to 2k
541 The Judgment of the Court was delivered by Vaidialingam J
In this appeal by special leave the question that arises for consideration is as to whether the award of the Labour Court Allahabad dated September 16 1965 directing the reinstatement of six workmen referred to in the order of reference is justified
The facts leading up to the award may be referred to
There was a strike in the establishment of the appellant company from March 18 1964
There was a meeting of the District Industrial Relations Advisory Committee on March 29 1964 presided over by the District Magistrate of the area
Representatives of the management and the workmen attended the said meeting
The proceedings of the meeting show that the Advisory Committee decided to appeal to the appellant not to take any action against the workers on the ground that they had on strike from March 18 1964
There was an appeal to the District Magistrate Allahabad to release as a gesture of goodwill the arrested employees of the company who were not involved in violence
The Union representing the workers of the appellant in turn decided to call off the strike and directed the workmen to resume work with effect from the morning of March 30 1964
There is no controversy that the strike was called off and certain workers who had been arrested in connection with the strike were also released from ia il on March 29 1964 itself
This strike will be referred to as the first strike in the course of this judgment
On March 20 1964 the respondent Union had given to the appellant another notice stating that the workmen of the appellant company would be going on a token strike for one day after fourteen days of the receipt of the notice in sympathy with the workers of the Swadeshi Cotton Mills Nalni
The exact date on which the strike was to take place was not given in the notice as required under sub section
4 of section 6S of the UP hereinafter referred to as the Act
On April 9 1964 the respondent Union again intimated to the management about the workmen s intention to go on strike on April 10 1964 and offered to work on a Sunday so that there would be no loss of production but the management intimated the Union that the factory would work on April 10 1964
A token strike actually took place on April 10 1964
This strike will be termed as the second strike in these proceedings
In respect of the first strike the Management had on March 28 1964 charge sheeted for going on an illegal strike some of the workmen including the workmen whose dismissal had been set aside by the present award
A joint reply was sent by the concerned workmen on April 9 1964 to the management drawing their attention to the decision of the District Industrial Rela 545 tions Advisory Committee dated March 29 1964 and the settlement arrived at therein between the management and the Union
The workmen also requested the management not to disobey the decision of the Committee
The appellant sent a communication on April 10 1964 to the workmen stating that they had not made any commitment at the meeting on March 29 1964 that the management would not proceed with the taking of disciplinarY action against an employee who committed a mis conduct according to the Standing
Orders of the Company
The work men were again directed to furnish within 24 hours their reply if any to the charge sheet dated March 28 1964
On May 8 1964 the Acting Works Manager of the appellant company passed orders warning the concerned workmen for having mis conducted themselves as s tated in the chargesheet dated March 28 1964
It is further stated in this order that after hearing the explanation furnished by the workmen the management holds the workmen guilty of mis conduct for which they could have been dismissed but the management has taken a lenient view and hoping that the mis conduct will not be repeated administers an earnest warning
In respect of the second strike which took place on April 101964 the management charge sheeted on April 16 1964 thirteen workmen for going on illegal strike which is a mis conduct under sub cl
2 of el 21 of the Certified Standing Orders of the company and as the strike was in violation of sub section
4 of section 6 S of the Act
There was a further charge that the workmen concerned had intimidated and prevented other willing workers from going to work
The workmen were directed to offer their explanation as to why disciplinary action need not be taken for their conduct
On April 17 1964 the thirteen workmen jointly sent a reply saying that the strike on April 10 1964 was legal and due notice had been given under the provisions of the Act
They also denied having intimidated or restrained any willing worker from going to work
They further stated that they had not committed any mis conduct
The management proceeded to conduct an inquiry against the thirteen workmen and Sri K D Gupta an officer of the company was entrusted with the conduct of the said inquirY Shri Gupta accordingly conducted an enquirY on April 20 1964 and sent his report to the Acting Works Manager on
April 24 1964
After referring to the conduct of the inquiry proceedings Shri Gupta has stated that the thirteen workmen are  guilty of participation in an illegal strike on April 10 1964 and as participation in an illegal strike is a mis conduct under el
21 2  of the Certfied Standing Orders of the Company the workmen concerned are guilty
of mis conduct but regarding the 546 charge of intimidation and incitement the inquiry officer found that the said charge was not established
On May 22 1964 the Acting Works Manager of the appellant accepted the report of Shri Gupta and passed orders administering a warning to seven out of the thirteen workmen but regarding the remaining six workmen the Works Manager after taking into account the warning that had been administered to them on May 8 1964 for going on an illegal strike referring to the first strike passed orders dismissing them from service
The Union raised a dispute regarding the dismissal of the six workmen and accordingly the said dispute was referred to the Labour Court Allahabad for adjudication
The case of the workmen was that the strike on April 10 1964 was legal and that the domestic inquiry conducted by Shri Gupta was neither bona fide not fair
They also contended that in view of the settlement arrived at on March 29 1964 in respect of the first strike the management had no right to take any action by way of warning the workmen as it purported to do on May 8 1964
Taking the said warning into account for the purpose of imposing the punishment of dismissal amounted to a vindictive conduct on the part of the management and therefore the order of dismissal was illegal
The management on the other hand contended that the strike that took place on April 10 1964 was illegal as it was not in accordance with the provisions of the Act and participation in such illegal strike was a mis conduct under el
21 2 of the Standing Orders of the Company and such mis conduct could be punished by dismissal under cl 22
According to the management the inquiry proceedings conducted by Shri Gupta were quite fair and bona fide and the workmen were given full opportunity to participate in the inquiry proceedings
They also pleaded that the management was entitled to impose punishment for mis conduct by taking into account the previous conduct of the worlcmen concerned and in this case the warning recorded against them on May 8 1964 was legitimately and properly taken into account inasmuch as the management had not agreed to withdraw the proceedings against the workmen
The Labour Court has upheld the plea of the management that the second strike on April 10 1964 being contrary to sub section 4 of section 6 S was illegal under section 6 T of the Act but it has further held that notwithstanding the infirmity in the notice issued by the workmen regarding the second strike all the managements in the area including the appellant were fully aware of the fact of the intended token strike on April 10 1964
The Labour Court has further held that the inquiry proceedings conducted by Shri Gupta were bona fide and fair and they suffered from No infirmity 547 whatsoever
The Labour Court further holds that though normally imposing of a punishment for mis conduct under the Standing Orders is a managerial function in this case the appellant was not justified in taking into account the warning recorded on May 8 1964 in respect of the first strike
It is the further view of the Labour Court that the continuance of disciplinary proceedings and recording of warnings on May 8 1964 by the appellant against the six concerned workmen in respect of the first strike was with a view to create a ground for punishment and dismissal in the subsequent proceedings relating to the second strike and as such the action of the management was not bona fide
The Labour Court in this connection refers to the proceedings of the District Industrial Relations Advisory Committee that took place on March 29 1964 in the presence of the representatives of the appellant and the Union and the Labour Court is of the view that a settlement had been arrived at by which the management has agreed not to take any disciplinary action against the workers in connection with the first strike Ultimately the Labour Court holds that the punishment of dismissal inflicted on the six workmen by the appellant on May 22 1964 is unconscionable and unjustified and not recorded in a bona fide manner
In consequence the order of dismissal passed against the six concerned workmen named in the annexure to the order of reference was set aside and the workmen were directed to be reinstated with 50 back wages
We have fairly elaborately referred to the various circumstances leading to the passing of the order of dismissal bY the management in order to appreciate the contentions urged on behalf of the management that the Labour Court had committed a serious illegality in interfering with an order passed by the management for mis conduct as provided under the standing orders of the company
Mr HR Gokhale learned counsel for the appellant raised two contentions before us1that the finding of the Labour Court that at the meeting of the District Industrial Relations Committee held on March 29 1964 the appellant agreed not to take disciplinary action against its  workmen in respect of the first strike is erroneous and ii that having held that the second strike was illegal as being contrary to sub section
4 of section 6 S of the Act the Labour Court has committed an error in interfering with the act of the management when it imposed a punishment for mis conduct under the standing orders of the company
Mr R Vasudeva Pillai learned counsel for the Union has supported in full the award of the Labour Court
We are not impressed with either of the contentions of the learned counsel for the appellant
We have already referred to LI3Sup
CI68 4 548 the proceedings of the District Industrial Relations Committee March 29 1964
No doubt a day prior to that the appellant had issued notices to the workmen asking them to show cause as to why disciplinary action should not be taken against them for going on strike from March 18 1964
There was a joint reply given by the workmen on April 9 1964 to the effect that at the meeting held on March 29 1964 the management had agreed not to take any disciplinary action against the workmen and that it was on that basis that the strike itself was called off and the workmen arrested were also released by the Government
There was no doubt an attempt by the management in their reply of April 10 1964 to make it appear that they had not committed themselves at the meeting of March 29 1964 as mentioned by the workmen
But it is rather surprising that when the President of the Union WWI gave evidence to the effect that there was a settlement on March 29 1964 whereby the management had agreed not to take any disciplinary action against the workmen there was absolutely no cross examination by the appellant of that witness
There is no dispute that Mr Wright represented the management at the said meeting and no suggestion even has been made to WWI that the evidence given by him is not correct
No doubt the appellant in their letter of April 10 1964 had taken the stand that the company had not committed itself not to take any action against the workmen in respect
of the first strike
The inquiry report of Shri Gupta in respect of the second strike was already in the hands of the management on April 24 1964
It is really after the receipt of this report that the Acting Works Manager of the appellant company recorded warnings as against the concerned workmen on May 8 1964I in res peet of the first strike
This warning has been taken into account by the Works Manager when he passed the order of dismissal in respect of the Second strike on May 23 1964
Having due regard to these circumstances the finding of the Labour Court that the continuance of the disciplinary proceedings and recording of punishments of warnings as against the six concerned workmen on May 8 1964 in respect of the fixst strike by the management was to create a ground for punishment and dismissal in respect of the second strike is perfectly justified
The further finding of the Labour Court that the action of the management in recording warnings in respect of the first strike is not only not bona fide but also against the settlement arrived at on March 29 1964 is
also correct
The first contention on behalf of the management therefore fails
There is the finding of the Labour Court that the second strike on April 10 1964 is illegal
Going on illegal strike is certainly mis conduct  under sub el
2 of el 21 of the Standing Orders of the company
Under el
22 of the Standing Orders the 549 punishment for mis conduct is dismissal or in the alternative suspension for a period not exceeding four days
If the management had without any regard to what happened in respect of the first strike imposed punishment under cl 22 in respect of an illegal strike which is mis conduct  under cl 21 2of the Standing Orders after a fair inquiry the punishment meted out being a managerial function would not be normally interfered with
But in this case even the order of dismissal clearly shows that the management has taken into account the previous conduct of the workmen in having gone on the first strike and the punishment of warning administered on May 8 1964
It is because of this past conduct it is further stated in the order that the six workmen were being dismissed from service
The finding of the Labour Court is that the management was not entitled to take into account the warning given on May 8 1964 in respect of the first strike in view of the settlement on March 29 1964
In view of the fact that the warning has been taken into account by the management which it is not entitled to the punishment of dismissal has been rightly considered by the Labour Court to be not bona fide and vindictive
In fact the Labour Court is also of the view that the punishment is unconscionable and unjustified
It is on these grounds that the Labour Court has interfered with the order of dismissal passed by the management
The second contention of learned counsel for the appellant also fails as we are in agreement with the reasons given by the Labour Court on this aspect of the matter
The result is that this appeal fails and is dismissed
There will be no order as to costs
GC Appeal dismissed


Summary:
There was a strike in the establishment of the appellant company betseen 18th and 30th March 1964 and again a token strike on 10th April 1964
For the misconduct of going on the first strike some of the workmen were charged and given a warning
The second strike was held to be illegal by an enquiry officer and six of the workmen who had been given a warning in respect of the first strike were dismissed for taking part in the second strike also
The Labour Court held that in the compromise that had ended the first strike the company had given the undertaking that it would not take any action by way of punishment against the workmen and therefore the warning in respect of the first strike which was given only after the enquiry report relating to the second strike had been already received was not only not bona fide but illegal
Because this warning was taken into account against the six workmen who were dismissed the Labour Court set aside the order of dismissal although holding that the second strike was illegal because of want of notice under subs
4 of section 6 S of the UP
The company appealed to this Court
HELD i The Labour Court rightly held on the facts that the warning given to the workmen in respect of the
first strike was not only not bona fide but also
against the terms of the settlement by which the first strike was ended
548 G ii The second strike was as held by the Labour Court illegal and therefore misconduct  under sub cl
2 of cl 21 of the Standing Orders of the company
Any punishment imposed under el
22 of the said Orders in respect of an illegal strike after a fair enquiry being a managerial function would not normally be interfered with
But in the present case the management was not entitled to take into
account the warning given in respect of the first strike in view of the settlement it had entered into with the workers to end that strike
The Labour Court was therefore again right in holding the punishment of dismissal of the six respondents as vindictive and unjustified
548 H 549E