Appeals Nos 244 and 245 of 1954
Appeals from the judgment and order dated August 19 1952 of the Labour Appellate Tribunal of India Calcutta at Allahabad in Miscellaneous Cases Nos C 91 and 93 of 1952
919 N C Chatterji H J Umrigar J B Dadachanji section N Andley and Rameshwar Nath for the appellant in both appeals
Purshottam Tricumdas R Ganapathy Iyer and B P Maheshwari for respondents in both appeals
M C Setalvad Attorney General for India Porus A Mehta and R H Dhebar for the Intervener
October 24
The Judgment of the Court was delivered by BHAGWATI J
These two appeals by special leave arise out of an order of the Labour Appellate Tribunal of India Lucknow Bench by which it dismissed the application of the appellant under section 22 of the Industrial Disputes Appellate Tribunal Act 1950 hereinafter referred to as the Act for permission to dismiss the respondents from its employ and allowed the application of the respondents under section 23 of the Act for reinstatement
The respondents are 76 employees of the appellant a limited company of Sugar Mills situated in village Chitauni in the district of Deoria and were working in the engineering department of the mills in the mill house boiling house and the workshop sections
There were disputes between the appellant and its workmen and on the date in question ie May 27 1952 there was pending before the Labour Appellate Tribunal an appeal which was registered as Cal 10151
It appears that one Motilal Singh an employee of the appellant had been dismissed by it sometime prior thereto and he had been inciting the workmen to make common cause with him and at a meeting held the previous night some sort of action had been decided upon
When the workmen of the appellant entered the mills on the morning of May 27 1952 these 76 workmen though they entered their respective sections of the engineering department did not commence any work from 7 am as they should have done
The sectional engineers in charge asked these workmen as to why they did not commence their work and became a ware of their intention to resort 920 to a tools down strike
They reported the fact to the Chief Engineer who sent a slip to the General Manager informing him that the workers had gone on a tools down strike
The General
Manager thereupon personally went to the workshop mill house and the boiling house and asked these workmen not to resort to such strike but the latter did not pay any heed to his advice
The General Manager then asked the Chief Engineer to persuade these workmen to commence the work give them time for about 2 hours till 10 30 am and report to him if in spite of his persuasions they did not commence work
The persuasions of the Chief Engineer and also of the section engineers proved of no avail and the 76 workmen persisted in their attitude with the result that the section engineers made their reports to the General Manager through the Chief Engineer giving the names of the workmen belonging to their respective sections who had resorted to the tools down strike with effect from 7 am that day
These reports were endorsed by the Chief Engineer and passed on to the General Manager whoin his turn passed an order at about 10 30 am suspending these 76 workmen till further orders
The order for suspension was communicated to these workmen through their sectional heads and was also pasted on the notice board of the mills
There was a recess between 11 am and 1 pm and when the gates were opened at 1 pm these 76 workmen in spite of the warnings of the gatekeepers and Jemadar to the contrary rushed into the mills entered their respective sections and adopted a threatening attitude
The sectional engineers made reports to the General Manager in regard to this occurrence and these reports also were endorsed by the Chief Engineer and passed on by him to the General Manager
The situation which was created by these workmen by forcibly entering their respective sections and continuing there threatening violence was explosive and the management had to call in the police in order to avert violence and damage to the property
The police came in at 5 pm and order appears to have been restored
There was no untoward incident that day 921 but the management appears to have viewed the situation with seriousness and approached the Regional Conciliation Officer the next day in order to ask for advice in regard to the dismissal of these workmen
The Regional Conciliation Officer however pointed out to the General Manager that in view of the pendency of the appeal before the Labour Appel late Tribunal he had no jurisdiction to entertain any application for such permission and referred the General Manager to the Labour Appellate Tribunal
The workmen on the other hand got a letter dated May 28 1952 addressed to the General Manager by the General Secretary of the Chini Mill Mazdoor Sangh to the effect that they had gone to the gates of the mills as usual at 7 am that day to attend to their work but they were not allowed to enter the mill pre mises
They charged the management with the intention to victimise them on the charge of a tools down strike and stated that they had neither struck nor intended to strike but had been prevented from attending to their work and had therefore been advised to go back to their quarters with a view to maintain peace
The last paragraph of that letter was very significant
The General Manager was told that if he did not mend his illegal mistakes and did not take the workmen back on duty he would be responsible for any breach of peace
After receipt of that letter it was evident that the workmen would resort to violent measures in order to attend to their work and a breach of peace was apprehended
The management evidently continued the police precautions and after having waited for some time the General Manager furnished to these 76 workmen on June 2 1952 a charge sheet wherein he charged them with having committed misconduct within the meaning of cl
L I a and b and wailful insubordination within the meaning of el
L I a b and w of the Standing Orders
He called upon them to show cause within 24 hours of the receipt of the charge sheet why disciplinary action should not be taken against them and gave them intimation that an open enquiry in connection with the said charges 120 922 would be held by him at 8 am on June 6 1952
He also intimated that if all the workmen arranged to present themselves earlier than June 6 1952 he would take up the said enquiry earlier provided however an intimation was received to that effect from them or from their Union
The workmen were to remain suspended till the enquiry was finished
The workmen addressed uniform letters to the General Manager denying that there was any tools down strike on May 27 1952 and alleging that the sectional heads and the Chief Engineer bad conspired together under some mysterious preconceived plans and stated that no useful purpose would be served by holding an enquiry on the 1 1 th day of their suspension
They pointed out that such indefinite period of suspension during the pendency of the appeal before the Labour Appellate Tribunal and Reconciliation Board was illegal and unjustified and was in utter disregard of the Standing Orders
By their further letter dated June 5 1952 similarly addressed to the General Manager they voiced their apprehension that they would not get any justice from an enquiry held by the management itself and asked for investigation by an impartial tribunal
The management however held the enquiry as intimated at 8 am on June 6 1952
The workmen non co operated and did not present themselves at the enquiry
The General Manager immediately addressed a letter to these workmen putting on record that in spite of the orders conveyed by him earlier the workmen had disobeyed the
same and had not appeared at the appointed time and place for the enquiry into the tools down strike
He pointed out that by not appearing in this manner they had made themselves liable to dismissal for insubordination and intimated that the management was applying to the proper authorities for permission to dismiss them pending receipt of which the workmen would remain under suspension
This letter was received by the workmen at 9 am that day and they replied through the General Secretary of the Chini Mill Mazdoor Sangh repeating that a demand had been made for an 923 investigation by an impartial tribunal and in so far as no impartial tribunal had been appointed they were not agreeable to present themselves and submit their defence at the enquiry which was conducted by the management itself
The appellant thereafter made the necessary application under section 22 of the Act before the Labour Appellate Tribunal of India Lucknow Bench for permission to dismiss these 76 workmen
In the affidavit which was filed in support of that application all the facts herein before mentioned were set out in extenso and it was pointed out that the management after giving full consideration to the explanations and offering every possible opportunity to these workmen to explain their conduct coupled with the unreasonable attitude adopted by them had adjudged them guilty of misconduct under cl
L I a b and w of the Standing Orders and considered that any further employment of these workmen would be extremely detrimental to discipline and dangerous in the interests of the industry
The workmen in their turn filed on June 9 1952 an application under section 23 of the Act for requisite action to be taken against the appellant for having contravened section 22b of the Act by inflicting on them the punishment in the shape of harassment by resorting to an illegal lookout for an indefinite period with effect from May 27 1952 without obtaining the prior permission of the  Labour Appellate Tribunal and thereby acting contrary to law and resorting to mala fide actions in direct violation of the provisions of the Standing Orders in continuation of the management s anti trade Union activities
Counter affidavits were made by the workmen as also the management in reply to both the above applications
The Labour Appellate Tribunal held that the appellant did not act in strict compliance with cl
L 12 of the Standing Orders and was therefore not entitled to ask for permission to dismiss the 76 workmen
It accordingly dismissed the appellant s application under section 22 of the Act
In regard to the application of the workmen under section 23 of the Act it held 924 that the wholesale suspension of the 76 workmen and their prevention from resuming work at I pm after the lunch hour amounted to a lockout and that this conduct of the appellant amounted to punishment of the workers whether by dismissal or otherwise and was therefore in contravention of section 22b of the Act
It accordingly ordered the reinstatement of the workmen if they presented themselves at the office of the General Manager during office hours on any day within 15 days of the order and also ordered payment of half the salary and allowances for the period of non payment viz from the date of their suspension up to the date on which they were taken back in service
Shri N C Chatterjee for the appellant before us has strenuously urged that the workmen had resorted to the tools down strike which was an illegal strike and that the appellant was well within its rights in suspending the pending enquiry and also pending the application for permission to dismiss them made before the Labour Appellate Tribunal
Even if it be held that the appellant had declared a lockout such a lockout was in consequence of the illegal strike resorted to by the workmen and could not be deemed to be illegal
He further urged that the management had held an enquiry into the illegal strike which had been resorted to by the workmen and found that the workmen were guilty of misconduct and insubordination within the meaning of cl
L I a b and w of the Standing Orders and the appellant rightly came to the conclusion that any further employment of these workmen would be extremely detrimental to discipline and dangerous in the interests of the indus try
He also contended that the delay in holding the enquiry was not unreasonable and the suspension of the workmen pending enquiry for more than four days was due to sufficient reason the atmosphere created by the non cooperation of the workers being so tense as not being appropriate for the holding of an enquiry within those four days that there was no breach of cl
L 12 of the Standing Orders and that the Labour Appellate Tribunal was in error when it 925 refused to grant the application under section 22 of the Act
Civil Appeal No 245 of 1954 which is directed against the order of the Labour Appellate Tribunal under section 23 of the Act may be disposed of at once
The Labour Appellate Tribunal was of opinion that the conduct of the appellant in preventing the workmen from continuing work after I pm on May 27 1952 came within the definition of a lockout and the workmen being employed in a public utility concern such lockout would be illegal without a proper notice
It was further of opinion that this conduct amounted to punishment of a worker whether by dismissal or otherwise and was therefore in contravention of section 22b of the Act
This conclusion of the Labour Appellate Tribunal was in our opinion based on a misapprehension of the whole position
The position had been summed up by the Labour Appellate Tribunal in the following words As a matter of fact the management never thought of a lockout
Their idea was to suspend the suspected persons pending enquiry for which they gave a notice
If this was the correct position the conclusion reached by the Labour Appellate Tribunal that the conduct of the management came within the definition of a lockout was absolutely unjustifiable
The Labour Appellate Tribunal recorded its inability to come to a definite finding as to what was the position which obtained on May 27 1952
It observed We have got a number of affidavits in support of the parties  case and there is oath against oath
We do not find ourselves in a position to hold definitely as to what was the exact situation
But it does appear to us that a mountain has been made of a mole hill and conclusions have been arrived at without going deep into the matter
Even if the parties had made a mountain of a mole hill and had reached conclusions without going deep into the matter it was certainly the business of the Labour Appellate Tribunal itself to record a finding of fact in regard to the situation as it obtained on 926 that day
This unfortunately the Labour Appellate Tribunal did not do and it came to record its conclusion that the conduct of the management came within the definition of a lockout without realizing that such conclusion was inconsistent with what it  had stated a little earlier that the management as a matter of fact never thought of a lockout
We have been taken through the whole evidence by the learned counsel for the appellant and there is clear documentary evidence to show that the 76 workmen resorted to a tools down strike from 7 am on May 27 1952
The reports which were made by the section engineers and sent to the General Manager through the Chief Engineer were clear and categoric in regard to such tools down strike having been resorted to by the workmen in question and the list of the 76 workmen which was prepared by the General Manager ordering their suspension was based on those reports
The further reports which were made by the section engineers again sent by them to the General Manager through the Chief Engineer in the afternoon of May 27 1952 also were clear and categoric in regard to the said workmen having been asked not to enter the workshop the boiling house and the mill house at 1 pm but their having entered the same threatening violence
A faint attempt was made to charge the section engineers and the Chief Engineer with having conspired under some mysterious preconceived plans but the same rested merely on a bare allegation and was not substantiated by any tangible evidence
Even though there was some conflict of evidence in regard to the time when the notice of suspension was given by the General Manager to these workmen and when the notice in that behalf was pasted on the notice board of the appellant it is abundantly clear on the documentary evidence above referred to that the 76 workmen resorted to a tools down strike from 7 am on the morning of May 27 1952 that they were suspended till further orders immediately after the receipt by the General Manager of the first series of reports from the section engineers that they were prevented from entering the premises 927 at I pm but entered the same threatening violence
If this is the true position it follows that there was no lockout declared by the appellant much less an illegal lockout
The workmen bad resorted to an illegal strike and the General Manager rightly ordered that the workmen indulging in such strike should be suspended pending further orders which obviously meant pending enquiry into their conduct and the obtaining of the permission to
dismiss them as a result of such enquiry if the management thought fit
If there was thus no illegal lockout at all the conclusion reached by the Labour Appellate Tribunal in that behalf was absolutely unjustified
Even if there had been a lockout as concluded by the Labour Appellate Tribunal the same was in consequence of the illegal strike which had been resorted to by these workmen and could not by virtue of section 243 of the  be deemed to be illegal
There is however a more fundamental objection that even if the appellant be held responsible for having declared an illegal lockout the lockout would not come within the ban of section 22 of the Act
The Labour Appellate Tribunal had before it an earlier decision of its own in Jute Workers Federation Calcutta vs Clive Jute Mills1 in which the same question had beed considered with reference to section 33 of the 
In that case a lockout had been declared which involved 4000 workers of the company and a preliminary contention was urged that there was no contravention of the provisions of section 33 of the 
The Labour Appellate Tribunal considered the question whether the lockout had 1 in fact altered the conditions of service of the workmen to their prejudice or 2 had the effect of discharge or 3 amounted to punishment of the workmen
It came to the conclusion that a lockout had not the effect of a discharge for a lockout does not automatically terminate the services of the workmen
It did not also amount to punishment for punishment presup 1 1951 II LLJ 344
928 poses an offence or misconduct
A lockout is generally adopted as a security measure and may in certain cases be used as a weapon corresponding to what the employees have in the shape of a strike and that therefore a 33b would not be contravened by the company by
declaring a lockout
The Labour Appellate Tribunal then considered whether a lockout would attract the operation of section 33a
It was of opinion that no automatic termination of the services of the employees was brought about by a lockout and the question was whether any of the conditions of service was altered thereby to their prejudice
The contention of the Union was that the conditions of service were altered to the prejudice of the workmen because those employees did not in fact get their pay during the period of the lockout with the possibility of losing it
This contention was negatived and the Labour Appellate Tribunal was of opinion that the conditions of their service would be altered by the lockout if the employees lost their right to receive their pay during the period of lockout in all circumstances but the question whether they would be entitled to get their pay during that period could not be postulated with certainty for that would depend on a variety of considerations
In the opinion of the Labour Appellate Tribunal to bring a case within section 33a the questioned act of the employer must directly and in fact alter the conditions of service to the prejudice of the workmen concerned that is to say the moment the lockout was declared
The possibility that they may or may not get their pay meant that the lockout may or may not alter the conditions of their service to their prejudice
Section 33a would not therefore be attracted by the mere fact of a lockout
The Labour Appellate Tribunal thus came to the conclusion that neither section 33a nor section 33b would be contravened by the company in de claring the lockout
This decision of the Labour
Appellate Tribunal was followed in Colliery Mazdoor Congress Asansol vs New Beerbhoom Coal Co Ltd1 and the Labour 1 11952 L AC 219
929 Appellate Tribunal there held that a lockout did not come within the ambit of section 33 and therefore no permission under that section was required for declaring a lockout
We agree with the reasoning adopted in the above cases and are of opinion that a lockout is neither an alteration to the prejudice of the workmen of the conditions of service applicable to them within the meaning of cl
a nor a discharge or punishment whether by dismissal or otherwise of the workmen within the meaning of cl
b of section 33 of the  or section 22 of the Industrial Disputes Appellate Tribunal Act 1950 and that therefore no permission of the Conciliation Officer Board or Tribunal as the case may be is necessary to be obtained before a lockout can be declared
If the lockout is legal no question can at all arise
If on the other hand the lockout is illegal a remedy is provided in section 26 of the 
The employees affected by a lock out would in any event be entitled to refer the industrial dispute arising between themselves and the employer for adjudication by adopting the proper procedure in regard thereto
The Labour Appellate Tribunal was therefore clearly in error when it came to the conclusion that the conduct of the appellant came within the definition of a lockout and that it amounted to punishment of the workmen whether by dismissal or otherwise and was therefore in contravention of s 22b of the Act
The application of the respondents under section 23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour Appellate Tribunal
Civil Appeal No 245 of 1954 will therefore be allowed and the order of the Labour Appellate Tribunal reinstating the respondents in the service of the appellant will be set aside
Coming now to Civil Appeal No 244 of 1954 the first question to determine is whether the respondents had resorted to an illegal strike
We have already pointed out the circumstances under which the 76 workmen resorted to the tools down strike from 7 am on May 27 1952 and recorded the finding 121 930 that they not only resorted to such strike but persisted in their attitude in spite of the persuasions of the Chief Engineer and the General Manager of the appellant
The appellant having been declared a public utility concern the workmen were not entitled to resort to such strike without giving to the appellant notice of the strike in terms of section 221 of the  and the tools down strike which was resorted to by them was therefore an illegal strike
The fact that the strike was of a short duration viz from 7 am till 10 30 am would not exculpate the respondents from the consequence of having resorted to such illegal strike the avowed intention of the strikers being not to resume work until their pre concerted plan conceived at the meeting held on the previous night was carried out
The strike resorted to by the workmen was of an indefinite duration
and the management having failed in its attempts to persuade the workmen to resume their work was well within its rights to suspend these workmen pending further orders
Vide Buckingham and Carnatic Co Ltd vs Workers of the Buckingham  and Carnatic Co Ltd1
The Labour Appellate Tribunal did not decide this issue at all but only considered the alleged non compliance by the appellant of cl
L 12 of the Standing Orders as determinative of the whole enquiry before it observing that although the delay in holding the enquiry was not unreasonable there was no doubt that the management did violate the letter of the rule
It further observed that there was no sufficient reason indicated for extending the period of suspension beyond the period of four days provided in cl
L 12 of the Standing Orders the tension created by the non co operation of the workers not having been considered sufficient to preclude the management from collecting materials for conducting the enquiry within the said period of 4 days This reasoning of the Labour Appellate Tribunal was unsound
Having once come to the conclusion that the delay was not unreasonable there was no justification for the further 1  931 conclusion reached by the Labour Appellate Tribunal that the tension created by the non co operation of the workers was not a sufficient reason for extending the period of such suspension
The workmen had forcibly entered the premises of the mills in spite of the warnings of the watchmen and the Jemadar and had also entered the workshop the boiling house and the mill house and continued to stay there threatening violence
In their letter dated June 3 1952 they had also threatened the General Manager that if he did not mend his illegal mistakes and did not take the workmen back on duty be would be responsible for any breach of peace
This was enough evidence of their mentality and the management naturally enough apprehended breach of peace at the hands of these workmen
If this was the tense atmosphere created by the non co operation of the workmen the management was perfectly justified in postponing the enquiry by a few days and continuing the workmen under sus pension
The delay which was thus caused in furnishing the charge sheets and giving notice of the enquiry to these workmen on June 2 1952 was therefore sufficiently explained and if there was any one responsible for this
delay it was the workmen and not the management
It did not then lie in the mouth of the workmen to protest against this delay in the enquiry and trot out their suspension for a period exceeding four day s as an excuse for abstaining from the enquiry
As a matter of fact the management intimated to the workmen that in spite of June 6 1952 having been fixed as the date for the open enquiry the management would be prepared to take up the enquiry earlier provided an intimation was received either from the workmen or from their Union to that effect
Instead of responding to this gesture of the appellant the workmen persisted in asking for an independent enquiry and non co operated with the management in the enquiry which was ultimately held by it as notified at 8 am on June 6 1952
We are of opinion that under the circumstances the appellant was not guilty of having contravened el
L 12 of the Standing Orders and the Labour Appellate 932 Tribunal was in error when it came to the contrary conclusion and dismissed the application of the appellant under section 22 merely on that ground without making any further enquiry into the circumstances of the case
It appears that the Labour Appellate Tribunal was driven to take this step because it found itself unable to hold definitely as to what was the exact situation on May 27 1952
We shall only observe that if the Labour Appellate Tribunal had really ap plied its mind to the question it would have come to the conclusion that the respondents in fact did resort to the illegal strike from 7 am on May 27 1952 and that there was no contravention of cl
L 12 of the Standing Orders by the appellant
The next question that falls to be determined is whether the enquiry which was held by the management on June 6 1952 was a fair enquiry and whether the General Manager observed the principles of natural justice in the conduct of that enquiry Due notice of the enquiry was given to the respondents by the letter of the management addressed to them on June 2 1952 and if the respondents did not avail themselves of the opportunity of presenting themselves and defending their action at the enquiry they had only themselves to blame for it
It was within the province of the management to hold such an enquiry after giving due notice thereof to the respondents and to come to its own conclusion as a result of such enquiry whether the respondents were guilty of the charges which had been leveled against them
If full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves it could not be said that the enquiry was anything but fair
No principles of natural justice were violated and the management was at liberty to come to its own conclusions in regard to the culpability of the respondents and also to determine what punishment should be meted out to the respondents for the misconduct and insubordination proved against them
If the ban which is imposed by section 22 of the Act had not been in existence the management would have been entitled to impose the punishment on the 933 respondents and dismiss them without anything more if it honestly came to the conclusion that dismissal of these workmen was the only punishment which should be meted out to them in all the circumstances of the case
The respondents would no doubt then have been entitled to refer the industrial dispute which arose out of their dismissal for adjudication by adopting the proper procedure set out in the  and the Industrial Tribunal appointed by the Government for the adjudication of such dispute would have been in a position to thrash out all the circumstances and award to them the appropriate relief This course was however not open to the appellant by reason of the pendency of the appeal before the Labour Appellate Tribunal and the only thing which the appellant could do therefore was after coming to its own conclusion as a result of such enquiry to apply to the Labour Appellate Tribunal under s22 of the Act for permission to dismiss the respondents and this the appellant did on June 8 1952
It was not open to the respondents then having regard to the attitude which they had adopted throughout in relation to the said enquiry to urge that the enquiry was not fair or impartial or that the principles of natural justice had been violated by the General Manager of the appellant in the conduct of the enquiry
It was however urged on behalf of the respondents that the suspension for an indefinite period beyond the period of four days provided in cl
L 12 of the Standing Orders was a punitive measure and the appellant was not justified in imposing that punishment on them without the permission of the Labour Appellate Tribunal
It was contended that such suspension involved loss of pay by the respondents and being of an indefinite duration inflicted such harassment on them that it could not be deemed to be anything except a punishment
We do not accept this contention
It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permission of the Tribunal under the relevant section could not 934 be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for permission to punish the workman was made and the Tribunal bad passed orders thereupon
If the permission was accorded the workman would not be paid during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension
There is nothing like a contingent punishment of a workman and therefore such suspension could not be deemed to be a punishment of the workman at all
Such suspension would of necessity be of an indefinite duration because to get a written permission of the Tribunal would mean delay and no Tribunal would likely issue any order without notice and without hearing all the parties concerned
Orders for suspension were meant only as security measures or precau tionary ones taken in the interest of the industry itself or its employees in general
These measures were sometimes called for immediately after an incident and any delay however small might defeat the purpose for which such measures were intended
It would therefore be necessary to adopt these measures immediately and to suspend the workman pending the enquiry as also the permission to be obtained from the appropriate Tribunal for dismissing him if as a result of the enquiry the management thought fit to inflict such punishment upon him
The suspension
 however would not be a punishment by itself
The ordinary dictionary meaning of the word Punish is to cause the offender to suffer for the offence or to inflict penalty on the offender or to inflict penalty for the offence Concise Oxford Dictionary 4th Ed
Punishment can be otherwise defined Vide Law Lexicon by PR Aiyar 1943 Ed as penalty for the transgression
of law and the word cc punish denotes or signifies some offence committed by the person who is punished
Any action of the employer to the detriment of the workman s interest would not be punishment so long as no offence was found to have been committed by the workman
The suspension under such circumstances therefore could 935 not be a punishment even though it may be of an indefinite duration and would not attract the operation of section 22 of the Act
It could not be contended therefore that suspension without pay even for an indefinite period pending enquiry or pending the permission of the appropriate Tribunal to dismiss the workman would be a punishment which would require permission under section 22 of the Act before the same could be meted out to the workman
Vide Champdany Jute Mills And Certain Workmen1 Joint Steamer Companies And Their Workmen2 Assam Oil Co Ltd vs Appalswami3 Standard Vacuum Oil Co vs Gunaseelan M O4
The scope of the enquiry before the Labour Appellate Tribunal under section 22 of the Act has been the subject matter of decisions by this Court in Atherton West  Co Ltd vs Suti Mill Mazdoor Union and Others5 and The Automobile Products of India Ltd vs Rukmaji Bala  Others6
The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during tile pendency of the proceedings therein referred to should be lifted
A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization
It cannot impose any conditions on the employer before such permission is granted nor can it substitute another prayer for the one which the employer has set out in his application
If the permission is granted the ban would be lifted and the employer would be at liberty if he so chooses thereafter to deal out the 1 1952 I LLJ 554
2 1954 II LLJ 328  4 1951 II LL J 221
5 1954 II LLJ 656
6  936 punishment to the workman
On such action being taken by the employer the workman would be entitled to raise an industrial dispute which would have to be referred to the appropriate Tribunal for adjudication by the Government on proper steps being taken in that behalf
When such industrial dispute comes to be adjudicated upon by the appropriate Tribunal the workman would be entitled to have all the circumstances of the case scrutinized by the Tribu nal and would be entitled to get the appropriate relief at
the hands of the Tribunal
If on the other hand such permission is refused the parties would be relegated to the status quo and the employer would not be able to deal out the punishment which he intends to do to the workman
Even then an industrial dispute might arise between the employer and the workman if the workman was not paid his due wages and other benefits
Such industrial dispute also would have to be referred to the appropriate Tribunal by the Government and the Tribunal would award to the workman the appropriate relief having regard to all the circumstances of the case
The Tribunal before whom such an application for permission is made under section 22 of the Act would not be entitled to sit in judgment on the action of the employer if once it came to the conclusion that a prima facie case had been made out for dealing out the punishment to the workman
It would not be concerned with the measure of the punishment nor with the harshness or otherwise of the action proposed to be taken by the employer except perhaps to the extent that it might bear on the question whether the action of the management was bona fide or was actuated by the motive of victimization
If on the materials before it the Tribunal came to the conclusion that a fair enquiry was held by the management in the circumstances of the case and it bad bona fide come to the conclusion that the workman was guilty of misconduct with which he had been charged a prima facie case would be made out by the employer and the Tribunal would under these circumstances be bound to give the requisite permission to the employer to deal 937 out the punishment to the workman
If the punishment was harsh or excessive or was not such as should be dealt out by the employer having regard to all the circumstances of the case the dealing out of such punishment by the employer to the workman after such permission was granted would be the subject matter of an industrial dispute to be raised by the workman and to be dealt with as aforesaid
The Tribunal however would have no jurisdiction to go into that question and the only function of the Tribunal under section 22 of the Act would be to either grant the permission or to refuse it
Vide Champdani Jute Mills And Shri Alijan1 RB section Lachmandas Mohan Lal  Sons Ltd And Chini Mill Karmachari Union2 Assam Oil Companies  case3
In the circumstances of the present case once the appellant succeeded in establishing that the workmen had resorted to an illegal strike from 7 am on May 27 1952 that a fair enquiry into the alleged misconduct and insubordination of the workmen had been held by the management without violating any principles of natural justice that the management had as a result of such enquiry found that the workmen had been guilty of misconduct and insubordination with which they had been charged and that the management had come to the bona fide conclusion that continuing the workmen in its employ was detrimental to discipline and dangerous in the interests of the appellant the Labour Appellate Tribunal ought to have held that a prima facie case for the dismissal of the workmen had been made out by the appellant and ought to have granted the appellant the permission to dismiss the workmen
We are therefore of opinion that the Labour Appellate Tribunal was clearly in error in rejecting the application of the appellant under section 22 of the Act and refusing it the permission to discharge the respondents from its employ
Civil Appeal go
244 of 1954 will therefore be allowed and the order of 1 1952 II LLJ 629
2 1952 II LLJ 787 8 122 938 the Labour Appellate Tribunal dismissing the application under section 22 of the Act will be set aside
The appellant will be granted permission under section 22 of the Act to discharge the respondents from its employ
Under the orders of the Court one half of their salary has been already paid by the appellant to the respondents from May 27 1952 onwards
As a result of this decision the appellant would be entitled to recover the same back from them
Shri N C Chatterjee appearing on behalf of the appellant has however stated that the appellant would forego the recovery of that amount and would also keep the respondents on the reserve list to be employed in the mills as and when there were vacancies in their permanent cadre
We hope that the respondents will take this offer in the true spirit with which it has been made on behalf of the appellant and behave better in the future
Shri N C Chatterjee has also left the question of costs of both these appeals to us and we do order that in all the circumstances of the case it would be proper that each party do bear and pay its own costs of both these appeals
Appeals allowed


Summary:
Seventy six workers of the appellant company resorted to a tools down strike in sympathy with a dismissed co worker
Repeated attempts to persuade them to resume work having failed the General Manager suspended them until further orders
After midday recess the Management sought to prevent the workers from entering the mills but they violently entered the mills and the Police had to be called in by the company to keep the peace
Charges of misconduct and insubordination were thereafter framed against the workers and they were called upon to show cause in an open enquiry to be held by the General Manager why disciplinary action should not be taken against them and the order of suspension was extended pending the enquiry
The workers took up an attitude of total non cooperation and the atmosphere was tense with the result that the enquiry could not be held within 4 days
The Management decided to dismiss the workers as a result of the enquiry but as an appeal was then pending before the Labour Appellate Tribunal the company applied to it under section 22 of the Industrial Disputes Appellate Tribunal Act of 1950 for permission to do so and extended the period of suspension pending receipt of such permission
The workmen in their turn filed an application under a 23 of the Act to the Appellate Tribunal for requisite action to be taken against the company for having contravened section 22b of the Act by resorting to an illegal lock out and thereby punishing them without its prior permission
The Appellate Tribunal held that the company had not held the enquiry within the time specified by el
L 12 of the Standing Orders and on that ground dismissed its application
It allowed the application of the workers holding that the wholesale suspension of the workers and preventing them from continuing work
after the mid day recess amounted to a lock out 917 and punishment by the company and contravened section 22b of the Act and directed their reinstatement
The company appealed
It was contended on behalf of the company that there had been neither a breach of el
L 12 of the Standing Orders nor a contravention of section 22b of the Act
Hold that the contentions were correct and the appeals must succeed
The conduct of the company did not come within the definition of a lock out and even if there was any lock out it was in consequence of the illegal strike resorted to by the workmen and as such could not be deemed to be illegal by virtue of section 243 of the Industrial Disputes
Act 1947
Moreover even assuming that the company declared an illegal lock out it was not necessary for it to obtain the permission of the Appellate Tribunal under section 22 of the Act before it could do so
A lock out was neither an alteration of the conditions of service within the meaning of el
a nor a discharge or punishment by dismissal or otherwise within the meaning of el
b of section 33 of the Industrial Disputes Act 1947 or under section 22 of the Industrial Disputes Appellate Tribunal Act 1950 and no permission was therefore required for its declaration
If the lock out was illegal the workmen had their remedy under section 26 of the Industrial Disputes Act and in any event they had the right to have the dispute referred for adjudication
Jute Workers Federation Calcutta vs Clive Jute Mills 1951 and Colliery Mazdoor Congress Asansol vs New Beerbhoom Coal Co Ltd 1952 LAC 219 approved
The Company having been declared a public utility concern the workers had no right to go on strike without giving a notice in terms of section 221 of the and the tools down strike resorted to by them was illegal and the company was within its rights in suspending them
Buckingham and Carnatic Co Ltd vs Workers of the Buckingham and Carnatic Co Ltd 1953 SCR 219 referred to
Mere failure to hold an enquiry within the period of four days prescribed by el
L 12 of the Standing Orders could not determine the matter before the Appellate Tribunal and where as in the instant case the delay was due to the conduct of the workers it was sufficiently explained
Where full and free opportunity was given to the workers to be present and defend themselves in a duly notified enquiry and they failed to do so the Management was quite within its right to come to its own conclusion as to their guilt and the punishment to be meted out to them and it was not open to the workmen thereafter to urge that such enquiry was not fair or impartial or violated the principles of natural justice
918 There could be no punishment so long as there was no offence and any action of the employer to the detriment of the workers  interest would not amount to punishment
The law did not contemplate anything like a contingent punishment of a worker and consequently where there was an interim order of suspension pending an enquiry or the grant of permission by the Appellate Tribunal the question of pay for the period of such suspension depending on whether or not the permission would be granted such suspension would not amount to punishment even where it was of an indefinite duration so as to attract the operation of section 22 of the In dustrial Disputes Appellate Tribunal Act 1950
Champdany Jute Mills and Certain Workmen 1952 1 LLJ 554 Joint Steamer Companies and Their Workmen 1954 II LLJ 221 Assam Oil Co Ltd vs Appalswami 1954  Standard Vacuum Oil Co vs Gunaseelan M G 1954 II LLJ 656 relied on
Under that section the only thing that the Appellate Tribunal had to consider was whether a prima facie case had been made out by the employer for lifting the ban imposed by the section and if on the materials before it it was satisfied that there bad been a fair enquiry in the circumstances of the case and the Management had bona fide come to the conclusion that the worker was guilty of misconduct with which he had been charged and it would be detrimental to discipline and dangerous in the interests of the company to continue him in its employ a prima facie case was made out and the Tribunal would be bound to permit the employer to punish the workman
It would be no part of its duty to judge whether the punishment was harsh or excessive except so far it might bear on the bona fides of the Management and could only grant the permission as sought for or refuse it and the question of the propriety of the punishment could be decided only by the appropriate Tribunal appointed by the Government for adjudicating the industrial dispute which would ensue upon the action of the management
Atherton West  Co Ltd vs Suti Mills Mazdoor Union and Others 1953 SCR 780 The Automobile Products of India Ltd vs Bukmaji Bala  Others 1955 1 SCR 1241 Champdany Jute Mills and Shri Alijan 1952 II LLJ 629 RBS Lachmandas Mohan Lal  Sons Ltd and Chini Hill Karmachari Union 1952 II LLJ 787 and Assam Oil Companies  Case 1954 LAC 78 referred to