Case: Lakshmi Devi Sugar Mills Ltd Vs. Pt. Ram Sarup.(And Connected Appeal)

the morning of 27-5-1952, 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 at 1 p. m. 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 lock-out. The workmen had 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 S.24 (3), of the Industrial Disputes Act 1947 be deemed to be illegal.11. 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 S.22 of the Act. The Labour Appellate Tribunal had before it an earlier decision of its own in Jute Workers Federation, Calcutta v. Clive Jute Mills, 1951-2 Lab LJ 344(Cal)(A), in which the same question had been considered with reference to S. 33 of the Industrial Dispute Act 1947. In that case, a lockout had been involved 4,000 workers of the company and a preliminary contention was urged that there was no contravention of the provisions of S.33 of the Industrial Disputes Act, 1947. 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 did not also amount to punishment for punishment presupposes 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, S.33 (b) 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 S.33 (a). 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 services 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 S.33 (a) the questioned act of the employer must directly and in fact alter the conditions of service to the prejudice of the workmen concerns that is to say; the moment the lockout was declared. The possibility that they may or may not get their payment that the lockout may or may not alter the conditions of their service to their prejudice. Section 33 (a) would not, therefore, be attracted by the mere fact of a lockout. The Labour Appellate Tribunal thus came to the conclusion that neither S.33(a) nor S.33 (b) would be contravened by the company in declaring the lockout.12. This decision of the Labour Appellate Tribunal was followed in Colliery Mazdoor Congress, Asansol v. New Beerbhoom Coal Co. Ltd., 1952 Lab A C 219 (Cal) (B), and the Labour Appellate Tribunal there held that a lockout did not come within the ambit of S.33 and, therefore, no permission under that section was required for declaring a lockout.13.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 S.33 of the Industrial Disputes Act, 1947, or S.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 S.26 of the Industrial Disputes Act, 1947. The employees affected by a lockout 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.14. 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 it amounted to punishment of the workmen whether by dismissal or otherwise and was, therefore, in contravention of S. 22 (b) of the Act. The application of the respondents under S.23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour Appellate Tribunal

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Civil Appeal No. 245 of 1954 which is directed against the order of the Labour Appellate Tribunal under S.23 of Act may be disposed of atunfortunately 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 a clear documentary evidence to show that the 76 workmen resorted to a tools-down strike from 7 a.m. onthis is the true position it follows that there was no lockout declared by the appellant much less an illegal lock-out. The workmen had 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 S.24 (3), of the Industrial Disputes Act 1947 be deemed to be illegal.e 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 S.33 of the Industrial Disputes Act, 1947, or S.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 S.26 of the Industrial Disputes Act, 1947. The employees affected by a lockout 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.14. 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 it amounted to punishment of the workmen whether by dismissal or otherwise and was, therefore, in contravention of S. 22 (b) of the Act. The application of the respondents under S.23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour AppellateAppeal No.244 ofhave already pointed out the circumstances under which the 76 workmen resorted to the tools-down strike from 7 a.m. on 27-5-1952, and recorded the finding 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 being 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 S.22 (1) of the Industrial Disputes Act, 1947, 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 a.m. till 10-30 a.m. would not exculpate the respondents from the consequences of having resorted to such illegal strike, the avowed intention of the strikers being not to resume work until their pre-concerned 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 furtherThis 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 conclusion reached by the Labour Appellate Tribunal that the tension created by the non-corporation 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 warning 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 he 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 suspension. 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 days 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 a.m. on June 6, 1952. We are of opinion that under the circumstances the appellant was not guilty of having contravened cl. L. 12 of the Standing Orders and the Labour Appellate Tribunal was in error when it came to the contrary conclusion and dismissed the application of the p73 appellant under S. 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 applied 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 a.m. on May, 27,1952, and that there was no contravention of cl. L. 12 of the Standing Orders by thenotice 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 levelled 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 in sub-ordination proved against them. If the, ban which is imposed by S. 22 of the Act had not been in existence, the management would have been entitled to impose the punishment on the 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 disputes which arose out of their dismissal for adjudication by adopting the proper procedure set out in the Industrial Disputes Act. 1947, 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 S.22 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 thedo not accept this contention. It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permissions of the Tribunal under the relevant section could not 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 had 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 precautionary 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 bysuspension under such circumstances, therefore, could not be a punishment even though it may be of an indefinite duration and would not attract the operation of S.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 S.22 of the Act before the same could be mated out to the workman.In the circumstance of the present case once the appellant succeeded in establishing that the workmen had resorted to an illegal strike from 7 a. m. on 27-5-1952, 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 found the 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.21. We are, therefore, of opinion that the Labour Appellate Tribunal was clearly in error in rejecting the application of the appellant under S. 22 of the Act refusing it the permission to discharge the respondents from its employ.