Case: Bata Shoe Company Private Limited Vs. D.N. Ganguly &amp; Others

in all cases will be given an opportunity of offering his explanation before any decision is arrived at."It is said that the charge against these two workmen was only for absenting themselves; it was not therefore necessary to frame any charge-sheet against them. This is not quite correct so far as Jagdish Lal is concerned as will appear from the letter of dismissal sent to him; but assuming it to be so, Standing Orders provide that though the charge-sheet may be given no action can be taken against a workman for any misconduct unless he is given an opportunity of offering his explanation before any decision is arrived at. There is no proof in this case that any opportunity was given to these two workmen of offering their explanation before the decision of dismissal was arrived at in their case. In these circumstances even though no charge-sheet might have been necessary in the case of these two workmen their dismissal was against the provision of the Standing Orders, for no explanation was taken from them before arriving at the decision to dismiss them. The order of the tribunal with respect to these two workmen must be upheld.12. This brings us to the case of eleven workmen who are : Mohd. Mansoor (respondent 6), Ram Kuber Das (respondent 9), Ramasis (respondent 15), Modh Zafir (respondent 19), Mohd. Islam (respondent 20), Mohd. Zafir (respondent 22), Rajeshwar Prasad (respondent 26), Chirkut (respondent 27), Lal Das (respondent 43), Inderdip (respondent 47) and Mohd. Nazir (Respondent 58). In their case the tribunal held that though charge-sheets were issued to them, they could not be served and the inquiry took place without their knowing anything about the charges or the date of the inquiry. In those circumstances the tribunal held that the inquiry was no inquiry and therefore ordered their reinstatement. It is contended on behalf of the appellant that the case of these eleven workmen is similar to the case of forty-seven who refused to take the charge-sheers sent to them by registered post. In any case it is urged that the charge-sheets were notified on the notice-board and notices were issued in the newspapers and that should be deemed sufficient service of the charge-sheets on them. In this connection reliance was placed on Mckenzie and Co. Ltd. v. Its Workmen, (1959) Supp 1 SCR 222 : (AIR 1959 SC 389 ). In that case the Standing Orders provided that notice would be served on a workman by communicating the same orally to the workman concerned and/or by affixing the same on the companys notice-board and the company had acted in conformity with the Standing Orders by affixing the notices on its notice-board. It was found in that case that the company first sent notices by registered post acknowledgment due to the workmen concerned. When some of the notices came back unserved the company wrote to the secretary of the union asking for the addresses of the workmen but the secretary gave no reply to the letter. It was then that the company affixed the notices on the notice-board both inside and outside the mill-gate. In those circumstances it was held that the company did all that it could under the Standing Orders to serve the workmen and the affixing of the notices on the notice-board was sufficient service.13. The facts in the present case however are different. All that the Standing Orders provide is that the workmen charged with an offence shall receive a copy of such charge. It is also provided that a workman who refuses to accept the charge-sheet shall be deemed to have admitted the charge made against him. There is no provision in the Standing Orders for affixing such charge-sheets on the notice board of the company. The charge sheets in this case were sent to the eleven workmen by registered post and returned unserved, because they were not found in their villages. On the same day on which the charge-sheets were sent by registered post it appears that notices were issued in certain newspapers to the effect that a group of workmen under a common understanding had engaged in an illegal strike from February 23, 1954, and that all such workmen were liable to strong disciplinary action and that in consequence they had been charged under the Standing Orders and Rules of the company and such charge-sheets had been sent to them individually by registered post acknowledgment due and had also been displayed on the notice-boards inside and outside the factory gate and they were required to submit the explanations by March 9, 1954. These notices did not contain the names of the workmen to whom charge-sheets were sent and in whose case charge-sheets were displayed on the notice-boards. In the circumstances it can hardly be said that these eleven workmen would have notice that they were among those to whom charge-sheets had been sent or about whom charge-sheets had been displayed on the notice-boards. The proper course in our view was when the registered notices came back unserved in the case of these eleven workmen to publish notices in their names in some newspaper in the regional language with a wide circulation in Bihar along with the charges framed against them. It would have been a different matter if the Standing Orders had provided for service of charge-sheets through their display on the notice-boards of the appellant. In the absence of such provision, the proper course to take was what we have mentioned above. If that course had been taken, the appellant would have been justified in saying that it did all that it could to serve the workmen; but as that was not done, we agree with the tribunal that these eleven workmen had no notice of the charges against them and the date by which they had to submit their explanation as well as the date of inquiry. In these circumstances the order of the tribunal with respect of these eleven workmen must also be upheld.

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

Explanation:
1[ds]5. It appears that after the dismissal of a large number of workmen consequent on the illegal strike that took place on February 23, 1954, there were conciliation proceedings before the Labour Commissioner, Bihar, with respect to these dismissal and other matters. These conciliation proceedings appear to have begun some time before May 1, 1954, for we find that on that day the Labour Commissioner wrote to the appellant that its objection that conciliation proceeding were illegal and without jurisdiction was baseless. It seems that efforts at conciliation continued right up to the end of August 1954, for we find another letter of August 31, 1954, from the Labour Commissioner to the appellant saying that he had heard that mutual negotiations were going on between the appellant and its workmen for the settlement of their dispute and September 2 had been fixed for that purpose. The Labour Commissioner therefore gave notice to the appellant that he would hold conciliation proceedings on September 3 at 3 p. m. in his office in case the disputes were not mutually settled before that date. It seems that an agreement was arrived at between the appellant and the union on September 2. In this agreement it was noted that 76 dismissed workmen had already been employed; it was further provided that 110 workmen would also be employed in the same manner as the seventy-six. Further 31 dismissed workmen were to remain dismissed and would not be considered for further employment or for any other benefit. 30 other dismissed workmen would for the time being remain dismissed and it would be decided later on between the union and the appellant whether their dismissal should be confirmed like those of 31 mentioned above or whether they should be given the option to wait for employment as and when vacancies arose or should be treated as retired on the date of dismissal in order to enable them to receive the benefits of gratuity and refund of provident fund. It may be added that the present references are with respect to sixty workmen out of these sixty-one. It seems that the Labour Commissioner was apprised of this settlement. Consequently he wrote on September 3, 1954, to the appellant that the conciliation proceedings proposed to be held on that date were cancelled. The Labour Commissioner further pointed out that the union was opposing reinstatement of certain workmen; he therefore proposed to hold further conciliation proceedings in the case of such workmen on September 6, 1954, at 3 p. m. before making his final recommendations to government in this matter. The appellant protested to the Labour Commissioner against the holding of any further conciliation proceedings after the agreement of September 2 and apparently did not attend the meeting fixed for September 6. Nothing further therefore seems to have taken place in the conciliation proceedings. Presumably the Labour Commissioner must have reported thereafter to the government under S. 12 (4) of the Industrial Disputes Act, No. XIV of 1947 (hereinafter called the Act). Then followed the two references by the government; the first on October 8, 1954, relating to 31 workmen and the other on January 15, 1955, relating to 29 workmen.Reading these two provisions along with S. 18 of the Act, it seems to us clear beyond doubt that a settlement which is made binding under S. 18 on the ground that it is arrived at in the course of conciliation proceedings is a settlement arrived at with the assistance and concurrence of the conciliation officer, for it is the duty of the conciliation officer to promote a right settlement and to do everything he can to induce the parties to come to a fair and amicable settlement of the dispute. It is only such a settlement which is arrived at while conciliation proceedings are pending that can be binding under S. 18.In the present case it is obvious that the Labour Commissioner took no steps to promote the actual agreement which was arrived at between the appellant and the union on September 2. The letter of August 31 made it clear that the Labour Commissioner would take action under S. 12(2) on September 3 if no mutual agreement was arrived at between the appellant and the union. It seems that a mutual agreement was arrived at between the appellant and the union without the assistance of the Labour Commissioner and it did not receive his concurrence even later; on the contrary evidence shows that the Labour Commissioner did not approve of the settlement which excluded the reinstatement of a large group of workmen and so he did not act under S. 12(3). In the circumstances such a mutual agreement could not be called a settlement arrived at in the course of conciliation proceedings even though it may be accepted that it was arrived at a time when conciliation proceedings were pending. A settlement which can be said to be arrived at in the course of conciliation proceedings is not only to be arrived at during the time the conciliation proceedings are pending but also to be arrived at with the assistance of the conciliation officer and his concurrence; such a settlement would be reported to the appropriate government under S. 12(3).In the present case the agreement of September 2, 1954 was not arrived at with the assistance and concurrence of the conciliation officer, namely, the Labour Commissioner, which will be clear from his letter of September 3, 1954. In the circumstances it is not a settlement which is binding under S. 18 of the Act and therefore will not bar a reference by the Government with respect to these sixty workmen.The next point that is urged is that it is not an industrial dispute but a dispute between the employer and its individual workmen, even though their number may be large and therefore the Government had no jurisdiction to make the references. We are of opinion that there is no force in this contention. We have already set out the history of the conciliation proceedings in this case. It is obvious from the letter of the Labour Commissioner dated September 3, 1954, that he must have made a report to the Government under S. 12(4) and it must be on that report that these references must have been made under S. 12(5) read with S. 10(1). It is not in dispute that originally the case of dismissal of a much larger number of workmen was under consideration during the conciliation proceedings but on September 2, 1954, a mutual agreement was arrived at between the appellant and the union, which in a sense excluded the case of these sixty workmen. The Labour Commissioner apparently was not prepared to concur with this action of the parties as appears from his letter of September 3 and must therefore have made a report to the Government under S. 12(4) which was followed by references under S. 10. In the circumstances we fail to understand how what began as an industrial dispute and was sponsored by the union, related to the dismissal of a much larger number of workmen (including these sixty) and as such became the subject-matter of conciliation proceedings under S. 12(1) would turn into an individual dispute because a mutual agreement was arrived at between the appellant and the union with which the Labour Commissioner was not in entire agreement and in consequence of which he apparently made a report to the Government under S. 12(4) which was followed by the two references under S. 10(1).In these circumstances we are satisfied that the references are not bad on the ground that an individual dispute had been referred to the tribunal forthe present case, however, the finding of the tribunal is that there was misconduct which merited dismissal under the Standing Orders and that the managerial inquiry was proper. In these circumstances those observations torn from their context cannot be applied to the facts of this case. The reasoning of the tribunal therefore that as these 47 workmen had not taken part in violence the appellant was not justified in dismissing them cannot be accepted on the facts of this case. The other reason given by the tribunal for setting aside the dismissal is that the appellant had taken back a large number of other employees who had taken similar part in the illegal strike and had absented themselves and there was no reason to discriminate between those employees and these 47 workmen. It is clear from the award of the tribunal that no discrimination was made when taking back the workmen on the ground that these workmen supported Shri Bari, for the award shows that a number of other workmen who supported Shri Bari were takenthe present case, however, the circumstances are different. It is not the appellant which has made the discrimination; in the present case so far as the appellant is concerned it was prepared to take back even those who supported Shri Bari and did actually take back a large number of such workmen. The genesis of the trouble in this case was a dispute within the union itself which led to the illegal strike, the history of which we have already given. The mutual agreement of September 2, 1954, shows that the union which represented the workmen was not agreeable that sixty-one workmen should be taken back and these forty-seven workmen are out of these sixty-one. The appellant in this case was therefore placed in the position that it had to choose between the large majority of workmen and sixty-one workmen whom the union did not want to be taken back. It was in these circumstances that the appellant did not take back those sixty-one workmen out of whom are these forty-seven. The charge of discrimination therefore cannot be properly laid at the door of the appellant in this case and if there is anybody to blame for it is the union. In these circumstances when the managerial inquiry was held to be proper and the misconduct committed is such as to deserve dismissal under the Standing Orders, there was no reason for the tribunal to interfere with the order of dismissal passed by the appellant in the case of these forty-seven workmen. It may be that participation in an illegal strike may not necessarily and in every case be punished with dismissal; but where an inquiry has been properly held and the employer has imposed the punishment of dismissal on the employee who has been guilty of the misconduct of joining the illegal strike, the tribunal should not interfere unless it finds unfair labour practice or victimisation against the employee.The facts in the present case however are different. All that the Standing Orders provide is that the workmen charged with an offence shall receive a copy of such charge. It is also provided that a workman who refuses to accept the charge-sheet shall be deemed to have admitted the charge made against him. There is no provision in the Standing Orders for affixing such charge-sheets on the notice board of the company. The charge sheets in this case were sent to the eleven workmen by registered post and returned unserved, because they were not found in their villages. On the same day on which the charge-sheets were sent by registered post it appears that notices were issued in certain newspapers to the effect that a group of workmen under a common understanding had engaged in an illegal strike from February 23, 1954, and that all such workmen were liable to strong disciplinary action and that in consequence they had been charged under the Standing Orders and Rules of the company and such charge-sheets had been sent to them individually by registered post acknowledgment due and had also been displayed on the notice-boards inside and outside the factory gate and they were required to submit the explanations by March 9, 1954. These notices did not contain the names of the workmen to whom charge-sheets were sent and in whose case charge-sheets were displayed on the notice-boards. In the circumstances it can hardly be said that these eleven workmen would have notice that they were among those to whom charge-sheets had been sent or about whom charge-sheets had been displayed on the notice-boards. The proper course in our view was when the registered notices came back unserved in the case of these eleven workmen to publish notices in their names in some newspaper in the regional language with a wide circulation in Bihar along with the charges framed against them. It would have been a different matter if the Standing Orders had provided for service of charge-sheets through their display on the notice-boards of the appellant. In the absence of such provision, the proper course to take was what we have mentioned above. If that course had been taken, the appellant would have been justified in saying that it did all that it could to serve the workmen; but as that was not done, we agree with the tribunal that these eleven workmen had no notice of the charges against them and the date by which they had to submit their explanation as well as the date of inquiry. In these circumstances the order of the tribunal with respect of these eleven workmen must also be upheld.