Case: M/S. Bharat Sugar Mills Ltd Vs. Shri Jai Singh And Others

in the go slow was not established. Without knowing full the circumstances under which those other 13 were taken back to work it is not proper to hold that there has been any discrimination against these 21.Learned for the respondents next contended that mala fide and victimisation were writ large on the conduct of the management in preventing the holding of a meeting for conciliation which was attempted by the Assistant Labour Commission. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government "go slow" continued to be a misconduct under the Standing Orders and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find - even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February -that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union activities, while purporting to take action ostensibly for some other activity. It would be unreasonable to think that the appellant, expected that if the meeting was not held on the date as proposed the workmen were sure to start go slow and that that would give the management an opportunity of proceeding against the Union workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers threat to go slow would ever justify a finding of mala fides on the employer part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala-fides or an intention to victimise can be reasonably based.Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the Labour Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestly given.Our attention was drawn to the delay in holding the enquiry and the subsequent delay in filing the application for permission to dismiss. That there has been great and indeed unusual delay is clear. The charge-sheets were served on the workmen in March 1955 and the explanations were received about the middle of March, but the domestic enquiry took place in September 1955. Trying to explain this delay of several months, Sarda, the General Secretary, has stated thus :- "The enquiry into the charge sheets could not be commenced before the beginning of September, 1955, because of my continued ill health which necessitated complete rest for several weeks at a time and also because of my multifarious assignments which took me many a time to Patna and outside the State of Bihar. I could not assign the matter of holding the enquiries to other officers namely Chief Engineer or the Chief Chemist because they were themselves complainants against the workmen concerned. "We are unable to consider this explanation wholly satisfactory and are inclined to think that the management showed lamentable callousness in this matter of proceeding with the enquiry. In cases of this nature the enquiry should be held as early as possible, specially when the management takes the step of putting the workmen under suspension.No application for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under section 22 of the Industrial Disputes Appellate Tribunal Act before the Labour Appellate Tribunal, Calcutta. But that was rendered infructuous on account of the disposal of the matter before the Labour Appellate Tribunal. The present application was made as late as December 30, 1956, after an application by the workman themselves under section 23 of the Industrial Disputes Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management delay in applying for permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for permission to dismiss the management was guilty of mala fides or an intention to victimise.We have therefore come to the conclusion that the Tribunal order in refusing permission to dismiss these workmen, viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati Bachan, Ramayan Singh, Jai Singh, Hira Sukul and Gulab Singh was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the Tribunal order was granted when special leave was allowed by this Court and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.As the two respondents Ramdeo and Golla are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these two with effect from this date, if they were living. These two will be entitled to wages till the date of their death.As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before the Industrial Tribunal does not establish the charge of misconduct against them.

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

Explanation:
1[ds]Reports by some officers of the company were taken into consideration but it does not appear that the contents of these reports were read out and explained to the workmen. The persons whose reports were thus considered were present at the enquiry, but even so it does not appear that the workman was given an opportunity to examine them. Indeed, as none of these persons were actually examined in the presence of the workmen the question of their cross-examination by or on behalf of the workmen did not arise. The workman thus had not only no proper chance of knowing what was being alleged against him and by whom but also no chance of testing the correctness of the allegations that were in fact made in the written report.In view of these serious defects in the enquiry by the domestic tribunal it was not possible for the Industrial Tribunal to place any reliance on the findings of that domestic tribunal in order to decide whether permission to dismiss should be given under section 33 of the Industrial Disputeswas however adduced by the appellant before the Industrial Tribunal to make out its case that the workmen concerned were in fact guilty of the alleged misconduct. On behalf of the respondents it has been urged before us that once it is found that the enquiry by the domestic tribunal has been defective it was not open to the Industrial Tribunal before which the application under section 33 is made to allow any evidence to be adduced before it. We see no force in this contention. When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment the Tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself the Tribunal, it has been settled by a number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper enquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct. When such evidence is adduced before the Tribunal the management is deprived of the benefit of having the findings of the domestic tribunal being accepted as prima facie proof of the alleged misconduct unless the finding is perverse and has to prove to the satisfaction of the Tribunal itself that the workman was guilty of the alleged misconduct. We do not think it either just to the management or indeed even fair to the workman himself that in such a case the Industrial Tribunal should refuse to take evidence and thereby drive the management to make a further application for permission after holding a proper enquiry and deprive the workman of the benefit of the Tribunal itself being satisfied on evidence adduced before it that he was guilty of the allegedIndustrial Tribunal held that all the evidence which might have been taken in the enquiry by the management had been led before it and it was in full possession of the facts and no question of any prejudice to the workmen arose as it would be open to it on a review of the entire evidence before it to decide whether the application for permission to dismiss should be granted or not. On a consideration of that evidence the Tribunal held as regards 16 of the workmen concerned that there was no evidence that they had taken part in the alleged misconduct of "go slow" or instigation to "go slow". No objection appears to have been taken either before the Appellate Tribunal or before this Court to the application being disposed of on the evidence taken before the Industrial Tribunal itself; and in fact this Court allowed the application under section 33 in respect of all the 48 workmen on the basis of the evidence given before the Industrialhave no hesitation in believing as correct these statements made by the Chief Engineer in his report made on February 13. There can be no doubt therefore that Swarath Singh, Hardeo Singh and Dhannoo actually participated in the go slow. As regards Harikishan Kuer, Baijnath, Ramdeo and Nagendranath and Baldeo we have to remember that it is not disputed that there was in fact a go slow in the different jobs on which these men were engaged. If they had not been proved to have taken an active part in promoting the go slow, there may have been some scope for saying that the go slow in their jobs was the consequence of the go slow at the Donga and not deliberate go slow on their part. When however we find that these persons were active in asking other workmen to go slow, they cannot be reasonably heard to say that the go slow in their own jobs was not deliberate on their part. The Tribunal was in our opinion clearly in error in thinking that the go slow in the jobs where these persons were engaged was merely the result of the go slow at the Donga end and not deliberate go slow on their part. In our opinion, the evidence of Ishawari Dayal definitely establishes that these several persons, Harikishan Kuer, Baijnath Singh, Ramdeo Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Sawarath Singh and Hardeo Singh did actually participate in delaying production.The Chief Chemist, A. N. Kapur, submitted to the Secretary one report on February 12, 1955 and two more reports on February 13. In the first report he said that having received information at about 9.30 A. M. that Gulab Singh, Evaporatorman, was inciting persons who were doing periodical cleaning of the Evaporators that day that day that they should do the cleaning slowly as if the "go-slow" had already started in their case, he immediately went to the Evaporators and questioned Gulab Singh about his alleged conduct and that Gulab Singh ultimately admitted that it was true but that he had merely been saying what others hadfor the respondents next contended that mala fide and victimisation were writ large on the conduct of the management in preventing the holding of a meeting for conciliation which was attempted by the Assistant Labour Commission. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government "go slow" continued to be a misconduct under the Standing Orders and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find - even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February -that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union activities, while purporting to take action ostensibly for some other activity. It would be unreasonable to think that the appellant, expected that if the meeting was not held on the date as proposed the workmen were sure to start go slow and that that would give the management an opportunity of proceeding against the Union workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers threat to go slow would ever justify a finding of mala fides on the employer part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala-fides or an intention to victimise can be reasonably based.Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the Labour Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestlyapplication for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under section 22 of the Industrial Disputes Appellate Tribunal Act before the Labour Appellate Tribunal, Calcutta. But that was rendered infructuous on account of the disposal of the matter before the Labour Appellate Tribunal. The present application was made as late as December 30, 1956, after an application by the workman themselves under section 23 of the Industrial Disputes Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management delay in applying for permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for permission to dismiss the management was guilty of mala fides or an intention to victimise.We have therefore come to the conclusion that the Tribunal order in refusing permission to dismiss these workmen, viz., Harikishan Kuer, Baijnath Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Singh, Kawalpati Bachan, Ramayan Singh, Jai Singh, Hira Sukul and Gulab Singh was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the Tribunal order was granted when special leave was allowed by this Court and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.As the two respondents Ramdeo and Golla are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these two with effect from this date, if they were living. These two will be entitled to wages till the date of their death.As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before the Industrial Tribunal does not establish the charge of misconduct against them.