Case ID: 2430

Judgment:
Appeal No. 958 of 1966. Appeal by special leave from the Award dated September 16	 1965 of the Labour Court	 Allahabad in Adjudication Case No. 78 of 1965. G.R. Gokhale	 O.P. Malhotra and 1. B. Dadachanji	 for the appellant. R. Vasudev Pillai and Subodh Markandeya	 for respondents Nos. 2(a) to 2(k). 541 The Judgment of the Court was delivered by Vaidialingam	 J. In this appeal	 by special leave	 the question	 that arises for consideration	 is as to whether the award of the Labour Court	 Allahabad	 dated September 16	 1965	 directing the reinstatement of six workmen	 referred to in the order of reference	 is justified. The facts leading up to the award may be referred to. There was a strike	 in the establishment of the appellant company	 from March 18	 1964. There was a meeting	 of the District Industrial Relations Advisory Committee	 on March 29	 1964	 presided over by the District Magistrate of the area. Representatives of the management and the workmen	 attended the said meeting. The proceedings of the meeting show that the Advisory Committee	 decided to appeal to the appellant not to take any action	 against the workers	 on the gro.und that they had on strike	 from March 18 1964. There was an appeal	 to the District Magistrate	 Allahabad	 to release	 as a gesture of goodwill	 the arrested employees of the company	 who were not involved in violence. The Union	 representing the workers of the appellant	 in turn	 decided to call off the strike and directed the workmen to resume work with effect from the morning of March 30	 1964. There is no controversy that the strike was called off	 and certain workers	 who had been arrested in connection with the strike	 were also released from ia 'il	 on March 29	 1964 itself. This strike will be referred to	 as the first strike	 in the course of this judgment. On March 20	 1964	 the respondent Union had given to the appellant	 another notice	 stating that the workmen of the appellant company would be going on a token strike	 for one day	 after fourteen days of the receipt of the notice	 in sympathy with the workers of the Swadeshi Cotton Mills	 Nalni. The exact date	 on which the strike was to take place	 was not given in the notice	 as required under sub section (4) of section 6S of the U.P. (hereinafter referred to as the Act). On April 9	 1964	 the respondent Union again intimated to the management about the workmen 's intention to go on strike on April 10	 1964	 and offered to work on a Sunday	 so that there would be no loss of production; but the management intimated the Union that the factory would work on April 10	 1964. A token strike actually took place	 on April 10	 1964. This strike will be termed as the second strike	 in these proceedings. In respect of the first strike	 the Management had	 on March 28	 1964	 charge sheeted	 for going on an illegal strike	 some of the workmen	 including the workmen	 whose dismissal had been set aside by the present award. A joint reply was sent	 by the concerned workmen	 on April 9	 1964	 to the management	 drawing their attention to the decision of the District Industrial Rela 545 tions Advisory Committee	 dated March 29	 1964	 and the settlement	 arrived at	 therein	 between the management and the Union. The workmen also requested the management	 not 'to disobey the decision of the Committee. The appellant sent a communication	 on April 10	 1964	 to the workmen	 stating that they had not made any commitment	 at the meeting on March 29	 1964	 that the management would not proceed with the taking of disciplinarY action	 against an employee	 who committed a mis conduct	 according to the Standing. Orders of the Company. The work men were again directed to furnish	 within 24 hours	 their reply	 if any	 to the charge sheet	 dated March 28	 1964. On May 8	 1964	 the Acting Works Manager	 of the appellant company	 passed orders	 warning the concerned workmen	 for having mis conducted themselves	 as s 'tated in the chargesheet	 dated March 28	 1964. It is further stated	 in this order	 that	 after hearing the explanation	 furnished by the workmen	 the management holds the workmen guilty of mis conduct	 for which they could have been dismissed; but the management has taken a lenient view and	 hoping that the mis conduct will not be repeated	 administers an earnest warning. In respect of the second strike	 which took place on April 10	1964	 the management charge sheeted	 on April 16	 1964	 thirteen wo.rkmen	 for going on illegal strike which is a mis conduct	 under sub cl. (2) of el. 21	 of the Certified Standing Orders of the company	 and as the strike was in violation of sub section (4) of section 6 S of the Act. There was a further charge that the workmen	 concerned	 had intimidated and prevented other willing workers	 from going to work. The workmen were directed to offer their explanation	 as to why disciplinary action need not be taken for their conduct. On April 17	 1964	 the thirteen workmen	 jointly sent a reply saying that the strike	 on April 10	 1964	 was legal	 and due notice had been given	 under the provisions of the Act. They also denied having intimidated	 or restrained	 any willing worker from going to work. They further stated that they had not committed any mis conduct. The management proceeded to conduct an inquiry	 against the thirteen workmen	 and Sri K. 'D. Gupta	 an officer of the company	 was entrusted with the conduct of the said inquirY. Shri Gupta accordingly conducted an enquirY on April 20	 1964	 and sent his report to the Acting Works Manager	 .on April 24	 1964. After referring to the conduct of the inquiry proceedings	 Shri Gupta has stated that the thirteen workmen are ' guilty of participation in an illegal strike	 on April 10	 1964	 and	 as participation in an illegal strike	 is a mis conduct under el. 21 (2 ) of the Certfied Standing Orders of the Company	 the workmen	 concerned	 are guilty. of mis conduct	 but	 regarding the 546 charge of intimidation and incitement	 the inquiry officer found that the said charge was not established. On May 22	 1964	 the Acting Works Manager of the appellant accepted the report of Shri Gupta and passed orders	 administering a warning	 to seven	 out of the thirteen	 workmen	 but	 regarding the remaining six workmen	 the Works Manager	 after taking into account the warning that had been administered to them	 on May 8	 1964	 for go.ing on an illegal strike (referring to the first strike)	 passed orders dismissing them from service. The Union raised a dispute	 regarding the dismissal of the six workmen and	 accordingly	 the said dispute was referred to the Labour Court	 Allahabad	 for adjudication. The case of the workmen was that the strike	 on April 10	 1964	 was legal	 and that the domestic inquiry	 conducted by Shri Gupta	 was neither bona fide	 not fair. They also contended that in view of the settlement	 arrived at on March 29	 1964	 in respect of the first strike	 the management had no right to take any action	 by way of warning the workmen	 as it purported to do	 on May 8	 1964. Taking the said warning into account	 for the purpose of imposing the punishment of dismissal	 amounted to a vindictive conduct	 on the part of the management and	 therefore	 the order of dismissal was illegal. The management	 on the other hand	 contended that the strike	 that took place on April 10	 1964	 was illegal	 as it was not in accordance with the provisions of the Act and participation	 in such illegal strike	 was a mis conduct	 under el. 21 (2) of the Standing Orders of the Company and	 such mis conduct could be punished by dismissal	 under cl. 22. According to the management	 the inquiry proceedings	 conducted by Shri Gupta	 were quite fair	 and bona fide	 and the workmen were given full opportunity to participate in the inquiry proceedings. They also pleaded that the management was entitled	 to impose punishment for mis conduct	 by taking into account the previous conduct of the worlcmen	 concerned; and	 in this case	 the warning	 recorded against them on May 8	 1964	 was legitimately and properly taken into account	 inasmuch as the management had not agreed to withdraw the proceedings	 against the workmen. The Labour Court has upheld the plea of the management	 that the second strike	 on April 10	 1964	 being contrary to sub section (4) of section 6 S	 was illegal under section 6 T of the Act; but it has further held that	 notwithstanding the infirmity in the notice	 issued by the workmen regarding the second strike	 all the managements in the area	 including the appellant	 were fully aware of the fact of the intended token strike on April 10	 1964. The Labour Court has further held that the inquiry proceedings	 conducted by Shri Gupta	 were bona fide and fair	 and they suffered from No. infirmity	 547 whatsoever. The Labour Court further holds that	 though normally imposing of a punishment	 for mis conduct	 under the Standing Orders	 is a managerial function	 in this case	 the appellant was not justified in taking into account the warning	 recorded on May 8	 1964	 in respect of the first strike. It is the further view	 of the Labour Court	 that the continuance of disciplinary proceedings	 and recording of warnings	 on May 8	 1964	 by the appellant	 against the six concerned workmen	 in respect of the first strike	 was with a view to create a ground for punishment and dismissal	 in the subsequent proceedings	 relating to the second strike	 and	 as such	 the action of the management was not bona fide. The Labour Court	 in this connection	 refers to the proceedings of the District Industrial Relations Advisory Committee	 that took place on March 29	 1964	 in the presence of the representatives of the appellant	 and the Union	 and the Labour Court is of the view that a settlement had been arrived at	 by which the management has agreed	 not to take any disciplinary action	 against the workers	 in connection with the first strike: Ultimately	 the Labour Court holds that the punishment of dismissal	 inflicted on the six workmen	 by the appellant	 on May 22	 1964	 is unconscionable and unjustified	 and not recorded in a bona fide manner. In consequence	 the order of dismissal	 passed against the six concerned workmen	 named in the annexure to the order of reference	 was set aside and the workmen were directed to be reinstated	 with 50% back wages. We have fairly elaborately referred to the various circumstances	 leading to the passing of the order of dismissal	 bY the management	 in order to appreciate the contentions	 urged on behalf of the management	 that the Labour Court had committed a serious illegality	 in interfering with an order	 passed by the management	 for mis conduct	 as provided under the standing orders of the company. Mr. H.R. Gokhale	 learned counsel	 for the appellant	 raised two contentions before us:.(1)that 'the finding of the Labour Court	 that at the meeting of the District Industrial Relations Committee	 held on March 29	 1964	 the appellant agreed not to take disciplinary action	 against its ' workmen	 in respect of the first strike	 is erroneous; and (ii) that having held that the second strike was illegal as being contrary to sub section (4) of section 6 S of the Act	 the Labour Court has committed an error in interfering with the act of the management	 when it imposed a punishment	 for mis conduct	 under the standing orders of the company. Mr. R. Vasudeva Pillai	 learned counsel for the Union	 has supported	 in full	 the award of the Labour Court. We are not impressed with either of the contentions	 of the learned counsel for the appellant. We have already referred to LI3Sup. CI/68 4 548 the proceedings	 of the District Industrial Relations Committee	 March 29	 1964. No doubt	 a day prior to that	 the appellant had issued notices to the workmen	 asking them to show cause as to why disciplinary action should not be taken against them	 for going on strike from March 18	 1964. There was a joint reply given by the workmen	 on April 9	 1964	 to the effect that	 at the meeting held on March 29	 1964	 the managem.ent had agreed	 not to take any disciplinary action	 against the workmen	 and that	 it was on that 'basis that the strike itself was called off	 and the workmen	 arrested	 were also released by the Government. There was no doubt an attempt	 by the management	 in their reply of April 10	 1964	 to make it appear that they had not committed themselves	 at the meeting of March 29	 1964	 as mentioned by the workmen. But it is rather surprising that	 when the President of the Union	 WWI	 gave evidence to the effect that there was a settlement	 on March 29	 1964	 whereby the management had agreed not to take any disciplinary action	 against the workmen	 there was absolutely no cross examination	 by the appellant	 of that witness. There is no dispute that Mr. Wright represented the management	 at the said meeting	 and no suggestion even has been made to WWI that the evidence	 given by him	 is not correct. No doubt	 the appellant	 in their letter of April 10	 1964	 had taken the stand that the company had not committed itself	 not to take any action against the workmen	 in respect. of the first strike. The inquiry report of Shri Gupta	 in respect of the second strike	 was already in the hands of the management	 on April 24	 1964. It is really after the receipt 'of this report	 that the Acting Works Manager of the appellant company recorded warnings	 as against the concerned workmen	 on May 8	 1964	I in res 'peet of the first strike. This warning has been taken into account	 by the Works Manager	 when he passed the order of dismissal	 in respect of the Second strike	 on May 23	 1964. Having due regard to these circumstances	 the finding of the Labour Court	 that the continuance of the disciplinary proceedings	 and recording of punishments of warnings	 as against the six concerned workmen	 on May 8	 1964	 in respect of the fixst strike	 by the management was to create a ground for punishment and dismissal	 in respect of the second strike	 is perfectly justified. The further finding of the Labour Court	 that 'the action of the management	 in recording warnings in respect of the first strike	 is not only not bona fide	 but also against the settlement	 'arrived at	 on March 29	 1964	 is. also correct. The first contention	 on behalf of the management	 therefore fails. There is the finding of the Labour Court	 that the second strike	 on April 10	 1964 is illegal. Going on illegal strike	 is certainly 'mis conduct ' under sub el. (2) of el. 21	 of the Standing Orders of the company. Under el. 22 of the Standing Orders	 the 549 punishment for mis conduct is dismissal	 or	 in the alternative	 suspension	 for a period not exceeding four days. If the management had	 without any regard to what happened	 in respect of the first strike	 imposed punishment under cl. 22	 in respect of an illegal strike	 which is 'mis conduct ' under cl. 21 (2)of the Standing Orders	 after a fair inquiry	 the punishment	 meted out being a managerial function	 would not be normally interfered with. But in this case	 even the order of dismissal clearly shows that the management has taken into account the previous conduct of the workmen	 in having gone on the first strike	 and the punishment of warning	 administered on May 8	 1964. It is because of this past conduct	 it is further stated in the order	 that the six workmen were being dismissed from service. The finding of the Labour Court is that the management was not entitled to take into account the warning	 given on May 8	 1964	 in respect of the first strike	 in view of the settlement	 on March 29	 1964. In view of the fact that the warning has been taken into account	 by the management	 which it is not entitled to	 the punishment of dismissal has been rightly considered	 by the Labour Court	 to be not bona fide	 and vindictive. In fact	 the Labour Court is also of the view that the punishment is unconscionable	 and unjustified. It is on these grounds	 that the Labour Court has interfered with the order of dismissal	 passed by the management. The second co.ntention	 of learned counsel for the appellant	 also fails	 as we are in agreement with the reasons	 given by the Labour Court	 'on this aspect of the matter. The result is that this appeal fails	 and is dismissed. There will be no order as to costs. G.C. Appeal dismissed.

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