Case ID: 4131

Judgment:
Civil Appeal Nos. 1212	 2089 and 2237 of 1978. From the Judgment and order dated 15 6 1978 of the Gujarat High Court in Special Civil Application No. 1150 of 1976. Y.S. Chitale	 J.C. Bhatt	 A.K. Sen	 J.M. Nanavati	 D.C. Gandhi	 A.G. Menses	 K.J. John and K.K. Manchanda for the Appellants in C.A. 1212 and 2237/78 and RR. 1 in CA 2089. V.M. Tarkunde	 Y.S. Chitale	 P.H. Parekh and N.J. Mehta for the Appellant in CA 2089 and R. 1 in CA 1212. M.C. Bhandare and B. Datta for the Intervener in CA 1212 (Ahmedabad Nagar Employee Union). R.K. Garg	 Vimal Dave and Miss Kailash Mehta for the Intervener Gujarat Steel Tubes Mazdoor Sabha in CA 1212. The Judgment of V.R. Krishna Iyer	 and D.A. Desai	 JJ was delivered by Krishna Iyer	 J.A.D. Koshal	 J. gave a dissenting Opinion. 154 KRISHNA IYER	 J. Every litigation has a moral and	 these appeals have many	 the foremost being that the economics of law is the essence of labour jurisprudence. The case in a nutshell An affluent Management and an indigent work force are the two wings of the Gujarat Steel Tubes Ltd. which manufactures steel tubes in the outskirts of Ahmedabad city and is scarred by an industrial dispute resulting in these appeals. This industry	 started in 1960	 went into production since 1964 and waggled from infancy to adulthood with smiling profits and growing workers	 punctuated by smouldering demand	 strikes and settlements	 until there brewed a confrontation culminating in a head on collision following upon certain unhappy happenings. A total strike ensued	 whose chain reaction was a wholesale termination of all the employees	 followed by fresh recruitment of workmen	 de facto breakdown of the strike and dispute over restoration of the removed workmen. This cataclysmic episode and its sequel formed the basis of a Section 10A arbitration and award	 a writ petition and judgment	 inevitably spiralling up to this Court in two appeals one by the Management and the other by the Union which have been heard together and are being disposed of by this common judgment. The arbitrator held the action of the Management warranted while the High Court reversed the Award and substantially directed reinstatement. The Judge Perspective A few fundamental issues	 factual and legal	 on which bitter controversy raged at the bar	 settle the decisional fate of this case. A plethora of precedents has been cited and volumes of evidence read for our consideration by both sides. But the jural resolution of labour disputes must be sought in the law life complex	 beyond the factual blinkers of decided cases	 beneath the lexical littleness of statutory texts	 in the economic basics of industrial justice which must enliven the consciousness of the court and the corpus juris. This Court has developed Labour Law on this road basis and what this Court has declared holds good for the country. We must first fix the founding faith in this juristic branch before unravelling the details of the particular case. Viewing from this vantage point	 it is relevant to note that the ethical roots of jurisprudence	 with economic overtones	 are the clan vital of any country 's legal system. So it is that we begin with two quotations one from the old Testament and the other from Gandhiji	 the Indian New Testament as perspective setters. After all	 155 industrial law must set the moral legal norms for the modus vivendi between the partners in management	 namely	 Capital and Labour. Cain reported	 when asked by God about his brother Abel	 in the Old Testament: 'Am I my brother 's keeper ? '	 'Yes ' was the implicit answer in God 's curse of Cain. In the fraternal economics of national production	 worker is partner in this biblical spirit. In our society	 Capital shall be the brother and keeper of Labour and cannot disown this obligation	 especially because Social Justice and Articles 43 and 43A are constitutional mandates. Gandhiji	 to whom the Arbitrator has adverted in passing in his award	 way back in March 1946	 wrote on Capitalism and Strikes h the Harijan: "How should capital behave when labour strikes ? This question is in the air and has great importance at the present moment. One way is that of suppression named or nicknamed 'American '. It consists in suppression of labour through organised goondaism. Everybody would consider this as wrong and destructive. The other way	 right and honorable	 consists in considering every strike on its merits and giving labour its due not what capital considers as due	 but what labour itself would so consider and enlightened public opinion acclaims as just. In my opinion	 employers and employed are equal partners	 even if employees are not considered superior. But what we see today is the reverse. The reason is that the employers harness intelligence on their side. They have the superior advantage which concentration of capital brings with it	 and they know how to make use of it. Whilst capital in India is fairly organised	 labour is strike in a more or less disorganised condition in spite of Unions and Federation. Therefore	 it lacks the power that true combination gives. Hence	 my advice to the employers would be that should willingly regard workers as the real owners of the concerns which they fancy they have created. Tuned to these values are the policy directives in Articles 39	 41	 42	 43 and 43A. They speak of the right to an adequate means of livelihood	 the right to work	 humane conditions of work	 living wage ensuring a decent standard of life and enjoyment of leisure and participation of workers in management of industries. De hors these man 156 dates	 law will fail functionally. Such is the value vision of Indian Industrial Jurisprudence. The Matrix of facts A Pre view The nidus of facts which enwomb the issues of law may be elaborated a little more at this stage. In the vicinity of Ahmedabad City	 the appellant is a prosperous engineering enterprise which enjoys entrepreneureal excellence and employs over 800 workmen knit together into the respondent Union called the Gujarat Steel Tubes Mazdoor Sabha (the Sabha	 for short). Fortunately	 the industry has had an innings of escalating profits but the workmen have had a running complaint a raw deal. Frequent demands for better conditions	 followed by negotiated settlements	 have been a lovely feature of this establishment	 although the poignant fact remains that till the dawn of the seventies	 the gross wages of the workmen have hovered round a harrowing hundred rupees or more in this thriving Ahmedabad industry. The course of this precarious co existence was often ruffled	 and there was	 now and then	 some flare up leading to strike	 conciliation and even reference under Section 10. When one such reference was pending another unconnected dispute arose which	 alter some twists and turns	 led to an industrial break down and a total strike. The episodic stages of this bitter battle will have to be narrated at length a little later. Suffice it to say that the Management jettisoned all the 853 workman and recruited some fresher to take their place and to keep the wheels of production moving. In the war of attrition that ensued	 labour lost and capitulated to Capital. At long last	 between the two	 a reference to arbitration of the disputes was agreed upon under Section 10A of the (the Act	 for short). The highlight of the dispute referred for arbitration was whether the termination orders issued by the Management against the workmen whose names were set out in the annexure to the reference were "legal	 proper and justified"; if not	 whether the workmen were 'entitled to any reliefs including the relief of reinstatement with continuity of service and full back wages '. The arbitrator 's decision went against the Sabha while	 on a challenge under Article 226	 the High Court 's judgment virtually vindicated its stand. This is the hang of the case. The substantial appeal is by the Management while the Sabha has a marginal quarrel over a portion of the judgment as disclosed in its appeal. The 'jetsam ' workmen	 a few hundred in number	 have been directed to be reinstated with full or partial back pay and this is the bitter bone of contention. 157 A stage by stage recapitulation of the developments is important to get to grips with the core controversy. Sri Ashok Sen	 for the appellant Management	 and Sri Tarkunde for the respondent Sabha	 have extensively presented their rival versions with forceful erudition. Sri R.K. Garg	 of course	 for some workmen has invoked with passion the socialist thrust of the Constitution as a substantive submission and	 as justificatory of the workmen 's demands	 relied on the glaring contrast between the soaring profits and the sagging wages	 while Sri Bhandare has pressed the lachrymose case of the several hundreds of 'interregnal ' employees whose removal from service	 on reinstatement of the old	 might spell iniquity. Olive Branch Approach: At this stage we must disclose an effort at settlement we made with the hearty participation of Sri Ashok Sen and Sri Tarkunde at the early stages of the hearing. The golden rule for the judicial resolution of an industrial dispute is first to persuade fighting parties	 by judicious suggestions	 into the peace making zone	 disentangle the differences	 narrow the mistrust gap and convert them	 through consensual steps	 into negotiated justice. Law is not the last word in justice	 especially social justice. Moreover	 in our hierarchical court system the little man lives in the short run but most litigation lives in the long run. So it is that negotiation first and adjudication next	 is a welcome formula for the Bench and the Bar	 Management and Union. This 'olive Branch ' approach brought the parties closer in our court and gave use a better understanding of the problem	 although we could not clinch a settlement. So we heard the case in depth and felt that some of the legal issues did merit this court 's declaratory pronouncement	 settlement or no settlement. Mercifully	 counsel abbreviated their oral arguments into an eight day exercise	 sparing us the sparring marathon of 28 laborious days through which the case stretched out in the High Court. Orality ad libitem may be the genius of Victorian era advocacy but in our 'needy ' Republic with crowded dockets	 forensic brevity is a necessity. The Bench and the Bar. must fabricate a new shorthand form of court methodology which will do justice to the pockets of the poor who seek right and justice and to the limited judicial hours humanly available to the court if the delivery system of justice is not to suffer obsolescence. The facts: Back to the central facts. Proof of the 'efficient ' management of the Gujarat Steel Tubes Ltd. is afforded by the testimony of larger turnover and profits	 year after year	 from the beginning down 158 to date. The mill was commissioned in January 1964 but by the accounting year 1971 72 the turnover had leapt to Rs. 560 lakhs. It scaled to Rs. 680 lakhs the next year	 to Rs. 1136 lakhs the year after and to Rs. 20 crores in 1974 75. This enterprise entered the export trade and otherwise established itself as a premier manufactory in the line. Steel shortage is the only shackle which hampers its higher productivity. But its increasing shower of prosperity was a sharp contrast	 according to Sri Garg	 to the share of the wage bill. The worker star ted on a magnificent sum per mensem of Rs. 100/ in toto even as late as 1970	 although some workmen	 with more service	 were paid some what higher. The extenuatory plea of the Management	 justificatory of this parsimony	 was that other mill hands were receiving more niggardly wages in comparable enterprises. Probably	 unionisation	 under these luridly low paid circumstances	 caught on and a workers ' union was born somewhere around 1966. A sensible stroke of enlightened capitalism persuaded the Management to enter into agreements with the Union	 somewhat improving emoluments and ameliorating conditions. By 1968	 the Sabha	 a later union	 came into being and commanded the backing of all or most of the mill hands. By March 1969	 the Sabha presented a charter of demands	 followed by resistance from the Management and strike by the workers. By July 1969	 a settlement with the Sabha was reached. Agreements relating to the various demands brought quiet and respite to the industry although it proved temporary. A vivid close up of the sequence and consequence of the dramatic and traumatic events culminating in the reference to arbitration and the impugned award is essential as factual foundation for the decision of the issues. Even so	 we must condense	 since labyrinthine details are not needed in a third tier judgment. Broad lines with the brush bring out the effect	 not minute etches which encumber the picture. An agreement of futuristic import with which we may begin the confrontational chronicle is that of April 1970. Clause 6 thereof runs thus: "Management of the Company agrees to implement recommendations of the Central Wage Board for Engineering Industries as and when finally declared and all the increments granted to workmen from time to time under this agreement shall be adjusted with those recommendations provided that such adjustment shall not adversely affect the wages of workman. " The engineering industry	 where India is forging ahead	 was apparently exploitative towards labour	 and to make amends for this un 159 healthy position	 the Central Wage Board was appointed in 1964 although it took six long years to recommend revision of wages to be implemented with effect from 1 1 1969. Meanwhile	 the masses of workers were living 'below the broad line ' Saintly patience in such a milieu was too much to expect from hungry demands and pressing for the recommendations of the Wage Board to be converted into immediate cash. But	 as we will presently unravel	 Wage Board expectations ' were proving teasing illusions and premises of unreality because of non implementation	 viewed from the Sabha 's angle. The Management	 on the other hand	 had a contrary version which we will briefly consider. Luckily	 agreed mini increases in wages were taking place during the years 1970	 1971 and 1972. Likewise	 bonus was also the subject of bargain and agreement. But in September 1971	 an allegedly violent episode broke up the truce between the two	 spawned criminal cases against workers	 led to charges of go slow tactics and lock outs and burst into suspension	 discharge and dismissal of workmen. The crisis was tided over by continued conciliations and two settlements. We are not directly concerned with the cluster of clauses therein save one. 64 workmen had been discharged or dismissed	 of whom half the number were agreed to be reinstated. The fate of the other half (32 workers) was left for arbitration by the Industrial Tribunal. The dark clouds cleared for a while but the sky turned murky over again	 although the previous agreement had promised a long spell of normalcy. The Sabha	 in October 1972	 met and resolved to raise demands of which the principal ones were non implementation of the Wage Board recommendations	 bonus for 1971 and wages during the lockout period. The primary pathology of industrial friction is attitudinal. The Management could have (and	 indeed	 did	 with a new Union) solved these problems had they regarded the Sabha as partner	 not saboteur. Had the bitter combativeness of the Sabha been moderated	 may be the showdown could have been averted. Apportioning blame does not help now	 but we refer to it here because Sri Ashok Sen	 with feeling fury	 fell foul of the criticism by the High Court that the Management had acted improperly in insisting on arbitration	 and argued that when parties disagreed	 arbitral reference was the only answer and the workers ' fanatical rejection of arbitration made no sense We need not delve into the details of the correspondence relied on by either side to reach the truth. For	 the Unions case is that in the prior settlement between the two parties arbitral reference came only after negotiations failed. That was why they 160 pressed the Management to reason together	 avoiding wrestling with each other before a slow moving umpire. Sri Tarkunde	 for the Sabha	 urged that the workmen were not intransigent but impatient and pleaded for a negotiated settlement since the main point in dispute	 namely the implementation of the Central Engineering Wage Board 's recommendations	 was too plain to admit of difference	 given good faith on both sides. We will examine the substance of this submission later but it needs to be emphasised that workmen	 surviving on starving wages and with notoriously fragile staying power	 are in no mood for adjudicatory procedures	 arbitral or other	 if the doors of negotiation are still ajar. The obvious reason for this attitude is that the litigative length of the adjudicatory apparatus	 be it the tribunal	 the court or the arbitrator	 is too lethargic and long winded for workmen without the wherewithal to survive and is beset with protracted challenges either by way of appeal upon appeal or in the shape of writ petitions and	 thereafter	 appeals upon appeals. The present case illustrates the point. Where workmen on hundred rupees a month demand immediate negotiation the reason is that privations have no patience beyond a point. Now and here	 by negotiation	 is the shop floor glamour. In this very matter	 although the controversy before the arbitrator fell within a small compass	 he took a year and ninety printed pages to decide	 inevitably followed by a few Years and hundred and thirty printed pages of judgment in the High Court and a longer spell in this Court with slightly lesser length of judgment. Which workman under Third World Conditions can withstand this wasting disease while hunger leaves no option save to do or die ? Raw life	 not rigid logic	 is the mother of law. After the demands were raised by the Union	 the main issue being implementation of the Wage Board recommendations	 a stream of correspondence	 meetings and inchoate settlements ensued	 but the crucial question	 which would have meant 'cash and carry ' for the workmen	 baffled solution. Do negotiate since the application of the Wage Board recommendations are beyond ambiguity	 was the Sabha 's peremptory plea. We differ; therefore	 go to arbitration	 was the Management 's firm response. A stalemate descended on the scene. No breakthrough being visible	 the Sabha charged the Management by its letter of January 25	 1973 with breach of clause 6 of the Agreement of August 4	 1972 which ran thus: "That the parties agree that for a period of 5 years from the date of this settlement all disputes will be solved by mutual negotiations or	 failing that	 by joint arbitration under 161 Section 10A of the I.D. Act	 1947. Neither party shall take any direct action including go slow	 strike and lock out for a period of 5 years from the date of this settlement." Various aspersions of anti labour tactics were included in the Sabha 's letter but the most money loaded item was the grievance about the Wage Board recommendations. The temper	 by now	 was tense. The Management	 on the same day	 (January 25	 1973) set out its version on the notice board and the High Court 's summary of it runs thus . "The notice stated that during the course of the meeting with the representatives of the Sabha held on January 20	 1973 the Company had expressed its willingness to implement the Wage Board recommendations according to its interpretation on and with effect from January 1	 1969 without prejudice to the rights and contentions of the workmen and leaving it open to the parties to take the matter to arbitration for resolution of the points of dispute. The Sabha	 however	 had turned down this suggestion and it came to the notice of the Company that workmen were being instigated by making false representations. The Company clarified that on and with effect from January 1	 1972 every workman would be entitled to the benefits of Wage Board recommendations	 irrespective of whether the concerned workman had put in 240 days attendance." The Sabha 's answer was a strike two days later. This event of January 27 was countered quickly by the Management restating its attitude on the Wage Board recommendations	 asserting that the strike was illegal and in breach of the settlement of August 4	 1972 and wholly unjustified because the offer of reference to arbitration	 negotiations failing	 had been spurned by the Sabha. The notice wound up with a command and a caveat: "If the workmen do not immediately resume duty	 the Company would not be under any obligation to continue in service those 32 workmen who have been taken back in service pursuant to the settlement dated August 4	 1972. Besides	 if (the workmen) continue causing loss to the Company from time to time in this manner	 the Company will not also be bound to implement the Wage Board	 recommendations on and with effect from January 1	 1969	 which may also be noted. The Company hereby withdraws all its proposals unless the Workmen withdraw the strike and resume work within two days. " 162 This threat was dismissed by the workmen as a brutum fulmen and the strike continued. The Management	 therefore	 came up on the notice board castigating the Sabha with irresponsible obduracy in waging an illegal and unjustified strike. A warning of the shape of things to come was given in this notice. The High Court has summed it up thus: "The Company gave an intimation that in view of such obstinate attitude on the part of the Sabha and the workmen	 it had decided to withdraw its earlier offer to implement the Wage Board recommendations on and with effect from January 1	 1969 as already cautioned in the notice dated January 27	 1973. The said decision must be taken to have been thereby communicated to the workmen and Sabha. The notice further stated that having regard to the obdurate	 unreasonable and illegal attitude adopted by the workmen and Sabha	 the Company had decided to take disciplinary proceedings against the defaulting workmen. In this connection	 the attention of the workmen was drawn to the fact that the strike was illegal not only because of the terms of the settlement dated August 4	 1972 but also because of the pendency of the reference relating to reinstatement of 32 workmen before the Industrial Court and	 that	 therefore	 the Company was entitled to take disciplinary action against them. Finally	 the Company appealed to the workmen to withdraw their illegal and unjustified strike forthwith and to resume work." These exercises notwithstanding	 the strike raged undaunted	 the production was paralysed and the Management retaliated by an elaborate notice which dilated on its preparedness to negotiate or arbitrate and the Sabha 's unreason in rejecting the gesture and persisting on the war path. The stern economic sanction was brought home in a critical paragraph: "By this final notice the workmen are informed that they should withdraw the strike and resume work before Thursday	 February 15	 1973. If the workmen resume duty accordingly	 the management would be still willing to pay salary according to the recommendations of the Wage Board on and with effect from January 1	 1969. Furthermore	 the management is ready and willing to refer to the arbitration of the Industrial Tribunal the question as to whether the management has implemented the settlement dated August 4	 1972 and all other labour problems. In spite of this	 if the workmen do not resume duty before Thursday	 February 15	 1973. then the Company will terminate the services of all workmen who are on strike and thereafter it will run the 163 factory by employing new workmen. All workmen may take note of this fact. " The count down thus began. February 15	 1973 arrived	 and the Management struck the fatal blow of discharging the strikers all the labour force	 853 strong and recruiting fresh hands and thus work was resumed by February 19	 1973. This public notice was allegedly sent to the Sabha and circulated to such workmen as hovered around the factory. It is common case that the notice of February 15	1973	 was not sent to individual workmen but was a signal for action. The drastic consequence of disobedience was spelt out in no uncertain terms: "The workmen are hereby informed that they should resume duty on or before Monday	 February 19	 1973 failing which the Management will presume that the workmen want to continue their strike and do not wish to resume work until their demands as aforesaid are accepted by the management. Parallel negotiations were going on even while mailed fist manoeuvres were being played up thanks to the basic goodwill and tradition of dispute settlements that existed in this company. Even amidst the clash of arms	 bilateral diplomacy has a place in successful industrial relations. The Management and the Sabha allowed the talks to continue which	 at any rate	 clarified the area of discord. One thing that stood out of these palavers was that both sides affirmed the pre condition of negotiations before arbitration over differences although the content	 accent and connotation of 'negotiations ' varied with each side. No tangible results flowed from these exercises and the inevitable happened on February 21	 1973 when the Management blotted out the entire lot of 853 workmen from the roster	 by separate orders of discharge from service	 couched in identical terms. The essential terms read thus : "Your services are hereby terminated by giving you one month 's salary in lieu of one month 's notice and accordingly you are discharged from service. You should collect immediately from the cashier of the factory your one month 's notice pay and due pay	 leave entitlements and gratuity	 if you are entitled to the same. The payment will be made between 12 noon and 5 p.m. If and when you desire to be employed	 you may apply ill writing to the Company in that behalf and on receipt of the application	 a reply will be sent to you in the matter." 164 Casual workmen were issued separate but similar orders. The Management did record its reasons for the action taken	 on February 20	 1973 and forwarded them to the Sabha and to the individual workmen on request. The anatomy of this proceeding is of critical importance in deciding the character of the action. Was it a harm less farewell to the workmen who were unwilling to rejoin or a condign punishment of delinquent workmen ? The separate memorandum of Reasons refers to the strike as illegal and unjustified and narrates the hostile history of assault by workmen of the officers	 their go slow tactics and sabotage activities	 their contumacious and a host of other perversities vindicating the drastic action of determining the services of all the employees. The concluding portion reads partly stern and partly non committal: "In the interest of the Company it is decided to terminate the services of all the workmen who are on illegal and unjustified strike since 27th January	 1973. Under the circumstances	 it is decided that the services of all the workmen who are on illegal and unjustified strike should be terminated by way of discharge simpliciter. These workmen	 however	 may be given opportunity to apply for employment in the Company and in case applications are received for employment from such employees	 such applications may be considered on their merits later on. It may be mentioned here that while arriving at the aforesaid decision to terminate the services of the workmen	 various documents	 notices	 correspondence with the Union and others	 records of production	 etc. have been considered and therefore the same are treated as part of the relevant evidence to come to the conclusion as aforesaid. FINAL CONCLUSION The services of all the workmen who are on illegal and unjustified strike since 27 1 1973 should be terminated by way of discharge simpliciter and they should be offered all their legal dues immediately. The Administrative Manager is hereby directed to pass orders on individual workers as per draft attached. We thus reach the tragic crescendo when the Management and the workmen fell apart and all the workmen 's services were severed. Whether each of these orders using	 in the contemporaneous reasons	 165 the vocabulary of misconduct but	 in the formal part	 the expression 'discharge simpliciter '	 should be read softly as innocent termination or sternly as penal action	 is one of the principal disputes demanding decision. We may as well complete the procession of events before taking up the major controversies decisive of the case. The total termination of the entire work force of 853 employees was undoubtedly a calamity of the first magnitude in a country of chronic unemployment and starving wages. Nevertheless	 under certain circumstances	 discharge of employees may well be within the powers of the Management subject to the provisions of the Act. With all the strikers struck off the rolls there was for a time the silence of the grave. The conditional invitation to the employees to seek de novo employment by fresh applications which would be considered on their merits	 left the workers cold. So the factory remained closed until April 28	 1973 when	 with new workers recruited from the open market	 production recommenced. Among the militants	 the morale which kept the strike going	 remained intact but among the others the pressure to report for employment became strong. Re employment of discharged workmen began and slowly snowballed	 so that by July 31	 1973 a substantial number of 419 returned to the factory. The crack of workman 's morale was accelerated by escalating reemployment and the Management 's restoration of continuity of service and other benefits for re employed hands. The Employer relied on this gesture as proof of his bond fides. Meanwhile	 there were exchanges of letters between and 'trading ' of charges against each other. The Management alleged that the strikers were violent and prevented loyalists ' return while the Sabha was bitter that goondas were hired to break the strike and promote blacklegs. These imputations have a familiar ring and their impact on the legality of the discharge of workmen falls for consideration a little later. The stream of events flowed on. The Sabha protested that the Management was terrorising workmen	 exploiting their sagging spirit and illegally insisting on fresh applications for employment while they were in law continuing in services. With more 'old workers ' trickling back for work and their discharge orders being cancelled	 the strike became counter productive. Many overtures on both sides were made through letters but this epistolary futility failed to end the imbroglio and brought no bread. The worker wanted bread	 job	 and no phyrric victory. A crescent of hope appeared on the industrial sky. The Management but out a 'final offer ' on May 31	 1973	 calling on all workmen 166 to rejoin last the remaining vacancies also should be filled by fresh recruits. The Sabha responded with readiness to settle and sought some clarifications and assurances. The employer informed : "Our offer is open till 10 6 1973. From 11 6 1973 we shall recruit new hands to the extent necessary. Thereafter workers who will not have reported for work shall have no chance left for re employment with us. We repeat that those workers who will report for work will be taken back in employment with continuity of their services	 that the orders of discharge passed against them on 21 2 1973 shall be treated as cancelled and they will also be paid the difference in wages from 1969 as per the recommendations of the Wage Board. " The Sabha was willing and wrote back on June 8	 1973 but sought details about the attitude of the Management to the many pending demands. Meanwhile	 the sands of time were running out and so the Sabha telegraphed on 9th June that the workers were willing to report for work but were being refused work. They demanded the presence of an impartial observer. The reply by the Management repelled these charges	 but there was some thaw in the estrangement	 since the time for return to work of the strikers was extended upto 16 6 73. An apparent end to a long strike was seemingly in sight with the Sabha sore but driven to surrender. On 13 6 73 the Sabha Secretary wrote back: "This is a further opportunity to you even now to show your bona fides. If you confirm to take all the workmen discharged on 21 2 1973 as stated in your various letters and to give them intimation and reasonable time to join	 l will see that your offer is accepted by the workmen. " Here	 at long last	 was the Management willing to 'welcome ' back all the former employees and the Sabha limping back to the old wheels of work. Was the curtain being finally drawn on the feud ? Not so soon	 in a world of bad blood and bad faith; or may be	 new developments make old offers obsolete and the expected end proves an illusion. Anyway	 the victor was the Management and II the vanquished the Sabha and the re employment offered was watered down. In our materialist cosmos	 often Might is Right and victory dictates morality ! 167 Hot upon the receipt of the Sabha 's letter accepting the offer the Management back tracked or had second thoughts on full re employment. For	 they replied with a long catalogue of the Sabha 's sins	 set out the story of compulsion to keep the production going and explained that since new hands had come on the scene full re employment was beyond them. In its new mood of victorious righteousness	 the Management modified the terms of intake of strikers and saddled choosy conditions on such absorption suggestive of breaking the Sabha 's solidarity: "As on the present working of the Company	 the Company	 may still need about 250 more workers including those to be on the casual list as per the employment position prior to the start of the strike. You may	 therefore	 send to us immediately per return of post the list of the workers who can and are willing to join duty immediately so as to enable us to select and employ the workmen as per the requirement of the Company. Further	 it would also be necessary for you to state in your reply that you have called off the strike and have advised the workers to resume the work as otherwise it is not clear from your letter as to whether you are still advocating the continuance of the strike or that you have called off the strike. Therefore	 unless we have a very definite stand known from you on this issue	 it may not be even now possible for us to enter into any correspondence with you. We may again stress that if your tactics of prolonging the issue by correspondence are continued the management would be constrained to fake new recruits and in that case	 at a later date it may not be even possible to employ as many workmen as may be possible to employ now. " Nothing is more galling	 says Sri Tarkunde	 than for a Union which has lost the battle and offered to go back to work to be told that it should further humiliate itself by formally declaring the calling off of the strike. Sentiment apart	 the Sabha had agreed to go back	 but then the Management cut down the number to be re employed to 250 and	 even this	 on a selective basis. This selection could well be to weed out Union activists or to drive a wedge among the Union members. These sensitive thoughts and hard bargains kept the two apart. The Sabha	 wounded but not wiped 168 out	 did not eat the humble pie. The Management	 on account of the intervening recruitments and injuries inflicted by the strike	 did not budge either. At this point we find that out of 853 employees who had been sacked 419 had wandered back by July 31	 leaving 434 workmen at flotsam. Their reinstatement became the focus of an industrial dispute raised by the Sabha. A few more were left out of this jobless mass	 and through the intercession of the Commissioner of Labour both sides agreed to resolve their disagreement by arbitral reference under Sec. 10A of the Act	 confining the dispute to reinstatement of 400 workmen discharged on February 21 1973. A reference under Sec. 10A materialised. The 'Labour litigation ' began in May 1975 and becoming 'at each remove a lengthening chain ' laboured from deck to deck and is coming to a close	 hopefully	 by this decision. Is legal justice at such expensive length worth the candle or counter productive of social justice? Is a streamlined alternative beyond the creative genius of Law India? An aside As urgent as an industrial revolution is an industrial law revolution	 if the rule of law were at all to serve as social engineering. The current forensic process needs thorough overhaul because it is over judicialised and under professionalised	 lacking in social orientation and shop floor know how and	 by its sheer slow motion and high price	 defects effective and equitable solution leaving both Managements and Unions unhappy. If Parliament would heed	 we stress this need. Industrial Justice desiderates specialised processual expertise and agencies. This factual panorama	 omitting a welter of debatable details and wealth of exciting embellishments	 being not germane to the essential issues	 leads us to a formulation of the decisive questions which alone need engage our discussion. The Management might have been right in its version or the Sabha might have been wronged as it wails	 but an objective assessment of the proven facts and unbiased application of the declared law will yield the broad basis for working out a just and legal solution. Here	 it must be noticed that a new Union now exists even though its numerical following is perhaps slender. We are not concerned whether it is the favoured child of the Management	 although it has received soft treatment in several settlements which have somewhat benefited the whole work force and suggests a syndrome not unfamiliar among some industrial bosses allergic to strong unions. 169 The central problem on the answer to which either the award of the arbitrator or the judgment of the High Court can be sustained as sound is whether the discharge of the workmen en masse was all innocuous termination or a disciplinary action. If the latter. the High Court 's reasoning may broadly be invulnerable. Secondly	 what has been mooted before us is a question as to whether the evidence before the Arbitrator	 even if accepted at its face value	 establishes any misconduct of any discharged workman and further whether the misconduct	 if any	 made out is of such degree as to warrant punitive discharge. Of course	 the scope of Section 11A as including arbitrators	 the power of arbitrators	 given sufficiently wide terms of reference	 to examine the correctness and propriety of the punishment	 inter alia	 deserve examination. Likewise the rules regarding reinstatement	 retrenchment	 back wages and the like	 fall for subsidiary consideration. Prefatory to this discussion is the appreciation of the constitutional consciousness with regard to Labour Law. The Constitution of India is not a non aligned parchment but a partisan of social justice with a direction and destination which it sets in the Preamble and article 38	 and so	 when we read the evidence	 the rulings	 the statute and the rival pleas we must be guided by the value set of the Constitution. We not only appraise Industrial Law from this perspective in the disputes before us but also realise that ours is a mixed economy with capitalist mores	 only slowly wobbling towards a socialist order	 notwithstanding Sri Garg 's thoughts. And	 after all ideals apart. 'law can never be higher than the economic order and the cultural development of society brought to pass by that economic order '. The new jurisprudence in industrial relations must prudently be tuned to the wave length of our constitutional values whose emphatic expression is found in a passage quoted by Chief Justice Rajamannar of the Madras High Court. The learned judge observed : "The doctrine of 'laissez faire ' which held sway in the world since the time of Adam Smith has practically given place to a doctrine which emphasises the duty of the state to interfere in the affairs of individuals in the interests of the social well being of the entire community. As Julian Huxley remarks in his essay on "Economic Man and Social Man": "Many of our old ideas must be retranslated	 so to speak	 into a new language. The democratic idea of freedom	 for instance	 must lose its nineteenth century meaning of individual liberty in the economic sphere	 and become adjusted to new conception of social duties and responsibilities. 170 When a big employer talks about his democratic rights to individual freedom	 meaning thereby a claim to socially irresponsible control over a huge industrial concern and over the lives of tens of thousands of human beings whom it happens to employ	 he is talking in a dying language." Homo economicus can no longer warp the social order. Even so the Constitution is ambitiously called socialist but realists will agree that a socialist transformation of the law of labour relations is a slow though steady judicial desideratum. Until specific legislative mandates emerge from Parliament the court may mould the old but not make the new law. 'Interstitially	 from the molar to the molecular ' is the limited legislative role of the court	 as Justice Holmes said and Mr. Justice Mathew quoted (see [1976] 2 S.C.C. at p. 343). The Core Question Right at the forefront falls the issue whether the orders of discharge are	 as contended by Sri Tarkunde	 de facto dismissals	 punitive in impact and	 therefore	 liable to be voided if the procedural imperatives for such disciplinary action are not complied with	 even though draped in silken phrases like 'termination simpliciter '. It is common case that none of the processes implicit in natural justice and mandated by the relevant standing orders have been complied with	 were we to construe the orders impugned as punishment by way of discharge or dismissal. But Sri Ashok Sen impressively insists that the orders here are simple terminations with no punitive component	 as	 on their face	 the orders read. To interpret otherwise is to deny to the employer the right	 not to dismiss but to discharge	 when the law gives him option. An analysis of the standing orders in the background of disciplinary jurisprudence is necessitous at this point of the case. The Model Standing orders prescribed under Section 15 of the 	 apply to this factory. Order 23	 clauses (1) and (4)	 relate to termination of employment of permanent workmen. Termination of their services on giving the prescribed notice or wages in lieu of such notice is provided for. But clause (4A) requires reasons for such termination of service of permanent workmen to be recorded and	 if asked for	 communicated. This is obviously intended to discover the real reason for the discharge so that remedies available may not be defeated by clever phraseology of orders of termination. Clause (7) permits the services or non permanent workmen to be terminated without notice 171 except when such temporary workmen are discharged by way of punishment. Punitive discharge is prohibited unless opportunity to show cause against charges of misconduct is afforded (Standing order 15). Orders of termination of service have to be by the Manager and in writing and copies of orders shall be furnished to the workmen concerned. Standing order 24 itemizes the acts and omissions which amount to misconduct "According to clause (b) of the said Standing order	 going on an illegal strike or abetting	 inciting instigating or acting in furtherance thereof amounts to misconduct. Standing order 25 provides for penalty impossible on a workman guilty of misconduct. Accordingly amongst other punishments	 a workman could be visited with the penalty of discharge under order 23 of dismissal without notice for a misconduct [see sub clauses (f) and (g) of clause ( 1 ) j. Clause (3) provides that no order of dismissal under sub clause (g) of clause (1) shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause (4). Clause (4) provides for giving to the concerned workman a charge sheet and an opportunity to answer the charge and the right to be defended by a workman working in the same department as himself and production of witnesses and cross examination of witnesses on whom the charge rests. Under clause (6)	 in awarding punishment the Manager has to take into account the gravity of the misconduct	 the previous record	 if any	 of the workman	 and any other extenuating or aggravating circumstances. " The finding of the Arbitrator that the workmen went on a strike which was illegal and in which they had participated is not disputed. In this background	 the application of the procedural imperatives before termination of services of the workmen	 in the circumstances of the present case	 has to be judged. This	 in turn	 depends on the key finding as to whether the discharge orders issued by the management were punitive or non penal. The anatomy of a dismissal order is not a mystery	 once we agree that substance	 not semblance	 governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the court. Broadly stated	 the face is the index to the mind and an order fair on its face may be taken at its face value. But there is more to it than that	 because sometimes words are designed to conceal deeds 172 by linguistic engineering. So it is beyond dispute that the form of the order or the language in which it is couched is not conclusive. The court will lift the veil to see the true nature of the order. Many situations arise where courts have been puzzled because the manifest language of the termination order is equivocal or misleading and dismissals have been dressed up as simple termination. And so	 judges have dyed into distinctions between the motive and the foundation of the order and a variety of other variations to discover the. true effect of an order of termination. Rulings are a maze on this question but	 in sum	 the conclusion is clear. If two factors coexist	 an inference of punishment is reasonable though not inevitable. What arc they ? If the severance of service is effected	 the first condition is fulfilled and if the foundation or causa causans of such severance is the servant 's misconduct the second is fulfilled. If the basis or foundation for the order of termination is clearly not turpitudinous or stigmatic or rooted in misconduct or visited with evil pecuniary effects	 then the inference of dismissal stands negated and vice versa. These canons run right through the disciplinary branch of master and servant jurisprudence	 both under Article 311 and in other cases including workmen under managements The law cannot be stultified by verbal haberdashery because the court will lift the mask and discover the true face. It is true that decisions of this Court and of the	 High Courts since Dhingra 's case ; have been at times obscure. if cited de hors the full facts. In Samsher Singh 's case the unsatisfactory state of the law was commented upon by one of us	 per Krishna Iyer	 J.	 quoting Dr. Tripathi for support: "In some cases	 the rule of guidance has been stated to be 'the substance of the matter ' and the 'foundation ' of the order. When does 'motive ' trespass into 'foundation ' ? When do we lift the veil of form to touch the 'substance ' ? When the Court says so. These 'Freudian ' frontiers obviously fail in the work a day world and Dr. Tripathi 's observations in this context are not without force. He says: 'As already explained	 in a situation where the order of termination purports to be a mere order of discharge without. 173 stating the stigmatizing results of the departmental enquiry a Search for the 'substance of the matter ' will be indistinguishable from a search for the motive (real	 unrevealed object) of the order. Failure to appreciate this relationship between motive (the real	 but unrevealed object) and from (the apparent	 or officially revealed object) in the present con text has lead to an unreal inter play of words and phrases wherein symbols like 'motive '	 'substance ' 'form ' or 'direct ' parade in different combinations without communicating precise situations or entities in the world of facts. ' The need	 in this branch of jurisprudence	 is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty. After all	 between 'unsuitability ' and 'misconduct ' thin partitions do their bounds divide '. And over the years	 in the rulings of this Court the accent has shifted	 the canons have varied and predictability has proved difficult because the play of legal light and shade has been baffling. The learned Chief Justice has in his judgement	 tackled this problem and explained the rule which must govern the determination of the question as to when termination of service of a probationer can be said to amount to discharge simpliciter and when it can be said to amount to punishment so as to attract the inhibition of Art 311. " Masters and servants cannot be permitted to play hide and seek with. the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover ups or by appeal to psychic processes but must be grounded on the substantive reason for the order	 whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If	 thus scrutinized	 the order has a punitive flavour in cause or consequence	 it is dismissal. If it falls short of this test	 it cannot be called a G punishment. To put it slightly differently	 a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant	 it is a dismissal	 even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether	 in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that	 after being satisfied of the guilt	 the master abandons the enquiry and proceeds to 174 terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal. even if full benefits as on simple termination	 are given and non injurious terminology is used. On the contrary	 even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter	 if no injurious record of reasons or punitive pecuniary cut back on his full terminal benefits is found. For	 in fact	 misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here. What is decisive is the plain reason for the discharge. not the strategy of a non enquiry or clever avoidance of stigmatizing epithets. If the basis is not misconduct	 the order is saved. In Murugan Mills	 this Court observed: "The right of the employer to terminate the services of his workman under a standing order	 like cl. 17(a) in the present case	 which accounts to a claim "to hire and fire ' an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication. came up for consideration before the Labour Appellate Tribunal in Buckingham and Carnatic Co. Ltd. vs Workers of the Company. The matter then came up before this before this Court also in Chartered Bank vs Chartered Bank Employees Union(3) and the Management of U.B. Dutt & Co. vs Workmen of U. B. Dutt & Co.(4) Wherein the view taken by Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirements of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimization or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. The form of the order in such a case is not conclusive and the Tribunal can go behind the order to find the reasons which led to the 175 order and then consider for itself whether the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice. If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice. it would have the jurisdiction to intervene and set aside such termination. " Again	 in Chartered Bank vs Employees Union his Court emphasised: " . The form of the order of termination is not conclusive of the true nature of the order	 for it is possible that the form may be merely a camouflage for an order of misconduct. It is	 therefore	 always open to the Tribunal to go behind the form and look at the substance and if it comes to the conclusion	 for example	 that though in form the order amounts to termination simpliciter	 it in reality cloaks a dismissal for misconduct	 it will be open to it to set it aside as a colourable exercise of the Power. " A rain of rulings merely adds to the volume	 not to the weight of the proposition	 and so we desist from citing all of them. A bench of seven judges of this Court considered this precise point in Shamsher Singh 's case and Chief Justice Ray ruled: "The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination IS illegal and must he set aside." Simple termination or Punitive Discharge ? We must scan the present order of discharge of 853 workmen and ask the right questions to decide whether they are punishments or innocent terminations. Neither judicial naivete nor managerial ingenuity will put the court off the track of truth. then	 are the diagnostic factors in the orders under study ? An isolated reading of the formal notices terminating their services reveals no stigma	 no penalty	 no misconduct. They have just been told 176 off. But the Management admits that as required by the Standing orders it has recorded reasons for the discharge. There	 several pages of damnatory conduct have been heaped on the workers collectively accounting for the resort of the Management to the extreme step of discharging the whole lot	 there being no alternative. Sri A. K. Sen took us through the various appeals made by the Management	 the losses sustained. the many offers to negotiate and arbitrate	 the Sabha 's deaf obduracy and resort to sudden strike and violent tactics and	 worst of all	 its attempts to persuade the Central Government to take over the factory as a `sick ' mill. These ordeals were	 described by Sri Ashok Sen graphically to justify the submission that the Management had no choice	 caught between Scylla of strike and Charybdis of take over	 but to get rid of the strikers and recruit new workers. If the employer did not discharge the strikers they were adamant and would not return to world	 and the very closure compelled by the Sabha was being abused by it to tell the Central Government that for three months there had been no production and so the mill qualified to be taken over as `sick ' under the Industries (Development and Regulation) Act. If the Management discharged the workers to facilitate fresh recruitment and save the factory from statutory takeover the cry was raised that the action was dismissal because an elaborate enquiry was not held. The Management had avoided injury to the workmen	 argued Sri Sen	 by merely terminating their services without resort to disciplinary action and recording the uncomplimentary grounds in a separate invisible order. He also underscored the fact that the strike was illegal and unjustified as concurrently held by the Arbitrator and the High Court. We agree that industrial law promotes industrial life	 not industrial death	 Any realism is the soul of legal dynamics. Any doctrine that destroys industrial progress interlaced with social justice is lethal juristic and cannot be accepted. Each side has its own version of the role of the other which we must consider before holding either guilty. Sri Tarkunde told us the tale of woe of the workmen. In 3 country where the despair of Government is appalling unemployment it is a terrible tragedy to put to economic death 853 workmen. And for what? For insisting that the pittance of Rs. 100 per month be raised in terms of the Central Wage Board recommendations	 as long ago agreed to by the Management but put off by the tantalizing but treacherous offer of arbitration. When the point admitted of easy negotiated solution. Arbitration looks nice	 but. since 1969	 the hungry families have been yearning for a morsel more	 he urged. Blood	 toil	 sweat and tears for the workers and all the profits ' and production for the Management	 was the industrial irony! Knowing that every arbitral or other adjudicatory agency in 177 India	 especially when weak Labour is pitted against strong Capital in the sophisticated processual system	 consumes considerable time	 the lowly working class is allergic to this dilatory offer of arbitration. They just don 't survive to eat the fruits. Such was his case. The story of violence was also refuted by Sri Tarkunde	 since the boot was on the other leg. Goondas were hired by the Management to sabotage the fundamental right to strike and with broken hearts several of them surrendered. When	 at last	 the Sabha agreed to see that all workmen reported for work within the extended time	 the Management took to the typical tactics of victimisation of refusing work for all	 as first offered	 and of picking and choosing even for the 250 vacancies. Moreover	 other conditions were put upon the Sabha calculated to break unionism which those familiar with trade union movements would painfully appreciate. This insult and injury apart	 the orders of termination were painly dismissals for a series of alleged misconducts which were chronicled in separate proceedings. The formal order was like a decree	 the grounds recorded contemporaneously were like the judgment	 to use court vocabulary. It was obvious that the foundation for the termination was the catena of charges set out by the Management. The true character of the order could not be hidden by the unfair device of keeping a separate record and omitting it from the normal communication. Law is not such an ass as yet and if the intent and effect is damnatory the action is disciplinary. Between these two competing cases	 presented by counsel	 we have to gravitate towards the correct factual legal conclusion. A number of peripheral controversies have been omitted from this statement	 for brevity 's sake. When two high tribunals have spread out the pros and cons it is supererogation for this Court to essay likewise	 and miniaturization is a wise husbandry of judicial resources. First	 we must decide whether the order of termination was a punitive discharge or a simple discharge. Here we reach the dilemma of the law for discovering unfailing guidelines to distinguish between discharge simpliciter and dismissal sinister. The search for infallible formulae is vain and only pragmatic humanism can help navigate towards just solutions. We have earlier explained that from Dhingra 's case to Shamsher Singh 's case	 the law has been dithering but some rough and ready rules can be decocted to serve in most situations. Law	 in this area	 is a pragmatist	 not a philologist	 and we have set out the dual diagnostic tests applicable in such cases. 178 It was not retrenchment	 according to the Management. Then what was it ? If there was work to be done	 why terminate services of workmen except as punishment ? Because	 argued Sri Sen	 the workers did not work	 being on strike and the Management	 bent on keeping the factory going	 needed workmen who work. To recruit fresh hands into the lists and to keep the old hands on the roster was double burden	 and	 therefore	 the strikers had to be eased out to yield place to new recruits. The object was not to punish the workmen but to keep the factory working Accepting this plea	 as it were	 the award of the arbitrator has exonerated the Management of the charge of dismissal while the High Court has held the action to be dismissal for misconduct and therefore bad in law. In our opinion	 the facts of the case before us speak for themselves Here are workmen on strike. The strike is illegal. The Management is hurt because production is paralyzed. The strikers allegedly indulge ill objectionable. activities. The exasperated Management hits back by ordering their discharge for reasons set out in several pages in the appropriate contemporaneous proceeding. Misconduct after misconduct is flung on the workers to justify the drastic action In all conscience and common sense	 the discharge is the punishment for the misconduct. The Management minces no words. What is explicity stated is not a colourless farewell to make way for fresh hands to work the factory until the strike is settled but a hard hitting order with grounds of guilt and penalty of removal. The inference is inevitable	 however	 ingenious the contrary argument	 that precisely because the Management found the workmen refractory in their misconduct they were sacked. Maybe	 the management had no other way of working the factory but that did not change the character of the action taken. Once we hold the discharge punitive the necessary consequence is that enquiry before punishment was admittedly obligatory and confessedly not undertaken. The orders were bad on this score alone. Sri A. K. Sen urged that in a dismissal the employee is denied some of the retiral and other benefits which he gets in a simple discharge	 and here all the employees were offered their full monetary benefits	 so that it was wrong to classify the orders of discharge as punitive. Maybe	 a dismissed servant may well be disentitled to some	 at least	 of the financial benefits which his counterpart who is simply discharged may draw. But that is not a conclusive test. Otherwise	 the master may 'cashier ' his servant and camouflage it by offering full retiral benefits. Dismissal is not discharge plus a price. The substance of 179 the action is the litmus test. In the present case	 the penal core	 'tied 	4. in tooth and claw	 shows up once we probe; and the non committal frame of the formal order is a disguise. For a poor workman loss of his job is a heavy penalty when inflicted for alleged misconduct	 for he is so hungry that	 in Gandhiji 's expressive words	 he sees God Himself in a loaf of bread. Before we leave this part of the case	 a reference to some industrial law aspects and cases may be apposite though a little repetitive Standing orders certified for an industrial undertaking or the model Standing orders framed under the Industrial Employment Standing orders Act provide for discharge simpliciter	 a term understood in contradistinction to punitive discharge or discharge by way of penalty. It is not unknown that an employer resorts to camouflage by garbing or cloaking	 a punitive discharge in the innocuous words of discharge simpliciter. Courts have to interpose in order to ascertain whether the discharge is one simpliciter or a punitive discharge	 and in doing so the veil of language is lifted and the realities perceived. In the initial stages the controversy raised was whether the court/tribunal had any jurisdiction to lift such a veil. Prove and penetrate so as to reveal the reality	 but this controversy has been set at rest by the decision in Western India Automobile Association vs Industrial Tribunal Bombay. The wide scope of the jurisdiction of industrial tribunal	 ' court in this behalf is now well established. If standing orders or the terms of contract permit the employer to terminate the services of his employee by discharge simpliciter without assigning reasons	 it would be open to him to take recourse to the said term or condition and terminate the services of his employee but when the validity of such termination is challenged in industrial adjudication it would be competent to the industrial Tribunal to ensure whether the impugned discharge has been effected in the bona fide exercise of the power conferred by the terms of employment. If the discharge has been ordered by the employer in bona fide exercise of his power	 then the industrial tribunal may not interfere with it; but the words used in the order of discharge and the form which it may have taken are not conclusive in the matter an(l the industrial tribunal would be entitled to go behind the words and form and decide whether the discharge is a discharge simpliciter or not If it appears that the purported exercise of power to terminate the Services of the employee was in fact the result of the misconduct alleged against him. then the tribunal would be justified in dealing with the dispute on the basis; that	 despite its appearance to the contrary. the order of discharge is in effect an order of dismissal. In the exercise of this power	 the 180 court/tribunal would be entitled to interfere with the order in question [see Assam Co. vs Its Workmen]. In the matter of an order of discharge of an employee as understood within the meaning of the the iron of the order and the language in which it is couched are not decisive. If the industrial court is satisfied that the order of discharge is punitive or that it amount; to victimisation or unfair labour practice it is competent to the Court/tribunal to set aside the order in a proper case and direct reinstatement of the employee [see Tata oil Mills Co. Ltd. vs Workmen]. The form used for terminating the service is not conclusive and the tribunal has jurisdiction to enquire into the reasons which led to such termination In the facts of the case it was found that Standing orders provided that an employee could ask for reasons for discharge in the case of discharge simpliciter. Those reasons were given before the tribunal by the appellant	 viz.	 that the respondents services were terminated because he deliberately resorted to go slow and was negligent in the discharge of his duty. It was accordingly held that the services of the employee were terminated for dereliction of duty and go slow in his work which clearly amounted to punishment for misconduct and. therefore. to pass an order under cl. 17(a) of the Standing orders permitting discharge simpliciter in such circumstances was clearly a colorable exercise of power to terminate services of a workman under the provision of the Standing orders. In these circumstances the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondent 's services could be sustained (vide Management of Murugan Mills Ltd. vs Industrial Tribunal	 Madras & Anr. This view was affirmed in Tata Engineering & Locomotive Co. Ltd. vs section C. Prasad & Anr.(4). After approving the ratio in Murugan Mills case	 this Court in L. Michael & Anr. vs M/s. Johnson Pumps India Ltd observed that the manner of dressing up an order did not matter. The slightly different observation in Workmen of Sudder office	 Cinnamare vs Management was explained by the Court and it was further affirmed that since the decision of this Court in the Chartered Bank vs The Chartered Bank Employee 's Union it has taken the consistent view that if the termination of service is a colourable exercise of power vested in the management or is a result of victimization 181 or unfair labour practice	 the court/tribunal would have jurisdiction to intervene and set aside such termination. It was urged that a different view was taken by this Court in Municipal Corporation of Greater Bombay vs P. section Malvenkar & ors. The employee in that was discharged from service by paying one month 's wages in lieu of notice This action was challenged by the employee before the Labour Court and it was contended that it was a punitive discharged. The Corporation contended that wider Standing order No. 26 the Corporation had the power to discharge but there was an obligation to give reasons if so demanded by the employee. The Corporation had also the power to discharge by way of punishment. The Court in this connection observed as under: "Now one thing must be borne in mind that these are two distinct and independent powers and as far as possible either should be construed so as to emasculate the other cr to render it ineffective. One is the power to punish an employee for misconduct while the other is the power to terminate simpliciter the service of an employee without any	 other adverse consequence. proviso (i) to clause (1) of Standing order 26 requires that the reason for termination of the employment should be given in writing to the employee when exercising the power of termination of service of the employee under Standing order 26. Therefore	 when the service of an employee is terminated simpliciter under Standing order 26	 the reason for such termination has to be given to the employee and this provision has been made in the Standing order with a view to ensuring that the management does not act in an arbitrary manner. The management is required to articulate the reason which operated on its mind in terminating the service cf the employee. But merely because the reason for terminating the service of the employee is required to be given and the reason must obviously not be arbitrary	 capricious or irrelevant it would not necessarily in every case make the order or termination punitive in character so as require compliance with the requirement of clause (2) of Standing order 21 read with Standing order 23. Otherwise. the power of termination of service of an employee under Standing order 26 would be rendered meaningless and futile for in no case it would be possible to exercise it. Of course	 if misconduct of the employee constitutes the 182 foundation for terminating his service	 then even if the order of termination is purported to be made under Standing order 26	 it may be liable to be regarded as punitive in character attracting the procedure of clause (2) of Standing order 21 read with Standing order 23	 though even in such a case it may be argued that the management n has not punished the employee but has merely terminated his service under Standing order 26. " It does not purport to run counter to the established ratio that the form of the order is not decisive and the Court can lift the veil. How ever	 it may be noted that there was an alternative contention before the Court that even if the order of discharge was considered punitive in character	 the employer corporation had led evidence before the labour court to substantiate the charge of misconduct and that finding was also affirmed. We are satisfied that the Management	 whatever its motives vis a vis keeping the stream of production flowing	 did remove from service	 on punitive grounds	 all the 853 workmen. The law is trite that the Management may still ask for an opportunity to make out a case for dismissal before the Tribunal. The refinements of industrial law in this branch need not detain u.s because the arbitrator did investigate and hold that the workmen were guilty of misconduct and the 'sentence ' of dismissal was merited	 even as the High Court did reappraise and reach	 on both counts	 the reverse conclusion. The sweep of Article 226 Once we assume that the jurisdiction of the arbitrator to enquire into the alleged misconduct was exercised	 was there any ground under Article 226 of the Constitution to demolish that holding ? Every wrong order cannot be righted merely because it is wrong. It can be quashed only if it is vitiated by the fundamental flaws of gross miscarriage of justice	 absence of legal evidence	 perverse misreading of facts	 serious errors of law on the face of the order	 jurisdictional failure and the like. While the remedy under Article 226 is extraordinary and is of Anglo Saxon vintage	 it is not a carbon copy of English processes. Article 226 is a sparing surgery but the lancet operates where injustice suppurates. While traditional restraints like availability of alternative remedy hold back the court	 and judicial power should not ordinarily rush in where the other two branches fear to tread	 judicial daring is not daunted where glaring injustice demands even affirmative action. 183 The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the court 's province and the remedy is appropriate to the judicial process. There is native hue about Article 226	 without being anglophile or anglophobic in attitude. Viewed from this jurisprudential perspective	 we have to be cautious both in not overstepping as if Article. 226 were as large as an appeal and not failing to intervene where a grave error has crept in. Moreover	 we sit here in appeal over the High Court s Judgement. And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real	 though fine. What are the primary facts which have entered the Tribunal 's verdict in holding the strikers guilty of misconduct meriting dismissal ? We must pause to remove a confusion and emphasise that the dismissal	 order is not against the Union but the individual workers. What did each one do ? Did his conduct	 when sifted and scrutinised	 have any exculpation or extenuation ? Not strikers in the mass	 but each worker separately	 must be regarded as the unit of disciplinary action. Each one 's role and the degree of turpitude	 his defence on guilt and punishment	 must be adjudged before economic death sentence is inflicted. A typical trial process instance will illumine the point. Suppose there is case of arson and murder in a village because of communal faction and a hundred men from the aggressive community are charged in court with serious offences. Suppose further that convincing testimony of the provocation and aggression by that community is produced. Can any single member of the violent community be convicted on 'mass ' evidence	 without specific charges of participation or clear proof of constructive involvement ? Judicial perspicacity clears this common fallacy. It is dangerous to mass convict on the theory of community built. Anger sometimes brings in this error. In our assessment	 the arbitrator has been swayed by generalities where particularities alone would have sufficed. A long story may be made short by skipping the details and focussing on essentials. We must	 in fairness	 state that the Arbitrator	 an experienced and accepted tribunal in labour disputes	 has exhaustively brought into the Award all available details pro and con with over emphasis here and there. There are only a few confusions in his long award but	 regrettably	 they happen to be on a few fundamentals. The foremost	 of course	 is a mix up between mob misconduct and individual guilt. The next is getting lost in the oceanic evidence while navigating towards a 1 specified port. The High Court too has excelled in marshalling the details and handling the legal issues	 although	 even there	 shortcomings 184 on basic issues have been pointed out by Sri A. K. Sen. We too are apt to err and reverse ourselves although we try our best to avoid error. The Supreme Court is final not because it is infallible; it is infallible; because it is final. propose to examine the essential issues from the perspective We have set out and in their proper jurisprudential bearings. If misconduct was basic to the discharge and no enquiry precedent to the dismissal was made the story did not end there in favour of the workmen. The law is well settled that the Management may still satisfy the tribunal about the misconduct. As a fact the arbitrator held misconduct proved. He further found that the circumstances justified dismissal though he decided the order to mean discharge simpliciter Was misconduct proved against each discharged worker at least before the arbitrator ? If it was	 did every worker deserve punitive discharge ? Dual jurisdictional issues arise here which have been argued at some length before us. The position taken up by Sri Sen was that the High Court could not	 under Article 226	 direct reinstatement	 and even it felt that the arbitrator had gone wrong in refusing reinstatement	 the court could only demolish the order and direct the arbitrator to reconsider the issue. What belonged	 as a discretionary power	 to a tribunal or other adjudicatory body could not be wrested by the writ court. To put it pithily	 regarding the relief of reinstatement	 the arbitrator could but would not and the High Court would but could not. (We will deal later with the point that the arbitrator had himself no power under Section 11 A of the Act but did have it in view of the wide terms of reference.) The basis of this submission as we conceive it. is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation	 we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide bound British processes of yore. We are what we are because our Constitution framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring; nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle	 except where gross injustice or fatal illegality and the like are present inhibit the exercise but do not abolish the power. 185 We may dilate a little more on Article 226 vis a vis awards of arbitrators. The first limb of the argument is that when there is a voluntary joint submission of an industrial dispute to an Arbitrator named by them under section 10A of the 	 he does not function as a Tribunal and is not amenable to the jurisdiction of that Court under Article 227 or under Article 226. Without further elaboration this contention can be negatived on a decision of this Court in Rohtas Industries Ltd. & Anr. vs Rohtas Industries State Union ors. (1) This Court observed that as the Arbitrator under section 10A has the power to bind even those who are not parties to the reference or agreement and the whole exercise under section 10A as well as the source of the force of the Award on publication derived from the statute	 it is legitimate to regard such an arbitrator now as part of the infrastructure of the sovereigns dispensation of justice	 thus falling within the rainbow of statutory tribunals amenable to judicial review. The second limb of the argument was that a writ of certiorari could not be issued to correct errors of facts. In this connection after affirming the ratio in Engineering Mazdoor Sabha vs Hind Cycle Ltd.	 this Court observes that what is important is a question of law arising on the face of the facts found and its resolution ex facie or sub silentio. The Arbitrator may not state the law as such; even then such acute silence confers no greater or subtler immunity on the award than plain speech. We do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grounds to set aside an arbitration award 'thin partition do their bounds divide ' on the facts and circumstances of the present case. Broadly stated	 the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi judicial tribunals or administrative bodies exercising the quasi judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can he no ground for interference. The power of judicial supervision of the High Court under Article 227 of the Constitution (as it then stood) is not greater than those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority [see Nagendra Nath Bora & Anr. vs The Commissioner of Hills Division & Appeals	 Assam & ors.(a) ]. This led to a proposition that in 186 exercising jurisdiction under Article 226 the High Court is not constituted a Court of appeal over the decision of authorities	 administrative or quasi judicial. Adequacy or sufficiency of evidence is not its meat. It is not the function of a High Court in a petition for a writ under Art 226 to review the evidence and to arrive at an independent finding on the evidence. [See State of Andhra Pradesh vs section Shree Rama Rao ] A constitution Bench of this Court in P. H. Kalyani vs M/s . Air France	 Calcutta ) succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition. It was said that in order to justify a writ of certiorari it must be shown that an order suffers from an error apparent on the face of the record. It was further pointed out that in the finding of fact is made by the impugned order and it is shown that it success from an error of law and not of fact	 a writ under Article 226 would issue	 and	 while so saying	 the decision in Nagendra Nath Bora 's case was affirmed. Following the aforementioned decision	 the Gujarat High Court in Navinchandra Shakerchand Shah vs Manager	 Ahmedabad Coop. Department Stores Ltd. observed that the amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived. Even apart from	 but while approving	 the Gujarat ruling in 19 G.L.R. p. 108 cited before us	 we are satisfied that the writ power is larger given illegality and injustice	 even if its use is severely discretionary as decided cases have repeatedly laid down. We over rule the objection of invalidity of the High Courts order for want of power. The more serious question is whether the arbitrator had the plenitude of power to re examine the punishment imposed by the Management	 even if he disagreed with its severity. In this ease the arbitrator expressed himself as concurring with the punishment. But if he had disagreed	 as the High Court	 in his place	 did	 could he have interfered? Armed with the language of Sec. 11A	 which confers wide original power to the tribunal to re fix the 'sentence '	 Sri Sen argued that an arbitrator was uncovered by this new Section. So	 even if he would	 he could not. And	 in this case if he could	 he would not. There the matter ended	 was the argument. We disagree. Even if he could. he would not	 true; but that did not preclude the High Court from reviewing the order in exercise of its extraordinary constitutional power. Moreover	 Sec. 11A did clothe the arbitrator with similar 187 power as tribunals	 despite the doubt created by the abstruse absence A of specific mention of 'arbitrator ' in Sec. 11A. This position needs closer examination and turns on interpretational limitations. At this stage	 to facilitate the discussion	 we may read the provision: "11A. Where an industrial dispute relating to the discharge or dismissal of a workmen has been referred to a 1 Labour Court	 Tribunal or National Tribunal for adjudication and	 in the course of the adjudication proceedings	 the Labour Court	 Tribunal or National Tribunal	 as the case may be	 is satisfied that the order of discharge or dismissal was not justified	 it may	 as it thinks fit	 or give such other relief to the Workman on such terms and conditions	 if any	 as it thinks fit	 or give such other relief to the workman	 including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court Tribunal or National Tribunal as the case may be	 shall rely on the materials on record and shall not take any fresh evidence in relation to the matter". 11A was introduced in purported implementation cf the I.L.O. recommendation which expressly referred	 inter alia to arbitrators. The Statement of objects and Reasons which illumines the words of the legislative text when it is half lit	 even if it cannot directly supplement the section	 does speak of the I.L.o. recommendations and	 in terms of tribunals and arbitrators. When it came to drafting Section 11A the. word 'arbitrator ' was missing. Was this of deliberate legislative design to deprive arbitrators	 who discharge identical functions as tribunals under the 	 of some vital powers which vested in their tribunal brethren ? For what mystic purpose could such distinction be ? Functionally	 tribunals and arbitrators being to the same brood. The entire scheme	 from its I.L.O. genesis	 through the objects and Reasons	 fits in only with arbitrators being covered by Section 11A	 unless Parliament cheated itself and the nation by proclaiming a great purpose essential to industrial justice and	 for no rhyme or reason and wittingly or unwittingly	 withdrawing one vital word. Every reason for clothing tribunals with Sec. 11A powers applies a fortiori to arbitrators. Then why omit ? Could it be a synopic omission which did not affect the semantics because a tribunal	 in its wider connotation	 embraced every adjudicatory organ	 including an arbitrator ? An economy of words is a legislative risk before a judiciary accustomed to the Anglo Saxon meticulousness in 188 drafting. We may easily see meaning by one construction. A 'tribunal ' is merely a seat of justice or a judicial body with jurisdiction to render justice. If an arbitrator fulfils this functional role and he does how can he be excluded from these scope of the expression ? A caste distinction between courts	 tribunals	 arbitrators and others	 is functionally fallacious and	 in our context	 stems from confusion. The Section makes only a hierarchical	 not functional	 difference by speaking of tribunals and national tribunals. So we see no ground to truncate the natural meaning of 'Tribunal ' on the supposed intent of Parliament to omit irrationally the category of adjudicatory organs known as arbitrators. To cut down is to cripple and the art of interpretation makes whole	 not mutilates	 furthers the expressed purpose	 not hampers	 by narrow literality. Section 2(r) defines Tribunal thus: 'Tribunal ' means an Industrial Tribunal constituted under Section 7A and includes an Industrial Tribunal constituted before the 10th day of March	 1957	 under this Act	 Prima facie it is a different category from arbitrators but all statutory definitions are subject to contextual changes. It is perfectly open. to the court to give the natural meaning to a word defined in the Act if the context in which it appears suggests a departure from the definition because then there is something repugnant in the subject or context. Then what is the natural meaning of the expression "Tribunal"? A 'tribunal ' literally means a seat of justice. May be	 justice is dispensed by a quasi judicial body	 an arbitrator	 a commission	 a court or other adjudicatory organ created by the State. All these are tribunals and naturally the import of the word embraces an arbitration tribunal. Stroud 's Judicial Dictionary (Vol. 4 p. 3093) speaks of 'Tribunal in this	 wider sense and quoted Fry	 L.J. in Dawkins vs Rokeby [L.R. 8 Q.B. 255	 affirmed	 "I accept that	 with this qualification that I do not like the word 'tribunal '. The word is	 ambiguous	 because it has not like 'court ' any ascertainable meaning in English law" (Royal Acsuarium vs Parkinson. 	 cited COURT) . There is a reference to the bishop 's commission of enquiry as judicial tribunal and	 significantly	 specific mention has been made in these terms. 189 "Disputes between employers and employees are A referred to such tribunals as the Civil Service Arbitration Tribunal	 National Arbitration Tribunal and the Industrial Disputes Tribunal". (Stroud 's Judicial Dictionary p. 3094) We have hardly any doubt that 'tribunal ' simpliciter has a sweeping signification and does not exclude 'arbitrator '. Here we come upon a fundamental dilemma of interpretative technology vis a vis the judicative faculty. What are the limits of statutory construction ? Does creativity in this jurisprudential area permit travel into semantic engineering as substitute for verbalism ? It is increasingly important for developing countries	 where legislative transformation of the economic order is an urgent item on the national agenda	 to have the judiciary play a meaningful role in the constitutional revolution without ferreting out laws in the draftsman	 once the object and effect are plain. Judges may not be too 'anglo phonic ' lest the system fail. It is edifying to recall from Robert Stevens ' Law and Politics of the House of Lords as a judicial body: "Moreover	 Macmillan	 who began to specialize in the increasingly frequent tax appeals	 continued to develop this highly artificial approach in Inland Revenue Commissioner vs Ayrshire Employers Mutual Insurance Association	 when Parliament had clearly intended to make the annual surpluses of mutual insurance companies subject to tax	 Macmillan found a particularly formalistic argument to show that this had not been the effect of section 31 of the Finance Act of 1933. He was then happily able to announce	 "The Legislature has plainly missed. Of this decision Lord Diplock was later to say that "if	 as in this case	 the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed. Here is judicial legislation at its worst. "(3) ' We would rather adopt Lord Diplock 's thought and have the court help hit the legislative target	 within limits	 than sigh relief that the legislative fire has missed the bull 's eye. Of course	 the social philosophy of the Constitution has	 as ruled by this court in several cases	 a role in interpretative enlightenment and judicial value vision. 190 We may reinforce this liberal rule of statutory construction	 being a matter of importance in the daily work of the Court	 by reference even to Roman Law from Justinian 's days down to the American Supreme Court. "Not all special cases can be contained in the laws and resolutions of the Senate"	 said the Roman jurist Jullianus	 "but where their meaning is manifest in some case	 the one who exercises jurisdiction must apply the provision analogously and in this way administer justice." Prof. Bodenheimer has explained that Civil Law does not regard words as the sole basis of law but allows it to be modified by purpose. "Celsus added the following admonition to these general principles of interpretation: "The laws should be liberally interpreted	 in order that their intent be preserved". "Samuel Thorne has shown that	 during certain periods of English medieval history	 the position of the Common Law towards the construction of statutes was similar to the general attitude of the Roman and Civil Law. Statutes were frequently extended to situations not expressly covered by them. "(3) Plowden pointed out that "when the words of a statute enact one thing	 they enact all other things which are in the like degree	 Plowden demonstrated that a statutory remedy at that time was deemed to be merely illustrative of other analogous cases that deserved to be governed by the same principle. our law (like all others) consists of two parts	 viz. OF body and soul	 the letter of the law is the body of the law	 and the sense and reason of the law is the soul of the law. And it often happens that when you know the letter	 you know not the sense	 for sometimes the sense is more confined and contracted than the letter	 and sometimes it is more large and extensive"(5) Prof. Bodehheimer states that the American trend is towards a purpose oriented rather than a plain meaning rule in its rigid orthodoxy. In United States vs American Trucking Association. The U.S. Supreme Court wrote: "When the plain meaning has led to absurd or futile results . this Court has looked beyond the words to the Purpose of the Act. Frequently	 however	 even when the 191 plain meaning did not produce absurd results but merely an unreasonable one "plainly at variance with the policy of the legislation as a whole" this Court has followed that purpose rather than the literal words. When aid to construction of the meaning of words	 as used in the statute	 is available	 there can certainly be no "rule of law" which forbids its use	 how ever	 clear the words may be on "superficial examination. " B In the present case	 as the narration of the facts unfolded	 the reference of the dispute was to an arbitrator. He reinvestigated and reassessed the evidence bearing on the guilt of the discharged workmen after giving an opportunity to both sides to adduce evidence thereon Admittedly	 he had this power. But had he the follow up power	 if he held the men guilty of punitive misconduct	 to reweigh the quantum of punishment having regard to the degree of culpability ? This jurisdiction he enjoys if Sec. 11A includes 'arbitrators '. This	 in turn	 flows from our interference as to whether the word 'tribunal ' takes in an adjudicatory organ like the arbitrator. It is plain that the expression 'arbitrator ' is not expressly mentioned in Section 11A. Nevertheless	 if the meaning of the word 'tribunal ' is wider rather than narrower	 it will embrace arbitrator as well. That is how the dynamics of interpretation are	 in one sense	 decisive of the fate of the present appeal. Competing interpretative angles have contended for judicial acceptance English preferences apart	 Indian socio legal conditions must decide the choice in each situation. Sometimes Judges are prone to castigate creative interpretation in preference to petrified literality by stating that Judges declare the law and cannot make law. The reply to this frozen faith is best borne out by Lord Radcliffe 's blunt words: " There was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it ?. Judicial law is always a reinterpretation of principles in the light of new combinations of facts. Judges do not reverse principles once well established	 but they do modify them	 extend them	 restrict them and even deny their application to the combination in hand. Lord Devlin in his "Samples of Lawmaking"	 agreed that Judges are fashioners of law	 if not creators out of material supplied to them and went on to observe: "If the House of Lords did not treat itself as bound by its own decisions	 it might do its own lopping and pruning 192 . and perhaps even a little grafting	 instead of leaving all that for the legislature. But it could not greatly alter the shape of the tree. " Even so eminent a Judge as Lord Reid leaned to the view that the law should be developed since it was not static and	 in this limited sense	 Judges are law makers although this view prevented "technical minded Judges (from pressing) precedents to their logical conclusions". On the whole	 a just and humanist interpretative technique	 meaning permitting	 is the best. We do not mean to conclude that Judges can take liberties with language ad libitem and it is wholesome to be cautious as Lord Reid in Shaw vs D.P.P. warned: "Where Parliament fears to tread it is not for the courts to rush in. " We are persuaded that there is much to learn from Lord Denning 's consistent refrain about the inevitable creative element in the judicial process in the interpretative area. We permit ourselves a quote from Lord Denning because Shri A. K. Sen did draw our attention to straightening the creases as permissible but not stitching the cloth	 making a critical reference to the controversial activism of which Lord Denning was a leading light: "The truth is that the law is uncertain. rt does not cover all the situations that may arise. Time and again practitioners and judges are faced with new situations where the decision may go either way. No one can tell what the law is until the courts decides it. The judges do every day make law	 though it is almost heresy to say so. If the truth is recognized then we may hope to escape from the dead hand of the past and consciously mould new principles to meet the needs of the present." Mr. Justice Mathew in Kesavananda Bharti 's case referred with approval and so do we to the observations of Justice Holmes. "I recognize without hesitation that Judges do and must legislate. but they can do so only interstitially; they are confined from molar to molecular motions. " 193 Arthur Selwyn Miller writes	 "Some have called it (the Supreme A Court) the highest legislative chamber in the nation. Although there is no question that the Court can and does make law	 and does so routinely	 . ". Assuming the above approach to be too creatively novel for traditionalism	 let us approach the same problem from a conventional angle authenticated by case law. The question of construction of section 11A was argued at length	 as to whether an omission of any reference to Arbitrator appointed under section 10A in section 11A would suggest that the Arbitrator under section 10A	 notwithstanding the terms of reference	 would not enjoy the power conferred on all conceivable industrial adjudicators under section 11A. It was said	 after referring to the objects and reasons in respect of the bill which was moved to enact section 11A in the 	 that while the I.L.O. had indicated that an arbitrator selected by the parties for adjudication of industrial dispute must be invested with power by appropriate legislation as found in section 11A	 the Parliament	 while enacting the section in its wisdom	 did not include the Arbitrator even though other adjudicators of industrial disputes have been conferred such power and	 therefore	 it is a case of Sasus omissions. Reliance was placed on Gladstone vs Bower where the question arose whether a reference to a tenancy from year to year in section 2(1) of the Agricultural Holdings Act	 1948 would also cover a tenancy for 18 months which could be terminated at the end of the first year. The submission was that even though no notice was necessary at common law because the tenancy would automatically terminate at the expiry of the specified period of tenancy	 the tenancy took effect as tenancy from year to year by virtue of section 2(1) of the Act so that it continued until terminated by notice to quit and	 therefore the landlord was not entitled to possession without notice. It was further contended that if a tenancy from year to year was to get the protection of the Act it is inconceivable that tenancy for a longer duration would not qualify for that protection. Court of Appeal negatived this contention holding that this is a case simply of casus omissus and the Act is defective. The court further held that if it were ever permissible for the Court to repair a defective Act of Parliament	 the Court would be very glad to do so in this case so far as the Court could. The Court will always allow the intention of a statute to override the defects of wording buts the Court 's ability to do so is limited by the recognised canons of interpretation. The Court may	 for example	 prefer an alternative construc 194 tion which is less well fitted to the words but better fitted to the intention of the Act. But here	 for the reasons given by the learned Judge	 there is not alternative construction; it is simply a case of something being overlooked. The Court cannot legislate for a casus omissions. To do so would be to usurp the function of the legislature [see Magor & St. Mellons Rural District Council vs Newport Corporation. Where the Statute 's meaning is clear and explicit	 words cannot be interpolated. Even where the meaning of the statute is clear and sensible	 either with or without the omitted word	 interpolation is improper	 since the primary source of the legislative intent is in the language of the statute [see Crawford 's "Construction of Statutes". 1940 Edn.	 p. 269 extracted in section Narayanaswami vs G. Panneerselvam.] Undoubtedly	 the Court cannot put into the Act words which 'are not expressed	 and which cannot reasonably he implied on any recognised principles of construction. That would be a work of legislation	 not of construction	 and outside the province of the Court [see Kamalaranjan vs Secretary of State(3).] Similarly	 where the words of the statute are clear it would not be open to the Court in order to obtain a desired result either to omit or add to the words of the statute. This is not the function of the Court charged with a duty of construction. This approach has	 however	 undergone a sea change as expressed by Denning	 I. J. in Seaford Court Estates Ltd. vs Asher wherein he observed as under: "When a defect appears a Judge cannot simply fold his hands and blame the draftman. He must set to work on the constructive task of finding the intention of Parliament. and then he must supplement the written words so as to give 'force and life ' to the intention of legislature . 	 A judge should ask himself the question how	 if the makers of the Act had themselves come across this ruck in the texture of it	 they would have straightened it out ? He must then do as they would have done. A judge must not alter the material of which the Act is woven	 but he can and should iron out the creases." (Approved in State of Bihar & Anr. vs Dr. Asis Kumar Mukherjee & ors. where in he observed as under: 195 This long excursion has become important because	 once in a while	 social legislation which requires sharing of social philosophy between the Parliament and the Judiciary; meets with its Waterloo in the . higher courts because the true role of interpretation shifts from Judge to Judge. We are clearly of the view that statutory construction which fulfills the mandate of the statute must find favour with the Judges	 except where the words and the context rebel against such 	 flexibility. We would prefer to be liberal rather than lexical when reading the meaning of industrial legislation which develops from day to day in the growing economy of India. The necessary conclusion from this discussion is that the expression 'tribunal ' includes	 in the statutory setting	 an arbitrator also. Contemporaneous par legislative material may legitimately be consulted when a word of wider import and of marginal obscurity needs to be interpreted. So viewed	 we are not in a 'sound proof system ' and the I.L.O. recommendation accepted by India. and the objects and Reasons of the amending Act leave no doubt about the sense	 policy and purpose. Therefore Section 11A applies to the arbitrator in the present case and he has the power to examine whether the punishment imposed in the instant case is excessive. So has the High Court	 if the Award suffers from a fundamental flaw. A study of the lengthy award discloses no mention of Section 11A	 and presumably	 the authority was unmindful of that provision while rendering the verdict. In a limited sense	 even prior to Section 11A	 there was jurisdiction for a labour tribunal	 including an arbitrator	 to go into the punitive aspect of the Management 's order. This Court has	 in a catena of cases	 held that a mala fide punishment is bad in law and when the punishment is grotesquely condign or perversely harsh or glaringly discriminatory	 an easy inference of bad faith	 unfair labour practice or victimisation arises. The wider power tn examine or prescribe the correct punishment belongs to tribunal/arbitrator even under Sec. 11 in no enquiry (or a defective enquiry which is bad	 and	 therefore	 can be equated with a 'no enquiry ' situation) has been held by the Management. For	 then	 there is no extant order of guilt or punishment and the tribunal determines it fresh. In such a virgin situation both culpability and quantification of punishment arc within the jurisdiction of the tribunal/arbitrator. The present is such a case. Volleys of rulings from both sides were fired during arguments	 the target being the limited area of the tribunal 's power to overturn the quantum of punishment awarded by the Management. We do not think it necessary to re gurgitate all that has been said by this Court 196 upto now	 since it is sufficient to bring out the correct law in the light of the leading citations. It is incontrovertible that where	 as here	 no enquiry has been held by the Management	 the entire subject is at large and both guilt and punishment	 in equal measure	 may be determined	 without inhibition of jurisdiction	 by the tribunal. Lastly	 as rightly urged by counsel for the Sabha	 an arbitrator has all the powers the terms of reference	 to which both sides are party	 confer. Here	 admittedly	 the reference is very widely worded and includes the nature of the punishment. The law and the facts do not call for further elaboration and we hold that	 in any view	 the arbitrator had the authority to investigate into the propriety of the discharge and the veracity of the misconduct. Even if section 11A is not applicable	 an Arbitrator under section 10A is bound to act in the spirit of the legislation under which he is to function. A commercial arbitrator who derives his jurisdiction from the terms of reference will by necessary implication	 be bound to decide according to law and	 when one says 'according to law '	 it only means existing law and the law laid down by the Supreme Court being the law of the land	 an Arbitrator under section 10A will have to decide keeping in view the spirit of section 11A [See Union of India vs Bungo Steel Furniture Pvt. Ltd. (1967)] 1 S.C.R. 324]. The Jurisdictional hurdles being thus cleared	 we may handle the basic facts and the divergences between the Arbitrator and the High Court before moulding the final relief. Prefatory to the discussion about the factum of misconduct and its sequel	 we must remind ourselves that the strike was illegal	 having been launched when another industrial dispute was pending adjudication. 23 (a) appears	 at a verbal level	 to convey such a meaning although the ambit of sub clause (a) may have to be investigated fully in some appropriate case in the light of its scheme and rationale. It looks strange that the pendency of a reference on a tiny or obscure industrial dispute and they often pend too long should block strikes on totally unconnected yet substantial and righteous demands. The constitutional implications and practical complications of such a veto of a valuable right to strike often leads not to industrial peace but to seething unrest and lawless strikes. But in the present case	 both before the arbitrator and the High Court	 the parties have proceeded	 on the agreed footing that the strike was illegal under Section 23(a). We do not reopen the issue at this late stage and assume the illegality of the strike. The Fatal Flaw in the Award: The Achilles heel of the arbitrator 's award is where he makes	 as a substitute for specific and individuated findings of guilt and 197 appropriate penalty vis a vis each workmen	 a wholesale survey of A the march of events	 from tension to breakdown	 from fair settlement to illegal and unjustified strike	 from futility of negotiation to readiness for arbitration	 from offer of full re employment to partial taking back on application by workmen in sack cloth and ashes	 by picking and choosing after a humble declaration that the strike has been formally buried	 from episodes of violence and paralysis of production to backstage manoeuvres to get the factory taken over as a 'sick mill '	 and after a full glimpse of this scenario	 holds that the Sabha was always in the wrong	 and inevitably	 the Management was surely reasonable AND	 ergo	 every employee must individually bear the cross of misconduct and suffer dismissal for the sins of the Sabha leadership its secretary was not an employee of the mill by some sub conscious doctrine of guilt by association! Non Sequitur. Each link in the chain of facts has been challenged by the respondents but let us assume them to be true	 to test the strength of the legal fibre of the verdict. (We may mention by way of aside	 D. that the Company seems to be a well managed one.) The cardinal distinction in our punitive jurisprudence between a commission of enquiry and a Court of Adjudication	 between the cumulative causes of a calamity and the specific guilt of a particular person	 is that speaking generally	 we have rejected	 as a nation	 the theory of community guilt and collective punishment and instead that no man shall be punished except for his own guilt. Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency. Blanket attainder of a bulk of citizens on any vicarious theory for the gross sins of some only	 is easy to apply but obnoxious in principle. Here	 the arbitrator has found the Sabha Leadership perverse	 held that the strikers should have reasonably reported for work and concluded that the Management had	 for survival	 to make do with new recruits. Therefore what ? What	 at long last	 is the answer to the only pertinent question in 6. a disciplinary proceeding viz. what is the specific misconduct against the particular workmen who is to lose his job and what is his punitive desert? Here you can 't generalise any more than a sessions judge can	 by holding a faction responsible for a massacre	 sentence every denizen of that factions village to death penalty. The legal error is fundamental	 although lay instinct may not be outraged. What did worker A do ? Did he join the strike or remain at home for fear of vengeance against blacklegs in a para violent situation ? Life 198 and limb are dearer than loyalty	 to the common run of men	 and discretion is the 'better part of valour. Surely	 the Sabha complained of Management 's goondas and the latter sought police aid against the unruly core of strikers. In between	 the ordinary rustic workmen might not have desired to be branded blacklegs or become martyrs and would not have reported for work. If not being heroic in daring to break through the strike cordon illegal though the strike be were misconduct	 the conclusion would have been different. Not reporting for work does not lead to an irrebuttable presumption of active participation in the strike. More is needed to bring home the mens rea and that burden is on the prosecutor	 to wit the Management. Huddling together the eventful history of deteriorating industrial relations and perverse leadership of the Sabha is no charge against a single worker whose job is at stake on dismissal. What did he do ? Even when lawyers did go on strike in the higher Courts or organize a boycott	 legally or illegally	 even top law officers of the Central Govt. did not attend court	 argued Shri Tarkunde	 and if they did not boycott but merely did not attend	 could workers beneath the bread line be made of sterner stuff. There is force in this pragmatic approach. The strike being illegal is a non issue at this level. The focus is on active participation. Mere absence	 without more	 may not compel the conclusion of involvement. Likewise	 the further blot on the strike	 of being unjustified	 even if true	 cuts no ice. Unjustified	 let us assume; so what? The real question is	 did the individual worker	 who was to pay the penalty	 actively involve himself in this unjustified misadventure ? or did he merely remain a quiescent non worker during that explosive period ? Even if he was a passive striker	 that did not visit him with the vice of activism in running an unjustified strike. In the absence of proof of being militant participant the punishment may differ. To dismiss a worker	 in an economy cursed by massive unemployment	 is a draconian measure as a last resort. Rulings of this Court have held that the degree of culpability and the quantum of punishment turn on the level of participation in the unjustified strike. Regrettably	 no individualised enquiry has been made by the Arbitrator into this significant component of delinquency. Did any dismissed worker instigate	 sabotage or indulge in vandalism or violence ? The Management 's necessity to move the mill into production for fear of being branded a 'sick unit ' is understandable. Of course	 collective strike is economic pressure by cessation of work and not exchange of pleasantries. It means embarrassing business. Such a quandary cannot alter the law. Here the legal confusion is obvious. 199 No inquest into the Management 's recruitment of fresh hands is being made at this stage. The inquiry is into the personal turpitudes of particular workmen in propelling an illegal and unjustified strike and the proof of their separate part therein meriting dismissal. The despair of the Management cannot	 by specious transformation of logic	 be converted into the despair of each of the 853 workmen. Sympathies shall not push one into fallacies. We may now concretize this generalised criticism of the otherwise well covered award. The crowd of documents and camping attitudes must have added to the strain on the Arbitrator. "A voluminous record of documents and correspondence has been produced before me by both sides. There have been allegations and counter allegations made by both sides not only against each other but even against the Police	 the Department of Labour and persons in Authority. The history has been sought to be traced right from the inception of the Company in 1966 or 1967	 by the Company to show that their conduct has been always proper and above reproach and by Sabha to establish that not only the Gujarat Steel Tubes Ltd. were not fair to the employees but that every action of theirs good or bad was ill motivated	 was executed with some sinister ulterior motives. " The Award set out the history of the Company	 its vicissitudes	 the hills and valleys	 the lights and shadows	 of industrial relations with mob fury and lock outs and allied episodes often ending in settlements and pious pledges. Then the Arbitrator stressed Clause 6 of the Agreement of December	 1971 which bespoke a no strike zone for five years. There was reference to the Management 's promise to implement the Wage Board recommendations. The Arbitrator was upset that despite Clause a strike was launched but was not disturbed that despite the Wage Board proposals	 negotiations were being baulked and an interminable arbitral alternative was being offered by the Management. He exclaimed: "If such a settlement arrived at was not respected and implemented the	 machinery provided by law would lose all meaning and so also the sanctity of the word of the Management or the word of the union. It is	 therefore	 essential tn ascertain who was responsible for the breach of the agreement so solemnly entered into. Serious breach by management is alleged and this is given as a reason or is made as an cause for getting rid of the obligations 200 arising out of the agreement which specifically could not be terminated for five years. " The narration continues and the following conclusion is reached: "It is thus very clear that the company had fully discharged its obligation under the agreement in respect of 64 discharged or dismissed workmen and the other workmen and the allegation made by the Sabha of the company having made a breach thereof is not correct. " We thus see	 that at this stage	 the arbitrator has merely made r) a generalised approach as if a commission of inquiry were going into the conduct of the Management and the Sabha to discover who was blameworthy in the imbroglio. The award then swiveled round to a study of the case of the Sabha vis a vis the triple grievances	 the Sabha had: "I shall first deal with the grievance regarding demands for implementation of the recommendations of the Wage Board". The long and sterile correspondence was set out and the arbitrator arrived at the conclusion that the insistence on reference to arbitration as against negotiation was justified on the part of the Management: "I	 therefore	 have accepted the version of: the Management and disbelieved the motivated denial of the Sabha in this respect. " The culmination of the protracted discussion on the atmosphere and environment	 rather than on the actual charge against each worker	 was recorded in the Award: "I have exhaustively	 perhaps more exhaustively than even necessary	 dealt with the allegations made by the Sabha that the Management had committed breach of agreement by refusing to accede to the demand of the Sabha for implementation of recommendations of the Wage Board. There appears to be no doubt that the Management had agreed to implement the recommendation of the Wage Board. There is also not the least doubt the Management was ready and willing to implement the recommendations of the Wage Board it was because it was prevented by . the Sabha from doing so." 201 An analysis of the Management 's conduct in the matter of non implementation of the Wage Board recommendation was thereafter made by the Arbitrator and he wound up thus : "I am satisfied that the Company had not committed any breach of the settlement dated 4 8 1972 at least so far as implementation of the recommendations of the Wage Board is concerned. " The question of bonus for the year 1971 was also considered and dismissed and the Sabha 's case to that extent was negatived. Again	 the plea for wages for the period of the lock out was also negatived with the observations : "I fail to see how the Sabha can allege breach of the agreement dated 4 8 1972 in view of the clear unequivocal terms contained in clause 4 of that Agreement. " In this strain the Award continued and the refrain was the same that the Sabha was in the wrong. The Award even went to the exaggerated extent of morbidly holding that the workers were wearing printed badges which	 along with other circumstances	 amounted to a breach of the agreement ! The Award then moved on to the strike of January 27	 1973 because it led to the dismissal of all the workmen. Until this stage	 the arbitrator was merely painting the background and	 at any rate	 did not engage himself in isolating or identifying any worker or any misconduct. He merely denounced the Sabha	 which is neither here nor there	 in the matter of disciplinary proceedings against each individual workman. He missed the meat of the matter. The relevant portion of the Award based on generalisation proved this error : "I am concerned herein with the question whether the discharge or dismissal of the 400 workmen was legal and proper or not and what relief to grant to them. Approached from any point of view the action of the Company appears to me to be legal	 proper and justified and the demands on behalf of these workmen must be rejected. " A condemnation of the Sabha and an approval of the Management 's handling of the strike are miles away from the issue on hand. 202 We observe here also an unfortunate failure to separate and scan the evidence with specific reference to charges against individual workman. On the contrary	 all that we find in the award is an autopsy of the strike by the Sabha and a study of its allegedly perverse postures. A disciplinary inquiry resulting in punishment of particular delinquents cannot but be illegal if the evidence is of mass misconduct by unspecified strikers led by leaders who are perhaps not even workmen. We are constrained to state that pointed consideration of facts which make any of the 400 workmen guilty	 is a search in vain. The award being ex facie blank from this vital angle	 the verdict must prima facie rank as void since vicarious guilt must be brought home against the actively participating members of a collectivity by positive testimony	 not by hunch	 suspicion or occult intuition. The short position is this. Is there a punishment of any workman ? If yes	 has it been preceded by an enquiry ? If not	 does not the Management desire to prove the charge before the tribunal ? If yes	 what is the evidence	 against whom	 of what misconduct ? If individuated proof be forthcoming and relates to an illegal strike	 the further probe is this : was the strike unjustified ? If yes	 was the accused worker an active participant therein ? If yes	 what role did he play and of what acts was he author ? Then alone the stage is set for a just punishment. These exercises	 as an assembly line process are fundamental. Generalisation of a violent strike of a vicious Union leadership	 of strikers fanatically or foolishly or out of fear	 failing to report for work	 are good background material. Beyond that	 these must be identified by a rational process	 the workmen	 their individual delinquency and the sentence according to their sin. Sans that	 the dismissal is bad. Viewed from this perspective	 the Award fails. The Arbitrator comes to grips with the core question of discharge simpliciter versus dismissal as punishment but not with the identification of delinquents and delinquency. After referring to Order 23 of the Model Standing Orders he goes on to state the law correctly by extracting observations from the Assam Oil Company case. Another vital facet of industrial law is that when no enquiry has been held by the Management before imposing a punishment (or the enquiry held is defective and bad)	 the whole field of delinquency and consequent penalty is at large for the tribunal. Several rulings support this logic. We are constrained to hold that a certain observation made per incuriam by Mr. Justice Vaidyalingam	 strongly relied on by Sri A. K. Sen	 does not accurately represent the law	 although the learned 203 Judge had earlier stated the law and case law correctly	 if we may say so with respect. A selective study of the case law is proper at this place. Before we do this	 a few words on the basis of the right to strike and progressive legal thinking led by constitutional guidelines is necessitous. The right to unionise	 the right to strike as part of collective bargaining and	 subject to the legality and humanity of the situation	 the right of the weaker group	 viz.	 labour	 to pressure the stronger party	 viz.	 capital	 to negotiate and render justice	 are processes recognised by industrial jurisprudence and supported by Social Justice. While society itself	 in its basic needs of existence	 may not be held to ransom in the name of the right to bargain and strikers must obey civilised norms in the battle and not be vulgar or violent hoodlums	 Industry	 represented by intransigent Managements	 may well be made to reel into reason by the strike weapon and cannot then squeal or wail and complain of loss of profits or other ill effects but must negotiate or got a reference made. The broad basis is that workers are weaker although they are the producers and their struggle to better their lot has the sanction of the rule of law. Unions and strikes are no more conspiracies than professions and political parties are	 and	 being far weaker	 need succour. Part IV of the Constitution	 read with article 19	 sows the seeds of this burgeoning jurisprudence. The Gandhian quote at the beginning of this judgement sets the tone of economic equity in Industry. Of course	 adventurist	 extremist	 extraneously inspired and puerile strikes	 absurdly insane persistence and violent or scorched earth policies boomerang and are anathema for the law. Within these parameters the right to strike is integral to collective bargaining. Responsible trade unionism is an instrument of concerted action and the laissez faire law that all strikes are ipso facto conspiracies	 is no longer current coin even in Adam Smith 's English country. Lord Chorley	 in Modern Law Review	 Vol. 28	 1965	 p. 451	 is quoted as saying that law must be altered as a consequence of Rookes vs Barnard	 so as to remove the effects of decisions of conspiracy and intimidation. He goes on to state that Allen vs Flood and Quinn vs Leathem taking the conspiratorial view must never be permitted to be quoted in courts. In contrast	 reference was made to Willis on Constitutional Law	 pp. 878 879	 wherein the Supreme Court of America reflects the impact of capitalistic development and the economic views of the judges and the fact that the judges are members of a social order and a social product and the decisions are due more to the capitalistic system and the world of ideas in which the judges live. Our Constitution is clear 204 in its mandate	 what with article 39A superadded and we have to act in tune with the values enshrined therein. The benign attitude towards strike being what we have outlined	 the further question arises whether in the light of the accepted finding that the strike as such was illegal and	 further	 was unjustified	 all the strikers should face the penalty of dismissal or whether individual cases with special reference to active participation in the strike	 should be considered. A rapid but relevant glance at the decided cases may yield dividends. In India General Navigation and Railway Co. Ltd. vs Their Workmen	 (supra) this court did observe that if a strike is illegal	 it cannot be called 'perfectly justified '. But	 between 'perfectly justified ' and 'unjustified ' the neighbourhood is distant. More illegality of the strike does not per se spell unjustifiability. For	 in Crompton Greaves Ltd. vs Workmen (supra) this Court held that even if a strike be illegal	 it cannot be castigated as unjustified	 unless the reasons for it are entirely perverse or unreasonable an aspect which has to be decided on the facts and circumstances of each case. In that decision	 this Court awarded wages during the strike period because the Management failed to prove that the workmen resorted to force and violence. Even in India General Navigation and Railway Co. Ltd. (supra) where the strike was illegal and affected a public utility service	 this Court observed that "the only question of practical importance which may arise in the case of an illegal strike	 would be the kind or quantum of punishment	 and that	 of course	 has to be modulated in accordance with the facts and circumstances of each case. There may be reasons for distinguishing the case of those who may have acted as mere dumb driven cattle from those who have taken an active part in fomenting the trouble and instigating workmen to join such a strike or have taken recourse to violence." The court after holding that the strike was illegal "and that it was not even justified" made a pregnant observation : "To determine the question of punishment	 a clear distinction has to be made between those workmen who are only joined in such a strike	 but also took part in obstructing the loyal workmen from carrying on their work	 or took part in violent demonstrations	 or acted in defiance of law and order	 on the one hand	 and those workmen who were more or less silent participators in such a strike	 on the other hand. It is not in the interest of the industry that there should be a wholesale dismissal of all the workmen who merely participated in such a strike. It is certainly not in the 205 interest of the workmen themselves. An Industrial Tribunal	 therefore	 has to consider the question of punishment	 keeping in view the overriding consideration of the full and efficient working of the Industry as a whole. The punishment of dismissal or termination of services	 has	 therefore	 to be imposed on such workmen as had not only participated in the illegal strike	 but had fomented it	 and had been guilty of violence or doing acts detrimental to the maintenance of law and order in the locality where work had to be carried on." After noticing the distinction between peaceful strikers and violent strikers	 Sinha	 J.	 in that case	 observed "it must be clearly understood by those who take part in an illegal strike that thereby they make themselves liable to be dealt with by their employers. There may be reasons for distinguishing the case of those who may have acted as mere dumb driven cattle from those who have taken an active part in fomenting the trouble and instigating workmen to join such a strike	 or have taken recourse to violence. " The same line of dichotomy is kept up : "Both the types of workmen may have been equally guilty of participation in the illegal strike	 but it is manifest that both are not liable to the same kind of punishment. " Significantly	 the Court stressed the need for individual chargesheet being delivered to individual workmen so that the degree of misconduct of each and the punitive deserts of each may be separately considered. We may as well refer to a few more rulings since considerable argument was expended on this point. This Court in M/s. Burn & Co. Ltd. vs Their Workmen & Ors.(1) clearly laid down that mere participation in the strike would not justify the suspension or dismissal of workmen particularly where no clear distinction can be made between those persons and the very large number of workmen who had been taken back into service although they had participated in the strike. After referring to the ratio in M/s. Burn & Co. Ltd. case	 this Court in Bata Shoe Co. (P) Ltd. vs D. N. Ganguly & Ors.(2) observed that there is no doubt that if an employer makes an unreasonable discrimination in the matter of taking back employees there may in certain circumstances be reason for the industrial tribunal to interfere; but the circumstances 206 of each case have to be examined before the tribunal can interfere with the order of the employer in a properly held managerial inquiry on the ground of discrimination. The Court then proceeded to determine the facts placed before it. Sri Sen specifically pointed out that in the Bata Shoe Co. 's case this Court distinguished the decision in India General Navigation & Railway Co. Ltd. 's and observed that the decision in that case was on the facts placed before the Court. In fact	 Bata Shoe Co. 's case does not lay down any distinct proposition about the treatment to be meted out to participants in strike and actually it is a decision on its own facts. In The Swadeshi Industries Ltd. vs Its Workmen(1)	 the Management after holding that the strike was illegal	 terminated the services of 230 workmen without framing any chargesheet or holding any enquiry. It was contended that the strike was not legal. The Court observed that collective bargaining for securing improvement on matters like basic pay	 dearness allowance	 bonus	 provident fund and gratuity leave and holidays was the primary object of a trade union and when demands like these were put forward and thereafter a strike was resorted to in an attempt to induce the company to agree to the demands or at least to open negotiations the strike must prima facie be considered justified. As the order of termination was found to be illegal it was held that reinstatement with back wages must follow as a matter of course	 not necessarily because new hands had not been inducted. In I. M. H. Press	 Delhi vs Additional Industrial Tribunal Delhi & Ors. 	(2) this Court was called upon to examine the ratio in Model Mills(3) case and India General Navigation & Railway Co. Ltd. case and this Court in terms affirmed the ratio in India General Navigation & Railway Co. Ltd. case observing that mere taking part in an illegal strike without anything further would not justify the dismissal of all the workmen taking part in the strike. In Indian Iron & Steel Co. Ltd. & Anr. vs Their Workmen(4)	 this Court observed that the management of a concern has power to direct its own internal administration and discipline but the power is not unlimited and when a dispute arises	 Industrial Tribunals have been given the power to see whether the termination of service 207 of a workman is justified and to give appropriate relief. It may be noticed that the decision is prior to introduction of section 11A. It would thus appear that the important effect of omission to hold an enquiry was merely this that the tribunal would have to consider not only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have been made out. A defective enquiry in this connection stood on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the entire matter and the employer would have to satisfy the tribunal that on the facts the order of dismissal or discharge was proper. (see Workmen of Motipur Sugar Factory (Pvt.) Ltd. vs Motipur Sugar Factory(1)	 and Provincial Transport Service vs State Industrial Court) (2). Once	 therefore	 it was held that the enquiry was not proper	 it was irrelevant whether the workman withdrew from the enquiry or participated in it	 the decision had to be on appraisal of evidence	 and if it was found that the enquiry was not proper the whole case was open before the labour court to decide for itself whether the charge of misconduct was proved and what punishment should be awarded (see Imperial Tabacco Company of India Ltd. vs Its Workmen) (3). As against the above propositions	 Sri Sen relied upon the observations of this Court in Oriental Textile Finishing Mills	 Amritsar vs Labour Court	 Jullundur & Ors.(4). We fail to see how it runs counter to the established principle. The Court	 in fact	 held that even where the strike is illegal	 before any action was taken with a view to punishing the strikers a domestic enquiry must be held. Even though the Standing Orders prescribing enquiry before punishment did not provide for any such enquiry the Court held that nonetheless a domestic enquiry should have been held in order to entitle the management to dispense with the service of the workmen on the ground of misconduct	 viz.	 participation in the illegal strike. After so saying	 the Court agreed with the view of the Court in Indian General Navigation & Railway Co. Ltd. case and reaffirmed the principle that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all the workers taking part in the strike and that if the employer	 before dismissing a workman	 gave him sufficient opportunity of explaining his conduct and no question of mala fides or victimisation arose	 208 it was not for the tribunal in adjudicating the propriety of such dismissal to look into the sufficiency or otherwise of the evidence led before the enquiry officer or insist on the same degree of proof as was required in a court of law	 as if it were sitting in appeal over the decision of the employer. Another aspect of this case emphasised that it could not be dogmatised as a matter of law that an overt act such as intimidation or instigation or violence was necessary in order to justify termination of service for participating in an illegal strike. On the facts of that case	 even though it was found that no domestic enquiry was held	 reinstatement was refused on the ground that misconduct was made out. Sri Sen	 of course	 relied on this judgment to show that where a strike was resorted to and the workers were called upon to join service within the stipulated time	 on their failure it was open to the company to employ new hands. This is reading more into the ruling than is warranted. We cannot agree that mere failure to report for duty	 when a strike is on	 necessarily means misconduct. Many a workman	 as a matter of prudence	 may not take the risk of facing the militant workmen or the Management 's hirelings for fear	 especially when there is evidence in the case from the Sabha that the Management had hired goondas and from the Management that the striking vanguard was violent. It is also possible	 in the absence of evidence to the contrary	 that several workmen might not be posted with the Management 's notice of recall or the terms on which they were being recalled. In this view	 we are not able to uphold the conclusion of the arbitrator that the punishment of dismissal was appropriate for the entire mass of workmen whose only guilt	 as proved was nothing more than passive participation in the illegal and unjustified strike by not reporting for duty. The verdict is inevitable that the discharge is wrongful. The only comment we reluctantly make about the otherwise thorough award of the Arbitrator is that omnibus rhetoric about the obnoxious behaviour of a class may not make do for hard proof of specific acts of particular persons where a punitive jurisdiction is exercised. What	 then	 is the normal rule in the case of wrongful dismissal when the workmen claim reinstatement with full back wages ? The High Court has held the discharge wrongful and directed restoration 209 with an equitable amount of back wages. The following rulings of this Court	 et al	 deal with this subject : The recent case of Hindustan Tin Works vs Its Employees (1) sets out the rule on reinstatement and back wages when the order of this Court	 et al	 deal with this subject : "It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated	 the employer could not shirk his responsibility of paying the wages which the workmen has been deprived of by the illegal or invalid action of the employer. Speaking realistically	 where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation	 his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when law 's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself	 ultimately he is to be told that though he will be reinstated	 he will be denied the back wages which would be due to him	 the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily therefore	 a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this 210 case	 viz.	 to resist the workmen 's demand for revision of wages	 the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. . . In the very nature of things there cannot be a strait jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less	 it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. " Dealing with the complex of considerations bearing on payment of back wages the new perspective emerging from article 43A cannot be missed	 as explained in Hindustan Tin Works	 Labour is no more a mere factor in production but a partner in Industry	 conceptually speaking	 and less than full back wages is a sacrifice by those who can best afford and cannot be demanded by those	 who least sacrifice their large 'wages ' though can best afford	 if financial constraint is the ground urged by the latter (Management) as inability to pay full back pay to the former. The morality of law and the constitutional mutation implied in article 43A bring about a new equation in industrial relations. Anyway	 in the Hindustan Tin Works ' case 75 per cent of the past wages was directed to be paid. Travelling over the same ground by going through every precedent is supererogatory and we hold the rule is simple that the discretion to deny reinstatement or pare down the quantum of back wages is absent save for exceptional reasons. It must be added however that particular circumstances of each case may induce the court to modify the direction in regard to the quantum of back wages payable as happened in the India General Navigation and Railway Co. Ltd. vs Their Workmen (Supra). We may	 therefore	 have to consider	 when finally moulding the relief	 what	 in this case	 we should do regarding reinstatement and back wages. A Sum up We may now crystallise our conclusions in the light of the long discussion. The basic assumption we make is that the strike was not only illegal but also unjustified. On the latter part	 a contrary 211 view cannot be ruled out in the circumstances present but we do not reinvestigate the issue since the High Court has proceeded on what both sides have taken for granted. The Management	 in our view	 did punish its 853 workmen when it discharged them for reasons of misconduct set out in separate but integrated proceedings	 even though	 with legal finesse	 the formal order was phrased in harmless verbalism. But fine words butter no parsnips	 and law	 in its intelligent honesty	 must be blunt and when it sees a spade	 must call it a spade. The action taken under the general law or the standing orders	 was illegal in the absence of individualised chargesheets	 proper hearing and personalised punishment	 if found guilty. None of these steps having been taken	 the discharge orders were still born. But the Management could	 as in this case it did	 offer to make out the delinquency of the employees and the arbitrator had	 in such cases	 the full jurisdiction to adjudge de novo both guilt and punishment. We hold that sec. 11A does take in an arbitrator too	 and	 in this case	 the arbitral reference	 apart from sec. 11A	 is plenary in scope. In the second chapter of our sum up	 the first thing we decide is that article 226	 however restrictive in practice	 is a power wide enough	 in all conscience	 to be a friend in need when the summons comes in a crisis from a victim of injustice; and	 more importantly	 this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand. What the tribunal may	 in its discretion	 do	 the High Court too	 under article 226	 can	 if facts compel	 do. Secondly	 we hold that the Award suffers from a fundamental flaw that it equates an illegal and unjustified strike with brazen misconduct by every workman without so much as identification of the charge against each	 the part of each	 the punishment for each	 after adverting to the gravamen of his misconduct meriting dismissal. Passive participation in a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive discharge. There must be active individual excess such as master minding the unjustified aspects of the strike	 e.g.	 violence	 sabotage or other reprehensible role. Absent such gravamen in the accusation	 the extreme economic penalty of discharge is wrong. An indicator of the absence of such grievous guilt is that the Management	 after stating in strong terms all the sins of the workmen	 took back over 400 of them as they trickled back slowly and beyond the time set	 with continuity of service	 suggestive of the dubiety of the inflated accusations and awareness of the minor role of the mass of workmen in the Engineers strike. Furthermore	 even though all sanctions short of 212 punitive discharge may be employed by a Management	 in our current conditions of massive unemployment	 low wages and high cost of living	 dismissal of several hundreds	 with disastrous impact on numerous families	 is of such sensitive social concern that	 save in exceptional situations	 the law will inhibit such a lethal step for the peace of the Industry	 the welfare of the workmen and the broader justice that transcends transient disputes. The human dimensions have decisional relevance. We hold the discharge orders	 though approved by the Arbitrator	 invalid. The last part of our conclusions relates to the relief which must be fashioned with an eye on mutual equities. We cannot ignore a few raw realities since law is not dogmatics but pragmatics	 without temporising on principle. The Management 's limitations in absorbing all the large number of discharged employees all at once when	 steel	 the raw material	 is scarce	 is a problem. Likewise	 their inability to pay huge sums by way of back wages or otherwise	 without crippling the progress of the industry	 cannot be overlooked but cannot be overplayed after Hindustan Tin Works. Another factor which cannot be wished away is the presence of over a couple of hundred workmen	 with varying lengths of service	 who may have to be sacked if the old workmen are to be brought back. It is a problem of humanist justice. Lastly	 the rugged fact of life must not be missed that some of the workmen during the long years of desperate litigation	 might have sought jobs elsewhere and most of them perhaps have	 for sheer survival	 made at least a starving wage during the prolonged idle interval. This factor too is a weak consideration	 tested by the reasoning in Hindustan Tin Works. Moreover	 rationalisation of re absorption of the removed workmen requires attention to the classification of permanent workmen and their casual counterparts. Every proposal must be bottomed on the basic economic fact that the beneficiaries are from the many below the destitution line. This Court has	 in a very different context though	 has drawn attention to the Gandhian guideline: "Whenever you are in doubt . apply the following test. Recall the face of the poorest and the weakest man whom you may have seen	 and ask yourself	 if the step you contemplate is going to be of any use of him. " It is apt here. This perspective informs our decision. What did the High Court do regarding reinstatement and should we modify and why? If the discharge is bad	 reinstatement is the rule. In India General Navi 213 gation	 Punjab National Bank and Swadeshi Industries	 et al	 restoration	 despite large numbers	 was directed. But most rules have exceptions wrought by the pressure of life and Oriental	 was relied on to contend that reinstatement must be denied. There is force in the High Court 's reasoning to distinguish Oriental	 as we hinted earlier and we quote: "There were only 22 workmen involved in that case. The management had made genuine and persistent efforts to persuade the concerned workmen to call of the strike and join work. Those efforts were made at three different stages	 namely	 (1) immediately after the workers went on the lightening strike and before chargesheets were issued	 (2) after the charges were dropped and individual notices were sent to the workmen asking them to resume work by specified dates and (3) after the orders of termination were served and conciliation proceedings were commenced pursuant to the demand notice. But this is not all. Even the Labour Officer and Labour Inspector had tried to persuade the concerned workmen to joint duty before the charge sheet came to be issued. As against these repeated bona fide attempts on the part of the management and an outside agency to persuade the erring workmen	 they not only did not resume work but also failed to acknowledge or send a reply to the individual notices served upon them requesting them to resume work and they appear to have made it a condition precedent to their joining duty that the suspended workmen should also be taken back. Even under such circumstances	 the management did not straightaway terminate their services but gave individual notices requiring the concerned workmen to show cause why their names should not be struck off and asked them to submit their reply by a certain date. Even those notices were not replied. It is only thereafter that the services of the concerned workmen came to be terminated. It is against this background that the Supreme Court held that there was "a persistent and obdurate refusal by the workmen to joint duty" notwithstanding the fact that "the management has done everything possible to persuade them and give them opportunities to come back to work" and that they had without any sufficient cause refused to do so which constituted "misconduct" so as to 'justify the termination of their services". 214 ". If the workmen had been approached individually	 not only those amongst them who were unwilling to join strike but were prevented from joining work would have taken courage to resume duty but even those amongst them who were undecided could also have been won over. That apart	 those notices	 as their contents disclose	 were hardly persuasive efforts. They were a mixture of ultimatums	 threats	 complaints and indictment of the workmen and the Sabha. Was it	 therefore	 a genuine effort on the part of a keenly desirous employer to offer an olive branch? In Oriental	 orders of termination were passed only after giving individual notices to the concerned workmen to showcause why their names should not be struck off. Besides	 those notices were given after charges formally served upon each workmen earlier were dropped and persuasive efforts made in the meantime had failed. None of those steps was taken herein. All that happened was that in one of the notices meant for mass consumption and circulation	 such intimation was given. " Even so	 during the several years of the pendency of the dispute	 surely some workmen would have secured employment elsewhere as was conceded by counsel at a certain stage	 and it is not equitable to recall them merely to vindicate the law especially when new workmen already in precarious service may have to be evicted to accommodate them. In the course of the debate at the Bar we gained the impression that somewhere around a hundred workmen are likely to be alternatively employed. Hopefully	 there is no hazard in this guess. Another	 facet of the relief turns on the demand for full back wages. Certainly	 the normal rule	 on reinstatement	 is full back wages since the order of termination is non est. [see Lad 's case(1) and Panitole Tea Estate 's case(2)]. Even so	 the industrial court may well slice off a part if the workmen are not wholly blameless or the strike is illegal and unjustified. To what extent wages for the long interregnum should be paid is	 therefore	 a variable dependent on a complex of circumstances. [See for e.g. paras 3 and 4]. We are mindful of the submission of Sri Tarkunde	 urged in the connected appeal by the Sabha	 that where no enquiry has preceded 215 a punitive discharge and the tribunal	 for the first time	 upholds the punishment this Court has in D. C. Roy vs The presiding Officer	 Madhya Pradesh Industrial Court	 Indore & Ors.(1) taken the view that full wages must be paid until the date of the award. There cannot be any relation back of the date of dismissal to when the Management passed the void order. Kalyani(2) was cited to support the view of relation back of the Award to the date of the employer 's termination orders. We do not agree that the ratio of Kalyani corroborates the proposition propounded. Jurisprudentially	 approval is not creative but confirmatory and therefore relates back. A void dismissal is just void and does not exist. If the Tribunal	 for the first time	 passes an order recording a finding of misconduct and thus breathes life into the dead shall of the Management 's order	 predating of the nativity does not arise. The reference to Sasa Musa in Kalyani enlightens this position. The latter case of D. C. Roy vs The Presiding Officer	 Madhya Pradesh Industrial Court	 Indore & Ors. (supra) specifically refers to Kalyani 's case and Sasa Musa 's case and holds that where the Management discharges a workmen by an order which is void for want of an enquiry or for blatant violation of rules of natural justice	 the relation back doctrine cannot be invoked. The jurisprudential difference between a void order	 which by a subsequent judicial resuscitation comes into being de novo	 and an order	 which may suffer from some defects but is not still born or void and all that is needed in the law to make it good is a subsequent approval by a tribunal which is granted	 cannot be obfuscated. We agree that the law stated in D. C. Roy (supra) is correct but now that the termination orders are being set aside	 the problem does not present itself directly. Even the other alternative submission of Sri Tarkunde that if the plea of the Management that the order is a discharge simpliciter were to be accepted	 the result is a retrenchment within the meaning of section 2(00) which	 in this case	 is in violation of section 25F and therefore bad	 is not a point urged earlier. We are disposed to stand by the view that discharge	 even where it is not occasioned by a surplus of hands	 will be retrenchment	 having regard to the breadth of the definition and its annotation in ; But the milieu in which the order was passed in February 1973 is not fully available	 viewed from this new angle. So we decline to go into that contention. 216 Final Relief We are concerned with 400 workmen	 some of whom have been claimed by death or other irreversible causes casualties of litigative longevity ! are 370 workmen are left behind	 of whom 239 are admittedly permanent. We have already stated that 100	 out of them	 are probably fixed up elsewhere. So	 we exclude them and direct that the remaining 139 alone will be reinstated. A list of the aforesaid 100 workmen will be furnished to the Management by the Sabha within two weeks from today. That shall be accepted as correct and final. While reinstatement is refused for these 100 workmen	 when shall they be deemed to have ceased to be in service for drawal of terminal benefits ? Their discharge orders having been quashed	 they remain in service until today. We concluded the arguments on August 3	 1979 and on the eve of the closure of counsel 's submissions certain inconclusive settlement proposals were discussed. We	 therefore	 consider August 3	 1979 as a pivotal point in the calender with reference to which the final relief may be moulded. We direct that the 100 workmen for whom reinstatement is being refused will be treated as in service until August 3	 1979 on which date they will be deemed to have been retrenched. We direct this step with a view to pragmatise the situation in working out the equities. These 100 will draw all terminal benefits plus 75 per cent of the back wages. This scaling down of back pay is consistent with the assumption that somewhere in the past they had secured alternative employment. The long years and the large sum payable also persuade us to make this minor cut. Of course	 in addition	 they will be entitled to retrenchment benefits under section 25F of the Act	 and one month 's notice pay. The remaining 139 will be awarded 50 per cent of the back wages since we are restoring them. The High Court has adopted this measure and so we do not depart from it. The case of the hundred stands on a slightly different footing	 because some compensation in lieu of refusal of reinstatement is due to them and that also has entered our reckoning while fixing 75 per cent for them. The computation of the wages will be such as they would have drawn had they continued in service and on that the cut directed will be applied. We have disposed of the case of the permanent workmen except to clarify that in their case continuity of service will be maintained and accrual of benefits on that footing reckoned. The next category relates to casual employees	 131 in number of whom 57 have less 217 than nine months ' service. The policy of the Act draws a distinction between those with service of 240 days and more and others with less. The casuals with less than nine months service are 57 in number and we do not think that this fugitive service should qualify for reinstatement especially when we find a number of intermediate recruits	 with longer though untenable service	 have to be baled out. We decline reinstatement of these 57 hands. The other 74 must be reinstated although nationally but wrongly they are shown as casual. In the 'life ' sense	 all mortals are casuals but in the legal sense	 those with a record of 240 days on the rolls	 are a class who have rights under industrial law. We direct the 74 long term casuals aforesaid to be reinstated but not the 57 short term ones. To this extent	 we vary the High Court 's order. We adopt the directive of the High Court regarding the back wages to both categories of casuals except that for the lesser class of 57 casuals	 a flat sum of 1000/ more will be paid as a token compensation in lieu of reinstatement. The reinstated casuals (74 of them) will be put back as casuals but will be confirmed within six months from the date of rejoining since it is meaningless to keep them as casual labourers when they are	 by sheer length of service	 on the regular rolls. Two issues remain When are the workmen to be retaken and what is to happen in the meanwhile ? How is the amount payable by the Management to be discharged and on what terms ? Many years have flowed by	 thanks to the long drawn out litigation. Further delay in putting back the workers will be unfair. But the Management pleads that steel shortage cuts into the flesh of the factory 's expansion	 without which additional intake of workers is beyond their budget unless considerable time for reabsorption were given. But the lot of the workmen is unspeakable while the overall assets and outlook of the Company are commendable enough to bear an increased wage bill. Divas cannot complain when Lazarus asks for more crumbs. Even if a slight slant be made in favour of the Management	 the direction to them to take back	 in order of seniority	 the first 70 out of the 139 permanent workmen on or before December 31	 1979 and the rest on or before March 31	 1980 is the least that is just. Until those dates the workmen will be paid 2/3rd of their wages as now due. Of course	 if any workmen fails to report for work within 15 days of service of written notice to him	 with simultaneous copy to the Sabha	 he will not be eligible for any more reinstatement or wages. 218 The back wages run into a large sum but a good part has been paid under the stay order of this Court. We make it clear that the payments made will be given credit and the balance if paid as directed below and within the time specified will not carry interest. If default is made	 the sums in default will carry 10 per cent interest. The figures of amounts due will be worked out by both sides and put into Court in 10 days from now. Half the amount determined by the Court	 after perusing both statements	 will be paid directly to the workmen or deposited with the Industrial Tribunal who will give notice and make disbursements	 on or before 31 3 1980 and the other half on or before 30 9 1980. The conclusions may be capsulated for easier consumption. Out of 370 workmen directed to be reinstated by the High Court	 239 are permanent. It is assumed that 100 have found alternative employment and are not interested any more in reinstatement and they are to be excluded from the direction of reinstatement. The Company must	 therefore	 reinstate 139 permanent workmen and the list of 100 workmen who are not to be reinstated would be supplied by the Sabha within two weeks from the date of this judgment. The discharge order in respect of 100 workmen herein before mentioned would be set aside and they are deemed to be in service till August 3	 1979	 when they will be retrenched and they will be paid retrenchment compensation as provided in section 25F plus one month 's pay in lieu of notice	 the compensation to be worked out on the basis of the wages that will be admissible under the recommendations of the Engineering Wage Board as applicable to the Company. This amount will be paid in lieu of reinstatement and they will also be paid 75 per cent of the back wages. The remaining 139 permanent employees would be paid 50 per cent of the back wages as directed by the High Court. 3. 70 out of 139 permanent workmen directed to be reinstated should be provided actual employment on or before December 31	 1979	 and the rest on or before March 31	 1980. During this period and till the actual reinstatement each one of these 139 workmen should be paid 2/3 of the monthly wages from August 9	 1979	 when the hearing in this case concluded. 50 per cent of the amount that becomes payable to each workmen under the directions herein above given will be paid on or before March 31	 1980	 and the balance on or before September 30	 1980	 and till then the amount will carry interest at the rate of 10 per cent. 219 4. In respect of casual workmen whose service was less than 9 months on the date of dismissal it would not be proper to grant reinstatement. They are 57 in number. The remaining casual workmen 74 in number shall be reinstated. In case of 57 casual workmen to whom reinstatement is refused	 the direction of the High Court is confirmed with the further addition that each one will be paid Rs. 1	000/ over and above the amount payable under the direction of the High Court and this would be in lieu of reinstatement. Casual workmen 74 in number and having service of more than 9 months on the date of dismissal will be treated as confirmed within six months of the date of their rejoining and they will be offered reinstatement by March 31	 1980	 and the High Court 's direction for back wages in their respect in confirmed. With these modifications	 we dismiss both the appeals. The Management appellant will pay the costs of the Sabha respondent	 advocates fee being fixed at Rs. 5	000/ . An Afterword This litigation	 involving many workmen living precariously on post wages amidst agonising inflation and a Management whose young budget	 what with steel scarcity	 may well be shaken by the burden of arrears	 points to the chronic pathology of our Justice System the intractable and escalating backlog in the Forensic Assembly Line that slowly spins Injustice out of Justice and effectually wears down or keeps out the weaker sector of Indian life. This truma is felt more poignantly in Labour litigation and the legislature fails functionally if it dawdles to radicalise	 streamline and simplify the conflict resolution procedures so as to be credibly available to the common people who make up the lower bracket of the nation. The stakes are large	 the peril is grave	 the evils are worse than the prognostics of Prof. Lawrence Tribe (of the Harvard Law School) : "If court backlogs grow at their present rate	 Our children may not be able to bring a lawsuit to a conclusion within their lifetime. Legal claims might then be willed on	 generation to generation like hillbilly feuds; and the burdens of pressing them would be contracted like a hereditary disease. " Law may be guilty of double injustice when it is too late and too costly for it holds out remedial hopes which peter out into sour dupes and bleeds the anaemic litigant of his little cash only to tantalise him into a system equal in form but unequal in fact. The price of 220 this promise of unreality may be the search by the lowly for the reality of revolutionary alternatives. Compelled by the crisis in the Justice System	 we sound this sombre judicial note. We direct payments and reinstatements as spelt out earlier	 within the specificated time	 and	 hopefully	 leave the case with the thought that	 given better rapport between the partners in production	 the galvanic Gujarat Steel Tubes Ltd.	 will forge ahead as a paradigm for the rest. KOSHAL	 J. I have had the advantage of going through the judgment of my learned brother Iyer	 J.	 but after giving the same my most serious consideration I regret that I find myself unable to endorse it as I hold a different opinion in relation to three important findings arrived at by him	 namely	 (a) that the discharge of workmen amounted really to their dismissal because the motivation for it was their alleged misconduct. (b) that an arbitrator would fall within the ambit of the term "Tribunal" as used in sub section (2) of section 11A of the (hereinafter called the 1947 Act)	 and (c) that the High Court acted within the four corners or its jurisdiction under article 227 of the Constitution of India while interfering with the finding of the arbitrator that the workmen were correctly punished with dismissal if the orders of discharge could be construed as such. I am therefore appending this note which may be read in continuation of that judgment. The parties are admittedly governed by the (hereafter referred to as the "S.O. Act" section 15(2) of which empowers the appropriate Government to make rules	 inter alia setting out model standing orders for the purposes of that Act. The expression 'standing orders ' is defined in section 2(g) of the S.O. Act to mean rules relating to the matters set out in the schedule thereto	 items 8 and 9 of which run thus : "8. Termination of employment	 and the notice therefor to be given by the employer and workmen. 221 "9. Suspension or dismissal for misconduct and acts or omissions which constitute misconduct. " The appropriate Government (in this case the Government of Gujarat) has prescribed Model Standing Orders (M.S.Os. for short) under section 15(2) of the S.O. Act. The relevant part of M.S.O. 23 is extracted below : "23. (1) Subject to the provisions of the Industrial disputes Act	 1947	 the employment of a permanent workman employed on rates other than the monthly rates of wages may be terminated by giving him fourteen days ' notice or by payment of thirteen days ' wages (including all admissible allowances) in lieu of notice. "(2). . . . . . "(3). . . . . . "(4) The employment of a permanent workman employed on the monthly rates of wages may be terminated by giving him one month 's notice or on payment of one month 's wages (including all admissible allowances) in lieu of notice. "(4 A) The reasons for the termination of service of a permanent workman shall be recorded in writing and communicated to him	 if he so desires	 at the time of discharge	 unless such communication	 in the opinion of the Manager	 is likely directly or indirectly to lay any person open to civil or criminal proceedings at the instance of the workman. "(5). . . . . . "(6). . . . . . "(7) All classes of workmen other than those appointed on a permanent basis may leave their service or their service may be terminated without or pay in lieu of notice : Provided that services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Standing Order 25. "(8). . . . . . . "(9). . . . . . " 222 M.S.O. 24 enumerates 25 kinds of acts or omissions on the part of a workman which amount to misconduct. Clauses (a) and (b) of the M.S.O. describe two of such acts thus : "(a) willful insubordination or disobedience	 whether or not in combination with another	 of any lawful and reasonable order of a superior; (b) going on illegal strike or abetting	 inciting	 instigating or acting in furtherance thereof;" M.S.O. 25 lays down the manner in which a workman guilty of misconduct may be dealt with. It states : "25. (1) A workman guilty of misconduct may be (a). . . . . . . . (b). . . . . . . . (c). . . . . . . . (d). . . . . . . . (e). . . . . . . . (f) discharged under Order 23; (g) dismissed without notice. "(2). . . . . . . . "(3) No order of dismissal under sub clause (g) of clause (1) shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause (4). "(4) A workman against whom an inquiry has been held shall be given a charge sheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding the inquiry	 the workman shall be permitted to produce witnesses	 in his defence and cross examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman 's plea shall be recorded. "(5) . . . . . . . . . " Clauses (3) and (4) of M.S.O. 25 speak of an inquiry only in the case of an order falling under sub clause (g) of clause (1) of 223 that M.S. It is thus quite clear (and this is not disputed) that the only sub clause of clause (1) of M.S.O. 25 to which the provisions of clauses (3) and (4) of that M.S.O. would be attracted is sub clause (g) and that if an order of discharge falls under M.S.O. 23 an inquiry under clauses (3) and (4) of M.S.O. 25 would not be a prerequisite thereto even though such an order is mentioned in subclause (f) of clause (1) of that M.S.O. And that is why it has been vehemently urged on behalf of the workmen who were discharged en masse and who were not taken back by the Management that the orders of discharge made in relation to them amount really to orders of dismissal and are bad in law by reason of the fact that no inquiry of the type above mentioned was held before they were passed. Under M.S.Os. 23 and 25 the Management has the power to effect termination of the services of an employee by having recourse to either of them. In action taken under M.S.O. 23 no element of punishment is involved and the discharge is a discharge simpliciter; and that is why no opportunity to the concerned employee to show cause against the termination is provided for. Dismissal	 however	 which an employer may order	 is	 in its very nature	 a punishment	 the infiction of which therefore has been made subject to the result of an inquiry (having the semblance of a trial in a criminal proceeding). Exercise of each of the two powers has the effect of the termination of the services of the concerned employee but must be regarded	 because of the manner in which each has been dealt with by the M.S.Os.	 as separate and distinct from the other. It was vehemently argued on behalf of the workmen that once it was proved that the order of discharge of a workman was passed by reason of a misconduct attributed to him by the management	 the order cannot but amount to an order of dismissal. But this argument	 to my mind	 is wholly without substance	 and that for two reasons. For one thing	 clause (1) of M.S.O. 25 specifically states in sub clause (f) that a workman guilty of misconduct may be discharged under M.S.O. 23. This clearly means that when the employer is satisfied that a workman has been guilty of misconduct	 he may (apart from visiting the workman with any of the punishments specified in sub clauses (a)	 (b)	 (c)	 (d) and (e) of clause (1) of M.S.O. 25) either pass against him an order of discharge for which no inquiry precedent as provided for in clauses (3) and (4) of M.S.O. 25 would be necessary	 or	 may dismiss him after holding such an inquiry. Which of the two kinds of order the employer shall pass is left entirely to his own discretion. 224 It is true that the employer cannot pass a real order of dismissal in the garb of one of discharge. But that only means that if the order of termination of services of an employee is in reality intended to punish an employee and not merely to get rid of him because he is considered useless	 inconvenient or troublesome	 the order	 even though specified to be an order of discharge	 would be deemed to be an order of dismissal covered by sub clause (g) of clause (1) of M.S.O. 25. On the other hand if no such intention is made out	 the order would remain one of discharge simpliciter even though it has been passed for the sole reason that a misconduct is imputed to the employee. That is how	 in my opinion	 M.S.Os. 23 and 25 have to be interpreted. The argument that once an alleged misconduct is shown to have been the motive for the passage of an order of discharge	 the same would immediately and without more	 amount to an order of dismissal	 is not warranted by the language used in M.S.O. 25 which specifically gives to the employer the power to get rid of "a workman guilty of misconduct" by passing an order of his discharge under M.S.O. 23. 5. Secondly	 the reasons for the termination of service of a permanent workman under M.S.O. 23 have to be recorded in writing and communicated to him	 if he so desires	 under clause 4 A) thereof. Such reasons must obviously consist of an opinion derogatory to the workman in relation to the performance of his duties; and whether such reasons consist of negligence	 work shirking or of serious overt acts like theft or embezzlement	 they would in any case amount to misconduct for which he may be punished under M.S.O. 25. It is difficult to conceive of a case in which such reasons would not amount to misconduct. The result is that M.S.O. 23 would be rendered otiose if termination of service thereunder for misconduct could be regarded as a dismissal and such a result strikes at the very root of accepted canons of interpretation. If it was open to the Court to "lift the veil" and to hold an order of discharge to amount to a dismissal merely because the motive behind it was a misconduct attributed to the employee	 the services of no employee could be terminated without holding against him an inquiry such as is contemplated by clauses (3) and (4) of M.S.O. 25. 6. The interpretation placed by me on M.S.Os. 23 and 25 finds ample support in Bombay Corporation vs Malvankar(1) of which the 225 facts are on all fours with those in the present case. Miss P. section Malvankar	 respondent No. 1 in that case	 was a clerk in the employment or the Bombay Electric Supply and Transport Undertaking which was being run by the Bombay Corporation. Her services were terminated on the ground that her record of service was unsatisfactory. It was however stated in the order of termination of her services that she would be paid one month 's wages in lieu of notice and would also be eligible for all the benefits as might be admissible under the Standing Orders and Service Regulations of the Undertaking. Those Standing Orders correspond to the standing orders with which we are here concerned. Thereunder	 two powers were conferred on the employer	 one being a power to impose punishment for misconduct following a disciplinary inquiry under clause (2) of Standing Order 21 read with Standing Order 23 and the other one to terminate the service of the employee by one calendar month 's written notice or pay in lieu thereof under Standing Order 26. The question arose as to which power had been exercised by the employer in the case of Miss Malvankar and Jaswant Singh	 J.	 delivering the judgment of the Court on behalf of himself and Bhagwati	 J.	 was answering that question when he made the observations reproduced from his decision by my learned brother Iyer	 J. This Court was then clearly of the opinion that (a) the power to terminate the services by an order of discharge simpliciter is distinct from and independent of the power to punish for misconduct and the Standing Orders cannot be construed so as to render either of these powers ineffective; and (b) reasons for termination have to be communicated to the employee and those reasons cannot be arbitrary	 capricious or irrelevant but that would not mean that the order of termination becomes punitive in character just because good reasons are its basis. The Court further remarked that if the misconduct of the employee constituted the foundation for terminating his service then it might be liable to be regarded as punitive but this proposition was doubted inasmuch as "even in such case it may be argued that the management has not punished the employee but has merely terminated his service under Standing Order 26". So all that remains to be determined in this connection is as to when would misconduct be the `foundation ' of an order of dis 226 charge. Merely because it is the reason which weighed with the employer in effecting the termination of services would not make the order of such termination as one founded on misconduct	 for	 such a proposition would run counter to the plain meaning of clause (1) of M.S.O. 25. For an order to be `founded ' on misconduct	 it must	 in my opinion	 be intended to have been passed by way of punishment	 that is	 it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to the concerned worker. If such an intention cannot be spelled out of the prevailing circumstances	 the order of discharge or the reasons for which it was ostensibly passed	 it cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge in the interests of the factory or of the general body of workers themselves. That this is what was really meant by the judicial precedents which use the word `foundation ' in connection with the present controversy finds support from a number of decisions of this Court. In The Chartered Bank	 Bombay vs The Chartered Bank	 Employees ' Union(1) this Court held that if the termination of service is a colourable exercise of the power vested in the management or is a result of victimization or unfair labour practice	 the Industrial Tribunal will have jurisdiction to intervene and set aside such termination. Applying this principle to the facts of the case before it	 this Court ruled : "We are satisfied that the management has passed the order of termination simpliciter and the order does not amount to one of dismissal as and by way of punishment" (emphasis supplied). This case was followed in The Tata Oil Mills Co.	 Ltd.	 vs Workmen(2) where Gajendragadkar	 C.J.	 who delivered the judgment of the Court	 stated the law thus : "The true legal position about the Industrial Courts ' jurisdiction and authority in dealing with cases of this kind is no longer in doubt. It is true that in several cases	 contract of employment or provisions in Standing Orders authorise an industrial employer to terminate the service of his employees after giving notice for one month on paying salary for one month in lieu of notice	 and normally	 an employer may	 in a proper case	 be entitled to exercise the said power. But where an order of discharge passed by an 227 employer gives rise to an industrial dispute	 the form of the order by which the employees ' services are terminated	 would not be decisive; industrial adjudication would be entitled to examine the substance of the matter and decide whether the termination is in fact discharge simpliciter or it amounts to dismissal which has put on the cloak of a discharge simpliciter. If the Industrial Court is satisfied that the order of discharge is punitive	 that it is mala fide	 or that it amounts to victimization or unfair labour practice	 it is competent to the Industrial Court to set aside the order and in a proper case	 direct the reinstatement of the employee. In some cases	 the termination of the employee 's services may appear to the Industrial Court to be capricious or so unreasonably severe that an inference may legitimately and reasonably be drawn that in terminating the services	 the employer was not acting bona fide. The test always has to be whether the act of the employer is bonafide or not. If the act is mala fide	 or appears to be a colourable exercise of the powers conferred on the employer either by the terms of the contract or by the standing orders	 then notwithstanding the form of the order	 industrial adjudication would examine the substance and would direct reinstatement in a fit case. ". The same test was laid down for determining whether an order of discharge could be construed as one ordering dismissal in The Tata Engineering and Locomotive Co.	 Ltd.	 vs section C. Prasad(1) by Shelat and Bhargava	 JJ. : "No doubt	 the fact that the order was couched in the language of discharge simpliciter is not conclusive. Where such an order gives rise to an industrial dispute its form is not decisive and the tribunal which adjudicates that dispute can	 of course	 examine the substance of the matter and decide whether the termination is in fact discharge simpliciter or dismissal though the language of the order is one of simple termination of service. If it is satisfied that the order is punitive or mala fide or is made to victimise the workmen or amounts to unfair labour practice	 it is competent to set it aside. The test is whether the act of the employer is bona fide. If it is not	 and is a colourable 228 exercise of the power under the contract of service or standing orders	 the Tribunal can discard it and in a proper case direct reinstatement. " The Chartered Bank	 Bombay vs The Chartered Bank Employees ' Union (supra) was followed by this Court in Workmen of Sudder Office	 Cinnamore vs Management(1) and therein stress was laid on the employer 's right to terminate the services of a workman by an order of discharge simpliciter under the terms of the contract where there was no lack of bona fides	 unfair labour practice or victimization. So the real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order	 that is	 the intention with which it was passed. If the intention was to punish	 that is	 to chastise	 the order may be regarded as an order of dismissal; and for judging the intention	 the question of mala fides (which is the same thing as a colourable exercise of power) becomes all important. If no mala fides can be attributed to the management	 the order of discharge must be regarded as one having been caused under M.S.O. 23 even though the reason for its passage is serious misconduct. It is in light of the conclusion just above arrived at that the discharge of the workmen in the instant case has to be judged. The question of intention or mala fides is really one of fact (of which the arbitrator was	 in my opinion	 the sole judge	 unless his finding on the point was vitiated by perversity in which case alone it was liable to be reviewed by the High Court). The discussion of the evidence by the arbitrator in his award is not only full and logical but	 in my opinion	 also eminently just. At all material times the Management was out to placate the Sabha (and therefore	 the workmen) and gave to it a long rope throughout. The attitude of the Sabha on the other hand was one of intransigence and obduracy. According to the settlement of the 4th of August	 1972	 it was not open to the workmen to resort to a strike till the expiry of a period of five years; nor could the Management declare a lock out till then. Any disputes arising between the parties	 according to the terms arrived at	 were to be sorted out through negotiations or	 failing that	 by recourse to arbitration. A dispute was raised by the Sabha soon thereafter over the implementation of the recommendations of the Central Engineering Wage Board (hereinafter called the Board)	 the payment of bonus 229 for the year 1971 and wages for an earlier lock out. In paragraph 7.47 of its award the Board had made the following recommendations : "7.47. After considering the problem in its entirety	 we agreed to divide the industry into five regions or areas as under and in doing so	 we have also considered the prevailing wage levels at different places and the cost of living at important centres in these places. "1. Bombay City and Greater Bombay including Thana Ambarnath & Kalyan Industrial Areas. "2. Calcutta	 Greater Calcutta	 Howrah Industrial area	 Jamshedpur Industrial area	 Durgapur	 Asansol and Ranchi industrial areas. Madras industrial area	 Bangalore industrial area	 Hyderabad industrial area	 Poona Chinchwad industrial area	 Delhi industrial area and Ahmedabad. "4. Coimbatore	 Nagpur	 Bhopal	 Kanpur	 Baroda and Faridabad industrial areas. The rest of the country. " This classification was made for the purpose of granting `area allowance ' which varied with the category in which the area of the situation of a factory fell. No allowance was to be paid to the factories falling in category 5 and on the basis of the phraseology used by the Board the Management contended that Ahmedabad industrial area (in which its factory was situated) fell within that category. This interpretation of the categorisation made by the Board was not acceptable to the Sabha who claimed that the factory was covered by category 3; and this was an issue on which the Sabha was not prepared to climb down. Similarly	 the Sabha was adamant on the question of bonus for the year 1971 which it claimed at 16 per cent over and above 8.33 per cent allowed by statute with the plea that bonus at that rate had been paid in the earlier year. This being the position and negotiations between the parties held at two meetings convened on 14 12 1972 and 20 1 1973 having ended in a fiasco	 the Management offered to have the disputes resolved by arbitration but that again was a course not acceptable to the Sabha which	 however	 accused the Management of flouting the settlement dated the 4th of August 	 1972	 by not coming to the negotiating table. The attitude adopted by the Sabha was	 to say the least	 most unreason 230 able. It could not have its own way in taking certain matters as final and non negotiable. Nor can it be said that stand taken by the management was unreasonable. Paragraph 7.47 of the award of the Board categorized various factories with reference to the areas which were either described by the names of the cities in which they were situated or by the names of certain industrial areas. Ahmedabad was mentioned as such and so was Calcutta while the other areas were mentioned as such and such industrial areas. It was thus a very reasonable plea put forward on behalf of the Management that only Ahmedabad city and not Ahmedabad industrial area was included in category 3 and that that industrial area fell within category 5. On the other hand	 the Sabha interpreted the word `Ahmedabad ' occurring in category 3 to include Ahmedabad industrial area (in which lay the factory in question) and demanded area allowance for its workers on that score. The reasonableness of the plea of the Management is obvious and it was the attitude of the Sabha which lacked reason in that on the failure of the negotiations they spurned the offer of the Management for arbitration on the question of interpretation of the categorisation. It can also not be said that the objection regarding payment of bonus raised by the Management was not a reasonable one. The argument that the stand of the Management that the negotiations between them and the Sabha on the questions of interpretation of the Board 's award and bonus having failed as there was no meeting ground on either of them	 they could be referred to arbitration	 lacked reason	 is wholly unacceptable. The attitude of the Sabha in insisting on negotiations being held only on the basis of certain propositions formulated by it amounted really to a refusal to negotiate the points in dispute and the Management was therefore not left with any alternative except to suggest an arbitration as envisaged in the settlement dated the 4th of August	 1972. Later developments reveal a similar state of affairs in so far as the attitude of the Sabha is concerned. Over and over again it was asked not to precipitate a strike and to act within the terms of the settlement but the advice fell on deaf ears. Even after the strike which	 it is admitted on all hands	 was illegal and certainly not envisaged by the settlement of the 4th of August	 1972	 the Management continued to make requests to the Sabha to send back the workers	 but again no heed was paid to those requests. On the other hand	 the Sabha began making suggestions to the Government to take over the factory. Ultimately	 when the Management was faced	 to adopt means to rehabilitate the factory by reports to fresh 231 recruitment	 they had no option except to terminate the services of its workmen. Each one of the orders of termination of services which were actually passed	 was on the face of it wholly innocuous inasmuch as it did not stigmatise in any manner whatsoever the concerned workman. The Management had however to record reasons for the discharge in pursuance of the provisions of clause (4A) of M.S.O. 25 and those reasons did charge each worker with misconduct inasmuch as he had taken part in the illegal strike and had refused to resume duty inspite of repeated demands made by the Management in that behalf. All the same	 the Management made it clear that inspite of such misconduct it had no intention of punishing the workers who were given not only the benefit of an order of discharge simpliciter but also the option to come back to work within a specified period in which case they would be reinstated with full benefits. An intention not to punish could not be expressed in clearer terms and is further made out from the fact that more than 400 workers who resumed duty were reinstated without break in service. In passing the orders of discharge	 therefore	 the Management did nothing more than act under M.S.O. 23 and its action cannot be regarded as amounting to dismissal in the case of any of the workers. They had the right to choose between a discharge simpliciter and a dismissal and	 in the interests of the factory and the members of the Sabha and perhaps on compassionate grounds also	 they chose the former in unequivocal terms. The intention to punish being absent	 the finding of the High Court that the order of discharge amounted to one of dismissal cannot be sustained. I now turn to the interpretation of sub section (2) of section 11A of the 1947 Act. It is a well settled canon of interpretation of statutes that the language used by the legislature must be regarded as the only source of its intention unless such language is ambiguous	 in which situation the preamble to the Act the Statement of Objects of and Reasons for bringing it on the Statute book and the purpose underlying the legislation may be taken into consideration for ascertaining such intention. That the purpose of the legislation is to fulfil a socio economic need	 or the express object underlying it	 does not come into the picture till an ambiguity is detected in the language and the court must steer clear of the temptation to mould the written word according to its own concept of what should have been enacted. That is how I propose to approach the exercise in hand. For the sake of convenience of reference I may set out the provisions of clauses (aa) and (r) of section 2	 of sub sections (1) 232 and (2) and the opening clause of sub section (3) of section 11	 and of the whole of section 11A of the 1947 Act: "2. (aa) `arbitrator ' includes an umpire;" "2. (r) `Tribunal ' means an Industrial Tribunal constituted under section 7A and includes an Industrial Tribunal constituted before the 10th of March	 1957	 under this Act;" "11. (1) Subject to any rules that may be made in this behalf	 an arbitrator	 a Board	 Court	 Labour Court	 Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit. "(2) A conciliation officer or a member of a Board	 or Court or the presiding officer of a Labour Court	 Tribunal or National Tribunal may for the purpose of inquiry into any existing or apprehended industrial dispute	 after giving reasonable notice	 enter the premises occupied by any establishment to which the dispute relates. "(3) Every Board	 Court	 Labour Court	 Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure	 1908. when trying a suit	 in respect of the following matters	 namely: . . " "11A. Where an industrial dispute	 relating to the discharge or dismissal of a workman has been referred to a Labour Court	 Tribunal or National Tribunal for adjudication and	 in the course of the adjudication proceedings	 the Labour Court	 Tribunal or National Tribunal	 as the case may be	 is satisfied that the order of discharge or dismissal was not justified	 it may	 by its award	 set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions	 if any	 as it thinks fit	 or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court	 Tribunal or National Tribunal	 as the case may be	 shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. " Section 2 of the Act specifically lays down that unless there is anything repugnant in the subject or context	 the expressions defined 233 therein would have the meanings attributed to them. Throughout the Act therefore	 while 'arbitrator ' would include an umpire	 a 'Tribunal ' would not include an arbitrator but would mean only an Industrial Tribunal constituted under the Act	 unless the context makes it necessary to give the word a different connotation. In sub section (1) of section 11	 it is conceded	 the word 'Tribunal ' has been used in accordance with the definition appearing in clause (r) of section 2 because an arbitrator is separately mentioned in that sub section. In sub sections (2) and (3) of that section a Board	 a Labour Court	 a Tribunal and a National Tribunal have been invested with certain powers. Would a Tribunal as contemplated by sub sections (2) and (3) then include an arbitrator ? My reply to the question is all emphatic 'no '. It is well settled that if a term or expression is used in a particular piece of legislation in one sense at one place	 the same sense will pervade the entire legislation wherever the term is used unless an intention to the contrary is expressed. Here the word 'Tribunal ' has been used in three sub sections of the same section and no reason at all is fathomable for the proposition that it means one thing in sub section (1) and something different in sub sections (2) and (3). It may also be mentioned here that in all the three sub sections the word 'Tribunal ' has a capital 'T ' which is also part of the expression 'Tribunal ' as occurring in clause (r) of section 2 and thus connotes a proper noun rather than the generic word 'tribunal ' as embracing all institutions adjudicating upon rights of contending parties. A third and perhaps a clinching reason for this interpretation is available in the use of the expression "National Tribunal" along with the word "Tribunal" in all the three sub sections which militates against the argument that the word "Tribunal" as used in sub sections (2) and (3) means an institution of that type. If the word "Tribunal" as used in sub sections (2) and (3) means such an institution	 then the use of the expression "National Tribunal" would be redundant and redundancy is not one of the qualities easily attributable to a legislative product. In that case	 in fact	 other words used in the two sub sections last mentioned	 namely	 'Court ' and 'Labour Court ' would also become redundant. In this view of the matter	 the word "Tribunal" as used in all the first three sub sections of section 11 must be held to have been used in the sense of the definition occurring in clause (r) of section 2. 12. Section 11A is just the next succeeding section and therein a part of the arrangement adopted is the same as in sub sections (2) and (3) of section 11 so that powers are conferred by it on a "Labour 16 868SCI/79 234 Court	 Tribunal or National Tribunal" which arrangement is repeated in the section thrice over. That the word "Tribunal" as used in section 11A has the same meaning as it carries in the three sub sections of section 11 is obvious and I need not repeat the reasons in that behalf; for	 they are practically the same as have been set out by me in relation to section 11. 13. In my opinion the language employed in section 11A sufferers from no ambiguity whatever and is capable only of one meaning	 i.e.	 that the word 'Tribunal ' occurring therein is used in the sense of the definition given in clause (r) of section 2. It is thus not permissible for this Court to take the Statement of Objects and Reasons or the purpose underlying the enactment into consideration while interpreting section 11A. I may mention here however that a perusal of the Statement of Objects and Reasons forming the background to the enactment of section 11A leads me to the same conclusion. In that Statement a reference was specifically made to tribunals as well as arbitrators in	 terms of the recommendations of the International Labour Organization. But inspite of that the word 'arbitrator ' is conspicuous by its absence from the section. What is the reason for the omission ? Was it consciously and deliberately made or was it due to carelessness on the part of the draftsmen and a consequent failure on the part of the legislature ? In my opinion the Court would step beyond the field of interpretation and enter upon the area of legislation if it resorts to guess work (however intelligently the same may be carried out) and attributes the omission to the latter cause in a situation like this which postulates that the pointed attention of the legislature was drawn to the desirability of clothing an arbitrator with the same powers as were sought to be conferred on certain courts and tribunals by section 11A and it did not accept the recommendation. I would hold	 in the circumstances	 that the omission was deliberately made. It follows that the powers given to a Tribunal under section 11A are not exercisable by an arbitrator who	 therefore	 cannot interfere with the punishment (awarded by the employer) in case he finds misconduct proved. The last point on which I differ with the finding of my learned brother relates to the exercise by the High Court of its powers under article 227 of the Constitution of India. As pointed out by him the High Court	 while discharging its functions as envisaged by that article	 does not sit as a court of appeal over the award of the arbitrator but exercises limited jurisdiction which extends only to 235 seeing that the arbitrator has functioned within the scope of his legal authority. This proposition finds full support from Nagendra Nath Bora and Another vs The Commissioner of Hills Division and Appeals	 Assam and Others(1)	 P. H. Kalyani vs M/s. Air France	 Calcutta(2)	 state of Andhra Pradesh vs section Sree Rama Rao(3) and Navinchandra Shakerchand Shah vs Manager	 Ahmedabad Cooperative Department Stores Ltd.(4)	 all of which have ben discussed at length by him and require no further consideration at my hands. In this view of the matter it was not open to the High Court to revise the punishment (if the discharge is regarded as such) meted out by the Management to the delinquent workmen and left in tact by the arbitrator whose authority in doing so has not been shown to have been exercised beyond the limits of his jurisdiction. I need not go into the other aspects of the case. In view of my findings (a) that the orders of discharge of the workmen could not be regarded as orders of their dismissal and were	 on the other hand	 orders of discharge simpliciter properly passed under M.S.O. 23; (b) that the arbitrator could not exercise the powers conferred on a Tribunal under section 11A of the 1947 Act and could not therefore interfere with the punishment awarded by the Management to the workmen (even if the discharge could be regarded a punishment)	 and (c) that in any case the High Court exceeded the limits of its jurisdiction in interfering with the said punishment purporting to act in the exercise of its powers under article 227 of the Constitution of India	 the judgment of the High Court must be reversed and the order of the arbitrator restored. The three appeals are decided accordingly	 the parties being left to bear their own costs throughout. O R D E R The appeals are dismissed substantially with such modifications as are indicated in the decretal part of the judgment of the majority. V.D.K. Appeals dismissed.

Summary:
The appellant manufactures steel tubes in the outskirts of Ahmedabad city. It started its business in 1960	 went into production since 1964 and waggled from infancy to adulthood with smiling profits and growling workers	 punctuated by smouldering demands	 strikes and settlement until there brewed a confrontation culminating in a head on collision following upon certain unhappy happenings. A total strike ensued whose chain reaction was a whole sale termination of all employees followed by fresh recruitment of workmen defacto breakdown of the strike and dispute over restoration of the removed workmen. As per the last settlement between the management and the workmen of 4th August	 1972	 it was not open to the workmen to resort to a strike till the expiry of a period of five years; nor could the management declare a lock out till then. Any dispute arising between the parties	 according to the terms arrived at were to be sorted out through negotiation or	 failing that by recourse to arbitration. The matter was therefore	 referred to an arbitrator and the arbitrator by his award held the action cf the management warranted. The respondent challenged the decision of the arbitrator under Article 226/227 of the Constitution and the High Court of Gujarat reversed the award and substantially directed reinstatement. Hence the appeals both by the Management and the workmen. Dismissing the appeals and modifying the awards substantially	 the Court ^ HELD: (By Majority) Per Iyer J. On behalf of D. A. Desai J. and himself. (i) The basic assumption is that the strike was not only illegal but also unjustified. [210 H] 147 (ii) The management did punish its 853 workmen when it discharged them for reasons of misconduct set out in separate but integrated proceedings; even though with legal finesse	 the formal order was phrased in harmless verbalism. [211 A] (iii) The action taken under the general law or the standing orders	 was illegal in the absence of individualised charge sheets	 proper hearing and personalise punishment if found guilty. None of these steps having been taken	 the discharge orders were still born. But	 the management could	 as in this case it did	 offer to make out the delinquency of the employees and the arbitrator had	 in such cases	 the full jurisdiction to adjudge de novo both guilt and punishment. [211 B C] (iv) Section 11A of the does take in an arbitrator too	 and in this case	 the arbitral reference	 apart from section 11A is plenary in scope. [211 C D] (v) Article 226 of the Constitution	 however restrictive in practice Is a power wide enough in all conscience	 to be a friend in need when the summons comes in a crisis from a victim of injustice; and more importantly this extra ordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand. What the Tribunal may in its discretion do the High Court too under Article 226	 can	 if facts compel so. [211 D E] (vi) The Award	 in the instant case	 suffers from a fundamental flaw that it equates an illegal and unjustified strike with brozen misconduct by every workman without so much as identification of the charge against each	 after adverting to the gravamen of his misconduct meriting dismissal. Passive participation in a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive discharge. There must be active individual excess such as master minding the unjustified aspects of the strike	 e.g.	 violence	 sabotage or other reprehensible role. Absent such gravamen in the accusation	 the extreme economic penalty of discharge is wrong. An indicator of the absence of such grievous guilt is that the management	 after stating in strong terms all the sins of workmen	 took back over 400 of them as they trickled back slowly and beyond the time set	 with continuity of service	 suggestive of the dubiety of the inflated accusations and awareness of the minor role of the mass of workmen in the lingering strike. Furthermore	 even though all sanctions short of punitive discharge may be employed by a Management	 low wages and high cost of living	 dismissal of several hundreds with disastrous impact on numerous families is of such sensitive social concern that	 save in exceptional situations	 the law will inhibit such a lethal step for the peace of the industry	 the welfare of the workmen and the broader justice that transcends transcient disputes. The human dimensions have decisional relevance. The discharge orders though approved by the Arbitrator are invalid. [211 E H	 212 A B] HELD FURTHER: 1. In a society	 capital shall be the brother and keeper of labour and cannot disown this obligation of a partner in management	 especially because social justice and Articles 43 and 43A are constitutional mandates. The policy directions in Articles 39	 41	 42	 43 and 43A speak af the right to an adequate means of livelihood	 the right to work	 humane conditions of work	 living wages ensuring a decent standard of life and enjoyment of leisure and participation of workers in management of industries. De hors these 148 mandates	 law will fail functionally. Suck is the value vision of Indian Industrial Jurisprudence. [155 B	 G H	 156 A] 2. Jural resolution of labour disputes must be sought in the law life complex beyond the factual blinkers of decided cases	 beneath the lexical littleness of statutory tests	 in the economic basics of industrial justice which must enliven the consciousness of the Court and the corpus juris. [154 F G] The golden rule for the judicial resolution of an industrial dispute is first to persuade fighting parties	 by judicious suggestions	 into the peace making zone	 disentangle the differences	 narrow the mistrust gap and convert them through consensual steps	 into negotiated justice. Law is not the last word in justice	 especially social justice. Moreover in an hierarchical system	 the little man lives in the short run but most litigation lives in the long run. So it is that negotiation first and adjudication next	 is a welcome formula for the Bench and the Bar	 the Management and Union. [157 C E] The anatomy of a dismissal order is not a mystery	 once it is agreed that substance	 not semblance	 governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the Court. The fact is the index of the mind and an order fair on its face may be taken at its face value. But there is more to it than that	 because sometimes words are designed to conceal deeds by linguistic engineering. The form of the order of the language in which it is couched is not conclusive. The Court will lift the veil to see the the nature of the order. [171 G H. 172 A] If two factors motive and foundation of the order co exist	 an interference of punishment is reasonable though not inevitable. If the severance of service is effected the first condition is fulfilled and if the foundation or causa causans of such severance is the servant 's misconduct	 the second is fulfilled. If the basis or foundation for the order of termination is clearly not turpitudes or stigmatic or rooted in misconduct or visited with evil pecuniary effects	 then the inference of dismissal stands negated and vice versa. These canons run right through the disciplinary branch of master and servant jurisprudence	 both under Article 311 and in other cases including workmen under managements. The law cannot be stultified by verbal haberdashery because the Court will lift the mask and discover the true face. [172 C E] Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover ups or by appeal to psychic processes but must be grounded on the substantive reason for the order	 whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If thus scrutinised the; order has a punitive flavour in cause or consequence	 it is dismissal. If it falls short of this test	 it cannot be called a punishment. A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant	 it is a dismissal even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether	 in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that	 after being satisfied of the guilt	 the master abandons the enquiry and proceeds to terminate. Given 149 an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal	 even if full benefits as on simple termination are given and non injurious terminology is used. [173 E H	 174 A] On the contrary	 even if there is suspicion of misconduct	 the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. There it is not n dismissal	 but termination simpliciter	 if no injurious record of reasons or punitive pecuniary cut back on his full terminal benefits is found. For	 in fact	 misconduct is not then the moving factor in the discharge	 What is decisive is the plain reason for the discharge	 not the strategy of a non enquiry or clever avoidance of stigmatising epithets. If the basis is not misconduct	 the order is saved. [174 B D] Management of Murugan Mills vs Industrial Tribunal ; ; Chartered Bank vs Employees ' Union ; ; Western India Automobile Association vs Industrial Tribunal	 Bombay ; Assam Oil Co. vs Workmen; 	 ; Tata Oil Mills Co. vs Workmen	 ; @ 130; Tata Engineering & Locomotive Co. Ltd. vs S.C. Prasad & Anr. ; L. Michael and Anr. vs M/s. Johnson Pumps India Ltd.	 ; Workmen of Sudder Office	 Cinnamore vs Management	 	 Municipal Corporation of Greater Bombay vs P.S. Malvankar; 	 ; referred to. Every wrong order cannot be righted merely because it was wrong. It can be quashed only if it is vitiated by the fundamental flaws of gross miscarriage of justice	 absence of legal evidence	 perverse misreading of facts	 serious errors of law on the face of the order	 jurisdictional failure and the like. [182 P G] While the remedy under article 226 is extraordinary and is of Anglosaxon vintage	 it is not a carbon copy of English processes. Article 226 is a sparing surgery but the lancet operates where injustice suppurates. While traditional restraints like availability of alternative remedy hold back the Court	 and judicial power should not ordinarily rush in where the other two branches fear to tread. judicial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court 's province and the remedy is appropriate to the judicial process. There is a native hue about article 226	 without being anglophilic or anglophobic in attitude. Viewed from this jurisprudential perspective the Court should be cautious both in not over stepping as if Article 226 were as large as an appeal and not failing to intervene where a grave error has crept in. And an appellate power interferes not when the order appealed is not right but only when it is dearly wrong. The difference is real	 though fine. [182 G H	 183 A B] The principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi judicial powers within the leading sings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under the Act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can be no ground for interference. The power of judicial supervision of the High Court under Article 227 of tho Constitution (as it then stood) is not 150 greater than those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority. The writ power is large	 given illegality and injustice even if its use is severely disciplinary. The amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence	 or that no reasonable man would come to the conclusion to which the Arbitrator has arrived. [15 E G 1 86 D E] Navinchandra Shanker Chand Shah vs Manager	 Ahmedabad Cooperative Department Stores Ltd.	 @ 140; approved. Rohtas Industries & Anr. vs Rohtas Industries Staff Union and Ors. ; followed. Nagendranath Bata and Anr. vs The Commissioner of Hills Divisions and Appeals	 Assam & Ors. 	 ; ; Engineering Mazdoor Sabha vs Hind Cycle Lrd. [1963] Suppl. 1 SCR 625; State of A.P. vs Sreeeama Rao	 ; @ 33; P. H. Kalyani vs M/s Air France	 Calcutta	 ; ; referred to. "Tribunal" simpliciter has a sweeping signification and does not exclude Arbitrator. A tribunal literally means a seat of justice	 may be	 a commission	 a Court or other adjudicatory organ created by the State. All these are tribunal and naturally the import of the word	 in Section 2(r) of the 	 embraces an arbitration tribunal. [188 E F H 189 A] Dawking vs Rokely	 L.R. 8 Q.B. 255; quoted with approval. An Arbitrator has all the powers under the terms of reference	 to which both sides are party	 confer. In the instant case	 the Arbitrator had the authority to investigate into the propriety of the discharge and the veracity of the mis conduct. Even if section 11A of the is not applicable	 an Arbitrator under Section 10A is bound to act in the spirit of the legislation under which he is to function. A commercial Arbitrator who derives his jurisdiction from the terms of reference will by necessary implication be bound to decide according to law and when one says "according to law"	 it only means existing law and the law laid down by the Supreme Court being the law of land	 an Arbitrator under section 10A will have to decide keeping in view the spirit of section 11A. [196 B D] Union of India vs Bungo Steel Furniture (P) Ltd. ; ; referred to. Per Koshal J. (Contra) 1. The orders of discharge could not be regarded as orders of their dismissal and were on the other hand	 orders of discharge simpliciter properly passed under Model Standing order 23. [235 C D] (a) Clauses (3) and (4) of M.S.O. 25 speak of an inquiry only in the case of an order falling under sub clause (g) of clause (1) of that M.S.O. The only sub clause of clause (1) of M.S.O. 25 to which the provisions of clauses (3) and (4) of that M.S.O. would be attracted is sub clause (g) and if an order of discharge falls under M.S.O. 23	 an inquiry under clauses (3) and 151 (4) of M.S.O. 25 would not be a pre requisite thereto even though such an a older is mentioned in sub clause (f) clause (1) of that M.S.O. [222 H	 223 A] (b) Under M.S.O.s. 23 and 25	 the Management has the powers to effect termination of the services of an employee by having recourse to either or them. In action taken under M.S.O. 23	 no element of punishment is involved and the discharge is a discharge simpliciter; and that is why no opportunity to the concerned employee to show cause against the termination is provided for. Dismissal	 however	 which an employer may order is in its very nature	 a punishment	 the infliction of which therefore has been made subject to the result of an inquiry (having the semblance of a trial in a criminal proceeding). Exercise of each of the two powers has the effect of the termination of the services of the concerned employee but must be regarded	 because of the manner in which each has been dealt with by the M.S.O. as separate and distinct from the other. [223 C E] (c) To contend that once it was proved that the order of discharge of a workman was passed by reason of a misconduct attributed to him by the management	 the order cannot but amount to an order of dismissal is wrong for two reasons. For one thing	 clause (1) of M.S.O. 25 specifically states in sub clauses (f) that a workman guilty of misconduct may be discharged under M.S.O. 23. This clearly means that when the employer is satisfied that a workman has been guilty of misconduct he may [apart from visiting the workman with any of the punishments specified in sub clauses (a)	 (b)	 (c)	 (d) and (e) of clause (1) of M.S.O. 25] either pass against him an order of discharge for which no inquiry precedent as	 provided for in clauses (3) and (4) of M.S.O. 25 would be necessary	 or may dismiss him after holding such an inquiry which of the two kinds of order	 the employer shall pass is left entirely to his discretion. [223 E H] It is true that the employer cannot pass a real order of dismissal in the garb of one of discharge. But that only means that if the order of termination of services of an employee is in reality intended to push an employee and not merely to get rid of him because he is considered useless	 inconvenient or troublesome	 the order even though specified to be an order of dismissal covered by sub clause (g) of clause (1) of M.S.O. 25. On the other hand if no such intention is made out the order would remain one of discharge simpliciter even though it has been passed for the sole reason that a misconduct is imputed to the employee. That is how M.S.Os. 23 and 25 have to be interpreted. M.S.O. 25 specifically gives to the employer the power to get rid of "a workman guilty of misconduct ' by passing an order of his discharge under M.S.O. 23. [224 A D] Secondly	 the reasons for the termination of service of a permanent workman under M.S.O. 23 have to be recorded in writing and communicated to him if he so desires	 under clause (4 A) thereof. Such reasons must obviously consist of an opinion derogatory to the workman in relation to the performance of his duties	 and whether such reasons consist of negligence	 work shirking or of serious overt acts like theft or embezzlement	 they would in and case amount to misconduct for which he may be punished under M.S.O. 25. There being no case in which such reasons would not amount to misconduct	 the result is that M.S.O. 23 would be render otiose if termination of service thereunder for misconduct could be regarded as a dismissal and such a result strikes at the very root of accepted canons of interpretation. If it was open to the Court to. "lift 152 the veil" and to hold an order of discharge to amount to dismissal merely because the motive behind it was a misconduct attributed to the employee	 the services of an employee could be terminated without holding against him an inquiry such as is contemplated by clauses (3) and (4) of M.S.O. 25. [224 D G] Bombay Corporation vs Malvankar ; ; applied. Merely because it is the reason which weighed with the employer in effective the termination of services would not male the order of such termination as one founded on misconduct	 for such a proposition would run counter to the plain meaning of clause (1) of M.S.O. 25. For an order to be "founded" an misconduct	 it must be intended to have been passed by way of punishment	 that is	 it must be intended to chastise	 or cause pain in body or mind or harm or loss in reputation or money to the concerned worker. If such an intention cannot be spelled out of the prevailing circumstances	 the order of discharge or the reasons for which it was ostensibly passed	 it cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge or the interests of the factory or of the general body of workers. [226 A C] Chartered Bank	 Bombay vs The Chartered Bank Employees Union	 ; ; The Tata Oil Mills Co. Ltd. [1964] 2 SCR p. 123; The Tara Engineering and Locomotives Co. Ltd. vs S.C. Prasad	 ; Workmen of Sudder Office	 Cinnamore vs Management	 followed. The real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order	 that is	 the intention with which it was passed. If the intention was to punish	 that is to chastise	 the order may be regarded as an order of dismissal; and for judging the intention	 the question of mala fides (which is the same thing as colourable exercise of power) becomes all important. If no mala fides can be attributed to the management	 the order of discharge must be regarded as one having been passed under M.S.O. 23 even though the reason for its passage is serious misconduct. (2) The arbitrator could not exercise tho power conferred on a Tribunal under section 11A of the 1947 Act and could not therefore interfere with the punishment awarded by the Management to the workmen (even if the discharge could be regarded a punishment). [235 D E] Throughout the I.D. Act	 while 'arbitrator ' would include an umpire	 a Tribunal would not include an arbitrator but would mean only an Industrial Tribunal constituted under the Act unless the context makes it necessary to give the word a different connotation. In sub section (1) of section 11	 the word 'Tribunal ' has been used in accordance with the definition appearing in clause (r) section 2 because an arbitrator is separately mentioned in that sub section. In sub sections (2) and (3) of that section a Board	 a Labour Court	 a Tribunal and a National Tribunal have been invested with certain powers. A Tribunal as contemplated by sub sections (2) and (3) then	 would not include an arbitrator. [233 A B] It is a well settled canon of interpretation of statutes that the language used by the Legislature must be regarded as the only source of its intention unless such language is ambiguous	 in which situation the Preamble to the Act	 the statement of objects of and Reasons for bringing it on the statute book and 153 the purpose underlying the legislation may be taken into consideration for ascertaining such intention. That the purpose of the legislation is to fulfil a socio economic need	 or the express object underlying it does not come into the picture till an ambiguity is detected in the language and the Court must steer clear of the temptation to mould the written word according to its own concept of what should have been enacted. It is thus not permissible for the Supreme Court to take the statements of objects and Reasons or the purpose underlying the enactment into consideration	 while interpreting section 11A of the I.D. Act. [231 F G	 234 Cl 3. The High Court exceeded the limits of its jurisdiction in interfering with the said punishment	 in the instant case	 purporting to act in the exercise of its powers under Article 227 of the Constitution of India. [235 E F] The High Court	 while discharging its functions as envisaged by that Article	 does not sit as a Court of Appeal over the Award of the Arbitrator but exercises limited jurisdiction which extends only to seeing that the arbitrator has functioned within the scope of his legal authority. In this view of the matter it was not open to the High Court to revise the punishment (if the discharge is regarded as such) meted out by the Management to the delinquent workmen and left intact by the arbitrator whose authority in doing so has not been shown to have been exercised beyond the limits of his jurisdiction. [234 G E	 235 A C] Nagendra Nath Bora and Anr. vs The Commissioner of Hills Division and Appeals	 Assam and Ors. 	 ; ; P. H. Kalyani vs M/s Air France	 Calcutta	 ; 	 of A.P. vs Sree Rama Rao	 ; ; Navinchandra Shakerchand Shakerchand Shah vs Manager Ahmedabad Cooperative Stores Ltd	 ; referred to.