Supreme Court of India

Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha on 19 November, 1979

Equivalent citations: 1980 AIR 1896, 1980 SCR (2) 146, AIR 1980 SUPREME COURT 1896, 1980 LAB. I. C. 1004, (1980) 2 SCR 146 (SC), (1980) 1 LABLJ 137, 1980 SCC (L&S) 197, 1980 (2) SCC 593, (1980) 40 FACLR 152, (1980) 1 LAB LN 230, (1980) 56 FJR 137

Author:
V.R. Krishnaiyer

Bench:
V.R. Krishnaiyer
,
D.A. Desai
,
A.D. Koshal

PETITIONER:
GUJARAT STEEL TUBES LTD.

Vs.

RESPONDENT:
GUJARAT STEEL TUBES MAZDOOR SABHA

DATE OF JUDGMENT19/11/1979

BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
KOSHAL, A.D.

CITATION:
1980 AIR 1896 1980 SCR (2) 146
1980 SCC (2) 593
CITATOR INFO :
E 1984 SC1805 (16)
R 1992 SC 96 (14)

ACT:

Industrial Disputes Act, 1947
-
Section 11A
-Scope of-
Whether the arbitrator could exercise the power conferred on
a Tribunal under
section 11A
of the Act and interfere with
the punishment awarded by the management to the workmen.
Constitution of India, 1950, Article 227-Power of the
High Court to interfere with the decision of the management
and revise the punishment to the delinquent workmen.
Model Standing orders made under
Section 15(2)
of the
Industrial Employment (Standing Orders) Act, 1946-M.S.Os.
23, 24 and 25 scope of-Whether the discharge en masse of
workmen valid.
Value vision of Indian Industrial Jurisprudence-
Constitution of India-
Articles 39
, 41
, 42
, 43 43A
and the
Golden Rule for the Judicial resolution of an industrial
dispute.

HEADNOTE:
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]
(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 Industrial Disputes Act, 1947
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
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
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 v. Industrial Tribunal
[1965] 2 SCR 148; Chartered Bank v. Employees' Union [1960]
3 SCR 441; Western India Automobile Association v.
Industrial Tribunal, Bombay [1949] S.C.R. 321; Assam Oil Co.
v. Workmen, [1960] 3 SCR 457; Tata Oil Mills Co. v. Workmen,
[1964] 2 SCR 125 @ 130; Tata Engineering & Locomotive Co.
Ltd. v. S.C. Prasad & Anr. [1969] 3 SCR 372; L. Michael and
Anr. v. M/s. Johnson Pumps India Ltd., [1975] 3 SCR 372;
Workmen of Sudder Office, Cinnamore v. Management, [1970] 2
L.L.J. 620, Municipal Corporation of Greater Bombay v. P.S.
Malvankar, [1978] 3 SCR 1000; 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
Art. 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
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 v. Manager, Ahmedabad
Cooperative Department Stores Ltd., [1978] 19 Guj. L.R. 108
@ 140; approved.
Rohtas Industries & Anr. v. Rohtas Industries Staff
Union and Ors. [1976] 3 SCR 12: followed.
Nagendranath Bata and Anr. v. The Commissioner of Hills
Divisions and Appeals, Assam & Ors., [1958] SCR 1240;
Engineering Mazdoor Sabha v. Hind Cycle Lrd. [1963] Suppl. 1
SCR 625; State of A.P. v. Sreeeama Rao, [1964] 3 SCR 25 @
33; P. H. Kalyani v. M/s Air France, Calcutta, [1964] 2 SCR
104; 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 Industrial Disputes Act, embraces an arbitration
tribunal. [188 E-F-H 189 A]
Dawking v. 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
Industrial Disputes Act 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 v. Bungo Steel Furniture (P) Ltd. [1967]
1 SCR 324; 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
(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
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 v. Malvankar [1978] 3 SCR 1000;
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 v. The Chartered Bank Employees
Union, [1960] 3 SCR 441; The Tata Oil Mills Co. Ltd. [1964]
2 SCR p. 123; The Tara Engineering and Locomotives Co. Ltd.
v. S.C. Prasad, [1969] 3 S.C.C. 372; Workmen of Sudder
Office, Cinnamore v. Management, [1970] 2 L.L.J. 620
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
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. v. The Commissioner of
Hills Division and Appeals, Assam and Ors., [1958] SCR 1240;
P. H. Kalyani v. M/s Air France, Calcutta, [1964] 3 SCR 25,
of A.P. v. Sree Rama Rao, [1964] 3 SCR 25; Navinchandra
Shakerchand Shakerchand Shah v. Manager Ahmedabad
Cooperative Stores Ltd, [1978] 15 Guj. L.R. 108; referred
to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: 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.
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,
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-
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 Industrial Disputes Act 1947 (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.
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
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-
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
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
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."
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
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."
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,
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
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 !
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
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.
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
Art. 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.
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 Industrial Employment (Standing Orders) Act, 1946,
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
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
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 (1958 SCR

828) 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.
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
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. v. Workers of the
Company
.

The matter then came up before this before
this Court also in
Chartered Bank v. Chartered Bank
Employees Union
(
3) and the Management of U.B. Dutt &
Co. v. 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
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 v. 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. What. 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
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
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.
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
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 v. 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
court/tribunal would be entitled to interfere with the order
in question [see
Assam Co. v. Its Workmen
]. In the matter of
an order of discharge of an employee as understood within
the meaning of the
Industrial Disputes Act
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. v. 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. v. Industrial Tribunal, Madras & Anr.
This
view was affirmed in
Tata Engineering & Locomotive Co.
Ltd. v. S. C. Prasad & Anr.
(4).

After approving the ratio in

Murugan Mills
case, this Court in L. Michael & Anr. v. 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 v.
Management
was explained by the Court and it was further
affirmed that since the decision of this Court in the

Chartered Bank v. 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
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 v. P. S. 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. Now.
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
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.
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
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
, 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.
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
s.
10A
of the Industrial Disputes Act, 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. v.
Rohtas Industries State Union
ors. (1) This Court observed
that as the Arbitrator under
s. 10A
has the power to bind
even those who are not parties to the reference or agreement
and the whole exercise under
s. 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 v. 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.
v. The Commissioner of Hills Division & Appeals, Assam
&
ors.(a) ]. This led to a proposition that in
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 v. S.
Shree Rama Rao ] A
constitution Bench of this Court in P.
H. Kalyani v. 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 v. 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
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".

Sec. 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

Industrial Disputes Act
, 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
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 v. Rokeby [L.R. 8 Q.B. 255, affirmed, L.R. 7
H.L. 744]:

"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 v. Parkinson.
[1892] Q.B. 431, 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.
"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 v. 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. fire."(a). 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.
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 v. 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
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
.... 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 v. 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."
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
s. 11A
was argued at length, as to
whether an omission of any reference to Arbitrator appointed
under
s. 10A
in s. 11A would suggest that the Arbitrator
under
s. 10A
, notwithstanding the terms of reference, would
not enjoy the power conferred on all conceivable industrial
adjudicators under s. 11A. It was said, after referring to
the objects and reasons in respect of the bill which was
moved to enact
s. 11A
in the
Industrial Disputes Act
, 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
s. 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 v. Bower where the question
arose whether a reference to a tenancy from year to year in
s. 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
S. 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-
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
v. 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
S. Narayanaswami
v. 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 v. 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. v. 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. v. Dr. Asis Kumar
Mukherjee
& ors. where in he observed as under:
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
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
S. 11A
is not applicable, an Arbitrator
under s. 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

s. 10A
will have to decide keeping in view the spirit of
S.
11A
[See
Union of India v. 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.
Sec. 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
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
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.
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
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."
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.
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
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
Art. 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 v. Barnard, so as
to remove the effects of decisions of conspiracy and
intimidation. He goes on to state that Allen v. Flood and
Quinn v. 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
in its mandate, what with
Art. 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. v. 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. v. 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
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. v. 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. v. 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
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. v. 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 v. 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. v. 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
of a workman is justified and to give appropriate relief. It
may be noticed that the decision is prior to introduction of

s. 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. v. Motipur Sugar
Factory
(
1), and Provincial Transport Service v. 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. v. Its Workmen
) (3).

As against the above propositions, Sri Sen relied upon
the observations of this Court in
Oriental Textile Finishing
Mills, Amritsar v. 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,
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
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 v. 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
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
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
Art.
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
Art. 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
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
Art. 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
Art. 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
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-
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".
"....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. 1967 (15) F.L.R. 395 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
a punitive discharge and the tribunal, for the first time,
upholds the punishment this Court has in D. C. Roy v. 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 v. 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
s. 2(00)
which, in this
case, is in violation of
s. 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 1977 1 SCR 586. 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.
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
s. 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
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.
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.

1. 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
s. 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.

2. 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.
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
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 Industrial
Disputes Act (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.

2. The parties are admittedly governed by the

Industrial Employment (Standing Orders Act, 1946
(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.
"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)...................................."
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
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.

3. 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.

4. 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.
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 v. Malvankar(1) of
which the
facts are on all fours with those in the present case. Miss
P. S. 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".

7. So all that remains to be determined in this
connection is as to when would misconduct be the
`foundation' of an order of dis-
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 v. 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.,
v. 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
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., v. S. 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
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 v. The Chartered Bank
Employees' Union
(supra) was followed by this Court in

Workmen of Sudder Office, Cinnamore v. 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.

8. 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
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.

"3. 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.

"5. 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
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.

9. 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
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.

10. 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.

11. 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)
and (2) and the opening clause of sub-section (3) of
section
, 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
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
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
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.

14. 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
seeing that the arbitrator has functioned within the scope
of his legal authority. This proposition finds full support
from
Nagendra Nath Bora and Another v. The Commissioner of
Hills Division and Appeals
, Assam and Others(1), P. H.
Kalyani v. M/s. Air France, Calcutta(2), state of
Andhra
Pradesh v. S. Sree Rama Rao
(
3) and Navinchandra Shakerchand
Shah v. 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.

15. 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.