Judgment Case ID: 798

Judgment:
Civil Appeal No.86 of 1958. Appeal by special leave from the Award dated November 15	 1956	 of the Industrial Tribunal	 Assam	 at Dhubri. M. C. Setalvad	 Attorney General for India	 section N. Mukherjee and B. N. Ghose	 for the appellants. Niharendu Dutt Mazumdar and Dipak Dutta Choudhri	 for the respondents. October 14. The Judgment of the Court was delivered by SINHA C. J. This is an appeal by special leave from the Award dated November 15	 1956	 made by the Industrial Tribunal	 Assam. The dispute arose between the employers	 the Indian General Navigation 3 & Railway Company Limited	 carrying on business at No. 4	 Fairlie Place	 Calcutta	 and the Rivers Steam Navigation Company Limited	 carrying on business at No. 2	 Fairlie Place	 Calcutta	 which will be referred to	 in the course of this judgment	 as the appellants '	 and their workmen at Dhubri Ghat	 represented by the Dhubri Transshipment Labour Union and Dhubri Local Ghat Transhipment Labour Union	 Dhubri	 which will be referred to hereinafter as the respondents '. The Award aforesaid was published in the Assam Gazette on December 19	 1956. It is necessary to state the following	 facts in order to appreciate the points arising for decision in this case: The appellants carry on business of inland water transport in North East India and in Pakistan	 in association with each other	 and are commonly known as the Joint Steamer Companies. The appellants jointly maintain a large number of wharves	 jetties	 godowns	 etc.	 at different river stations in India and in Pakistan	 for the purposes of their business. One such station is at Dhubri in Assam. At that station	 a large number of workmen are employed for the purpose of loading and unloading the appellant 's vessels and for transshipping goods from railway wagons to the appellants ' vessels and vice versa. Before May	 1954	 such workmen were employed by a contractor called the Assam Labour Supply Syndicate which will hereinafter be referred to as 'the Syndicate '. Those workmen were organized under two labour unions	 called (1) the Dhubri Transhipment Labour Union which was affiliated to the Indian National Trade Union Congress which is	 a Federation of Trade Unions	 and (2) the Dhubri Local Ghat Transhipment Labour Union. There were differences between the Syndicate and its employees who made certain demands	 and has threatened to go on strike to enforce their demands. Conciliation proceedings under the industrial Disputes Act	 1947 (which will hereinafter be referred to as the Act)	 took place	 in the course of which certain agreements to be referred to in greater detail hereinafter	 were reached between the Syndicate and the respondents on 4 February 23	 1953	 and March 30	 1953. On May 3	 1954	 by virtue of a Memorandum of that date	 an agreement was arrived 'at between the appellants and the respondents	 whereby the appellants agreed that instead of employing a contractor to handle the work of loading and unloading and transhipment of goods	 the appellants would employ supervisors and agents to handle the work " pending the proposed Tripartite Conference to decide the issue of permanent direct employment of employees for the future ". The appellants also agreed to maintain continuity of service of the workmen and the existing terms and conditions of their service. The Tripartite Conference contemplated by the Agreement	 was to consist of the represent. natives of the appellants	 the workmen and the Government of Assam. As a result of the Tripartite Con ference held on July 9 & 10	 1954	 an agreement was reached between the appellants and the Indian National Trade Union Congress	 which was incorporated in the form of a letter dated July 16	 1954	 from the General Secretary of the Congress	 Assam Branch	 Dhubri Ghat	 to the several Unions at different stations	 including Dhubri. As a result of this agreement	 the appellants agreed	 inter alia	 to introduce permanent direct employment at all the transhipment ghats of Assam	 progressively	 without prejudicing the agreement of May 3	 1954. It will be necessary hereinafter to consider some of the terms of this agreement in detail	 when dealing with the several points in controversy between the parties. After the agreement aforesaid	 there arose certain differences amongst the workmen represented by the two Unions aforesaid	 in respect of the election of their office bearers. As a result of those internal dissensions amongst the employees	 two rival groups	 each claiming to represent a section of the workmen	 came into existence. The appellants	 thereupon	 notified the Indian National Trade Unions ' Congress	 that recognition to the Dhubri Transhipment Labour Union	 was being withdrawn pending satisfactory settlement of the internal differences. Thus	 came into existence	 a new Trade Union known as the 5 Dhubri Transhipment Workers ' Union	 in or about July	 1955. Meanwhile	 between May 2	 1955	 and July 31	 1955	 the appellant 's	 on five different occasions and on different charges	 dismissed eight of their employees	 after making such inquiries as they thought necessary against those workmen	 and after giving them each an opportunity of explaining their conduct. On July 21	 1955	 one B. Chakravarty	 Secretary	 Dhubri Transhipment Labour Union	 served a notice on the appellants under sub section (i) of section 22 of the Act	 that " I propose to call a strike on the 11th August	 1955	 from zero hours	 if the following demands be not fulfilled within fourteen days on receipt of this notice". Then followed an annexure containing ten demands which need not be set out here. A similar notice was also served by the Secretary Dhubri Local Ghat Transhipment Labour Union on the same date ' the annexure in this case containing eleven demands. On July 26	 1955	 the Conciliation Officer of the Government of Assam	 received the notice of the strike. He held conciliation proceedings on August 6	 1955	 but those proceedings ended abruptly without arriving at any settlement. On August 8	 1955	 the said Conciliation Officer	 who was the Labour Officer of Gauhati	 by his letter bearing the same date	 informed the Labour Commissioner	 Assam	 about the failure of the conciliation proceedings	 and forwarded copies of that letter to the appellants and the workmen 's Union at Dhubri. Without waiting for the statutory period of seven days from the date of failure of the conciliation proceedings	 a large number of workmen concerned went on strike with effect from the mid night of August 10	 1953	 in pursuance of the notices of strike aforesaid. They were alleged by the appellants not only to have gone on strike	 but also to have forcibly entered the appellants ' jetties and other working places and prevented the loyal workmen	 who were willing to carry on the transhipment work	 from carrying on their normal work. The strike is	 therefore	 alleged to have been illegal. On August 11	 1955	 the District Magistrate	 Goal para	 promulgated an 'order under 6 section 144 of the Code of Criminal Procedure	 prohibiting the "holding of any meetings	 demonstrations	 pro cessions	 or causing threat	 obstructions	 annoyance or injury directed against the persons lawfully employed in the following areas in the Dhabri Town and its suburbs". Then followed a specification of the ghats to which the prohibition applied This order was to remain in force till September 10	 1955	 In consequence of the aforesaid strike which was treated by the appellants as illegal	 they declared a lock out on August 11	 1955	 in respect of 91 workmen named in the notice issued to them. Another lock out notice was issued on August 13	 1955	 in respect of a much larger number of workmen in different groups described as belonging to a particular Sardar 's gang. The legality of these lock out notices	 was seriously challenged by the respondents. The Workers ' Union called off the strike with effect from August 19	 and the appellants lifted the lock out with effect from August 27. The appellants took proceedings against those employees who had taken part in the strike. They suspended those workmen who were alleged to have not only taken part in the strike	 but also had obstructed those workmen who were willing to work. But those workmen who were alleged to have only participated in the strike	 were not suspended during the inquiry. On September 8	 1955	 37 of the employees were convicted under section 188 of the Indian Penal Code	 for violation of the aforesaid order under section 144 of the Criminal Procedure	 Code	 with the result that on September 9	 they were Dismissed by the appellants. Another batch of 52 employees were convicted under a 143/188 of the Indian Penal Code	 on February 17	1956. Meanwhile	 on September 13	 1955	 the Government of Assam bad constituted a Board of Conciliation	 consisting of three persons	 namely	 (1) Labour Commissioner of Assam	 as the Chairman	 (2) D. N. Sarma of Gauhati	 as representing the interest of the employees	 and (3) P. J. Rayfield	 as representing the interest of the employers	 with a view to promoting settlement of the dispute between the appellants and their workmen 7 at Dhubri. The appellants alleged that they had dismissed their workmen as a result of the inquiry held by their nominee into the conduct of the persons who had participated in the alleged illegal strike and/ or had caused obstruction	 before they became aware of the constitution of the Board of Conciliation	 as aforesaid. On coming to know of the constitution of the said Board of Conciliation	 the appellants subsequently passed orders	 holding the order of dismissal of the two hundred and twenty three employees in abeyance	 pending the disposal of their application to the Board for permission to dismiss the said two hundred and twenty three employees. The Board of Conciliation	 by majority	 P. J. Rayfield dissenting	 came to the conclusion that as regard the dismissal of the thirty seven workmen	 the Management had violated section 33 of the Act	 because	 in their opinion	 the proceedings of the Board of Conciliation had commenced from August 26	 and not from September 13. As regards the permission sought by the Management to dismiss the suspended two hundred and twenty three workmen	 by a similar majority	 it was held that although the strike prima facie was illegal	 it was not unjustified. The dissenting member	 P. J. Rayfield	 recorded his note of dissent to the effect that the conciliation proceedings commenced on September 13	 1955	 and not earlier	 as decided by the majority	 and consequently	 the dismissal of the	thirty seven workmen ( 'discharge ' of 37 workmen	 as stated in the note of dissent)	 was not in contravention of section 33 of the Act	 and that the permission to dismiss the two hundred and twenty three workmen on the ground that they had been found guilty	 by a departmental inquiry	 of participating in an illegal strike and forcibly preventing others from attending work	 should have been granted. This conclusion was sought to be based on the alleged legal position that the Board had no power to withhold the permission applied for	 and had not the power to decide as to the kind of punishment to be imposed upon the workmen who had admittedly taken part in a strike which had unanimously been held to be illegal. The dissenting note also sought to 8 show that the finding of the majority of the Board that the strike was justified	 was not based on a proper appreciation of the facts of the case. The report of the Board of Conciliation was published on Decem ber 5	 1955. As the parties had come to a stalemate	 the Government of Assam	 by its order dated December 7	 1955	as subsequently amended by its order dated January 23	 1956	 referred the dispute to Shri Radhanath Hazarika as an Industrial Tribunal	 for the adjudication of the dispute on the following issues: " 1 (a) Are the Management of R.S.N. & I.G.N. Railway Company Limited justified in dismissing the following eight workers: Manzoor Hussain	 Sudam Singh	 ldrish	 Tazmal Hussain (S/o S.K. Gaffur) Jahangir Sardar	 Keayamat Hossain	 Panchu Shah and Ram Ekbal Singh? (b) If not	 what relief	 if any	 are they entitled to ? (2) (a) Are the Management of R.S.N. & I.G.N. Railway Company Limited justified in dismissing and/or suspending as the case may be 260 workers at Dhubri Ghat on or about the 29th August	 1955? (b) If not	 to what relief	 if any	 are the workers entitled ? " The parties to the dispute filed their written statement before the Tribunal and tendered both oral and documentary evidence before it. The Tribunal made its Award which was published in the Assam Gazette on December 19	 1956	 as already stated. The Tribunal held that the strike	 though illegal	 was justified	 but that in the absence of standing orders whereby participation in any illegal strike	 could justify a punishment of dismissal	 the appellants were not entitled to dismiss those workmen whose case was before the Tribunal. The Tribunal	 by its Award	 directed reinstatement of 208 out of 260 workmen whom the appellants had dismissed	 or had sought permission to dismiss. The remaining 52 workmen were ordered to be refused reinstatement on the ground that they had been convicted under section 143 of the Indian Penal Code	 which implied an offence involving 9 use of criminal force. It also directed the appellants to pay full wages and allowances from August 20	 1955	 till the date of reinstatement of the workmen who had been directed to be reinstated. The Tribunal also held that the dismissal of the eight workmen who were the subject matter of the issue 1(a) aforesaid of the Reference	 was bad	 and therefore	 those 8 workmen were also ordered to be reinstated with back wages. The present appeal by special leave is directed against the said Award of the Tribunal. Before we deal with the merits of the controversy between the parties	 it is convenient at this stage to deal with certain arguments by way of preliminary objections to the maintainability and competence of the appeal	 raised on behalf of the respondents. Those objections are of a three fold character	 (1) no appeal lies	 (2) the appellants did not exhaust their statutory remedies under section 17A of the Act	 and (3) the appeal is not competent also for the reason that the Government of Assam has not been impleaded as party respondent to the appeal	 In our opinion	 there is no substance in any one of these objections. With reference to the first ground	 the argument runs as follows: The Tribunal made its Award on November 15	 1956	 and	 submitted the same to the Assam Government under section 15 of the Act. On December 8 of that year	 the Government of Assam directed the said Award to be published in the Assam Gazette	 and it was so published on December 19	 1956. According to the order of the State Government	 the Award became enforceable under section 17A	 on the expiry of 30 days from the date of publication	 namely	 December 19	 1956. Accordingly	 the Award became enforceable on January 18	1957	 and acquired the force of law by the operation of the statute. By virtue of section 17(2) of the Act	 the Award became " final and shall not be called in question by any court in any manner whatsoever "	 subject to the provisions of section 17A. It was	 therefore	 further contended that in the events which had happened before January 18	 1957	 the Award had become enforceable and had 2 10 acquired the force of law by operation of the statute	 had	 thus	 passed beyond the pale of litigation and adjudication by any court of law. This argument has only to be stated to be rejected in view of the provisions of the Constitution. It is manifest that the provisions of the Act are subject to the paramount law as laid down in the Constitution. Article 136 of the Constitution	 under which this Court grants special leave to appeal (in this case	 from a determination of the Tribunal)	 cannot be read as subject to the provisions of the Act	 as the ' argument on behalf of the respondents would postulate. The provisions of the Act must be read subject to the over riding provisions of the Constitution	 in this case	 article 136. Therefore	 whatever finality may be claimed under the provisions of the Act	 in respect of the Award	 by virtue of sections 17 and 17A of the Act	 it must necessarily be subject to the result of the determination of the appeal by special leave. It was further contended that the Award had merged in the orders of the Government	 on publication in the Official Gazette	 under section 17 of the Act	 but this is the same argument stated in another form	 and any argument based on the provisions of the	 Act	 making the Award final and enforceable	 must always be read as being subject to the decision of this Court	 in the event of special leave being granted against such determination by the Tribunal and as adopted by the Government. The same argument was advanced in still another form	 namely	 that the appellants should have moved this Court before the lease of the time contemplated by section 17 and section 17A of the Act	 that is to say	 before January 18	 1957. Apart from the consideration that this argument tends to curtail the period of limitation	 prescribed by this Court by statutory rules	 the operation of sections 17 and 17A of the Act	 is not automatically stayed by making an application for special leave. It is only by virtue of specific orders made by this Court	 staying the operation of the Award or some such order	 that the appellant becomes	 for the time being	 immune from the operation of those provisions of the 11 Act	 which impose penalties for the infringement of the terms of the Award. Adverting to the second branch of the preliminary objection	 it appears that the provisions of section 17A	 particularly	 the provisos	 have been sought to be pressed in aid of the respondents ' contention	 without realizing that the Award in question in this case	 does not come within the purview of either of those provisos. The State Government was not a party to the Industrial dispute	 nor was it an Award given by a National Tribunal. Hence	 there is no substance in the contention that the appellants did not exhaust their statutory remedies under section 17A of the Act. The third branch of the preliminary objection is based on the contention that the Government of Assam was a necessary and proper party	 as it had acted under delegated powers of legislation under the Act	 in making the Award enforceable and giving it the force of law. It is a little difficult to appreciate how the State Government became a necessary or proper party to this appeal. The State Government does not play any part in the proceedings	 except referring the dispute to the Tribunal under section 10 of the Act. The publication of the Award under section 17	 is automatic on receipt of the same by the Government. Its coining into operation is also not subject to any action on the part of the State Government	 unless the case is brought within the purview of either of the provisos to section 17A. In view of these considerations	 it must be held that there is no merit in the preliminary objection. The appeal must	 therefore		 be determined on its merits. On the merits of the controversy between the parties	 it has been argued by the learned counsel for the appellants that the Tribunal	 having held the strike to be illegal	 has erred in holding that it was justified; that an illegal strike could never be justified and that the Tribunal was wholly in error in losing sight of the fact that the appellants were carrying on what had been notified as a public utility service. In this connection	 it was further argued that in view of 12 the proviso to section 10(1) of the Act	 the State Government was bound to make a Reference of the dispute to an Industrial Tribunal when notice of strike under section 22 of the Act had already been given	 and that	 therefore	 the failure of the employer to enter into direct negotiations with the employees	 upon receipt of the strike 'notice	 could not be used by the Tribunal for coming to the finding that the strike was justified. It was also urged that the Tribunal had clearly erred in holding that the lock out declared by the appellants	 was illegal	 and that	 in coming that conclusion	 it had over looked the provisions of section 24(3) of the Act. The Tribunal	 it was further argued	 had erred in holding that	 in the absence of standing orders to the effect that participation in an illegal strike is a gross misconduct	 an employer could not dismiss its workmen for mere participation in an illegal strike. Assuming that the last stated argument was not well founded it was argued that the standing orders governing the relations between the Syndicate and the workmen	 would also govern the relations between the appellants and the workmen	 as a result of the agreement aforesaid whereby the appellants undertook all the liabilities of the Syndicate in relation to the workmen	 and guaranteed to them the same conditions of service. In this connection	 it was also argued that the Tribunal bad made a serious mistake of record in treating the standing orders of the Syndicate as a mere draft and	 therefore	 of no binding force as between the employers and the employees; that the Tribunal erred	 while considering the case of the eight workmen dismissed before the commencement of the strike	 in proceeding upon an unfounded assumption that no charge sheets had been served upon those workmen during the inquiry against them	 and that	 therefore	 the Award	 in so far as it related to those 8 workmen	 was entirely erroneous. As against the two hundred and eight workmen ordered by the Tribunal to be reinstated	 it was argued that the departmental inquiry held by the appellants had resulted in the distinct finding that they bad not only participated in the illegal strike	 but had also instigated loyal workmen 13 to join in the illegal strike	 and had obstructed tranship ment work by loyal workmen. In this connection	 it was also argued that in any view of the matter	 the thirty seven persons	 who had been convicted by the criminal court under section 188 of the Indian Penal Code	 for having transgressed the prohibitions contained in the prohibitory order under section 144 of the Code of Criminal Procedure	 were clearly liable to be dismissed on the findings of the criminal court itself	 apart from any other considerations bearing on the regularity of the inquiry against them; that the Tribunal was in error in holdidg that the inquiry against the dismissed workmen was not in accordance with the prescribed procedure; and lastly	 that this was not a case of reinstatement of the dismissed workmen	 and that only compensation should have been awarded to them. On behalf of the respondents	 their learned counsel	 besides raising the preliminary objection already dealt with	 urged that the Tribunal was fully justified in holding that the strike	 though illegal	 was " perfectly justified " and virtually provoked by the appellants. Though in the statement of the case	 the argument had been raised that the strike could not be illegal	 because the notification declaring the service at the ghats to be public utility service	 was ultra vires	 that argument was not persisted in before us	 but it was vehemently argued that there were no standing orders either of the Syndicate or of the appellants	 which could govern the service conditions of the workmen	 and that in any event	 mere participation in an illegal strike would not entitle the employers to dismiss those workmen who had joined the strike; that the dismissal orders in all cases	 were sheer acts of victimization and unfair labour practice. It was also sought to be argued that the lock out was entirely illegal	 and that in any view of the matter	 its continuance after the strike had been called of	 was wholly unjustified and against the principles of " social justice ". Further	 it was urged that the appellants had dismissed and/or suspended 260 workmen without framing any specific charges against them; that the dismissal of the eight workmen 14 in view of the incidents before the commencement of the strike	 was also illegal	 and in any event	 irregular	 because	 it was urged	 no specific charges had been framed against them. It was also sought to be argued that the notice ' inviting the workmen to join their work	 being unconditional without any reservations	 amounted to a condonation of the strike	 and therefore	 the dismissal orders against the two hundred and sixty workmen were bad in law. Some other arguments also were advanced on behalf the respondents	 but we do not propose to take notice of them	 because they were ultimately found to be without any foundation in the record of the case. As a matter of fact	 the arguments on behalf of the respondents	 were not marked by that strict adherence to the record of the case	 or the case made out before the Tribunal	 as ought to be the case before courts of justice generally	 and certainly	 before the highest Court in the land. Now	 turning to the merits	 it is better to deal with the first issue first	 that is to say	 whether the dismissal of the eight workmen	 named in the Issue as amended	 was justified	 and if not	 to what relief they were entitled. The Tribunal dealt with the individual cases of those workmen	 and came to the conclusion that the dismissal of none of them was justified	 and that	 therefore	 all of them were entitled to reinstatement with all their back wages and other benefits accruing to them from the date of their suspension and subsequent dismissal until the date of their reinstatement	 minus what had been paid to them. Thus	 the first issue in both the parts	 was decided entirely in favour of the workmen. We have	 therefore	 to examine how far the determination of Tribunal on the first issue	 is open to question. The cases of Manzoor Hussain	 Sudama Singh	 Idrish and Tazmal Hussain	 have been dealt with together by the Tribunal below. These four workmen had been dismissed by the appellants	 upon a report made by Rayfield	 the enquiring officer under the appellants	 on the allegation that they had assaulted their Labour Supervisor section P. Tevari on May 2	 1955. This charge against those four workmen	 was examined by 15 a Magistrate who tried them for the alleged assault on Tewari. The Magistrate found them not guilty and acquitted them by his judgment given in April	 1956. The departmental inquiry by Rayfield was held on May 17	 1955	 when a member of witnesses were examined by him on behalf of the appellants. In their joint written statement	 these four workmen stated that as the police case was pending against them in regard to these very charges	 they were not in a position to make any further statement in their defence. The Tribunal came to the conclusion that	 on the material before it had not been made out that Tewari had been actually assaulted	 while on duty	 and that the dismissal order was passed " possibly with a view to frighten the other workmen and to satisfy the whims of Tewari ". We have examined the record	 and we do not find any justification for differing from the conclusions of the Tribunal. With reference to the case against Panchu Shah and Ram Ekbal Singh	 it appears that the Tribunal definitely came to the conclusion that their dismissal order was vitiated because it was an act of victimization and was mala fide. In the face of this clear finding	we do not think that we can interfere with the determination of the Tribunal in respect of these two workmen. But the case against Jahangir Sardar and Keayamat Hussain	 stands on a different footing. The charge against Jahangir was two fold	 namely	 (1) wilful insubordination and disobedience	 and (2) conduct prejudicial to good order and discipline. To these charges	 Jahangir demurred and objected	 saying he could not " understand the reasons for the charge sheet ". On this demurrer	 a letter dated May 7	 1955	 was issued to him	 giving him the details of the acts charged against him	 with reference to the time	 date and place. The charge against Keayamat was similarly	 a two fold one	 namely	 (1) disorderly behaviour and inciting others to disturbance and violence	 and (2) conduct prejudicial to good order and discipline. Keayamat also demurred to the charge in the same way that it was vague	 and that 16 he was not aware of anything wrong having been done by him. On May 7	 Keayamat was also given a similar letter	 explaining to him the details of the charge aforesaid	 with reference to the time	 place and date of the acts which formed the gravamen of the charge against him. A number of witnesses were examined by Raymond who held the inquiry. In both these cases	 the Tribunal refused to accept the result of the inquiry	 chiefly on the ground that no specific charge had been laid against them	 and that the allegations were much too vague. In recording this finding	 the Tribunal has fallen into a grievous error of record. It has completely omitted to consider the letter issued to both these workmen on May 7	 giving full particulars of the charges against them. If it had considered that letter issued to both these workmen	 it would not have fallen into this serious error which has vitiated its award in respect of them. The Tribunal further proceeded to comment on the evidence led before the inquiring officer and remarked that the evidence was meager or insufficient. It also observed that the " degree of proof	 even in the departmental enquiry	 is the same as required in a Court of Law ". In our opinion	 the Tribunal misdirected itself in looking into the sufficiency of proof led before the inquiring officer	 as if it was sitting in appeal on the decision of the employers. In the case of these two employees	 there is no finding by the Tribunal that the order of dismissal against them	 was actuated by any mala fides	 or was an act of victimization. In view of these considerations	 the dismissal order made by the appellants on a proper inquiry	 after giving the workmen concerned sufficient opportunity of explaining their conduct	 must be upheld. The appeal in respect of these two workmen	 must	 therefore	 be allowed	 and the order of the Tribunal in respect of them	 accordingly	 set aside. The order of the Tribunal in respect of the other six workmen	 is confirmed. Having dealt with the orders of dismissal in respect of the incidents before the strike of August 11	 1955	 17 we now turn to the strike itself The first question that arises in this connection	 is whether the strike was illegal as alleged by the appellants and as found by the Tribunal. The learned counsel for the respondents sought to reopen the finding about the illegality of the strike	 basing his submissions mainly on the contention that there were no conciliation proceedings pending either in fact or in law on the date of the strike	 and that	 therefore	 the finding of the Tribunal was not correct. It was not disputed on behalf of the respondents that the notices of the strike given by the workmen on July 21	 1955	 had been duly received by the Conciliation Officer on July 26	 1955	 and that the conciliation proceedings were commenced on August 6	 1955. What was contended on their behalf	 was that the proceedings had to be stopped	 as it appears from the record of those proceedings	 without any settlement of the dispute as the "workers ' representative expressed their inability to take further part in the proceedings	 on a question of leave to their other representatives". We shall examine the question later as to which party was to blame for the break down of the conciliation proceedings at the very outset. It is enough to observe that under section 20 of the Act	 the conciliation proceedings must be deemed to have commenced on July 26	 1955	 when the notice of the strike was received by the Conciliation Officer	 and those proceedings shall be deemed to have concluded when the report of the Conciliation Officer is received by the Government. In this case	 the report to the Government was made by the Conciliation Officer on August 8	 1955. It is not absolutely clear as to when this report of the Conciliation Officer was actually received by the Government. It is clear	 therefore	 that the conciliation proceedings certainly lasted between July 26 and August 8	 1955. The strike	 having commenced on August 11	 was clearly illegal in view of the provisions of section 22 of the Act. We must	 therefore	 hold in agreement with the Tribunal	 that the strike was clearly illegal. The Tribunal	 having held that the strike was illegal	 proceeded to discuss the question whether it 3 18 was justified	 and came to the conclusion that it was "perfectly justified". In the first place	 it is a little difficult to understand how a strike in respect of a public utility service	 which is clearly	 illegal	 could at the same time be characterized as "perfectly justified". These two conclusions cannot in law co exist. The law has made a distinction between a strike which is illegal and one which is not	 but it has not made any distinction between an illegal strike which may be said to be justifiable and one which is not justifiable. This distinction is not warranted by the Act	 and is wholly misconceived	 specially in the case of employees in a public utility service. Every one participating in an illegal strike	 is liable to be dealt with departmentally	 of course	 subject to the action of the Department being questioned before an Industrial Tribunal	 but it is not permissible to characterize an illegal strike as justifiable. 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. Therefore	 the tendency to condone what has been declared to be illegal by statute	 must be deprecated	 and 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. Apart from the basic error of treating the illegal strike to be perfectly justified	 the Tribunal has indulged in language which is not characteristic of a judicial approach. The following observations by the Tribunal	 in the course of its inordinately long Award	 covering about 42 pages in print	 are illustrative of the attitude of the Tribunal towards the appellants : " By this letter the Company 's Joint Agent at Dhubri instead of taking a friendly attitude approached the District Magistrate asking for police help. 19 If the Company 's Agent at Dhubri had the honest intention he could have immediately moved the appropriate authority to come immediately to the spot to stop the proposed strike. But instead of that he has provoked the Union by adopting this back door policy to suppress the demands of the workers. It was really unfair on the part of the Agent. It seems that he bad mala fide intention." For this outburst of the Tribunal	 justification is sought in the letter which D. J. Milner	 the Joint Agent of the appellants	 wrote to the Secretary to the Government of Assam	 Transport and Industries Department	 Labour Commissioner	 Government of Assam	 Superintendent of Police	 Goalpara District	 Labour Officer	 Lower Assam	 and General Secretary	 I.N.T.U.C.	 Assam Branch	 on August 9	 1955	 informing them of the threatened strike. The last paragraph of the letter explained the reasons for the long letter addressed by the Joint Agent: " In the interest of maintaining this vital link in Assam 's flood stricken communications and protecting our property		 and that of the Railway	 as well as our own staff	 Railway Staff and loyal laborers	 we have to request that adequate police be available at each of our Ghats from shortly prior to midnight on the 10th instant in order that unlawful damage may not be caused by these illegal strikers who will be acting in defiance of Government regulations	 and accepted industrial dispute procedure". We see nothing sinister in this letter	 justifying the remarks by the Tribunal	 quoted above. It was the usual 	request for the maintenance of public peace and for the prevention of acts of violence by misguided persons. It was also addressed to the I.N.T.U.C.	 the guardian of Labour. On the same date	 that is	 August 9	1955	 B. Chakravarty	 the Secretary of the Dhubri Transhipment Labour Union	 addressed a letter to the Superintendent of Police	 Goalpara	 and Deputy Commissioner	 Goalpara	 alleging that the Joint Agent of the appellants had instructed the officers in charge of the jetties at the Ghats to raise a " hallah " after the zero hour of August 11	 1955	 that the labourers of the 20 Transhipment Department were looting the goods of the ship	 when they would go for picketing purposes to strengthen their strike. Those allegations of the Secretary	 the Tribunal has taken as proof of those allegations	 and has observed: ". it is clear that Mr. Milner hatched a plan to create a trouble and the Secretary of the Union got scent of all the secret arrangements made by the Company to create disturbance at the Ghats just immediately after the strike is declared. " This is the first reason assigned by the Tribunal for coming to the conclusion that the strike was "perfectly justified". The second reason for coming to this conclusion	 according to the Tribunal	 is to be found in the Conciliation Officer 's report that the appellants did not agree to grant leave to the labour representatives to sit in the conciliation proceedings which were held on August 6	 1955. The Tribunal has observed that it appeared also from the appellant 's attitude in refusing to grant leave to the five representatives of the Union	 that the appellants were not inclined to give facilities for the conciliation proceedings. Is this observation justified on the record as it stands ? As already indicated	 the Conciliation Officer received a copy of the strike notice on July 26	 1955. He fixed August 6	 1955	 10 a.m.	 at Dhubri	 for the conciliation proceedings. The parties to the dispute were apprised of this meeting of August 6	 1955	 on August 1	 1955 (ext. O	 p. 119). From the proceedings of the Conciliation Officer	 it appears that the Union applied to the appellants for leave to five workmen	 officials of the Union	 to enable them to represent the workmen in the conciliation proceedings. The attitude of the appellants was that they were agreeable to grant leave even on a verbal request	 if the request came from those individual workmen	 either direct or through the Union	 but the appellants were not prepared to grant leave on a petition from the Union alone. On the other hand	 the Union was not agreeable that the petition for leave should be made by the workmen themselves	 and the Union insisted that it had the right to apply for leave on behalf of those workmen. Upon this	 the Union 21 did not take any further part in the proceedings. It would be a travesty of facts to suggest that the appellants were not prepared to grant leave to those five workmen. In the first instance	 leave should have been applied for before the date fixed for the commencement of the conciliation proceedings. Secondly	 the application should have been made by the workmen concerned	 either direct or through the Union. The Tribunal seems to have been under the impression that this attitude of the appellants amounted to a breach of one of the terms of the agreement as a result of the Tripartite Conference aforesaid. That	 again	 is an assumption which is not justified by the terms of the Agreement. Secondly	 the five workmen selected for representing the workmen in the conciliation proceedings	 should have applied in good time to their employers for leave for the purpose	 but what we find is that an application (ext. M at p. 118) was made on August 6	 1955	 not by those workmen themselves	 but by the Secretary of the Union	 and a copy of the application was forwarded to the Labour Officer and to the Deputy Commissioner	 for information. Apparently	 the Union was treating the matter as of sufficient importance	 but they did not think it necessary to put in the application in time on behalf of the workmen themselves	 even though the application might have been made through the Union. That the appellants were not to blame for the attitude they took in the matter of the procedure for application for leave to particular workmen	 becomes clear on a reference to the terms of the Agreement dated February 23	 1953	 between the Syndicate and their workmen represented by the Dhubri Transhipment Labour Union	 at p. 75	 Part 1 of the record. The Demand 5(f) was agreed to in these terms : " All leave applications be submitted by a representative of the Union on Tuesday or Friday in a week before the Management	 and the decision be communicated to the Union the next day of submission of the application. " On the other band	 in respect of leave	 the terms of the Agreement reached between the Syndicate and the 22 Dhubri Local Ghat Transhipment Labour Union	 on March 13	 1953	 are as follows: " It is agreed that the workers will submit leave applications to the management who will communic ate their decision to the workers direct within three days of receipt of the applications and a copy thereof will he sent to the Union for information". It is clear	 therefore	that the conciliation proceedings stopped abruptly not because the Management was to blame for not granting leave to the five chosen representatives of the workmen	 but because B. Chakravarty insisted that the leave application would not be made by individual workmen but only by the Union. Even that application was made too late	 and in the teeth of the terms of the Agreement	 quoted above. If the Secretary had not taken this unreasonable attitude	 and if he had been anxious that the conciliation proceedings should continue	 the easiest thing for him to have done	 was to get those five workmen to make their applications for leave	 which the Management was prepared to grant even at that late hour. In our opinion	 the conciliation proceedings failed because the Secretary took an unreasonable attitude. The Tribunal	 therefore	 was in error in throwing the blame for the failure of the conciliation proceedings on the Management. The third ground of attack on the bona fides of the appellants	 was said to have been the attempt of the Management to interfere in the internal affairs of the Unions. The following remarks of the Tribunal are another instance of its intemperate language with which the Award bristles: " Curiously enough it appears that the Company 's Joint Agent at Dhubri dabbled in politics and meddled in internal administration of the Unions. He propped up another Union and backed it up to stand as a rival Union. " On an examination of the record of the case	 it appears that the Indian National Trade Unions ' Congress	 to which the Unions were affiliated	 was not in favour of the strike. That would be an indication of the fact that the relation between the employers 23 and the employees had not come to the breaking point	 and that the Congress	 naturally	 expected that conditions of service of the employees	 could be improved more effectively by peaceful negotiations than by taking recourse to a strike in respect of a service which had been declared by the Government to be a public utility service . But the Secretary of one of the Unions	 B. Chakravarty aforesaid	 appears to have brought matters to a head without giving the Conciliation Officer a reasonable chance	 as already indicated	 of bringing about a reconciliation between the view points of the employers and the employees. The appellants had only recently taken over the workmen under their direct employment	 and the Tripartite Conference between them	 the representatives of the employees	 and the Government	 was yet to settle all the outstanding Questions between the parties. Hence	 the fact that two rival Unions had come into existence	 could not be laid at the door of the appellants as an act of unfair labour practice. The Tribunal was not	 therefore	 in our opinion	 justified in holding that the Management had either meddled in the internal administration of the Unions	 or dabbled in politics	 and had	 thus	 been guilty of unfair labour practice. The Tribunal has been rather generous to the workmen without being just to the appellants. This is also shown by the fact that	 after having held the strike to be illegal	 the Tribunal considered the legality of the lock out declared by the appellants on August 11	 1955	 in respect of one Ghat	 and on August 13	 1955	 in respect of the other Ghat. In this connection	 the conclusion of the Tribunal may best be stated in its own words to demonstrate its attitude to the appellants: " In this case the Company used the weapon of lock out just to intimidate and put pressure on the employees to withdraw the demands. The lock out is also prohibited under Section 22(2)(d) of the Act. Therefore	 both lock out and strike are illegal. The Company had no justification whatsoever to declare a lock out. " 24 Apparently	 the Tribunal ignored the provisions of section 24(3) of the Act. The lock out was clearly not illegal. It is another question whether there was a justification for the appellants to continue the lockout even after the strike had been called off on August 19. The Joint Agent of the appellants	 by his letter dated August 17	 1955	 to the two Unions	 had intimated to them that in view of the illegal strikes	 lockout had been declared at the local Ghat on August 11	 and at the Transhipment Ghat on August 13	 and that the lock out " will remain in force until disciplinary action can be instituted against those of our employees chiefly responsible for leading and continuing the illegal strikes ". The continuance of the lock out after August 19	 may be unjustified; but that does not make the lock out itself illegal. It was in pursuance of that order of the Joint	 Agent	 that proceedings were taken against the socalled leading strikers	 leading upto their dismissal. Those orders of dismissal	 to be presently discussed	 are the main points in controversy between the parties in this Court. But before those orders of dismissal were passed	 the Management issued a notice on August 26	 1955	 lifting the lock out with effect from the next day. It required the employees to report for duty to the Joint Agent personally	 at his office between the hours of 9 and 10 a.m. It also contained the threat that any employee who did not report for duty on August 30	 " will in the absence of a letter of explanation and good reason	 be treated as having voluntarily terminated his services." R. N. Biswas was then appointed the Inquiry Officer by the appellants	 and he held the inquiry in batches	 the first batch consisting of 26 workmen	 the second	 of 114	 the third	 of 68	 the fourth	 of 17 and the fifth	 of 7. These inquiries related to different incidents in connection with the strikes. Biswas appears from the record as placed before us	 to have recorded the statements of Milner	 Rayfield	 C. R. Das and section P. Tewari officers of the appellants in proof of the allegations against the strikers. We do not think any useful purpose will be served by 25 going into the details of the evidence given by those witnesses	 because we have come to the conclusion that those several inquiries suffer from the fundamental defect that there is no satisfactory evidence on the record that charges	 giving the details of the acts of violence or obstruction	 against the strikers	 were served upon the workmen against whom those inquiries had been instituted. As a result of each one of these inquiries	 the Inquiry Officer	 R. N. Biswas	 reported that the charge against each one of the workmen	 had been proved to his satisfaction. But before the inquiry was held	 the Joint Agent on September 9	 1955	 informed the thirty seven workmen who had been convicted as aforesaid	 of the criminal charge under section 188 of the Indian Penal Code	 that their services were terminated from that date	 and that they were to call at his office by the 15th of the month to collect their dues and to vacate the quarters of the appellants. As regards the remaining two hundred and twenty three workmen	 orders were passed on September 16	 to the effect that as the departmental inquiry made against them	 had resulted in the charges against them being proved	 they were dismissed from the service of the appellants with effect from August 29	 1955. They were called upon to call at the Labour Office on September 18	 to collect their dues	 and to vacate the quarters of the appellants. Realising that as the Government had appointed a Board of Conciliation on the 13th instant	 to resolve the dispute between the parties	 the orders aforesaid of dismissal or termination of services of the thirty seven workmen and of the two hundred and twenty three workmen	 as aforesaid	 would be illegal	 the Joint Agent informed the workmen on September 20	 1955	 that those orders would be held in abeyance	 pending permission from the Board to dismiss them	 and they would be deemed to be under suspension. It may be recalled that the Government had constituted a Board of Conciliation	 consisting of three persons	 viz.	 H. P. Duara	 the Labour Commissioner of Assam	 as the Chairman	 and D. N. Sarma and P. J. Rayfield as members	 representing the interests of the employees and the employers 4 26 respectively. The Board of Conciliation considered the question of the dismissal or suspension of those thirty seven plus 223 workmen	 along with the application	 of the Management	 asking permission to dismiss 223 workmen for their having taken part in the illegal strike	 and forcibly preventing willing workmen from attending work. Two of the three persons constituting the Board	 namely	 the Chairman and D. N. Sarma	 came to the conclusion that as regards the dismissal of the thirty seven workmen the order of dismissal was illegal	 as in their opinion	 the conciliation proceedings had commenced from August 26	 and not from September 13. On the question of suspension of 223 workmen	 the Board was of the opinion that suspension without pay	 pending the permission of the Board to dismiss the workmen	 was no punishment	 and therefore	 no action was called for. As regards the permission sought by the Management to dismiss the suspended two hundred and twenty three workmen	 again by a majority	 those two members were of the opinion that although the strike was prima facie illegal	 it was not unjustified and therefore	 the permission sought	 could not be given. Rayfield	 the other member of the Board	 as already stated	 submitted his Minute of dissent. He pointed out that the conciliation proceedings commenced on September 13	 and therefore	 the discharge of the thirty seven workmen	 was not in contravention of section 33 of the Act. He further held that the Board had no power to withhold the permission asked for to dismiss 223 workmen on the ground that they had been found guilty	 on a departmental inquiry	 of having participated in an illegal strike	 and of having forcibly prevented workmen from attending work. He added that the grant of the permission would not debar the Union from raising an industrial dispute in that matter. It may be added that the Board unanimously agreed that dismissal " is an appropriate punishment for participation in an illegal and unjustified strike. " The Tribunal also took the same view of the legal position	 when it observed	 " If the strike is not justified and at the same time it contravenes the provisions of 27 Section 22 of the Act	 ordinarily the workmen participating in it are not entitled to any relief. " As a matter of fact	 the Tribunal has closely followed the findings of the majority of the Board of Conciliation. But as we have already pointed out	 there can be no question of an illegal strike being justified. We have further held	 in agreement with the Tribunal	 that the strike was illegal	 and that it was not even justified in disagreement with the Tribunal assuming that such a situation could be envisaged	 in accordance with the provisions of the Act. We have	 therefore	 to determine the question what punishment	 if any	 should be meted out to those workmen who took part in the illegal strike. To determine the question of punishment	 a clear distinction has to be made between those workmen who not 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 over riding 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. While dealing with this part of the case	 we are assuming	 without deciding	 that it is open to the Management to dismiss a workman who has taken part in an illegal strike. There was a great deal of argument at the Bar on the question whether the Management	 in this case	 was entitled to dismiss the workmen who had taken part	 in the illegal strike. 28 A good deal of argument was devoted to the further question whether there were certified standing orders as between the Syndicate and the workmen	 or later	 as between the appellants and the workmen	 and Whether	 even apart from such standing orders	 it was open to the employers to deal so drastically with their employees who had taken part in the illegal strike. In our opinion	 it is not necessary to decide those general questions	 in view of our conclusion	 to be presently stated	 on the question of the regularity of the inquiry held in different batches	 as indicated above	 by Biswas	 the officer appointed by the appellants to hold the departmental inquiry. In order to find out which of the workmen	 who had participated in the illegal strike	 belong to one of the two categories of strikers who may	 for the sake of convenience	 be classified as (1) peaceful strikers	 and (2) violent strikers	 we have to enquire into the part played by them. That can only be done if a regular inquiry has been held	 after furnishing a charge sheet to each one of the workmen sought to be dealt with	 for his participation in the strike. 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. We have	therefore	 to look into the nature of the inquiry alleged to have been held by or on behalf of the appellants. On the one hand	 the workmen took the extreme position that no inquiry had at all been held	 and on the other hand	 the employers took up the position that the Inquiring Officer had held a regular inquiry	 after furnishing a charge sheet to each one of the workmen against whom the inquiry was held. That there was an inquiry held by Biswas	 admits of no doubt. The proceedings before him and the evidence recorded by him	 have been placed on record. But the most serious question that we have to determine is whether a charge sheet	 giving notice to each workman concerned	 as to what the gravamen of the charge against him was	 had or had not been furnished to him. On this part of the case	 the record is admittedly incomplete. The appellants relied upon the following observations 29 of the Tribunal in support of their case that the inquiry had been entirely regular: " The charges are for fomenting and participating in an illegal strike from the 11th August	 1955 and forcibly preventing other labourers from working on the same day. " On the other hand	 reliance was placed on behalf of the workmen on the following passage in the Award of the Tribunal: " In this case the Company has not framed any specific charge against those 260 workers alleging that they indulged in violence or acts subversive of discipline. " The finding of the Tribunal is that no such individual charge sheet was delivered to the workmen. This conclusion of the Tribunal was assailed on behalf of the appellants on the ground that as this point had not been specifically made in the written statement of the workmen	 the appellants did not put in those charge sheets in evidence	 and had contented themselves with only producing the record of proceedings before the Inquiring Officer. As we	 naturally	 attached a great deal of importance to this question	 we were inclined to give another opportunity to the appellants to remove the lacunas in the evidence bearing upon that question	 even at this late stage. More than once	 during the course of the arguments by the learned Attorney General	 we suggested that he might put in those charge sheets	 if they were in existence	 as additional evidence in this Court	 so that we might be satisfied that there had been a regular inquiry according to the requirements of natural justice. After making the necessary investigation	 the learned Attorney General informed us on the last day of the arguments	 that no such documents were in existence. It was alleged that the entire bundle of documents	 containing those individual charges	 had been lost	 and that	 therefore	 there were no means of satisfying this Court by documentary evidence	 that there were in fact such individual charge sheets delivered to the workmen concerned. We find	 therefore	 no good reasons for displacing the finding of the 30 Tribunal that there were no such individual charges	in spite of apparently conflicting observations made by it	 as quoted above. The position	 therefore	 is that the strikes were illegal	 that there was no question of those strikes being justified	 and that	 assuming that the strikers were liable to be punished	 the degree and kind of punishment had to be modulated according to the gravity of their guilt. Hence	 it is necessary to distinguish between the two categories of strikers. The Tribunal attempted to make such a distinction by directing that the 52 workmen	 who had been convicted under section 143	 read with section 188 of the Indian Penal Code	 were not entitled to reinstatement	 and the remaining 208 workmen were so entitled. Dealing with the case of the thirty seven workmen	 who had been convicted only under section 188 of the Indian Penal Code	 for transgression of the prohibitory orders under section 144 of the Code of Criminal Procedure	 the Tribunal put those workmen on the same footing as the rest of the workmen. But	 in our opinion	 those 37 workmen do not stand on the same footing as the others. Those 37 workmen	 who were convicted under section 188 of the Indian Penal Code	 had been found to have violated the prohibitory orders passed by the public authorities to keep the public peace. Those convictions were based upon evidence adduced before the Magistrate	 showing that the workmen had proceeded to the steamer flat through the jetty	 in defiance of the orders promulgated under section 144. We have examined the record and we find that there is sufficient indication that those 37 workmen were among the violent strikers	 and could not be placed in the category of peaceful strikers. Hence	 it is clear that those workmen not only joined the illegal strike by abstaining from their assigned duty	 but also violated regularly promulgated orders for maintaining peace and order. Such persons	apparently	cannot be said to be peaceful strikers	 and cannot	therefore	 be dealt with as lightly as the Tribunal has done. The Tribunal	 in our opinion	 is wrong in taking the view that the appellants had nothing to do with the violation of the order under section 144 of the 31 Code of Criminal Procedure	 promulgated by the District Magistrate	 with a view to maintaining peace and order at the site of work. These 37 workmen	 therefore	 should not have been ordered to be reinstated. As regards the remaining workmen	 the question is whether the Tribunal was entirely correct in ordering their reinstatement with full back wages and allowances on and from August 20	 1955	 till reinstatement. This would amount to wholly condoning the illegal act of the strikers. On the findings arrived at before us	 the workmen were guilty of having participated in an illegal strike	 for which they were liable to 'be dealt with by their employers. It is also clear that the inquiry held by the appellants	 was not wholly regular	 as individual charge sheets had not been delivered to the workmen proceeded against. When the blame attaches to both the parties	 we think that they should divide the loss half and half between them. We	 therefore	 direct that those workmen whose reinstatement by the Tribunal is upheld by us	 should be entitled only to half of their wages during the period between the date of the cessation of the illegal strike (i.e. from August 20	 1955) and the date the Award became enforceable. After that date they will be entitled to their full wages	 on reinstatement. In this connection	 it has also got to be borne in mind that those workmen	 as observed in the judgments of the criminal courts which inflicted nominal fines on them on their conviction	 were " day labourers who earned their livelihoods by day to day labour ". It is only natural that during all these years that the workmen have not been employed by the appellants	 the workmen should have been earning their living by doing day to day labour. It must	 therefore be assumed that they were working for their living	 and were not wholly unemployed. Therefore	 the burden of the back wages for the long period that has elapsed between the date of the end of the strike and the date of the Award	 ordering their reinstatement	 should be divided half and half between the parties. The appeal is	 therefore	 allowed in part	 as indicated above	 that is to say	 (1) the order of reinstatement 32 in respect of Jahangir Sardar and Keayamat Hussain	is set aside	 (2) similarly	 the order of reinstatement in respect of the thirty seven workmen	 who had been convicted under section 188 of the Indian Penal Code	 is also Set aside	 and (3) the order for payment of full back wages	 etc.	 is modified by reducing those amounts by half	 for the period aforesaid. As success between the parties has been divided	 they are directed to bear their own costs in this Court. Appeal allowed in part.

Summary:
It was a contradiction in terms to say that a strike in a public utility service	 which was clearly illegal	 could also be justified. The law does not contemplate such a position nor is it warranted by any distinction made by the . It should be clearly understood by workmen who participate in such a strike that they cannot escape their liability for such participation and any tendency to condone such a strike must be deprecated. The only question of practical importance	 that arises in such a strike is	 what should be the kind and quantum of the punishment to be meted out to the participants and that question has to be decided on the charge sheet served on each individual workman and modulated accordingly. In determining the question of punishment	 distinction has to be made between those who merely participated in such a strike and those who were guilty of obstructing others or violent demonstrations or defiance of law	 for a wholesale dismissal of all the workmen must be detrimental to the industry itself. If the employer	 before dismissing a workman	 gives him Sufficient opportunity of explaining his conduct	 and no question of mala fides or victimisation arises	 it is not for the Tribunal	 in adjudicating the propriety of such dismissal	 to look into the sufficiency or otherwise of the evidence led before the enquiring officer or insist on the same degree of proof as is required in a Court of Law	 as if it was sitting in appeal over the decision of the employer. In such a case it is the duty of the Tribunal to uphold the order of dismissal. Consequently	 in the present case	 where the appellants	 who were carrying on business in water transport service	 notified as a public utility service	 dismissed their workmen for joining an illegal strike	 on enquiry but without serving a charge sheet oil 2 each individual workman and the Industrial Tribunal directed their reinstatement	 excluding only those who had been convicted under section 143 of the Indian Penal Code but including those convicted under section 188 of the Code	 with full back wages and allowances	 Held	 that the decision of the Tribunal to reinstate those who had been convicted under section 188 of the ' Code must be set aside and the wages and allowances allowed to those reinstated must be reduced by half and the award modified accordingly. Held	 further	 that the 	 Must be read as subject to the paramount law of the land	 namely	 the Constitution	 and the finality attaching to an award under sections 17 and 17A of the Act	 must	 therefore	 yield to the overriding powers of this Court under article 136 of the Constitution. As the award in the instant case did not fall within the Provisos to section 17 of the Act	 it was not correct to contend that the appellants had any other remedies thereunder to exhaust before they could come up in appeal to this Court. Nor was it correct to contend that the Government of Assam was a necessary party in the appeal inasmuch as it had acted by virtue of delegated powers of legislation under the Act in making the award enforceable as law. A State Government plays no part in such a proceeding except to make the reference under section 10 of the Act	 nor has it anything to do with regard to the publication of the award	 which is automatic under section 17 of the Act	 or its operation	 unless the case falls within the provisos to section 17A of the Act. A lock out lawfully declared under section 24(3) of the Act	 does not cease to be legal by its continuance beyond the strike	 although such continuance may be unjustified.