# [1965] 2 S.C.R. 85

- **Citation:** [1965] 2 S.C.R. 85
- **Court:** Supreme Court of India
- **Decided:** 1964-11-09
- **Bench:** P. B. Gajendragadkar, C.J.; K. N. Wanchoo, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1965-2-s-c-r-85-3360
- **Pages:** 6

## Headnote

Industrial Dispute-Dismi1sal of workman-Some ordered to rejoin but
fail to do so--Refermce of dispur. to tribunal treating them as dismissed if
valid.
Tribunal-pott•ers of-When punishment aniounts to victimisation or
unfair labour practice-If Tribunal can interfere.
Tho appellant company employed 30 workmen in its store yard of whom
11 were permanent and the remaining temporary. According to lhe practice of the appellant company 14 days in each year (including the lat of
January) were holidays and whenever a holiday fell on a Sunday the
following day was made a holiday. The first day of January 1961, being a
Sunday, the 11 permanent workmen did not attend work on the 2nd
January trealing it as holiday, although they had been told that owing
to pressure of work 2nd January was to be a working day and a holiday
in lieu would be given on another day. Because of their absence, they
were given a charge sheet and after enquiry, were ordered to be dismil!Sed.
Upon a reference to it of the dispute, the Tribunal held that the work·
men had gone on a strike (which was not illegal) but the punishment of
dismissal for such a strike for one day was too severe and unjustified and
most be treated as victimisation.
Reinstatement of the employee. was
.therefore order.
It was contended on behalf of the appellant company, first, that after
the enquiry, 3 of the 11 workmen were excused and ordered to rejoin
duty and therefore the reference to the Tribunal was bad because it referred to 11 workmen as 'dismissed' when only 8 were so treated; secondly,.
the Tribunal could not examine a finding or the quantum of punishment
and was not justified in interfering with the punishment of dismis.•al after
it had come to the conclusion that the workmen had gone ->n a strike, evm
though the strike was not illegal.
HELD : ( i) All the 11 workmen were charged together and raised
similar defences except that 3 of them had r~ised additional defences. Although these three workmen were ordered to rejoin work, they could not
have done so after their dispute was taken over by the Union and they
would have been treated like the others unless they broke away from
the Union by going a$ainst its wishes.
The Government was therefore
<:ntitled to treat the dispute relating to all the workmen as single and·
undivided and refer it as such to the Tribunal. [87 H; 88 A-BJ
(ii) Although it is a settled rule that the award of punishment for
misconduct is a matter for the management to decide and if there is any
jmtilication for the punishment imposed, the Tribunal should not interfere, where the punishment is so disproportionate that no reasonable employer would ever have imposed it in like circumstances, the Tribunal may
treat the imposition of such punishment as itself showing victimization or
unfair labour practice.
[88 FJ
SUPREME COURT REPORTS
[1965] 2 s.c.rt.
No reasonable empl<>yer _would have imposed the punishment of di•-
/!..
missal on its enJirc permanent staff in similar circumstances. 1beir puni.,h-
•ment ""t severe :ind out of proportion to the fault and therefore the intcr-
.lerence by tll'I! Tribunal W<k• justified. [89 E-H; 90 A-BJ
Case la\\' reviev.·cd.
CIVIL APP!'LLATE JURISDICTION : Civil Appeal No. 970 of
.1963.
B
Appeal by special leave from the Award dated May 4, 1962,
-of the 2nd Industrial Tribunal, West Bengal, in Case No. Vffi146 of 1961.
M. C. Setalvad, N. C. Shah and B. P. Maheshwari, for the
appellant.
c
D. L. Sen Gupta ano Janardan Sharma, for the respondent.

## Text

A
HIND CONSTRUCTION & ENGINEERING CO. LID.
B
c
D
E
F
G
H
v.
THEIR WORKMEN
November 9, 1964
[P. B. GAJENDRAGADKAR, C.J.; K. N. WANCHOO AND
M. HIDAYATULLAH, JJ.]
Industrial Dispute-Dismi1sal of workman-Some ordered to rejoin but
fail to do so--Refermce of dispur. to tribunal treating them as dismissed if
valid.
Tribunal-pott•ers of-When punishment aniounts to victimisation or
unfair labour practice-If Tribunal can interfere.
Tho appellant company employed 30 workmen in its store yard of whom
11 were permanent and the remaining temporary. According to lhe practice of the appellant company 14 days in each year (including the lat of
January) were holidays and whenever a holiday fell on a Sunday the
following day was made a holiday. The first day of January 1961, being a
Sunday, the 11 permanent workmen did not attend work on the 2nd
January trealing it as holiday, although they had been told that owing
to pressure of work 2nd January was to be a working day and a holiday
in lieu would be given on another day. Because of their absence, they
were given a charge sheet and after enquiry, were ordered to be dismil!Sed.
Upon a reference to it of the dispute, the Tribunal held that the work·
men had gone on a strike (which was not illegal) but the punishment of
dismissal for such a strike for one day was too severe and unjustified and
most be treated as victimisation.
Reinstatement of the employee. was
.therefore order.
It was contended on behalf of the appellant company, first, that after
the enquiry, 3 of the 11 workmen were excused and ordered to rejoin
duty and therefore the reference to the Tribunal was bad because it referred to 11 workmen as 'dismissed' when only 8 were so treated; secondly,.
the Tribunal could not examine a finding or the quantum of punishment
and was not justified in interfering with the punishment of dismis.•al after
it had come to the conclusion that the workmen had gone ->n a strike, evm
though the strike was not illegal.
HELD : ( i) All the 11 workmen were charged together and raised
similar defences except that 3 of them had r~ised additional defences. Although these three workmen were ordered to rejoin work, they could not
have done so after their dispute was taken over by the Union and they
would have been treated like the others unless they broke away from
the Union by going a$ainst its wishes.
The Government was therefore
<:ntitled to treat the dispute relating to all the workmen as single and·
undivided and refer it as such to the Tribunal. [87 H; 88 A-BJ
(ii) Although it is a settled rule that the award of punishment for
misconduct is a matter for the management to decide and if there is any
jmtilication for the punishment imposed, the Tribunal should not interfere, where the punishment is so disproportionate that no reasonable employer would ever have imposed it in like circumstances, the Tribunal may
treat the imposition of such punishment as itself showing victimization or
unfair labour practice.
[88 FJ
SUPREME COURT REPORTS
[1965] 2 s.c.rt.
No reasonable empl<>yer _would have imposed the punishment of di•-
/!..
missal on its enJirc permanent staff in similar circumstances. 1beir puni.,h-
•ment ""t severe :ind out of proportion to the fault and therefore the intcr-
.lerence by tll'I! Tribunal W<k• justified. [89 E-H; 90 A-BJ
Case la\\' reviev.·cd.
CIVIL APP!'LLATE JURISDICTION : Civil Appeal No. 970 of
.1963.
B
Appeal by special leave from the Award dated May 4, 1962,
-of the 2nd Industrial Tribunal, West Bengal, in Case No. Vffi146 of 1961.
M. C. Setalvad, N. C. Shah and B. P. Maheshwari, for the
appellant.
c
D. L. Sen Gupta ano Janardan Sharma, for the respondent.
The Judgment of the Court was delivered by
Hidayatullab, J.
This is an appeal by special leave against
the award of the Second Industrial Tribunal, West Bengal dated
D
May 4, 1962 by ·which _the Tribunal set aside the dismissal of
.eleven workmen employed by the appellant Company and ordered
their reinstatement with all back waj!;es except wages for January
2, 1961.
The appellant Company carries on activity as engineers and E
· contractors in different parts of West Bengal.
It had at Sukchar
a store yard and at the relevant time it employed 30 workmen at
Sukchar of whom 11 were permanent and the remaining temporary.
We are concerned with the dismissal of the permanent
workmen from January 2, 1961. According to the practice of the
appellant Company fourteen days were holidays in each year.
F
They included the 1st of January.
Whenever a holiday fell on a
Sunday the usual practice was to make the following day a holiday and that is how the dispute arose over the 2nd of January
which followed a Sunday in 1961. The case of the Union. in
short, was that the eleven workmen did not attend work on 2nd
of January treating it as a holiday while the case of the appellant
G
Company was that they had been expressly told that owing to
pressure of work 2nd January was to be working day and a holiday
in lieu would be given on another subsequent day. In view of their
· absence they were given a charge-sheet and after enquiry, were
ordered to be dismissed.
Before the enquiry they were placed
·under suspension and at the instance of the Union a reference
H
was made to the Labour Officer for conciliation.
The conciliation failed because the appellant Company did not appear.
A
HIND CONSTRUCTION co. v. WORKMEN (Hidayatul/ah, J.)
87
A reference was made to the Labour Tribunal by the Government
of West Bengal on April 21, 1961 of the following issue :
B
"Whether the dismissal of the following workmen
is justified; what relief, if any, they are entitled to, and
(here followed the 11 names)"
The Tribunal by its award held that there was no lock out or
lay off by the employer as was pleaded on behalf of the Union
11 Workmen had gone on a strike but it was not illegal and
that the punishment of dismissal for this strike must be treated
C as victimization of the employees and was quite unjustified both
in severity and in relation to the strike for one day.
The order
setting aside their dismissal and reinstating them was passed.
It may be pointed out that the Enquiry Officer recommended
the dismissal of only 8 of these workmen.
In regard to the remainD ing 3, benefit of the doubt was given for their absence on grounds
which may now be mentioned.
One Quigly, who was a Christian,
was excused with .a warning and deprivation of wages for 2nd
January on the ground that he had informed the Works Manager
that he would be unable to attend to his duties on 2nd January.
One J. C. Bose was excused because he had joined on the 31st
E December after. absence and was not in a position to know that the
2nd January was not declared a holiday.
He was also warned and
his absence was adjusted against leave due to him.
Lastly, one
A. K. Sarkar who was on leave till the 31st of December was
excused because he was informed by Quigly that 2nd January
would be a holiday.
He was also warned and his absence was
F
to be treated as leave with or without pay depending upon leave
to his credit.
These three persons were ordered to join duty but
they did not as the Union was of the opinion that the original dispute was still pending for conciliation and till the dispute was
settled they 9ould not join.
G
The appellant Company contends that the reference is bad
because it refers to 11 workmen as "dismissed" when only 8
were so treated.
Technically this is correct but we do not think
that we should interfere with the award on this ground alone.
All workmen were charged together and their defence more or less
was that the day following the 1st of January was to be a holiday in
H
accordance with the established practice, though three of them
raised additional defences when asked to file separate defences.
It is obvious that these three workmen could not join when their
88
SUPREME COURT REPORTS
[1965) 2 S.C.R.
dispute was taken over by the Union and though they were offered A
employment they would have been treated like the others unless
they broke away from their Union or went. against its wishes. !11
these circumstances, Government was entltled to treat the dispute as single and undivided and to refer the cases of all workmen who had absented thems~lves on the 2nd of January on the
ground that they claimed it as a holiday.
We do not, therefore,
B
interfere with the award on this ground.
The next question is whether the Tribunal was justified in
interfering with the punishment of dismissal after it had come to
the conclusion that the workmen had gone on a strike even
though the strike was not illegal.
Reference is made to a numC
ber of cases in which the principles for the guidance of the Tribunals in such matters have been laid down by this Court. It is
now settled law that the Tribunal is not to examine the finding
or the quantum of punishment because the whole of the dispute
is not really open before the Tribunal as it is ordinarily before a
court of appeal.
The Tribunal's powers have been stated by D
this Court in a large number of cases and it has been ruled that the
Tribunal can only interfere if the conduct of the employer shows
lack of bona {ides or victimization of employee or employees or
unfair labour practice.
The Tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding,
E
but it cannot substitute its own appraisal of the evidence for that
of the officer conduct!ng the domestic enquiry though it may
interfere where the principles of natural justice or fair play have
not been followed or where the enquiry is so perverted in its .
procedure as to amount to l!O enquiry at all.
In respect of punishment it has been ruled that the award of punishment for misF
conduct under the Standing Orders, if any, is a matter for the
management to decide and if there is any justification for the
punishment imposed the Tribunal should not interfere. The
Tribunal is not required to consider the propriety or adequacy of
the punishment or whether it is excessive or too severe.
But
where the punishment is shockingly disproportionate, regard being G
had to the particular conduct and the past record or is such, as
no reasonable employer would ever impose· in like circumstances,
the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. ·These principles can be gathered from the following cases :-·
Bengal Bhatdee Coal Co. Ltd. v. Ram Probesh Singh &
H
Ors.(') Buckingham & Carnatic Co. Ltd. v. Workers( 2 ); Tita-
·--
------
(!) 11964[ I S.C.R. 709.
(2) [1952] L.A.C. 490.
IIlND CONSTRUCTION co. v. WORKMEN (Hidayatullah, /.)
89
A
ghar Paper Mills Co. Ltd. v. Ram Naresh Kumar('); Doom
Dooma Tea Co. Ltd. v. Assam Chah Karamchari Sangh(');
Punjab National Bank Ltd. v. Workmen("); Chartered Bank
Bombay v. Chartered Bank Employees Union(').
In the present case the dispute was whether the punishment
B amounted to victimization or unfair labour practice.
Mr. Sen
Gupta referred to various parts of the record of the enquiry to
show that the conduct of the workmen was regarded as collective,
that it was described as a strike, that it was considered to be the
result of a conspiracy and that there was a demand for over time.
Mr. Sen Gupta contended that, in the circumstances, this must
C be regarded as a case of victimization because only the permanent workers were subjected to this treatment.
Mr. Sen Gupta
hinted that there was an ulterior motive in dismissing the permanent workers and getting the work done by temporary hands so
that the Union may break down and even the re-employment of
three workmen, who were probably indispensable to the employer,
D was with the same motive.
On the other hand, Mr. Setalvad
argued that there was nothing on the record to show that this was
a case of victimization.
These persons were found guilty at the
enquiry and also by the Tribunal and it was merely a question of
what punishment should be imposed and that was a matter entirely
E within the competence of the employer.
In our judgment, this is one of those cases in which it can
plainly be said that the punishment imposed was one which no
reasonable employer would have imposed in like circumstances
unless it served some other purpose.
There was a practice of
substituting for a holiday falling on a Sunday, the day next
F
following. This appears to have been done in the appellant Company for a number of years. In this year also the 2nd of January
would have been a holiday but for the contrary decision of the
Management.
From the record it does not appear that there was
anything very special requiring attention on that day.
But assumG ing there was, the absence of the eleven workmen on the 2nd was
not something for which no lesser punishment could have been
imposed.
The absence could have been treated as leave without
pay; the workmen might even have been warned and fined. It
is impossible to think that any other reasonable employer would
have imposed the extreme punishment of dismissal on its entire
H permanent staff in this manner. Assuming for a moment, that three
(I) [1961] I L.L.J. 511.
(3) [1959] II L.L. J. 666.
L3Sup.J65-7
(2) [1960] 2 L.L.J. 56.
(4) [1960] II L.L. J. 222.
90
SUPREME COURT REPORTS
[1965) 2 S.C.R.
workmen were warned and taken back, the employer knew very
A
well that they could not join in view of the intervention of the Union.
On the whole, therefore, though we emphasise again that a Tribunal
should not interfere with the kind or severity of punishment except
in very extraordinary circumstances, we think that interference was
justified in this case because the punishment was not only severe
and out of proportion to the fault, but one which, in our judgment,
no reasonable employer would have inwosed.
The appeal, therefore, fails and is dismissed with costs.
Appeal dismissed.
B