# INDIA MARINE SERVICE· PRIVATE LTD v. THEIR WORKMEN

- **Citation:** [1963] 3 S.C.R. 575
- **Court:** Supreme Court of India
- **Decided:** 1961-01-31
- **Bench:** P. B'. Gaj])Ndragadkar, K. C. "Das, G~Ta, Y J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/india-marine-service-private-ltd-v-their-workmen-2647
- **Pages:** 10

## Headnote

\ .?
lndusirki,l Diipute~Dismis~al of e~ploy~e'--'in~bordi·.
nation~Tribunal's power to re-in.~tate-Lock-out due· to illegal
strike-Lock-out originally valid but found invalicl ldter-Olaim
for wages for the perioil of lock-out..
'
.
•
.
I
,"
B, a clerk in the appellant company, was found shouting
and bel:\aving in a r:ide a.nd insolent manne~ ~it~ p.is superior
officer.· In consequence of this incident a charge-sheet was
issued ~o· him and he was asked to give his 'explan'ation for'
his behaviour; he was also asked to give explanation fn reipect
ofcc;rtain purchases made by him for the coffi.papy. '.Eventually"
an enquiry was held by the Managing Director at which he
found that two charges were made out, and on the basis of the
findings the company dismissed B from his post.. In the letter
by the Managing Director dated October 29, 19511, addressed
to Bit was stated: "After giving, your matter .our very; careful
consideration, we have,
therefo~e, painfully come to the
decision that in the interest cif discipline and Business you
should be forthwith dismissed from our ser,vice .. "· rn· taking
this action against you we have also taken into consideration
your past record which is very much against you." The
Industrial Tribunal considered that the findings were based
not merely on the charges set out in the charge-sheet but on
certain other charges which B was not given on opportunity .
to explain, and, therefore, the enquiry was vitiated and the
dismissal could not be sustained. The Tribunal proceeded
to consider the evidence and held that the allegation of
insubordination against B was not proved, •I:t, accordingly,
oraered his re-instatement.
.
. Helcl, that the order of the Tribuna:1. was contr~ry to
law; .that the Managing Director must be considered, in his
letter; to have arrived at the conclusion that B's services
should be terminated in the interest of1discipline. though he
had added one sentence to give. a.dditionill weight to the
ilecision already arrived at; and that the Ttib.unal was not
competent to go.behind the finding of the Managing Director
and consider for itsci.lf the evidence adduced before 'him. r · ·
,
'
.
'
,·
--
August 8.
1061
India Morine
tTWic1 Pf'it1ate IJd.
••
Their Workmen
"
576
SB'I~R~ME COURT REPORTS (1963] . ·,.. ,,
On acc0uilt ·or a sudden: ;trike iaun~hed by th~ _,;o~kmen
on November 13, 1958, the company declared a lock-out. The
lock-out continued till January·5, 1959
on which date the
company's works were re~opened, It w~s found that while
the strike was unju~tifiabli: •. and: the: lock-out when it was
ordered on November 13, 1958, was justified, its continuance
for 53 days
was' WhOlly: 'unrl!a:sonable .. and,
therefore,
unjustified.
·
.
Held, that.where a strike is ·unjustified ·and· is· followed
hy.a lock.out which has, because of its long du.ration;. become
-qnjustificd, .the ·proper course for· an .. industrial tribunal .is to
apportion the blame and direct the payment of the wages for
the period of the lock-out which could be considered as
1Jnjustified.
·
· ·
.. '
wh~re a sirike is unjustified and the l~ck~oμt is justified
t~e workmen would not be entitled to any · wages at all, but
where the, strike is justified qnd the lock-out is unjustified the
workmen would b,e entitled to the entire wages for the period
qf strike and lock-out.
.
.
.
CIVIL APPELLATE Jmi.lsmOTION: Civil Appeal
No. 202 of 1962.
:. . . Appeal by special leave from the Award dated
January 31, 1961, of the Third Industrial Tribunal,
West Benaal, in case No. VIII-28 of 1960. ·
.
,
o.
I
,
• . , Y. Kumar, forthe appellant.
, • B. P .. Maheshwari, for the respondents.
' '
. , , 1962. August 8.
'fhe Judgment of the Court
was·delivered by'
.. ' . '
'
.
MUDHOLKAR, J.,.-In this appeal ~y special
leave against an a ward made by · the· '-!?hll'd I?dust·
~ial,Tr.ib;unal, West ·Bengal,. two questions t\J'.IS,e for
considerati<in. , The first is whether the dismissal
of Robin Bose, Purchaser, ·was justified and the
other is whether

## Text

3 S.C.R. · 1 SUPREME COURT REPORTS
575
INDIA MARINE SERVICE· PRIVATE LTD.
1962
v.
THEIR WORKMEN.
(P. B'. GAJ])NDRAGADKAR, K. C. "DAS,. G~TA and
Y
J. R. MUDHOLKAR, JJ.)
\ .?
lndusirki,l Diipute~Dismis~al of e~ploy~e'--'in~bordi·.
nation~Tribunal's power to re-in.~tate-Lock-out due· to illegal
strike-Lock-out originally valid but found invalicl ldter-Olaim
for wages for the perioil of lock-out..
'
.
•
.
I
,"
B, a clerk in the appellant company, was found shouting
and bel:\aving in a r:ide a.nd insolent manne~ ~it~ p.is superior
officer.· In consequence of this incident a charge-sheet was
issued ~o· him and he was asked to give his 'explan'ation for'
his behaviour; he was also asked to give explanation fn reipect
ofcc;rtain purchases made by him for the coffi.papy. '.Eventually"
an enquiry was held by the Managing Director at which he
found that two charges were made out, and on the basis of the
findings the company dismissed B from his post.. In the letter
by the Managing Director dated October 29, 19511, addressed
to Bit was stated: "After giving, your matter .our very; careful
consideration, we have,
therefo~e, painfully come to the
decision that in the interest cif discipline and Business you
should be forthwith dismissed from our ser,vice .. "· rn· taking
this action against you we have also taken into consideration
your past record which is very much against you." The
Industrial Tribunal considered that the findings were based
not merely on the charges set out in the charge-sheet but on
certain other charges which B was not given on opportunity .
to explain, and, therefore, the enquiry was vitiated and the
dismissal could not be sustained. The Tribunal proceeded
to consider the evidence and held that the allegation of
insubordination against B was not proved, •I:t, accordingly,
oraered his re-instatement.
.
. Helcl, that the order of the Tribuna:1. was contr~ry to
law; .that the Managing Director must be considered, in his
letter; to have arrived at the conclusion that B's services
should be terminated in the interest of1discipline. though he
had added one sentence to give. a.dditionill weight to the
ilecision already arrived at; and that the Ttib.unal was not
competent to go.behind the finding of the Managing Director
and consider for itsci.lf the evidence adduced before 'him. r · ·
,
'
.
'
,·
--
August 8.
1061
India Morine
tTWic1 Pf'it1ate IJd.
••
Their Workmen
"
576
SB'I~R~ME COURT REPORTS (1963] . ·,.. ,,
On acc0uilt ·or a sudden: ;trike iaun~hed by th~ _,;o~kmen
on November 13, 1958, the company declared a lock-out. The
lock-out continued till January·5, 1959
on which date the
company's works were re~opened, It w~s found that while
the strike was unju~tifiabli: •. and: the: lock-out when it was
ordered on November 13, 1958, was justified, its continuance
for 53 days
was' WhOlly: 'unrl!a:sonable .. and,
therefore,
unjustified.
·
.
Held, that.where a strike is ·unjustified ·and· is· followed
hy.a lock.out which has, because of its long du.ration;. become
-qnjustificd, .the ·proper course for· an .. industrial tribunal .is to
apportion the blame and direct the payment of the wages for
the period of the lock-out which could be considered as
1Jnjustified.
·
· ·
.. '
wh~re a sirike is unjustified and the l~ck~oμt is justified
t~e workmen would not be entitled to any · wages at all, but
where the, strike is justified qnd the lock-out is unjustified the
workmen would b,e entitled to the entire wages for the period
qf strike and lock-out.
.
.
.
CIVIL APPELLATE Jmi.lsmOTION: Civil Appeal
No. 202 of 1962.
:. . . Appeal by special leave from the Award dated
January 31, 1961, of the Third Industrial Tribunal,
West Benaal, in case No. VIII-28 of 1960. ·
.
,
o.
I
,
• . , Y. Kumar, forthe appellant.
, • B. P .. Maheshwari, for the respondents.
' '
. , , 1962. August 8.
'fhe Judgment of the Court
was·delivered by'
.. ' . '
'
.
MUDHOLKAR, J.,.-In this appeal ~y special
leave against an a ward made by · the· '-!?hll'd I?dust·
~ial,Tr.ib;unal, West ·Bengal,. two questions t\J'.IS,e for
considerati<in. , The first is whether the dismissal
of Robin Bose, Purchaser, ·was justified and the
other is whether the appell&nt's employees were
entitled to.' any w&ges for the period between
NoveiQiber: 1;3,'Hl[l8; and January 4,
J95~, dqring
which there :was. a.look-out, . , , .
-
'
' .
.
'
'
'
"
..
•
3 S.C.R. ·
1 SUPREME COURT REPOR'rS
577
In a sense the two questions are separate and
we will first mention the .facts relevant to the question regarding the dismissal of Robin Bose. Bose
was a. clerk, designated as Purchaser by the appel·
lant company. On September 13, 1958, at about
10-00 a. m. &. N. Chatterjee, !mder whose
supervision Bose was working, took from the latter's table
the purchas·e estimate book maintained by him
for the purpose of checking an item of purchase
made by him on August 18, 1958. ShortlY. afterwards Bose went up to Chatterjee and asked for the
book to be returned. Chatterjee told him that the
book should be left there fore some time and would
be returned to him after he (Chatterjee) had finished with it.
Bose, however,
got annoyed.
H-:i
flared up and started abusing Chatterjee in an
objectionable language in the presence of the entire
office staff. Though reminded by Chatterjee of
the need for mi.intaining discipline in the office he
did not pay any heed to Chi;. tterjee. Then he told
him in a loud and thre1.1.tening voice: ''Don't teach
me office discipline. I have worked in bigger offices,
you shall have to bear consequence, if you don't
return the book right now." Chatterjee reminded
him that he was ·•purchase-in-charge" and had every
right to see the registers
mai~tained by the nur·
chase department. This only infuriated Bose further and he said "I shall see you-I know how to
teach you a good lesson," and left Chatterjee's table.
Shortly thereafter the Managing Director came and
Chatterjee reported the matter to him about Bose.
Bose Wl.'S then called by the Managing Director to
his Chamber and asked for an explanation for shout·
ing and behaving in a rude manner with his superior.
It would appear that Bose was not repentant and
after lea-ving the Managing Director's room again
started being nasty to Chatterjee and said in a.loud
voice ''If you don't arrange to return the book at
o:qce I will teach you a good lesson on the roaq,"
•
•
.
•
I
.
·.
I
1961
India Marini
S11viee Private Ltd.
v.
Their W 01kmen
Mudholkar J.
India Maf'ifle ·
8ptJ;ee Priuate ~'?·
.•.
Their W Otkmen
Mudholkar J. ·
578
SUPRIEME COURT RBP(i)RTS [1963]
Thereafter the Managing ,Director came out of the
room and with difficulty succeeded in making him
quiet.
.
In consequence of this incident a charge-sheet
was issued to Bose and he was asked to give his
written explanation for his rude and insolrint behaviour towards his superior officer R.N. Chatterjee.
He was also asked to explain another matter, that
is, not bringing to Chatterjee's notice the fact that
on August 18, 1958, he had bought copper •heets at
Rs. 3-1-0 per lb.
from
Messrs. Joydeb Nityalal
Paramauick and when he was sent again to purchase the same commodity from the same firm on
August 21, 1958, he
bought it at . the ratt>
of
Rs. 3-4-0 per lb.
In his reply dated September 20,
1958, Bose stated that what was set out in the
cha.rge-sheet was distortion of facts ~d that at the
time of enquiry he would place all the facts before
the enquiry officer. He, however, denied tl.e charges.
To this the .company replied saying that the
statement was vague and that in his own interest
and in the interest of justice he should give liis precise explanation. To this Bose replied saying that
ho had. nothing further to say. Then some further
correspondence ensued between Bose and the company and as a result of something which Bose had
said is one of his letters he was served' with a second.
charge~sheet.
Eventually an enquiry was held by the Managing Director at which he found that the two chargeR
set out in the first charge-sheet were made out.
On the basis of the findings the company dismissed
Bose from his post.
No separate report had been
drawn up by the Managing Director who held the
enquiry but aH material things were set out in the
letter. dated Qotober 29, 1958, aQdressed by him to
~ose,
·
·
·
..
•
,,,
3 S.C,R.
SUPREME COURT'.REEORTS
579 '·
The Tribunal observed that no tenqU:iry was
held on the second charge-sheet and,: therefore, the
charge.sheet should be ruled out '.from · consideration and that as the findings were based not merely
on the charges set out in the first charge-sheet ·but
on certain other charges which Bose was not, given
an opportunity to explain the enquiry was· ;vitiated
and the dismissal could not be sustained. It; therefore, proceeded to consider the evidence .. adduced
before the domestic Tribunal and. held' •that the
allegation of insubordination Against,Bose has not
been proved by convincing evidence. ; It, therefore,
ordered the re-instatement of Bose .with full back
wages and allowances from the date .of his dismissal
upto the_date on which he will be re-instated.
It is no doubt true that no enquiry ;was· held
on .the charges contained in the second charge-sheet
and, therefore, that charge-sheet w~s rig;htly
.k~pt ·
out of consideration by the Managing Director and
the '.l'ribunal.
It is true that a .reference: -is m~qi;i
to certain extraneous matters in the letter of the
Managing Director dated October 2!J, 1,95&, · ~d~ress
ed to Bose. But considering the letter as.a .who)e
and particularly the last paragraph ·it st)e~s. tp .us
to be abundantly clear that the decision qf the
Managing Director to dismiss Bose was based only ·
on the charge of insuboruination. In this connection it will be useful to quote that paragraph:
"After giving your. matter our very
careful consideration, we have, therefore,
painfully come to the decision that in the
interest of discipline and business you should
be forthwith dismis1:1ed from our service. Accordingly your service will no longer be requir.
ed by us from today.
In taking this action
~,gainst you we have also taken into consideration your past record which is very much.
. ~a~t.roq:''; .-
. .
·
1962
India Marine
Service Private Ltd.
v.
Th1ir Workmen
Mudholkar J .'
1sin
India 'Marine
Seruice Private Ltd.
v.
Thair W 01 kmen
M udhalkar .1.
-
580
SUPREME COURT REPORTS [1963)
It is true that the last sentence suggests that
the past record of Bose has also been taken into
consideration. But it does not follow
from this
that that waR the effective reason for dismissing
him.
The Managing Director
having
arrived
at the
conolusion that
Bose's services must
be terminated
in the
interest
of discipline,
he added one sentence to give additional weight
. to the dicision already arrived at. Upon this view
it would follow that the Tribunal was not
competent to go behind the finding of the Managing
Director and consider for itself the evidence
adduced before him. The order of the Tribunal
quashing the dismissal of Bose and directing his
re-instatement is, therefore, set aside ·as being
contrary to law.
Coming next to the question of the lock-out
it is abundantly clear that the look-out was ordered
by the company because of a sudden Btrike, no
doubt a token one, launched by the workmen. It
would appear that the strike was only to be partial
and notice of it was given on the previous day.
In order to appreciate the background of the
strike and look-out it is desira.ble to set out certain
facts. By an agreement dated N<nrember 23, 1956,
the management had agreed to pay 37 days' wages
to its factory employees for the year 1955·56 as
bonus. It was also agreed at that time that bonus was
not to be a. condition. of service. On Septem her
10, 19.58, the respondent union
mad~ a demand
for seven days' . bonus over and above the usual
bonus of :>,7 days. In rnply to this the company
stated in its letter dated October 11, 1950, that it
does not agree to the demand that. bonus is payable
· ·as a condition of ·service, that although no bonus
.is payable, the company, as a gesture of goodwill,
have offered to pay to. the workmen 15 days'
consolidated wages as bonus and expresil~d the
hope tha.t its offer would be aooe~ted. On October
.,... .
•
3 s.C.:R.
SUPREME COURT REPORTS
581
13, 1958, the company again wrote to the union
pointing out that the workmen bad resorted to go
slow tactics which adversely affected their business
which was of repairing ships and then observed:
"We should also strongly suggest that
the management and the union jointly approach
the Labour Directorate at once on the follo-
. wing issues:
1.
Whether the workmen are justified in
stopping overtime as and when they like.
2.
Bonus.
.
In oonsideration o.f this we may even
agree to pay the workmen certain sum of
money, as iμ.ay be recommended by the
Conciliation
Officer,
on advance
account
pending the adjudication by the Tribunal of'
the issue of bonus. It sho"Q.ld, however, be
clearly understood, that if the Tribunal decides
against payment of bonus or allows bonus
less than the amount advanced to them, the
entire advance money or the difference will
· be recovered from the wages of the workmen
by instalments as may be directed by the
Tribunal."
This suggestion wa.s peremptorily rejected by the
respondent union by its letter dated October 15, 1958,
the relevant portion of which is as follows:
"We would simply ask where bad your
good sense for tripartite conference before
which you have adopted now we think as a.
measure of delaying tactics. We know better
what to do when we will be asked to attend
tripartite conferen9e."
·
.
On October 16, 1958, the company wrote to the
Labour Commissioner, }Vest Bengal, apprising him
J9$1
[ndia/Jlari111
S er?Jice PrilHlh Lii. •
v.
Their Workmen
M udholkar J.
196B
Irulia larine
S1rHte p,i,ate Ltd.
·-
Their fYorkmtn
Mudhol<ar J.
582
~tJPREM:E OOtJRT REPORTS [1963]
of the situation in ·the factory and requesting him
to intervene. It seems that on that day a representative of the company discussed . the situation
with Mr. Basu, the Assistant Labour Commissioner.
Next day the· company wrote to Mr. Basu in which
it observed that although the financial position of
the company. does not justify the demand of bonus
the company was prepared to make ex-gratia
payment of bonus on the same ·basis as in the
previous year subject to three conditions:
.
' ' .
"(i) the Union condemns the workmen's
conduct in stopping overtime since 10th
-October, 1958 and putting the company
to considerable loss.
(ii) the Union undertakes to see that the
workmen do not stop doing overtime
in future.
(iii) the bonus is not to be consi<lered as a
condition ·of service."
On November 5, 1958, the respondent union wrote
to the company a letter in. which they made ten
demands, the first of wh.ich, was that 37 days' wages
as bonus should . ])e paid to all workmen at the
works and head office.
Then they went on a pHrti&I
strike on November 13, 1958. On that very day
the company published a look-out notice on its
notiee bol!rd and served copy thereof on the union.
That notice reads thus:
"For sometime past the workmen by
taking re.sort to organised slow down and by
refusing to work overtime and by keeping a
strike notice hanging on us have to a great
. extent crippled our ship repairing business
and have made it difficult for us .to aooept
major ship repairs or large orders. · Today
· hte workmen have resorted to a strike when
. , {
. I
.
-
3s.c.:R.
SUPREME COU~T REPORTS
583
we have on our hands a ship in dry' dock
awaiting unlocking today and another ship
is due to sail in two days' time. This strike
is definitely illegal and in consequence of
this illegal strike we
have no choice but
hereby to declare lock-out.''
The lock-out continued till January 5, 1959, on
which date the company's works were re"OP"lned.
The termillation of the lock-out was brought by a
· settlement made between the parties on January
3, 1959. In that settlement it waH agreed that I%
of the sale proceeds of the ship repairing section,
leas sales tax, for the whole year will be paid as
bonus to the workmen irrespective of profit and
'loss of the company and 15 d&ys' wages wm be
paid as Puja bonus to the workmen every year
irrespective of profit and loss of the company. It
.is not necesllary to refer to the other terms of the
agreement.
It seems to us that the attitude of the
company· was a reasonable one and that it even
proposed to the union and through it to its workmen
that work should go on, that the dispute should be
taken before the Conciliation Officer for conciliation
and that in the meanwhile they were prepared to
grant some interim relief to the workmen. ·But
instead of accepting ·this rflasonable offer the union
spurlJ\}d · n contemptuously and .for coercing the
c9mpany encouraged its members to strike work
6n November 13: 1958, It is true that the strike was
intended to be a token one.
But; the object of that
strike being to circumvent settlement in an amicable
manner, even though the company was rea1y for
such settlement, we have no doubt that strike was
unjustified. It is in the light of this finding that
the look-out halfto.be judged. In our opinion, while
the strike was unjustifiable the lock-out when it
was orderd on November 13, 1958, was justified.
1~62
I niitJ M 1Jrin1
SmJic1 l'ritlaU Lti.
y;
Th1ir 1' Wk"'411
--
M udholkar J •
1901
India M r..rine
Seroice Prioo.le Ltd.
v.
Th<ir W orl>"""
Mudholk•• J.
584
SUPREME COURT REPORTS [lOOSl
It seems to us, however, that though the lock-out
was justified at its commencement its continuance
for 53 days was wholly unreasonable and, therefore.
unjustified. In a case where a strike is unjustified
and is followed by a lock-out which has, because
of its long duration, become unjustified it would
not be a proper course for an industrial tribunal to
direct the payment of the whole of the wages for
the period of the look-out. We would like to make
it clear that in a case where the strike is unjustified
and the look-out is justified the workmen would
not be entitled to any wages at all. Similarly where
the strike is justified and the lock-out is unjustified
the workmen would be entitled to th.e entire wages
for the period of strike and look-out. Where,
however, a strike is unjustified and is followed by
a lock-out which becomes unjustified a case for
apportionment of blame arises. In our opinion in
the case before us the blame for the situation which
resulted after the strike and the lock-out can be
apportioned roughly half and, half between the
·company and its workers. In the circumstances we,
therefore, direct that the workmen should get half
their wages from November 14, 1958, to January
3, 1959, (both days inclusive).
The appeal is thus allowed partly and the
award modified to the extent to which the appeal
hail been allowed. We make no order as to cost.
Appeal allowed in part.
•