# Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vi1iayak Go5avi Hidayatullah ]

- **Citation:** [1960] 1 S.C.R. 806
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 521 of 1958
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. SuBBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narayan-bhagwantrao-gosavi-balajiwale-v-gopal-vi1iayak-go5avi-hidayatullah-1831
- **Pages:** 55

## Headnote

Industrial Dispute-Dismissal by employer pending adjudication
-Omission to hold proper enquiry or obtain permission of the
Tribunal-Su.ch dismissal, if wholly void-Jurisdiction of Tribunal,
Scope of-Pen-down strike-Legality-If disentitles a dismissed
employee to reinstatem'ent-Ind·ustrial Disputes Act, I947 (I4 of
I947), SS. 2(q), IO, 33, 33A.
The employees of the appellant Bank commenced pen-down
strikes, which were followed by a general strike, pending arbitration of an industrial dispute between them. The Government of
India intervened and as the result of an agreement that followed
the Bank reinstated all the employees except lSO, against whom
it had positive objections, and the Government referred their
cases under s. IO of the Industrial Disputes Act, 1047, to the
Industrial Tribunal for arljudication. The two issues before the
Industrial Tribunal were whether the rso employees had been
wrongly dismissed and what wages and allowances would the
S.C.R.
SUPREME COURT REPORTS
807
employees be entitled to on reinstatement. The case of the
z959
employees was that the Bank wanted to penalise the active trade
-·
unio.n workers by the said dismissals while the Bank mai:gtained
!h• Punjab
that the employees were guilty of participation in illegal strikes National Bank, Ltd.
intended to paralyse its business and scare away its customers.
v.
The Industrial Tribunal did not hear evidence and, by its final
Its Workmen
award, held that. the strikes being illegal, the Bank was, on that
ground alone, justified in dismissing the employees. Efen so, it
directed the Bank to make certain payments to the employees on
compassionate grounds. The Bank as well as the employees
appealed. The Labour Appellate Tribunal held that even though
the strikes· were illegal under s. 23(b) read with s. 24(1) of the
Industrial Disputes Act, 1947• the Bank had, by entering into
the agreement with the Government of India, waived its right to
take penal action against the employees for joining the illegal
strikes and that, therefore, an enquiry should be held on additional evidence to decide the disputes on merits. Against this
interlocutory order the Bank appealed to this Court and it was
held by this Court that while the strikes were no doubt illegal
under s. 23(b) of the Act, the orders of dismissal 'Passed by the
Bank were no less so under s. 33 of the Act, and it dismissed the
appeal. The Appellate Tribunal, thereafter, heard the cases on
merits, directed the reinstatement of 136 of the said employees,
but refused to reinstate the re;;t w horn it found guilty of issuing
posters and circulars subversive of the credit of the Bank. Both
the parties appealed to this Court. Preliminary objections were
raised on behalf of the said employees that, (1) in view of ·the
decision of this Court dismissing the Bank's appeal against the
said interlocutory order the subseqm:nt inquiry by the Tribunal
and the orders of dismissal must be held to be void and, (2) no
charges having been admittedly framed nor any proper enquiry
helcl by the Bank against the employees, the orders of dismissal
were wholly invalid. It was urged, inter .aJia, on behalf of the
Bank in the appeals that participation 'in a pen-down strike by
itself amounted to misconduct sufficient to disentitle an employee
to reinstatement and that the entire body of strikers, being
collectively responsible for the publication of the subversive
documents in question, the dismissed employees could by no
means escape liability.
H~ld (per curiam), that the preliminary objections must be
negatived and the decision of the Appellate Tribunal affirmed
with this modification that, in view of its inconsistent findings,
the appeal of one of the employees must be allowed.
Per Sinha and Gajendragadkar, JJ.-The purpose the
Legislature had in view in enacting s. 33 of the Industrial
Disputes Act, 1947, was to maintain the status quo by placing a
ban on any action by the employer pending adjudication.
But the jurisdiction conferr

## Text

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1959
Narayan
Bhagwantrao
Gosavi Balajiwale
v.
Gopal Vi1iayak
Go5avi
Hidayatullah ].
1959
September z4
806
SUPREME COURT REPORTS [1960(1)]
Respondents 6 and 7 raised before us the question of
costs. They stated that the trial Judge had given two
sets of costs, which was changed to one set by the
High Court. These resp'.mdents should have crossobjected on this point against the judgment of the
High Court, and in the absence of any such cross-objection, no relief can be granted to them.
For the same
reason, no relief can be given to respondent 7, in
respect of whom the finding that he had no right of
performing the seva and getting emoluments attached
to that right, as respondents 1 to 4, has not been
vacated, as was done in the case of respondent 6. In
view of our observations that these matters were alien
to the suit which had been filed, we do not propose to
deal with them.
In the result, the appeal is dismissed. The appellant
will personally pay the costs of Respondent 1.
The
other set of respondents will bear their own costs.
Appeal dismissed.
THE PUNJAB NATIONAL BANK, LTD.
v.
ITS WORKMEN
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. SuBBA RAo, JJ.)
Industrial Dispute-Dismissal by employer pending adjudication
-Omission to hold proper enquiry or obtain permission of the
Tribunal-Su.ch dismissal, if wholly void-Jurisdiction of Tribunal,
Scope of-Pen-down strike-Legality-If disentitles a dismissed
employee to reinstatem'ent-Ind·ustrial Disputes Act, I947 (I4 of
I947), SS. 2(q), IO, 33, 33A.
The employees of the appellant Bank commenced pen-down
strikes, which were followed by a general strike, pending arbitration of an industrial dispute between them. The Government of
India intervened and as the result of an agreement that followed
the Bank reinstated all the employees except lSO, against whom
it had positive objections, and the Government referred their
cases under s. IO of the Industrial Disputes Act, 1047, to the
Industrial Tribunal for arljudication. The two issues before the
Industrial Tribunal were whether the rso employees had been
wrongly dismissed and what wages and allowances would the
S.C.R.
SUPREME COURT REPORTS
807
employees be entitled to on reinstatement. The case of the
z959
employees was that the Bank wanted to penalise the active trade
-·
unio.n workers by the said dismissals while the Bank mai:gtained
!h• Punjab
that the employees were guilty of participation in illegal strikes National Bank, Ltd.
intended to paralyse its business and scare away its customers.
v.
The Industrial Tribunal did not hear evidence and, by its final
Its Workmen
award, held that. the strikes being illegal, the Bank was, on that
ground alone, justified in dismissing the employees. Efen so, it
directed the Bank to make certain payments to the employees on
compassionate grounds. The Bank as well as the employees
appealed. The Labour Appellate Tribunal held that even though
the strikes· were illegal under s. 23(b) read with s. 24(1) of the
Industrial Disputes Act, 1947• the Bank had, by entering into
the agreement with the Government of India, waived its right to
take penal action against the employees for joining the illegal
strikes and that, therefore, an enquiry should be held on additional evidence to decide the disputes on merits. Against this
interlocutory order the Bank appealed to this Court and it was
held by this Court that while the strikes were no doubt illegal
under s. 23(b) of the Act, the orders of dismissal 'Passed by the
Bank were no less so under s. 33 of the Act, and it dismissed the
appeal. The Appellate Tribunal, thereafter, heard the cases on
merits, directed the reinstatement of 136 of the said employees,
but refused to reinstate the re;;t w horn it found guilty of issuing
posters and circulars subversive of the credit of the Bank. Both
the parties appealed to this Court. Preliminary objections were
raised on behalf of the said employees that, (1) in view of ·the
decision of this Court dismissing the Bank's appeal against the
said interlocutory order the subseqm:nt inquiry by the Tribunal
and the orders of dismissal must be held to be void and, (2) no
charges having been admittedly framed nor any proper enquiry
helcl by the Bank against the employees, the orders of dismissal
were wholly invalid. It was urged, inter .aJia, on behalf of the
Bank in the appeals that participation 'in a pen-down strike by
itself amounted to misconduct sufficient to disentitle an employee
to reinstatement and that the entire body of strikers, being
collectively responsible for the publication of the subversive
documents in question, the dismissed employees could by no
means escape liability.
H~ld (per curiam), that the preliminary objections must be
negatived and the decision of the Appellate Tribunal affirmed
with this modification that, in view of its inconsistent findings,
the appeal of one of the employees must be allowed.
Per Sinha and Gajendragadkar, JJ.-The purpose the
Legislature had in view in enacting s. 33 of the Industrial
Disputes Act, 1947, was to maintain the status quo by placing a
ban on any action by the employer pending adjudication.
But the jurisdiction conferred on the Industrial Tribunal by
s. 33 of the Act was a limited one. Where a p~oper enquiry had
been hdd and no victimisation or unfair labour practice had been
808
SUPREME C1JURT REPORTS [1960(1)]
z959
resorted to, the Tribunal in granting permission had only to
satisfy itself that there was a prima facie case against the
The Punjab
employee and not to consider the propriety or adequacy of the
National Bank, Ltd. proposed action.
But to such permission, when granted. the
v.
Tribunal could attach no conditions; it can either grant or
Its Workmen
refuse it.
The effect of such permission was only to remove the ban
imposed by s. 33 of the Act. It could neither validate a dismissal
nor prevent it from being challenged in an industrial dispute;
but in such a rlispute, when raised, the employer could justify its
action only on such grounds as were specified in the original
charge-sheet and no others.
There was substantial difference between non-compliance
with s. 33 of the Act and that with Art. 3u(2) of the Constitution. Compliance with s. 33 only avoided the penalty under
s. 3r(r) of the Act, while compliance with Art. 3u(2) of the
Constitution made the order of dismissal final.
Atherton West c5- Co. Ltd. v. Suti Mills Mazdoor Union, [1953]
S.C.R. 780, The Automobile Products of India ltd. v. Rukmaji Bula,
[1955] I S.C.R. 1241, Lakshmi Devi S1'gar Mills Ltd. v. Pt. Rum
Sarup, [1956] S.C.R. 916, Indian Iron and Steel Co. Ltd. v. Their
Workmen, [1958] S.C.R. 667 and McKe.nzie c5- Co. Ltd. v. Its
Workmen, [1959] S.C.R. (Suppl.) 222 referred to.
It was not, therefore, correct to contend that non-compliance
with s. 33 of the Act could render the orders of dismissal wholly
void or take away the jurisdiction of the Tribunal to hold the
enquiry. Nor could the failure to hold a proper enquiry have
that effect.
Under s. 33A of the Act, as construed by this Court, the
jurisdiction of the Tribunal was not limited to an enquiry as to
the contravention of s. 33 of the Act. Even if such contravention was. proved, the employer could still justify the impugned
dismissal on merits and there was no difference in this regard
between a reference under s. ro of the Act and a dispnte raised
under s. 33A of the Act.
The Automobile Products of India Ltd. v. Rukmaji Bala, [r<155]
l S.C.R. 1241 and Equitable Coal Co. Ltd. v. Algu Singh, A.I.R.
1958 S.C. 761, referred to.
Although there can be no doubt that in proper cases the
Industrial Tribunal has the power to direct reinstatement in
disputes arising out of dismissal of employees, it is not possible
to lay down any hard and fast rule to be applied to such cases.
In coming to its decision, the Industrial Tribunal has to reconcile
the conflicting claims of the employer and the employee,-the
latter's right to protection against wrongful dismissal, and in
such a case the normal rule is reinstatement, and the interest and
safety of the industry itself. Its approach to such a problem
cannot, therefore, be legalistic or doctrinaire or as is permissible
S.C.R.
SUPREME COURT REPORTS
809
in a ci:vil court deciding the validity of dismissals under s. 240 of
.c959
the Government of India Act, 1935. or Art. 311(2) of . the
Constitution.
The Punjab
Western India Automobile Association v. Industrial Tribunal, National Ban/I, Lid.
Bombay, [1949] F.C.R. 321 and Buckingham & Carnatic Mills Ltd.
v.
v. Their Workmen, (1955) II L.L.J. 314, referred to.
Its W1Wkmen
If no enquiry is held by the employer before it passes an
order of dismissal, the propriety of such <lismissal.can be adjudged
by the Tribunal on evidence and no employer can be allowed to
object to it on the ground that it interferes with the exercise of its
managerial function.
The Madras Electric Tram'liJays, (r904) Ltd. Madras v. Their
Workers, (1951) II L.L.J. 204, distinguished and held inapplicable.
The propriety of reinstatement in a case of wrongful or
illegal dismissal is normally a question of fact and wbere the
Industrial Tribunal on a proper consideration of the relevant
factors refuses to pass such an order this Court would be reluctant, in absence of any general or substantial question of law,
,to interfere under Art. 136 of the Constitution.
A pen-down strike falls within the definition of a strike
contained ins. 2(q) of the Industrial Disputes Act, 1947, and is
not per sc illegal. Even if it might involve an element of civil
trespass, as in the present case, that cannot disentitle an employee
to reinstatement.
M/s. Burn & Co. Ltd. v. Their Workmen, A.I.R. 1959 S.C.
529, referred to.
It is not safe to extend principles of American decisions to
such a strike without a careful scrutiny of the relevant provisions
of the American Statute and·the facts on which the said decisions
are based.
National Labour Relations Board v. Fansteel Metallurgical
Corporation, 306 U.S. 238, considered and held inapplicable.
William Truax v. Michael Corrigan, 66 Law. Ed. 311, referred
to.
Since in the instant case, the peaceful and non-violent
conduct of the strikers, as found by the Appellate Tribunal, could
not amouut to criminal trespass within the meaning of s. 441 of
th~ Indian Penal Code, mere participation in the pen-down strike
did not disentitle them to reinstatement.
T. H. Bird v. King-emperor, (1934) L.R. XIII Pat. 268, held
inapplicable.
The mere fact that the employer had engaged new hands
during the strike. was not sufficient to defeat the claim to
reinstatement of such employees as were subsequently found to
have been wrongfully dismissed.
National Transport and General Co. Lttl. v. The Workmen, C.A.
No. 3u of 1956, decided on January 2a, 1957, referred to.
810
SUPREME COURT REPORTS [1960(1)]
1959
But where, as in the instant case, the Appellate Tribunal
took a common-sense view of the matter of evidence and held
The Punjab
certain office-bearers and leaders of the union liable for subversive
National Bank, Ltd. acts and refused to extend. such liability to the entire body of
v.
strikers on theoretical and academic grounds, no principles of
Its Worh1ntn
natural justice could be said to have been contravened by it.
CIVIL
APPELLATE JURISDICTION:
Civil Appeals
Nos. 519 to 521 of.1958.
Appeal by special leave from the decision dated
January 4, 1955, of the Labour Appellate Tribunal of
India, Calcutta, in Appeals Nos. Cal. 69/52 and
Cal. 70/52.
AND
Civil Appeal No. 521 of 1958.
Appeal by special leave from the decision dated
.J:muary 4, 1955, of the Labour Appellate Tribunal of
India, Calcutta in Appeal No. Cal. 70/52.
Ram Lal Anand and Naunit Lal, for the appellant
in C.A. No. 519 of 58.
·
H. N. Sanyal, Addiflional Solicitor-General of India,
Ram Lal Anand and Naunit Lal, for the appellants in
C.A. No. 520/58 and respondents in C.A. No. 521of58.
M. 0. Setalvad, Attorney-General for India, 0( K.
Daphtary, Solicitor-General, M. K. Ramamurthi, Syed
Mahummud, R. J(. Garg, Miss. A. B. Varma and
Janardan Sharma, for respondent No. l in C.A. Nos.
519 and 520 of 58 and appellant in C.A. No. 521 of 58.
Hardyal Hardy and M. R. Krishna Pillai, for
respondent No. 2 in C.As, Nos. 519 & 520 of 58.
1959. September 24.
The judgment of Sinha and
Gajendragadkar, JJ., was delivered by Gajendragadkar, J. Subba Rao, J., delivered a separate judgment.
Gajendragadkar ].
GAJENDRAGADKAR J.-These three appeals arise out
of ii.n industrial dispute between the Punjab National
Bank, Ltd. (hereinafter called the Bank) and two sets
of its employees represented by the AU-India Punjab
National Bank Employees' Federation (hereinafter
called tbe :Federation) and the U.P. Bank Employees'
Union hereinafter called the Union) respeotively.
S.C.R.
SUPREME COURT REPORTS
811
On July 2, 1951, this dispute was referred by the
x959
~ntral Goverm.nent for adjudication to. the industrial
The Punjab
tribunal of wh10h Mr. A. N. Sen, a retired Judge of National Bank, Lid.
the Calcutta High Court, was the 1'1ole. member. It
v.
raised two issues.
The first was whether the 150
lls Workme><
workmen mentioned in Sch. II.attached to the refer- G . d-dk I
ence had been wrongfully dismissed by the Bank, and a1en raga ar •
the second had reference to the claim for reinstatement and payment of wages and '1.Uowances from the
date of dismissal to the date of reinstatement. The
reference thus made has gone through a long and protracted career and the final decision of the dispute would
be reached after we dispose of the present appeals. In
order to appreciate the points raised for our decision in
these appeals it is necessary to indicate briefly at the
outset the salient points of controversy between the
parties, the findings made by the original tribunal, the
conclusions reached by the Labour Appellate Tribunal
in its interlocutory and final judgments and the decision of this Court in the appeal which had been brought
before it by the Bank against the interlocutory judgment of the Labour Appellate Tribunal.
The 150 employees, whose dismissal has given risf:l to
the present dispute are spread over several branches
of the Bank. 52 of them work at its head office in
Delhi, 15 in Bombay, 73 in East Punjab and IO in U.P.
140 workmen in the first three areas a.re represented
by the Federation while the last 10 in U.P. are represented by the Union. All of these employees took
part in strike which, according to the Bank, were illegal. The strikes in which the two respective groups of
workmen took part were, however, for different
reasons.
The strike in which the Federation took part was
the result of the suspension by the Bank of its typist
Sabharwal employed in the Delhi Branch of the Bank
on April 17, 1951. It appears that Sabharwal, who
was the Secretary of the Punjab National Bank
Employees' Union, Delhi, had applied for leave foi:
seven days on April 3, 1951, but his application was
rejected; even so he absented himself from duty and
went to Bombay. As soon as he resumed his duties on
812
SUPREME COURT REPORTS [1960(1)]
r959
April 14, 1951, he was supplied with a writ.ten charge.
sheet for absence without leave which he refused to
N Th•.t;n!::'Ltd accept. It was then sent to him by registered post, and
"''an v. •
•
·on April 17 he wss suspended. This suspension was
Its Workmen
followed by an immediate pen-down strike at the head
office of the Delhi Branch subsequent to which the
Gajendragadkar J. Bank suspended 60 other employees. This led to a
general strike in Delhi and many other branches and
it commenced at d1ffe'rent dates from April 18 to 20,
1951. On April 21-22, 1951, the Bank issued notices
calling upon all striking members of the staff to report
for duty by 10 a. m. on April 24, 1951, and it warned
them that if they did not comply with the notice it
would be taken that they had voluntarily ceased to be
its employees and their services would be deemed to
have terminated from that date. This was followed by
another notice on April 24 which announced. that the
s'trikers who had failed to report for duty as aforesaid
had ceased to be the employees of the Bank from
April 24, 1951. An option was, however, given to the
strikers who were still willing to rejoin duty to apply in
that behalf and explain their action in staying away.
It is common ground that the 140 employees represented by the Fed'.lration who had taken part in the strike
were dismissed by the Bank for absence due to the
strike. That is the genesis of th«i dispute between the
Bank and the Federation in relation to the 140
employees of the Bank.
The strike in which the remaining 10 employees of
the Bank from the U.P. branches are concerned commenced on April 23, 1951. This strike was in pursuance
of the strike notice served by the Union on the Bank
on April 22, 1951. This pen-down strike was a pa.rt of
the general strike which affected not only the Bank
but also the Allahabad Bank and other banks in the U.P.
region. The Regional Labour Commissioner of the U.P.
Government who intervened suggested that the general
strike should be called off and recommended that some
of the demands made by the strikers should be referre<l to the industrial tribunal for adjudication; in
accordance with this request, on April 30, 1951, the
strike committee decided to call off the strike and
S.C.R.
SUPREME COURT REPORTS
813
advised workmen to join duty from May 1, 1951.
x959
This advice, however, did. not reach all the branches
The Punjab
in time with the result that some of the employees of National Bank, Ltd.
the Bank offered to resume work on May 3, 1951. The
v.
other banks in the U.P. region took back their emIts Workmen
ployees who rejoined on May 3, but the Bank refused
. --
to take back its employees on the ground that they Ga3endragadkar J.
had not offered to rejoin on or before the date fixed;
and so it proceeded to dismiss them. The dismissal
of the said 10 employees is also the subject-matter of
the present reference. That is how the reference is
concerned with the dismissal of 150 employees of the
Bank in all.
The strikes in question which affected the head office
and the large number of branches of the Bank operating in more than one State and a very large number
of its . employees caused public concern, and so the
Prime Minister and the Labour Department of the
Central Government thought it necessary to intervene;
and a conference was arranged at New Delhi between
the officers of the Government and the Bank. To this
conference the representatives of the Federation or the
Union were, however, not invited. This conference
led to an agreement as a result of which the Bank
undertook to reinstate all its employees who had taken
part in the strikes except those to whose reinstatement
it had" positive objections". This, however, was subject to the reservation that the number of such
employees was not to exceed 150 and that their cases
would be referred by the Central Government for
adjudication by a tribunal. This agreement was the
result of several meetings between the representatives
of the Bank and the Labour Department of the Central
Government and it was reached on or about May 9,
1951.
Thereafter the head office of the Bank sent a
circular letter to all its branches calling for names of
the employees who according to the branch managers
could not be considered for reinstatement. The list
of such employees received by the head office from
the respective managers of its branches was examined
by the head office and the Bank then compiled the
IO~
814
SUPREME COURT REPORTS (1960(1)]
'959
list of 150 workmen whom it was not prepared to
reinstate. This list was in due course communicated
N The 1P8u"1k·abLtd by the Bank to the Central Government ; and in
ationa
an •
.
f
h
"
"d
h
C
l
v.
pursuance o t e agreement aioresa1
t e
entra
Its workmen
Government referred the dispute in rl'!spect of the said
150 workmen for adjudication before the tribunal by
Gajendragadkar J. its notification issued on July 2, 1951.
Before the tribunal the case for the Federation and
the Union was that the refusal of the Bank to take
back the 150 workmen in question was a part of the
concerted and deliberate plan adopted by the management of the Bank for victimising the President, the
Vice-President, the General Secretary and Secretaries
and Treasurer of the Federation and of the working
committees of the different trade unions of workers
and the members of the strike committees, and it
showed that the sole object of the Bank in refusing to
take back those employees was to teach a lesson to
the Federation and the Union and to penalise all
active trade union workers who supported the cause
of the employees.
On the other hand, the Bank contended that the
strikes in which the 150 employees had participated
were illegal and had been resorted to not with a view
to obtain relief for the employees but with a view to
paralyse the business of the Bank and to scare away
its customers. 'l'he Bank further alleged that the
said 150 employees were guilty of "unpardonable
acts of violence, intimidation, coercion and victimisation."
The tribunal gave two interim awards by which it
directed the Bank to make some payments to the 150
employees by way of allowance pending the final
disposal of the dispute. On February 2, 1952, t.\ie
tribunal pronounced its final award. It held that the
strikes were illegal and that the Bank was entitled to
dismiss the employees solely on the ground that the
said employees had participated in an illegal strike. On
this view the tribunal did not think it necessary to
allow evidence to be given on the question as to
whether some of the strikers were guilty of specific
subversive or violent acts. It also did not allow
S.C.R.
SUPREME COURT REPOH.'l'S
815
evidence to be led by workmen in support of their
z959
:plea: that their ?ismissal w_as the result of victimThe Pllnjab
1sat10n. It demded the dispute on the sole ground National Bank, Ltd.
that the strikes were illegal and participation in illegal
v.
strikes justified the dismissal of the employees. Even
Its Workmen
so the tribunal made an order directing the Bank to
-
pay certain amounts to the said employees on com- Gajendragadkar J.
passionate grounds.
The direction issued by the tribunal for the payment of the said amount was challenged by the Bank
by its appeal (No. 25 of 1952) before the Labour
Appellate Tribunal (hereinafter called the appellate
tribunal), whereas the decision of the tribunal that the
150 employees were not entitled to reinstatement was
challenged by the two sets of employees by two different appeals (Nos. 69 and 70 of 1952). The appellate
tribunal recorded its interlocutary decision on September 22, 1952. As a result of this decision the
dispute was set down for further hearing on the points
indicated by it. It was. urged by the Bank before the
appellate tribunal as a prnliminary objection that the
appeals preferred by the employees were incompetent.
This objection was overruled. The appellate tribunal
then proceeded to consider two questions of law, (I)
whether an employer has the right to dismiss a workman for his absence from duty by reason of his mere
participation in an illegal strike, and (2) if he has, can
the tribunal scrutinise the exercise of that right and
grant relief to such a wor-kman when it comes to the
conclusion that the right has been exercised capriciously or by unfair labour practice. The appellate
tribunal held that the strike started by the Federation was illegal under s. 23 (b) read with s. 24 (I)
of the Industrial Disputes Act, 1947(14of1947) (hereinafter called the Act). It appears that on February 21, 1950, an industrial dispute between the Bank
and the Federation had been referred to the arbitration of Mr. Campbell Puri, and whilst the proceedings
in the said reference were pending before the tribunal
the strike was commenced on or about April 17, 1951.
That is why the strike was illegal. The appellate
tribunal, however, held that, even if mere participation
816
SUPREME COURT REPORTS [1960(1)]
~959
in an illegal strike by workmen is assumed to give the
Th P
. b
employer certain rights against the striking workmen,
Natio:alB:;,; Ltd.the employer can waive these rights, that is to say,
v.
'
rafrain from exercising those rights against the work-
/ts Workmen
men. According to the appellate tribunal such waiver
. ·-
. or relinquishment can be inferred from conduct,
Ga1endragadkar /. and it thought that the conduct of the Bank evidenced by the agreement which it reached with the
Central Government on or about May 9, 1951, unambiguously proved that it had waived or relinquished its
rights to take any penal action against its employees
merely for their participation in the illegal strike. In
other words, the effect of the findings of the appellate
tribunal was that, though the strike was illegal, by its
conduct the Bank had precluded itself from exercising
its alleged right to dismiss its employees for their
participation in such an illegal strike.
The appellate tribunal also considered the general
question of law as to whether participation in an
illegal strike can be said to d.eserv«J dismissal of the
striking workmen. It took the view that an illegal
strike absolves the liability of the employer to pay to
its employees wages during the period of absence of
the striking workmen, but that it cannot be stated as
a genera.I proposition that participation in. an illegal
strike would by itself necessarily involve the penalty
of dismissal. The Bank attempted to justify the dismissal in the present case by urging that the 150
employees were guilty of violent or subversive acts
but the appellate tribunal held that it was not open to
the Bank at that stage to plead in justification of
their dismissal any such acts of violence or subversive
acts.
"There is abundant authority", observed the
appellate tribunal, " for the proposition that an employer can justify before the tribunal a di~missa.l only
on the ground on which he purported to dismiss him
and not a ground different from it". That is why in
· the end the appellate tribunal held that the dismissals
were wrongful. The appellate tribunal had no doubt
that mere participation by a workman in an illegal
strike or his absence due to such participation does
not entitle an employer to dismiss him and that it is
S.C.R.
SUPREME COURT REPORTS
817
open to a tribunal to order reinstatement in a proper
x959
case. Having reached this conclusion the appellate
Th -;- . b
tribunal observed that "thoug~ in the case of wrong- Natio:az ;0~:. Ltd.
ful dismissals the normal rule is that .the employees
v.
wrongfully dismissed should be reinstated, it would
Its Workmen
nevertheless be necessary to consider the question of ..
reinstatement in the case of each individual employee Ga;endragadkar f.
in the light of requirements of social justice and fair
play for which the employee claims and industrial
peace and discipline which the employer emphasizes."
In order to decide the cases of the several employees
from this twofold point of view the appellate tribunal
thought it was necessary to allow the parties to lead
additional evidence on relevant points. The employees
wanted to lead evidence in support of their case
of victimisation and they were allowed to do so by the
appellate tribunal. The Bank wanted.to lead evidence
on five points.
The appellate tribunal held that
evidence on items (3) and (5) would be irrelevant and
it thought that item (4) was too vague. That is why
the Bank was allowed to lead evidence only in respect
of item (2) and some heads mentioned in item ( 1 ).
In
the result opportunity was given to the parties to lead
evidence on the following points: (1) victimisation, (2)
past service records of the 150 employees, (3) conduct
of those 150 employees or any of them during the
strike confined to acts of violence, intimidating loyal
workers and acts subversive of the credit of the Bank,
(4) employment which any of those 150 persons got
after this dismissal, the period during which they
were in employment and the wages or emoluments
they received. The appellate tribunal ,then directed
the Bank to file a statement within a month giving
particulars of the acts confined to the matters on which
the Bank was allowed to lead evidence in respect of
each one 0f the 150 employees after supplying .a copy
of the same, one to the Federation and one to the
Union. In the meanwhile the appellate tribunal
directed the Bank to make interim payments to the
employees as indicated in its order.
This interlocutary judgment was challenged by the
Bank before this Court by its appeal under Art. 136
818
SUPREME COURT REPORTS [1960(1)]
'959
of the Constitution. On behalf of the Bank it was
Th P
. b
urged that the conclusion of the appellate tribunal
Nati.:al ;:~:.Ltd. that the Bank had ,condoned the illegal strike by its
v.
workmen was 1mjustified and that it was open to the
Its Workmen
Bank to rely upon the illegal strike as justifying the
-
dismissal of the said workmen. The case of the Bank
Gajendragadkar f. thus was that the order passed by the appellate
tribunal setting down the dispute for further enquiry
was illegal and should be set aside. The judgment of
this Court delivered by Patanjali Sastri, C. J., shows
that this Court thought it unnecessary to express any
opinion on the question of condonation or waiver of
the illegal strike because, in its opinion, even if there
was no such condonation or waiver and even if it was
open to the Bank to rely upon the illegal strike as a
valid ground for dismissing its employees, there was
no doubt that the order of dismissal was illegal having
regard to the provisions of s. 33 of the Act. The said
section furnished a short answer to the Bank's conten·
tion that the appellate tribunal had no jurisdiction to
order reinstatement of the 150 workmen. In other
words, just as the strike of the employees was illegal so
was the order of dismissal passed by the Bank illegal
and for a similar reason. S. 23(b) of the Act made the
strike illegal while s. 33 of the Act made the dismissal
also illegal. In the result the appeal preferred by the
Bank was dismissed; and it was held that there was no
substance in the plea of the Bank that the appellate
tribunal had no jurisdiction to direct reinstatement of
the employees. This judgment was pronounced on
April 10, 1953.
The proceedings before the appellate tribunal were
subsequently resumed and they terminated on January 4, 1955, when the appellate tribunal directed the
reinstatement of the 136 employees and passed
incidental orders about the payment of their wages.
It refused to reinstate the remaining 14 employees but
passed orders in regard to payment of compensation
even in their cases. Before the appellate tribunal four
general points were sought to be raised at this subsequent hearing. The first was in regard to the invalidity of the reference itself. The second was in regard to
..
S.C.R.
SUPREME COURT REPORTS
819
the ultra vires character of the relevant provisions of
z959
the Act. Both these contentions were not allowed to
h
P
. b
be raised by the appellate tribunal and they have not N 1'{;,n:IB::~a Ltd.
been urged before us either. The third contention
a
v.
'
raised was that both the strikes were not bona fide
Its workmen
ar.d so the striking workmen were not entitled to
-
reinstatement; and the last contention was·that the Gajendragadkar f.
peri-down strike was illegal and participation in it
should be considered as a circumstance disqualifying
the strikers from reinstatement. The appellate tribunal
has held that the strikes in question were bona fide
and that mere participation in the pen-down strike
canno.t be treated as a valid ground for refusing reinstatement to the strikers. It considered the evidence
led by the parties in regard to the character of the
strike, and it held that the definite instruction issued
to the employees was to continue occupation of their
seats till the police intervened and threatened to arrest
and so it was not prepared to accept the employees'
case that the pen-down strikers "vacated their seats on
the mere a.sking by the management" According to
the finding, tlie persons who took part in the pen-down
strike not only ceased to work but continued to occupy
their seats. The appellate tribunal also found that the
pen-down strikers were quiet and peaceful, that no
slogans were shouted, no attempt at violence or
coercion was made and that they simply occupied their
seats without doing any work.
It was conceded before the appella~e tribunal that
pen-down strike falls within the definition of strike
prescribed by s. 2( q) of the Act ; but it was urged that
the act of not vacating their seats when asked by the
management to do so introduced an element of illegality and made the strikers liable in a civil court for
trespass. The appellate tribunal was not impressed
with this argument but it held that even if the striking
workmen are assumed to have made themselves liable
for civil trespass that itself would not be sufficient
ground for refusing reinstatement.
It appears that the Bank relied upon several documents to show that the employees w:ere guilty of subversive actions during the course of the strilce. The
820
SUPREME COURT REPORTS (1960(1)]
'9:19
appellate tribunal was not satisfied that these docuThe----;;- ·.ab
ments were genuine and could be effectively pressed
Nationarn:".:k, Ltd. iuto service by the Bank in support of its case. It was
v.
also urged by the Bank that during the course of the
Its Workmen
strike posters and circulars were issued which were
. -
clearly subversive of the credit of the Bank and it was
Ga1endragadkar J. contended that employees who were guilty of issuing
such posters and circulars did not deserve reinstatement. The appellate tribunal examined these documents and held that three of them amounted to subversive acts. They are Exs. 255(a), 255(c) and 302.
In regard to Ex. 302 the findings recorded by the
appellate tribunal in two places of its decision a.re
somewhat inconsistent; but the operative portion of
the decision shows that the appellate tribunal was
inclined to hold that Ex. 302 was also objectionable
and that it amounted to a subversive a.ct.
The rest
of the documents no doubt use.d strong and intemperate language but the appellate tribunal was not prepared to treat them as constituting subversive activity.
On this finding a question which arose before the
appellate tribunal was: Who should be held responsible
for the offending documents ? The appellate tribunal
was not prepared to hold all the 150 employees responsible for them. In this connection it considered the
statement made by H. N. Puri in this evidence and
it held that sinlle Puri had admitted that he consulted
11 specified persons in preparing Exs. 255(a) and 255(c)
as well as other documents they must share the responsibility for the said documents along with Puri.
Similarly the appellate tribunal held that the persons
who were shown to have been responsible for Ex. 302
must be treated on the same basis. It was as a result of
this finding that the appellate tribunal refused to
direct reinstatement of 14 employees.
In regard to
the remaining 136 employees the appellate tribunal
held that it would not be right to impute the responsibility for the publication of the three subversive documents to them merely because they were members of
the working committee or were otherwise active leaders
of the Union. The appellate tribunal the considered
the voluminous evidence led by the parties in respect
..
-
S.C.R.
SUPREME COURT REPORTS
821
of each one of the 150 employees, and it held that in
r959
regard to the 136 employ~es no case. had been made
The Punjab
out by the Bank for refusmg them remstatement.
National Bank, Ltd.
It is clear from the decision of the appellate tribunal
v.
that it was not at all satisfied with a substantial part
Its Workmen
of the documentary evidence adduced by the Bank. G . d -dk 1
.
l
a1en raga ar · •
It held that the affida v1ts fi ed by the Bank were
sometimes prepared en masse and the deponents simply
put their signatures on them. In most of the affidavits
there were blank spaces for the name, parentage and
age of the deponents and they have been subsequently
filled up in ink.
Some of them, though sworn at
different places, used identical language; while in some
others material additions and alterations have been
made which do not bear the initials either of the deponents or of the oath commissioner.
It appeared to
the appellate tribunal that some of the statements
made by the witnesses of the Bank showed that their
affidavits had been prepared by the Bank's lawyers
and they simply put their signatures thereon and
affirmed them before the oath commissioner. Indeed the
appellate tribunal apparently thought that there was
some force in the contention raised by the employees
that some of the documents produced by the Bank
had been manufactured or tampered with long after
the strike was over.
It has noticed the argument
urged by the Bank that even ifit was so the Bank cannot be condemned for the act or acts of its branch
managers in that behalf.
This argument did not
appeal to the appellate tribunal. Thus the decision
of the appellate tribunal substantially upheld the case
made by the employees in that it directed the reinstatement of the 136 out of the 150 employees and
ordered payment of compensation to the remaining 14
whose reinstatement was not granted.
This decision has given rise to the three present
appeals before us. Civil Appeal No. 519 of 1958 has
been filed by the Bank against the order of reinstatement in respect of 126 employees represented by the
Federation. Similarly Civil Appeal No. 520 of 1958
has been filed by the Bank against the order directing
104
822
SUPREME COURT REPORTS [1960(1)]
z959
the reinstatement of 10 employees represented by the
Tiu Punjab
Union; and Civil ;!ppeal N~: 521 of 1958 has been
Nationa1Bank,L14. filed by the Federat10n on behalf of the 14 employees
v.
the claim for whose reinstatement has been rejected.
Ils Wtwk,....
In regard to the first two appeals preferred by the
•
-
411
Bank special leave was granted to the Bank on
G•Jendr•g• ., J, February 21, 1958, limited to grounds (b), ( c), (d), (f)
and (g) set out in paragraph 162 of its petitions.