# ORIENTAL TEXTILE FINISHING MILLS, AMRITSAR v. LABOUR COURT, JULLUNDUR & ORS

- **Citation:** [1972] 1 S.C.R. 490
- **Court:** Supreme Court of India
- **Decided:** 1972
- **Bench:** G. K. Mitter, C. A. Vaidialingam, P. 1Aganmohan - Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oriental-textile-finishing-mills-amritsar-v-labour-court-jullundur-ors-5383
- **Pages:** 12

## Headnote

Industrial Displlfe-Discharge of lVOrk1nen 1vithout do1nestic inquiryMisconduct of discharged i.vorkn1en proved before Labour
Court-Pro~
priety of ter1nination of fervices.
While a reference was pending before the Labour Court the respondent workmen went on strike because some workmen were suspended.
The Labour Officer as well as the n1anage111cnt
tried to persuade
the
workers to rejoin duty, but the respondents made it a condition of their
joining duty that the suspended workmen should also be taken back. The
management thereafter gave the respondents notices on different
dates
asking them to join duty by a date specified in the notices and subsequently,
by another letter. called upon them to justify their absence, failing which,
the respondents were informed, that their names would be struck off from
the muster roll.
Notwithstanding those notices and the willingness
of
management to take them back the respondents gave no reply but continued the strike and they were informed by letters that their names were
removed from the muster roll.
No don1estic inquiry however, was held
into the misconduct of the respondents.
The Labour Court, to which the dispute was referred directed reinstatement of the respondents.
In appeal to this Court, on the question whether the termination of
the employment of the respondents, in the circumstances of the case, without a.n inquiry, ·was justified.
HELD :
(1) It is an accepted principle of industrial adjudication that
workmen can resort to strike in order to press for· their demands without
snapping the relationship of employer and employee.. Equally, the managea.It have the right to carry on work, in f urtherence of which, they could
<•!!plOy other workmen and justify their action on merits in any adjudication of the dispute arising therefrom. [497 C-E]
(2) Merely because workmen go on strike, even where the strike is
illegal, it does i:tot justify the management in terminating their services
without a domestic inquiry. [497 CJ
A
B
c
D
E
F
(3) In the case of a domestic inquiry where misconduct is held to be
G
proved, the industrial tribunal or labour court can only interfere with that
order if there is n1ala fide, or want of good faith or there was victimisation
or unfair labour practice or the management has been guilty of basic
errors or violation of principles of natural justice or if on the materia1s, the
finding is completely baseless or perverse.
If, however, the management
does not hold an inquiry, or the inquiry is, due to some omission or deficiency, not valid. the management can nonetheless support the order of
discharge, termination or dismissal when the matter is referred for indusH
trial adjudication by producing satisfactory evidence and
proving
misconduct of the concerned workmen.
The evidence to substantiate
and
justify the action taken against the workmen is not as stringent as
that
I
A
B
c
D
E
ORIENTAL TEXTILE V. LABOUR COUR:i;
491.
(Jaganmohan Reddy, l.)
which is required in a court of law, but should be such as would satisfy
the tribunal that the order of termination was proper. In such a case,
there is no difference between a reference under s. 10 of the Industrial Disputes Act and a dispute raised under s. 33A of the Act, and no distinction.
can be made between cases where the domestic inquiry is invalid and those
where no inquiry has, in fact, been held. That is, the management can
justify and substantiate its action on evidence
duly place
before the
Tribunal., [498 E-G; 499 E-F; 500 C-D; 501 A-BJ
.
( 4) In the present case, there were no Standing Orders applicable to
the appellant-company. A domestic inquiry should have been held in order
to entitle the management to dispense with the services of its workmen on..
the ground of !Jlisconduct. [498 A-BJ
(5) But the management had proved before the Labour Court that
there was persistent and obdurate refusal by the workmen to join duty notwithstanding the fact that the management had done everything possible
to persuade them

## Text

490
ORIENTAL TEXTILE FINISHING MILLS, AMRITSAR
v.
LABOUR COURT, JULLUNDUR & ORS.
Augus~ 31, 1971
[G. K. MITTER, C. A. VAIDIALINGAM AND P. 1AGANMOHAN
-
REDDY, JJ.]
Industrial Displlfe-Discharge of lVOrk1nen 1vithout do1nestic inquiryMisconduct of discharged i.vorkn1en proved before Labour
Court-Pro~
priety of ter1nination of fervices.
While a reference was pending before the Labour Court the respondent workmen went on strike because some workmen were suspended.
The Labour Officer as well as the n1anage111cnt
tried to persuade
the
workers to rejoin duty, but the respondents made it a condition of their
joining duty that the suspended workmen should also be taken back. The
management thereafter gave the respondents notices on different
dates
asking them to join duty by a date specified in the notices and subsequently,
by another letter. called upon them to justify their absence, failing which,
the respondents were informed, that their names would be struck off from
the muster roll.
Notwithstanding those notices and the willingness
of
management to take them back the respondents gave no reply but continued the strike and they were informed by letters that their names were
removed from the muster roll.
No don1estic inquiry however, was held
into the misconduct of the respondents.
The Labour Court, to which the dispute was referred directed reinstatement of the respondents.
In appeal to this Court, on the question whether the termination of
the employment of the respondents, in the circumstances of the case, without a.n inquiry, ·was justified.
HELD :
(1) It is an accepted principle of industrial adjudication that
workmen can resort to strike in order to press for· their demands without
snapping the relationship of employer and employee.. Equally, the managea.It have the right to carry on work, in f urtherence of which, they could
<•!!plOy other workmen and justify their action on merits in any adjudication of the dispute arising therefrom. [497 C-E]
(2) Merely because workmen go on strike, even where the strike is
illegal, it does i:tot justify the management in terminating their services
without a domestic inquiry. [497 CJ
A
B
c
D
E
F
(3) In the case of a domestic inquiry where misconduct is held to be
G
proved, the industrial tribunal or labour court can only interfere with that
order if there is n1ala fide, or want of good faith or there was victimisation
or unfair labour practice or the management has been guilty of basic
errors or violation of principles of natural justice or if on the materia1s, the
finding is completely baseless or perverse.
If, however, the management
does not hold an inquiry, or the inquiry is, due to some omission or deficiency, not valid. the management can nonetheless support the order of
discharge, termination or dismissal when the matter is referred for indusH
trial adjudication by producing satisfactory evidence and
proving
misconduct of the concerned workmen.
The evidence to substantiate
and
justify the action taken against the workmen is not as stringent as
that
I
A
B
c
D
E
ORIENTAL TEXTILE V. LABOUR COUR:i;
491.
(Jaganmohan Reddy, l.)
which is required in a court of law, but should be such as would satisfy
the tribunal that the order of termination was proper. In such a case,
there is no difference between a reference under s. 10 of the Industrial Disputes Act and a dispute raised under s. 33A of the Act, and no distinction.
can be made between cases where the domestic inquiry is invalid and those
where no inquiry has, in fact, been held. That is, the management can
justify and substantiate its action on evidence
duly place
before the
Tribunal., [498 E-G; 499 E-F; 500 C-D; 501 A-BJ
.
( 4) In the present case, there were no Standing Orders applicable to
the appellant-company. A domestic inquiry should have been held in order
to entitle the management to dispense with the services of its workmen on..
the ground of !Jlisconduct. [498 A-BJ
(5) But the management had proved before the Labour Court that
there was persistent and obdurate refusal by the workmen to join duty notwithstanding the fact that the management had done everything possible
to persuade them and gave them opportunities to come back to work; and
that the respond•onts had. without any sufficie.nt cause refused to do.
The
strike was iilegal and it was not necessary for the management to prove
that the respondents were guilty of overt acts of intimidation, incitement or·
Yiolence.
There is nothing to justify the allegation that the management
\\1anted to terminate to their services under some pretext with a view to recruit them afresh and deprive them of accrued benefits.. The notices
clearly mentioned that the workmen would be free to join duty by a ccr-·
tain date, and it was only after that date the management was willing to
entertain them only as new entrants.
Therefore, though no domestic, inquiry was held, the management had proved the misconduct of the respondents before the Labour Court and hence the termination of their services
was not improper. and the're was no justification for directing their
reinstatement. [501 C-GJ
Express Newspapers (P) Ltd. v. Michael Mark & Anr., [1963]
3·
S.C.R. 405, India General Navigation & Railway Co. Ltd, v. Their Workmen, f1960] 2 ~.C.R., 1, Punjab National Bank Ltd. v. Its Workmen,
(1960] 1 S.C.R. 806, Workmen of Motipur Sugar Factory '(P) .Ltd. v.
Motipur Sugar Factory, (1965] 3 S.C.R. 588 and Hindustan Generar
Electrical Corporation Ltd. v. Bishwanath Prasad &
Anr. C.A.
No.
F
2167 /66 dt. 17-8-71; followed,
CML APPELLATE JURISDICTION :--Civil Appeal No. 1071
of 1966.
Appeal by special leave from the Award dated September 10,
1965, of the Labour Court, Jullundur in Refere,n'ce No. 157 of
G
1959.
H
A. B. Sinha, and B. P. Maheshwari, for the appellant.
Hardev Singh, for respondents Nos. 2 to 24.
The Judgment of the Coul't was delivered by
P. Jaganmohan Reddy, J While referenre No 150 of 1958
was pending in respect of an Industrial dispute between the appellant and its workmen relating to bonus, casual leave and sick
-492
SUPREME COURT REPORTS
( 1972] l S,C.R,
leave etc., and .after the management had suspended six: of its
A
workmen on certain charges of misconduct for hav~ng refused to
.operate some machines, another worker Shri Darshan Singh, a
Helper of a Blowing Machine also refused on 25-1-59 when called upon by the management to work the machine in the abse.nce
·Of Shri Daulat Ram, Machineman a,nd was accordingly suspended
the same day.
On hearing this news the workmen went to sec
B
.one of the partners of the appellant and demanded tha't the order
-0f suspension passed against Shri Darshan Singh should be cancelled and he be reinstated as a Helper. As !}le management was
not agreeable to reinstate the Helper workman, the workers went
on a lightening strike.
Since the workmen came on strike conciliation efforts were made but in spit:e of the persuasion of the c
Labour Officer, M.W. 2, the Labour Inspector MW 4 and by
the management, Respondents 2 to 24 along with other did not
report for duty although it is stated the Appellant was willing to
employ them. Certain charge-sheets were served on the workmen
towards the end of January to which replies were given. There-
·after notices were sent to the Respondtiu'ts 2. to 15 and 17 to 24
'asking them to resume work by certqin spec'ified dates and when
D
they did not resume work other notices -were sent requiring the
said Respqndents \o show why their names should not be struck
off and asked them to submit their reply by a certain date:· In so
far as Respondent-16 is concerned a notice was served on him
on 4-3-59 in which it was meintioned that he was absent since
13-2-59 without any leave and that he should resume duty by
E
6-3-59.
He was further asked
to explain
by
8-3-59
why
his name should not be struck off. None of the Respondents Nos. 2 to 24 either acknowledged these notices nor
sent a reply .. The management
thereafter by
letters
dated
23-2-59, 4-3-59 and 17-3-59 informed the aforesaid Respondents
that since they were no longer interested in the employment their
F
names were struck off from the muster rolls.
It is ·alleged that
from 25-1-59 till their names were struck oft'. from the muster
I
rolls, the Respondents sat outside the Mill gate and in spite of persuasion by the Labour Officer as well as by the management who
-were genuine1y desirous of their resuming work, they did not join
·duty and as a consequence the management was compelled to
employ others in order to keep the mill going.
It is also stated
G
that during this period those workmen who wanted to join duty
were permitted to do so, and •their services were entertained.
It
·is also the case of the management that the strike fizzled out after
the striking workmen failed to get rations and thereafter they had
abandoned the service.
On 19-3-59 a demand notice on behalf
of the workmen was served on the management as a result. of
H
.whiCh the conciliation proceedings commenced.
But even then
acoording to the report of the Conciliation Officer while the mun11gement W¥ willing to employ the workmen, the Respondents
ORIENTAL TEXTILE MILLS v. LABOUR COURT
493
A
(Jaganmohan Reddy, J.)
were not willing to resume work till the suspended workmen were
also allowed to resume duty.
Ultimately on 26-8-59 the matter was referred 10 the Labour
Court at Juliundur under Sec. 10 of the Industrial Disputes Act,
1947 (hereinafter referred to as 'the Act'), to determine whether
B the termination of srevices of 31 workmen whose names were
mentioned therein was justified.
It may be mentioned here that
out of these 31 workmen 8 workmen had resumed their duties
and were no longer interested in the proceedings.
The. Labour
Court after receiving the statement of claim and recording the
evidence Qn behalf of both the management and the workmen
c
passed an: Award on 31-10-61 which was published in the GaL:ette
of 8-12-61. By this Award the claim of the workmen was rejected on the ground inter-a/ia :-
D
E
F
(a) that they had resorted. to illegal strike;
(b) that the management did not in fact terminate the
services of the workmen concerned in the case and
never meant to take action agaitnSt them for having
gone on strike.
On the other hand management was
;ilways prepare to take them back and was requesting
them through the Labour I<11spector and the Labour
Officer to end the strike and to resume duty but the
workers went on insisting that the suspension orders
passed on their co-workmen should first be cancelled;
( c) that the workme,n were adamant and as such there
was no alternative for the management except to
terminate their services and take fresh hands who are
still continuing in its service; and
(cl) that no evidence was produced by the workmen to
prove that any of them ever requested the management to resume duty or that the managemt;nt had
turned down any such· request.
Against this Award of the Labodt Court a Writ Petition was
G filed by the Respondents in the High Court of Punjab.
A Sing:e
Bench of that Court by its Judgment dated 6-12-64 held that in
law the plea that the workers had abandoned the services of the
Appellant could not be sustained, but on the other hand it was
the management which had terminated their services.
In this
view the case was remanded to the Labour Court for a fresh deci--
H
sio~. A .Lette~s. Patent App~al was. fil~d by the management
agamst this dec1s1on but later 1t was dismissed as withdrawn. On
remand the Labour Court by an Award dated 10-9-65 which was,
published in the Gazette on 1-10-65 held' that the plea of the
13-L 1340 Sup Cl/71
494
SUPREME COURT REPORTS
[1972] 1 S.C.R.
workmen that there was a lock out by the management was not
.substantiated, on the other hand it was they who had gone on
strike; that the strike was illegal because of the proceedings pending before the Labour Court in Reference No. 150 of 1958; that
the question as to whether the managementhad terminated the
.services of the concerned workmen or not was not a matter which
A
was res-integra in view of the judgment of the Punjab .High Court,
B
in the Writ Petition referred to above; and in the alternative as
the termination took p~ace by virtue of letters dated 23-2-59,
4-3-59 and 17-3-59 without holding an enquiry, it was not valid.
In the result the Labour Court directed reinstatement of Respondents 2 to 24.
In so far as Surat Singh Respondent No. 16 was
concerned, it was found that there were no standing orders
in
force applicable to the Appellant, as such it was not justified in
dismissing him for absence without leave.
ft was also held th3t
the Respondents were not entitled to wages .from 25-1-59 to
17-3-59.
They would however only be entitled to half the back
wages from 18-3-59 to the date on which the Award would bec~me
enforceable and from that date till the date of their reinstatement.
Respondents Nos. 2
to 24,would be given
full back wages.
Against the said Award this Appeal has been filed by Special
Leave.
The short question for our consideration is whether the termination of employment of the Respondents in the circumstances
c
D
of the case without an enquiry was justified.
There. is no doubt
E
that it has been conceded at the very outset that there being no
standing orders applicable to the Appellant, the termination of
the services of Shri Surat Singh, Respondent No. 16 is not valid
and the Award pertaining to his reinstatement cannot be assailed.
fo so far as the validity of the action of the management in terminating the employment of the other Respondents is c.eiucerned a
F
great deal would depend on whether "the management was able to
justify its action before the Tribunal.
It would be useful to set
•Out at the outset certain undisputed facts namely :
(1) that the Respondents went on a strike on 25-1-59;
(2)
(3)
that as there was a reference pending before the La·-
bour Court that strike would be i!legal, under Chapter V of the Industrial Disputes Act 1947;
that both the Labour Officers as well as the management tried to persuade the workers to join duty and
after the demand notice dated 19-3-59 conciliation
efforts were made but they did not resume work and
made it a condition of their joining duty that the
suspended workmen also ~hould 'be taken back;
G
H
/
A
Il
c
ORIENTAL TEXTILE MILLS v. LABOUR COURT
495
(Jaganmohan Reddy, J.) ·
( 4) that the management gave workers on strike notices
on different dates asking them to join duty by a date
specified therein and subsequently by another letter
called upon them to justify their absence failing
which they were informed that their names would be
struck off from the muster roll;
( 5) that notwithstanding those notices and the willingness
of the mijnagement to take them back the Respondent gave no reply and continued the strike till they
were informed by letters dated 25-2-59, 4-3-59 and
17-3-59 that their names were removed from muster
roll; and
( 6,) that no domestic enquiry was held into the misconduct of the Respondents.
On these admitted facts it is soueht to be contended O!l behalf
of the Appellant that the Manage111ent took every possible step
to get the workmen back into their factory but they were adamant
0
in continuing the strike.
In these circumstances they could J,J
nothing else but to terminate their services and take in fresh hando·
in order to keep the factory going. It may be mentioned that the
managment immediately after the strike served charge-sheets
calling upon· them to show cause why proper legal action should
not be taken against them.
In those charge-sheets they had alleged that the Respondents had indulged ~n intimidation, unjustiE fied slogan mongering and inciting the workers to remain on strike.
The workmen by their letters denied the allegations against t\1em.
Thereafter the management seem to have dropped these charges
and tried to persuade them to join work.
It would be useful to
examine the correspondence of a typical case.
On 5-2-59 by
Ex. A3 the management served a notice and wrote to Amar Nath
F
son of Brijlal, as follows :
G
11
"Please take notice that from the afternoon of 25-1-59
you are on strike, which is illegal due to the pendency
of proceedings before the }'unjab Labour Court, AP"itsar in reference No. 150 of 1958.
This strike of) .urs
is wholly unjustified. In spite of the various persuasive
attempts by the managem~nt and the Labour Department, Amritsar, you have failed to resume work. If
you will not come to duty on 8th Feb. '59 the management would employ fresh hand in your stead as the
management can ill-afford to keep the work at a stand_still.
You will have in t_hat event no claim to any remstatement or compensatton.
Management is however
prepared to consider you as one of the new entrants,
s~ould you be selected for appointment. This applicallon should reach in writing by 9th Feb. '59". r
496
SUPREME COUR,T REPORTS
[1972] l S.C.R.
A copy of this letter was given to the Labour Commissioner,
A
Ambala Cantt. as well as Labour Inspector and Labour Officer,
Amritsar.
When this workman did not join his duty the management by Ex. A4 wrote ruiother letter to him on 21-2-59. It
said:
"You were served with a registered notice on 5-2-59
that you since the afternoon of 25th Jan. '59 are on
illegal and unjustified strike along with other workers.
You were given an opportunity to report for duty upto
8-2-59. But upti! today you did not report yourself
for du!Y by whkh it is clearly patent .that you do not
want to work in the factory.
Therefore show cause as
to why your name be not struck off from the muster
roll of the factory. The factory management also gave
you a chance that you can jom on new ~rvices, but you
did not do even that, which clearly shows that your
stand is totally illegal and baseless.
Factory cannot be
closed in any event, thus your coming on duty was
necessary.
H you will not give any satisfactory reply
then your name will be struck off from the muster roil
of the factory. Your reply should reach upto 25-2-59".
Copies of this letter were also given to the L? bour Officer referred to above.
When no reply was received to this letter the
management terminated the services by Ex. A 7 dated 4-3-59
which is as follows :
"For your continued absence since the afternoon of
25-1-59 and in spite of repeated requests to come and
join duty you have failed to resume work. You have also
failed to show cause in pursuaalce to our letter dt. 21-2-59
as already intimated for your abandonment of service
and/or illegal strike.
In view of your these illegal activities the management has struck off your name from the
muster roll of the Mills w.e.f. 4-3-59".
The Respondent's advocate while not denying these letters
B.
c
D
E
as above contends that the earlier letters had charged them with
incitement and • stay in strike and intimidation etc.
but the
management gave the go by to it and have terminated the service
G
for merely going on a peaceful strike and by subsequent letters it
was made clear that the object of the management v:as to employ
the -Workmen afresh and deprive them of the past benefits which
had accrued to them.
He further submits that merely because
warkmen have gone on a strike which is a weapon for obtaining
their redress, the relationship of employer and employee· does
H
not come to an end and if the workmen have behaved in a violent
manner or inci1ed or intimidated other workmen, even then the
management cannot terminate their services without holding an
I
A
ORIENTAL TEXTILE MILLS v. LABOUR COURT
497
(Jaganmohan Reddy, J.)
enquiry into the alleged misconduct but as no such enquiry was
held the termination is illegal.
The question however would be whether before the services
of the workmen, who are on strike, are terminated, is an enquiry
into their ruisconduct obligatory and would an omission to compB ly with this requirement, make the order of termination illegal?
It appears to us that merely because workmen go on strike it
does not justify the management in tenninating cheir services.
In any case if allegations of misconduct have been made against
them those allegations have to be enquired into by charging them
with specific acts of misconduct and giving them an opportunity
c to defend themselves at the enquiry. Even where a strike is illegal it does not justify the management from terminating their
services merely on that ground, though if it can be shown on an
enquiry that the conduct of the workmen amounted to misconduct it can do so. While it is an accepted principle of industrial
adjudication that workmea can resort to strike in order to press
D for their demands without snapping the relationship of employer
and employee, it is equally a well accepted principle that the
work of the factory cannot be paralysed and brought to a standstill by an illegal strike, in spite of legal steps being taken by the
management to resolve the conflict.
The management have the
right in those circumstances to carry on the work of the factory in
furtherence of which it could employ other workmen and justify
E
its action on merits in any adjudication of the dispute arising,
the reform.
In Express Newspapers
(P)
Ltd. v. Michael Mark
&
Anr., (') where certain employees who had indulged in illegal
strike did not join their duty in spite of notices given by the
F
management and their places were filled up by others, applied
for relief under the Payment of Wages Act but the application
was dismissed. The workers moved the High Court under Art.
226 and their Wrrt Petitions were allowed. This Court in Appeal
held that the Standing Orders contemplated termination of employment by the employer and in those cases there could be no
G doubt that the Appellant
had
terminated
the
employment
of th.~ Respondents by removing their names from the muster
roll without giving them any notice of such removal. It was
also held that _if employees absent themselves from work because
of strike in enforcement of !!heir demands, there can
be
no
question of abandonment of employment by them and that if
H
t~e strike. was in. fact illegal, the Appellant could take disciplmary action agamst the employees under the Standing Order
and dismiss them.
(I) [1963] 3 S.C.R. 405.
SUPREME COURT REPORTS
(1972] l S.C.R.
This case merely illustrates what has been stated
by
us
that even where the strike is illegal a domestic enquiry must be
held.
In the case before us admittedly there were no Standing
Orders applicable to the appellant.
Nonetheless a domestic
enquiry should have been held in order to entitfo the management to dispense with the services of its workmen on the ground
of misconduct.
This view of ours is also supported by another
case of this Court in India General Navigation & Railway Co.
Ltd. v. Their Workmen(') where it was held that mere taking
part in an illegal strike without anything
further
would not
necessarily justify the dismissal of all the workers taking part
A
B
in the strike and that if the
employer, before
dismissing
a
workman, gives him sufficient opportunity of explaining his
C
.conduct and no question of mala-fides or vicitimisation arises,
it is not for the Tribunal in 'adjudicating th~ propriety of such
cjismissal, 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.
It may
~ mentioned that in the case of a
domestic
enquiry
where
misconduct is held to be proved the Tribunal can only interfere
wilh that order if there is mala fides or want of good faith,
there was victimisation or unfair labour practice or the management has been guilty of basic error or violation of the principles
D
of natural justice or on the materials the finding is completely baseless or pervew~. If however the management does not hold
E
such an enquiry or the enquiry is due to some omission or deficiency not valid it can nonetheless support its order oi discharge,
(ermination or dismissal when •the malter is referred for ludustrial
adjudication by producing satisfactory evidence and proving misconduct. Even in such cases the evidence which is produced to
substantiate and justify the action tak>;m against the workmen is not
F
as stringent as that which is required in a Court of Law.
At
itnY rate 'the evidence should be such as would satisfy the Tribunal that the order of termination is proper.
The Appellant before us on the evidence produced before
the Tribunal seeks to justify its order removing the names of
the Respondents from the muster roll.
In the Punjab National
!Jank Ltd. v. Its Workmen,(') 'though there_ was
no enquiry
held by the management it sought to justify the action of termination of services of its employees before the Industrial Tribμnal.
The employees of the Appellant Bank had commenced
~11 down strikes which were followed by general strike pend-
. i11g l!rbitratio11 of an industrial dispute between them.
Oii the
intervention of the Govt. the Bank reinstated all the employees
-m!l96()]2 ~.C.R. I.
(2) [19601 I S.C.R. 806.
G
H
A
B
c
D
E
F
G
H
ORIENTAL TEXTILE MILLS v. LABOU.R COURT
49~
(Jaganmohan Reddy, /.)
except 150 against whom it had positive objection and It is
in respect of those workmen that a dispute was referred under
Section 10 of the Act for adjudication.
One of the two issues
that was referred to the Tribunal was whether 150 ·employees
had been wrongly dismissed.
The Tribunal did no.t hear )ny
evidence and by its final award held that the strike was illegal,
the Bank was, on that ground alone, justified in dismissing the
employees.
On Appeal the Labour Appellate Tribunal · held
that even though the strikes
were illegal under Sec. 23 (b)
read with 24( 1) of the Act, the Bank had by entering into the
agreement with the Govt. of India, waived its right to take penal
action against its employees for joining the illegal strikes and
that therefore, an enquiry should be held on additional evidence
to decide the disputes on m~ri'ts. Against this interlocutory order
the Bank appealed to this Court which held that while the strikes
were no doubt illegal under Sec. 23 (b) of the Act, the orders of
dismissal passed by the Bank were no less so under Sec. 3 3 of
the Act and it dismissed the Appeal.
The Appellate Tdbun11l
thereafter, heard the cases. on merits, c(irected the reinstatement
of 136 of the said employees, but refused to reinstate the rest
whom it found guilty of issuing posters and circulars subversive
of the credit of the Bank. Both the Bank and
the workers
appealed to this Court. It was held that under Sec. 33A o~ the
Act as construed by this Court the jurisdiction of the Tribunal
was not limited to an enquiry as to the contravention of Sec. 33
of the Act. Even if such confravention was proved, the employer
could still justify the impugned dismissal on merits and there wiis
no difference in this regard between a reference under Sec. 10
of the Act and a dispute raised under Sec. 33A of tfie Act.
In Workmen of Motipur Sugar Factory (P) Ltd., v. Motipur
Sugar Factory,(') the workers of the Respondent started a go
slow in its Sugar Factory.
Therefore the Respondent issued a
general notice to those workmen and individually to each workman notifying that unless he recorded his willingness to discharge
his duties faithfully and diligently so as to give a certain minimun1
output, he will be no longer employed and the willingness ):Je
was required to record was to be dohe within a certain time failing which he was notified that he would be discharged without
further notice.
Respondents held no enquiry as required by the
Standing Orders before dispensing with
the
services
of the
Appellant. A general strike followed resulting in a joipt application by both the parties to the Govt. and the Govt. referred the
question to the Tribunal. In the notice given by the Respondent~
it was stated that the go slow tactics was likely
to
injure tM
(!) [1965] 3 S.C.R. 588.
500
SUPREME COURT REPORTS
[1972] l S.C.R.
factory resulting in a major breakdown of the machinery.
The
Tribunal came to the conclusion that there was go slow during
•the period and consequently held that the discharge of the
workmen wa·s fully justified. It was contende'! before this Court
that what the Tribunal had to concern itself was whether the
discharge of the workmen for not giving an
undertaking was
justified or not and that it was no part of its duty to decide that
there was go slow which would justify the order of discharge and
that since the Respondents held no enquiry as required by the
Standing Orders it could not justify the discharge before the
Tribunah. It was pointed out in that case that this Court had
consis~ently held that if the domestic enquiry is irregular, invalid
or improper the Tribunal may give an opportunity to the employer
to prove his case and in doing so the Tribunal tries the merits
itself and that no distinction can be made between cases where
the domestic enquiry is invalid and those where no enquiry has
in fact been held. It was observed at page 603 :
"Looking at the matter in this
broad way-and
that is all that we are prepared to do, for we are examining a finding of fact of the tribunal-we cannot say
that its conclusion that there was
go-slow between
November 27 and December 15 is not justified .... But
as we have already indicated, the charge in the notice
of December 15 was that the workmen had been going
slow from November 27 and they were asked to give
an undertaking to improve and the -respondent
was
apparently willing to overlook the earlier lapse.
Even
assuming that the demand of an undertaking w·as unjustified, it does appear that the attitude· of the workmen was that they would do no better; and in those
circumstances they Were discharged on December 17,
1960, on the basis of misconduct consisting of go-slow
between November 27 and December 16, 1960. That
misconduct has been held proved by the Tribunal and
in our opinion that decision of the Tribunal cannot be
said to be wrong. In the circumstances the Tribunal
was justified in coming to the conclusion that the discharge was fully justified."
In a recent case-the Hindustan General Electrical Corporation
Ltd. v. Bishwanath Prasad & Anr., (1)
while
considering this
aspect of the matter we had held that even though no enquiry
was held or there was contravention of the provisions of Sec. 33
of the Act, in a dispute referred under Sec. 10 the Labour Court
had to adjudicate upon the dispute which was referred to it
with regard to the Respondent and had to go into the question
(J) Civil Aoo'11 N>. 2167of1956-Judgment delivered on 17-8-71.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
ORIENTAL TEXTILE MILLS v. LABOUR COURT
501
(.Jaganmohan Reddy, J.)
as to whether he had been properly dismissed.
In other words
the management can justify and substantiate its action on evidence duly placed before the Tribunal.
The learned Advocate for the Respondents however urges
that even where the strike is illegal in order to justify the dismissal or the order terminating the services of workmen on the
ground of misconduct the management must prove that they
were guilty of some overt-acts such as intimidation, incitement
or violence.
We do not think that in every case the proof of
such overt acts are necessary pre-requisite.
In this case there
is a persistent and obdurate refusal by the workmen to join duty
notwithstanding the fact that 'the management has done everything possible to persuade them and give them opportunities to
come back to work but they have without any sufficient cause
refused, which in our view would constitute
misconduct and
justify the termination of their services. The workmen as spoken
to by the Labour Officers and also as
is
evidenced by
the
documentary evidence to which we have referred, ~re unwilling
to join duty till the workmen who were suspended were also taken
back.
There is nothing to justify the allegation that the management wanted to terminate their sMvices under some pretext with
a view to recruit them afresh and deprive them of accrued benefits.
The notices clearly mention that the workmen would be
free to join duty by a certain date and only after that date
1he management was prepared to entertain them
a:;
new
entrants if they were to apply by the date specified in the
notices. It appears to us therefore that management has
proved misconduct and the stand
taken by
it was
reasonable.
There was ,nothing that it could do further in view
of the unjustified attitude taken by the workers by staying
away from work particularly after they were given over a month's
timy, within which to commence work. In the view we take the
order terminating their services was not improper. The Tribunal
was not justified in directing their reinstatement and payment
of wages merely on the ground that no domestic enquiry was
~eld. The appeal is accordingly allowed except for the Award
m respect of Surat Singh, which is maintained.
Having regard
to the circumstances of the case there will be no order as to costs.
V.P.S.
Appeal allowed.