# Sa•a Musa Sugar Works v. Shobrati Khan, [19591 Supp· 2

- **Citation:** [1962] 3 S.C.R. 684
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 252 of 1960
- **Bench:** K. K. WA:sc1100, K. C. DAS GuPl'A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sa-a-musa-sugar-works-v-shobrati-khan-19591-supp-2-2469
- **Pages:** 18

## Headnote

ln·lu.ili'1.1.1l Dispute- "Go s/.0111" by toorkmen-AppliM-tion
for 1u:.1·111ission lo
dio1nia~-/Jomestic enquiry not prop;;r-1/
T1£bu11rt! c11n tal..·t inde71e11dt:nt ei:idence for jindiny prima Jacie.
CURe-J[ ala fideB and t:ir.liuiisat-ion-De.lay in ma/ring application-rJJec! of-lndustrial Lis pule" Act, 1947 ( 14 of 1947).
s. 33.
<~< rtai11 workmen of the appellant re~ortc<l to "go slo\•1".
The appellant held a domestic enquiry and as a result thereof
decided to dismi:is 21 \vork1nen.
After considerable delay it
made a11 application under s. 33 of the Industrial Disputes
Act, l 9-17, for permission to disn1iss these workmen.
l~vidcnce
was led l>efore the Tribunal to prove the charge against the
v•orkmen, 'fhe 'J'ribunal held that the don1estic enquiry was
not proper, that the appellant \Vas .<.\uilty of 1nala fide conduct
and victimisaiion, that, except in the ca!.<: of one \vorkmcn,
the others were not guilty of any <lcliiJert\tc go slo\v
and
accordingly granted permission in respect of the one workman
ul'Jne.
Ti1e appellant contended that the finding that the
remaining 20 \vorkmcn \\·ere not guilty of deliberate go slow
l':as pcr,·erse and that the finding in respect o!· ma/a fide& and
victimisation was
arbitrary and erroneous. ·rhe \vorkmen
contended that once the domestic enquiry \Vas found to be
improper the Tribunal had to dismiss the application and it
could not take independent evidence and arrive at a finding of
its O\vn as to the guilt of the workn1cn.
lletd, that in an application under s.
~3 of the Industrial
Disputes :\ct, 1947, when there has hecn no domestic enquiry
or v.•hcn the domestic enquiry has not been properly conducted
it is the duty of the Tribunal to take evidence of both side•
and to decide whether the alleged misconduct has been made
out. The evidence produced
before the Tribunal clearly
cstablisht"d that 13 out of the 20 workmen were g1dlty of
deliberate go slow.
Go slo\'' v.;as a
p~rnicious and dishonest
practice ,,·hich was a misconduct puni'lhable with dismissal
under the standing orders.
Actual participation in go slow
v.;as serious
misconduct and
the management could not
rea:;onably be accused of mala fide" or revengefulness if it
proposed punishment of dhmisc;al for such conduct. There
was delay in holding the domestic enquiry. and the manage·
ment sho,,·ed lamentable callousness in this matter. In cases
of chi1 nature the enquiry should be held a~ early as possible,
specially when the lvorkmcn are put under suspension.
Again,
there was delay in making the application for prrmisaion to
-..
-
...
--
-
~
----
S.C.R. SUPREME COURT REPORTS
68'11
dismiss.
But these de la vs did not show that the managenu:n t
was guilty ofmala fides 'or ~fan inten.tion t~··~ict!mise. The
order of the Tribunal refusing permsss10n to d1sm1ss 13 of the
workmen was entirely "vrong and unjust and could not be
allowed to stand.
Sa•a Musa Sugar Works v. Shobrati Khan, [19591 Supp· 2
S. C. R. 836, Shri Ram Swarath Sinha v. Bdsund Sugar Co_.,
Ltd. 1959 L. A. C. 697 and Punjab National Bank Ltd. v.
its
workmen, [1960
I S. C: R. 806, referred to ..

## Text

1961
S t/ftf'flbtr 20,
•
684
SUPREME COURT REPORTS
[1962)
~1/S. BHARAT SGGAR MILLS LTD.
,_ ..
SHRI JAI SIKGH AN"D OTHERS
(K. K. WA:sc1100 and K. C. DAS GuPl'A,JJ.)
ln·lu.ili'1.1.1l Dispute- "Go s/.0111" by toorkmen-AppliM-tion
for 1u:.1·111ission lo
dio1nia~-/Jomestic enquiry not prop;;r-1/
T1£bu11rt! c11n tal..·t inde71e11dt:nt ei:idence for jindiny prima Jacie.
CURe-J[ ala fideB and t:ir.liuiisat-ion-De.lay in ma/ring application-rJJec! of-lndustrial Lis pule" Act, 1947 ( 14 of 1947).
s. 33.
<~< rtai11 workmen of the appellant re~ortc<l to "go slo\•1".
The appellant held a domestic enquiry and as a result thereof
decided to dismi:is 21 \vork1nen.
After considerable delay it
made a11 application under s. 33 of the Industrial Disputes
Act, l 9-17, for permission to disn1iss these workmen.
l~vidcnce
was led l>efore the Tribunal to prove the charge against the
v•orkmen, 'fhe 'J'ribunal held that the don1estic enquiry was
not proper, that the appellant \Vas .<.\uilty of 1nala fide conduct
and victimisaiion, that, except in the ca!.<: of one \vorkmcn,
the others were not guilty of any <lcliiJert\tc go slo\v
and
accordingly granted permission in respect of the one workman
ul'Jne.
Ti1e appellant contended that the finding that the
remaining 20 \vorkmcn \\·ere not guilty of deliberate go slow
l':as pcr,·erse and that the finding in respect o!· ma/a fide& and
victimisation was
arbitrary and erroneous. ·rhe \vorkmen
contended that once the domestic enquiry \Vas found to be
improper the Tribunal had to dismiss the application and it
could not take independent evidence and arrive at a finding of
its O\vn as to the guilt of the workn1cn.
lletd, that in an application under s.
~3 of the Industrial
Disputes :\ct, 1947, when there has hecn no domestic enquiry
or v.•hcn the domestic enquiry has not been properly conducted
it is the duty of the Tribunal to take evidence of both side•
and to decide whether the alleged misconduct has been made
out. The evidence produced
before the Tribunal clearly
cstablisht"d that 13 out of the 20 workmen were g1dlty of
deliberate go slow.
Go slo\'' v.;as a
p~rnicious and dishonest
practice ,,·hich was a misconduct puni'lhable with dismissal
under the standing orders.
Actual participation in go slow
v.;as serious
misconduct and
the management could not
rea:;onably be accused of mala fide" or revengefulness if it
proposed punishment of dhmisc;al for such conduct. There
was delay in holding the domestic enquiry. and the manage·
ment sho,,·ed lamentable callousness in this matter. In cases
of chi1 nature the enquiry should be held a~ early as possible,
specially when the lvorkmcn are put under suspension.
Again,
there was delay in making the application for prrmisaion to
-..
-
...
--
-
~
----
S.C.R. SUPREME COURT REPORTS
68'11
dismiss.
But these de la vs did not show that the managenu:n t
was guilty ofmala fides 'or ~fan inten.tion t~··~ict!mise. The
order of the Tribunal refusing permsss10n to d1sm1ss 13 of the
workmen was entirely "vrong and unjust and could not be
allowed to stand.
Sa•a Musa Sugar Works v. Shobrati Khan, [19591 Supp· 2
S. C. R. 836, Shri Ram Swarath Sinha v. Bdsund Sugar Co_.,
Ltd. 1959 L. A. C. 697 and Punjab National Bank Ltd. v.
its
workmen, [1960
I S. C: R. 806, referred to ..
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 252 of 1960.
Appeal by special leave from the Award dated
March 6, 1958, of the Industrial Tribunal, Bihar,
Patna in Misc. Case No. l of 1959.
A. B. N. Sinha, K. K. Sinha and G. N. Dikshit,
for the appellants.
T. R. Bhasin, for the respondents.
1961. September 20. The Judgment of the
Court was delivered by
DAs GUPTA J.-The appellant, a Sugar Mill
Company, made on December 31, 1956 an application under s. 33 of th~ Industrial Disputes Act before
the Industrial Tribunal,
Bihar, Patna for the
dismissal of 21 workmen for misconduct in connection with "go slow" allPged to have been resorted
to by the workmen of the factory from the
midnight of February 12, to tho February 18, 1955.
The Tribunal held that actual participation in a
"go slow" had been establiHhed only against one of
the workmen at the Donga Pnd and that the "go
. slow" at the btor ~tages in which the other 20
workmen had been engaged occurred as a necessary
consequence of this go slow by one workman at the
Donga end and was not a deliberate "go slow" by
theDL The Tribunal was of opinion also that the
management was not acting bona fide and really
was seeking to victimise active members of the
Union which the employer had refused to recognise.
Accordingly, it refused permission in respect of 20
of tho workmen and gave permission to dismiss
only Nihora Dubey a workman at the Donga.
The
. 1961
M/s! Bharat Su~r
·Mills. Ltd.
v.
Shri Jai Sinth
Das Gupl11
1111
JI Is. Bharat SJJfar
Mills Ltd.
v.
Shri Jai Sinth
D11s C11pta ].
686
SUPREME COURT REPORTS
[1962]
correctness of this refusal is challenged before ns in
this
a~pc~l by special . Jeav?. Tho a•Jpellant's
contention 1& two-fold.
First, 1t is said that the
finding of tho Tribunal that these wol'kmen in
respect of whom permission to dismiss was refused
were not guilty of any deliberate go slow is
perverse; secondly it is contended that tha Tribu·
nal's ,·iew t.hat the employer was guilty of mala fide
conduct and victimisation of these workmen for
Union acthities is arbitrary and erroneous.
It does not appear to have been disputed that
"go slow" was actually resorted to in this factory
from February 12, to· February 18, 1955. It was
indeed hardly open to the wc•rkmen to dispute this,
after all the pomp and ceremony with which "go
slow" was celebrated. We find that as earl·v as
January Hi, 1055, JO demands were communicated
by the Unhn on behalf of th~ workm1>n b.~ a lotter
which said that unlcRs these demands were concJded
by the January 26, 1955 tho workmen wo11ld rnsort
to "go slow" from
January 30,
19.i5.
This
notice to "go slow" appears to have been withdrawn
on the 22nd January, UJ55, apparently on the
ad vice of tho Assistant Commi~sionor of Lal-our,
Muzaffarpur. A further let!Rr was issued the ! ame
day in which Ci demands wcr<> made with <l- rccuest
to concede these by the 6th February fail;ng which
it was said they would "resort to go slow from the
February 19, 1955". The SPcrotary of th•' Bharat
Sugar Mills to whom tho Conciliation Officer w1 ote,
that very day, wrote back on January !!2, 1955,
that they had not received any notice dated Janaary
22, l!J5!i. In reply to a further communicrtion
from the Assistant Labour
Commissi·Jner che
appollant sent a telegram on February 3, 1~55,
regreting inability to attend the ~r_oposed conc1la·
tion meeting on February 4, 19<><>, as both the
Secretary and tho Assistant Secretary were away.
Then on February 8 another toleg.ram w&H
s~nt on
behalf of tho management infor"'Ylmg the ~ss1stant
Labour Commissioner that the Genara 1 ::;ecretary
would bo returning soon and that any date after
• ..
---
3 S.C.R.
SUPREME COURT REPORTS
6~7
the 11th may be fixed.
Thereafter, in reply to a
further communication from the Assistant Commissioner inquiring as to what date would suit the
management the General Secretary Shri K.C. Sarda
sent another telegram requesting the Assistant
Labour Commissioner to fix any date before the
17th.
This telegram was sent on February 11.
On the next date, February 12, Sarda sent a further
telegram to the Assist>int Labour Commissioner
stating that he would come to Muzaffarpur on the
15th afternoon. Before any action could however
be taken by the Assistant Labour Commissioner,
the workers commenced their "go slow" from the
midnight of February 12.
"Go slow which a picturesque description of
deliberate delaying of production by workmen pretending to be engaged in the factory is one of the
most pernicious practices that discontendr,d or
disgruntled workmen sometime resort to. It would
not be far wrong to call this dishone.st.
For, while
thus delaying production and thereby reducing
the output the workmen claim to have remained
employed and thus to be entitled to foll wages.
Apart from this also, "go slow" is likely to be much
more harmful than total cessation of work by
strike. For, while during a strike much of the
machinery can be fully turned off, during the "go
slow" the machinery is kept going on a reduced
speed which is often extremely damaging to machinery parts. For all these reasons "go slow" has
always been considered a serious type of misconduct.
The Standing Orders which have been made under
the Standing Orders Act· for the appellant factory
specify "go sh.>w" as misconduct in Rub-cl. (u) of
cl. (1) para.. Munder the words: "M>tlingering or
deliberate delaying of production and carrying out
of orders." It is strange therefore to see that
notice of intention to commit this misconduct was
solemnly given by the Union in one letter after
another. Some light on the mystery is however
thrown by the fact that in Bihar a Committee to
1961
lrl / s. Bharat Su:ar
.~ills Ltd.
Y,
Shr-i Jai Singh
D:is Gupta J.
19.l
M/1. Bharat Sugar
Ju ;!11 Lid.
v.
Shri ]ai Sinth
fltU Cupia ].
688
SUPREME COURT REPORTS
[lfl62]
consider and report on the qucstian of "~o slow" _,...
tac tics in industries was appointed by tho B· har
Central Standing Labnur .Advioory Board and the
report of the Committee was submitted in bl51.
The Commitee made sever:d
recomme·1dations
including one that "go slow'' by workPrs s'ioui<l be
treatecl on a pqr with strike. It also recommen·led
however that worker8 should not resort to "go slow"
without at least 7 davs notice, that the noti :e would
remain in force for 4\vccks but that it would not
be ncressary to notify the exact date of starring
the "gc slow".
Another rccor.1mtndation , .. as that
wc•rkt'r8 should n :Jt re.;ort to "go slow" dvring the
p(·mlf'll"Y of a c·onciliation proeeedini; but that tho
e011eiliation proceeding must be coneluded within
four wc·eks of th~ notice'.
Th" Commit.tee went to
tlw length of recom1w ndirg that "go Hiow" dm· to
mal.pr;.etices by the m:magen,ent would be justiiicd.
Bv a resolution dated DllJembPr I,
1!':31, the
G;:,vcrnmcnt of Bihar "were i1leascd to ar~ept the
recommendations of the 'go ~low' Commit tee and
ex,iressed their "thanks'' to the member'' of the
Committee for the well co11sid< red report." No
action was however taken to delete item (u) of
clause (I) of para. M of the Standi11g Orders and
so under the Standing Ordrrs which it may bo
mcntiu11ed were certified on Xovcmbcr 7, 1951, the
deliberate delaying of production co11tinued
to
remain a "miscomluef' under the law inspit<l of the
blc.si.11gs it received from tho Committee and the
Government of Bihar.
As to the fact that "go slow" waA rest,rtcd to
in th" factory from tho midnight of February 12,
1. f>G, up to the February 18, 1955, could not ho and
wnH not disputed, it becomes necessary to consider
the evidence on the record to examine the con·
clusion rcache<l by the Tribunal that there was no
deliberate "go slow" by any of the pre8cnt 1·espondents. The chargn-shects which were served on
tho workmen nccusrd them not onlv of actual
participation in the "go slow" but also of instigating
and intimidating other workmm to "go slow". It is
I
' •
-
--
3 S.C.R.
SUPREME COURT REPORTS
689
to be noticed however that while "inciting others to
strike work" is misconduct under the Standing
Orders para M. cl. sub-cl. (u) incitement to deli·
berate delaying of production has not been specifically made a misconduct under the Standing
Orders.
We shall therefore confine our attention to
the appellant's case that these workmen actually
participated in the "go elow''. A complaint w.as
made on behalf of the respondents that the charges
that were given to the workmen were vague. We
have examined the charges and consider this
complaint wholly unjiustfied. We have no hesitation however in accepting the criticism by the
learned counsel for the respondente that the enquiry
made by the domestic tribunal of the appellant was
far from a proper enquiry, as the minimum requirements of natural justice were not satisfied. It
appears that no witness was examined by the
Enquiring Officer and the only person examined
was the workman against whom the enquiry was
being held.
Reports by some officers of the
company were taken into consideration but it does
not appear that the contents of these reports wPre
read out and explained to the workmen. The
persons whose reports were thus considered were
present at the enquiry, but even so it does not
appear that the workman was given an opportunity to examine them. Indeed, as none of these
persons were actually examined in the presence of
the workmen the question of their cross-e:;amination
by or on behalf of the workmen did not arise. The
workman thus had not only no proper chance of
knowing what was being alleged against him and
by whom but also no chance of testing the correctness of the allegations that were in fact made in the
written report.
In view of these serious defects in the enquiry
by the domestic tribunal it was not possible for the
Industrial Tribunal to place any reliance on the
findings of that domestic tribunal in order to decide
1961
M/s. Bharat Suzar
Mills Ltd.
v.
Shri J ai Singh
Das GuptaJ.
1961
M/s. Bharat Suear
Mills Ltd.
v.
Sh1i Jai Sirtth
Das Gupta J,
690
SUPREME COURT REPORTS
El962J
whether permission to dismiss should be given - •
under s. 33 of tho Industrial Disputes Act. (Vide
Phulbari Tea RstatP- v. Its Workmen)(').
Evidence was
however
adduc1Jd by
the
appellant before the Industrial Tribunal to make
out its case that the workmen concorned were in fact
guilty of the alleged misconduct. On behalf of tho
respondents it has been urged before us that once '
it is found that tho enquiry by tho domestic
tribunal has bern defective it was not open to the
Industrial Tribunal before whirh the application
nncler section 33 is made to allow any e\·i<lcnco to
be adduced before it. We sco no
0force in this
contention. When an application for permission
for dismissal iR made on tho allegation that the ..
workman has been guilty of some misconduct for
which the management considers dismissal the
appropriate punishment tho Tribunal has to satisfy
itllelf that there is a prima facie case for such
dismissal. Where there has been a proper enquiry
by the management itself the Tribunal, it has been
settled by a number of decisions of this Court, has
to accept the findings arrived at in that enquiry
unless it is perverse and should givo the permission '
asked for unless it has reason to believe that the
management is guilty of victimisation or has been
-
' ""
guilty of unfair labour practice or is arting mala
___ _
fide.
But tho mere fact that no enquiry has been
hold or that the enquiry has not been properly
conducted cannot absolve the Tribunal of its duty
to decide whether tho case that the workman has •
been guilty of tho allell'ed misconduct has been
made out. Tho proper way for performing this
duty where there has not been a proper enquiry by
tho management is for tho Tribunal to
take
evidence of both sides in respect of tho alleged
misconduct.
W11rn such evidence is adduced before
the Tribunal the management is deprived of tho
benefit of having tho findings of tho domestic- -
tribunal being accepted as prima f11cie proof of the
(I) [1'60] (I) S. C.R. 32.
•
•
3 S.C.R. SUPREME COURT REPOR~
691
alleged -misconduct unless the finding is : perverse
and
has to · prove to the satisfaction of the
Tribunal itself that the. workman was· guilty of the
alleged misconduct; We do not :think it either just
to . the management or indeed even fair to the
workman himself that in such a case the·· Industrial
Tribunal should refuse to take.evidence and thereby
drive the management ·to· make a further. application for permission after holding a proper enquiry
and deprive the . workmau of the
benefit of
the Tribunal itself being satisfied ·-.on evidence
adduced before it that he was guilty of the alleged
misconduct•
It may be pointed· out in this connectfon that
in Sasa .Musa Sugar -Works v. Shobrati Khan &
others(') the management's
application
under
section 33 had not been precPded by any enquiry
into the misconduct . of the workman· and ·. that
itself, it was urged on behalf of the · wox:km,.n was
a reason why the application should be rejected.
The Industrial Tribunal held that all the evidence
which might have been taken in the enquiry by ·
the management had been led· before it and it was
in full . possession of the facts an_d no question of ·
auy prejudice to the workmen arose as it would be
open to it on a.review of the entire evidence before
it to decide whether the application for permission
to dismiss should be granted or not. On a consideration of that·· evidence · the Tribunal held as
regards 16 of the workmen concerned that ·there
was no evidence· that they had taken part in the
allerred misconduct of "go slow" or instigation to
"go
0 slow". No objection ·appears ·to have be_en
taken either before the Appellate. Tribunal or
before this Court to the application being disposed
of on the. evidence taken before the Industrial
Tribunal itself; and in fact this Court allowed the
application under section 33 in respect· of all the
~ • 48 workmen on the basis of the evidence given
before the Induatrial Tribunal.
(I) [1959] S. C.R. Suppl. II p. 8:15,
1961
M/s. Bharal Sugar
Mills Ltd.
..
Shri Jai Sinzh
Du GupiaJ~
.,
1961
--·
~f fs. Bharat S~gar
MUlr Lid.
'
ti.
.
· ShTf_? ai Sinz!a -·
Du Gupta j• .
,
,
'
692
SUPREME COURT REPORTS
[1962]
. It is worth noting that several years ' before
this, the Appellate Tribunal had in Shri Ram·
Su:arath Sinha v. Belsund Sugar Oo.~ Ltd. (
1 ), laid
it down that the materials on" which a Tribunal acts
.iti disposing. of an applica~ion. for permission to
· dismfos may consist of :-
·
.
.
· ;(Ir-entirely the
evidence taken by the
. management at the enquiry and the proceedings of
· ·the enquiry, or
'
·
(2) that evidence and ill addition thereto
. further evidence led before the Tribunal, or
(3) evidence placed before the Trib~nal fo'
the first time in support of the charges.
It ;as pointed out there that . the last "men"c
tioned case pre·supposed an absence of a prior ·
enquiry _by the management. It is not withoutsignificanM that even though the question whether
in the absence of a proper. prior enquiry by the
management evidence can for the first time. be
.. placed before the Tribu~al in support of the alleged
mfficonduct had. been discussed in Belsund Sugar
~ Oo., Ltd.'('), no·. objection to. the taking of such
evidence for the first time before the Tribunal was
. raised before this c.mrt" on". behalf of the . resp on.
dent in Sasa.lllusa Sugar Work's Case('). ,
.
Nor can we ignore the .fact .that for a long
time now, it has been settled law that in the. case
of an adjudication of a dispute arising out of a dlli·
' missal of a workman by the management (as distinct
from· an application for permission to dismiss under
s. 33), evidence can be adduced for the first time before the Industrial Tribunal. The important effect
of the omllision to hold an enquiry. is merely this :
that tho tribunal would not have to consider only
whether there was a prima facie· cas" but would
decide for itself on the evidence adduced whether
. the charges have really been· made out. This was
(I) [1959] L. A. C., 691.
(2, [1959] S. C.R. Suppl. II p. 836.
. . . . .
.
'
;
·-...:..: :
:--=
•
,-
•
-
-
3 S.C.R.
SUPREME COURT REPORTS
693
• recently pointed out again in the Punjab Nation~l
~ Bank Ltd., v. Its Workmen(') in these words: 'if
no Enquiry has in fact been held by the employer;
the issue about the merits of the impugned order
of dismissal is at large before the Tribunal and, on
the evidence adduced before it, the tribunal has to
<lecid"l for itself whether the misconduct alleged is
proved ...... ". The reasons for which it is proper for
-"'
the Tribunal to take evidence itself as regards the
alleged misconduct when adjudicating upon a dispute arising out of an order of dismissal which has
been made by the management are equally present
in the case where the management makes an application for permission to dismiss without having
held a proper enquiry. In our opinion the tribunal
,...
rightly allowed the management to adduce evidence
before it in support of its application fo(j permission to dismiss even though the domestic enquiry
held by it was highly defective as pointed out
above.
Of the six witnesses examined on behalf of
the management the important evidence as regards
the participation in the "go slow" during the
l.
period February 12 to February 18 is given by
Ishwari Dayal, Chief Engineer, Kanpur, the Chief
Chemist and Bhikari, a machine man.
On February 13, 1955 the Chief Engineer
submitted a report to the Secretary, K. C. Sarda
about what he had seen that very day. He referred to this report in an affidavit sworn before a
.._
Magistrate and stated that the facts stated in the
report was true. In his deposition before the
Tribunal he has referred to this affidavit and said
that the statements made therein are correct.
While a more satisfactory way of putting De.ya.l's
evidence on record, would have been to record his
testimony on all these matters mentioned in the
affidavit and report directly, it cannot be reason-
---
ably said that the statements made in the affidavit
and report do not amount to legal evidence on
(1) [1960] o> s.c.R. 806.
1961
M/s. Bharat Su:ar
Mills Ltd.
v.
Shri Jai Singh
Das Gupta J.
J9;J
M/s. B!oaral S.,ar
Mill• Ltd.
v.
Shri Jai SU.,h
Das Gupta].
694
SUPREME COURT REPORTS
(1962]
which tho Tribunal could act. In this report the
Chief Engineer states thus:-
"! noticed that groups of persons from
the assembled crowd moved about tl1c factory
announcing the commencement of the 'go-slow'
and actually threatened tho£o who would not
fall in line with them. I particularly noticed
Harikishan Kuer,. Baijnath Singh, Ramdeo
Singh, Nagondranath and Baldeo and others
whose namr I did'nt remember in the crowd
taking an aoti ve part''.
Later in tho report he says that:
"as a result of tho instigation as aforesaid
and perhaps as planned in advance, the 'goelow' actually started with tho incoming shift.
The abnormally slow running of the Mill
Engine and the Cano Carrier came to my
notice immediately. I personally checkod up
the stream pressure and found that it was
normal. Thereupon I called Dhannoo Mistry,
Mill House Fitter and expressed my resentment at a low speed, after all my persuasions
and directions to them not to rosort to goslow.
Dhannoo Mistry had tho impudence to
tell me that it shall remain low as thoy had
gone on go slow and the question of restoring
the normal speed did not arise. Finding
Dhannoo Mistry's attitude as it was, I went
with tho Shift Engineer Mr. l\Iukhorji to
Swarath Singh who was at the l\Iill Engine
and Hardeo Singh who was at tho Cano
Carrier Clutch, and asked them to restore
normal speed immediatoly .................. Thoy
paid no heed to my orders and wore det-0rmined to continuo tho go slow."
It is important to notice that of tho persons named
by this witness as having taken an active part-by
which ho obviously meant an active part in moving
about tho factory announcing tho commencement
of tho go slow-Baijnath Singh and Ramdeo Singh
-.,.
-
.. -
-
3 S.C.R.
SUPREME COURT REPORTS
695
were both engaged in the Evaporator section,
Eaijnath being an Evaporator Cooly while Ramdeo
Singh being an Evaporator Reliever; Harikish:m
Kuer was an Assistant Panman while Baldeo and
Nagendranath Prasad were Engine men, Baldeo
• being an Assistant Fitter and Nagendranath being
a Fit<er.
We have no hesitation in believing as correct
these statements made by the Chief Engineer in his
report made on February 13. There can be no
doubt therefore that Swarath Singh, Hardeo Singh
and Dhannoo actually participated in the go slow. As
regards Harikishan Kuer, Baijnath, Ramdeo and
Nagendranath and Baldeo we have to remember
that it is not disputed that there was in fact a go
slow in the different jobs on which these men were
engaged. If they had not been proved to have
taken an active part in promoting the go slow, there
may have been some scope for saying that the go
slow in their jobs was the consequence of the go
slow at the Donga and not deliberate go slow on
their part. When however we find that these persons were active in asking other workmen to go
slow, they cannot be reasonably heard to say that
the go slow in their own jobs was not deliberate
on their part. The Tribunal was in our opinion
clearly in error in thinking that the go slow in the
jobs where these persons were engaged was merely
the result of the go slow at the Donga end and not
deliberate go slow on their part. In our opinion,
the evidence of Ishwari Dayal definitely establishes
that these several persons, Harikishan Kuer, Baijnath Singh, Ramdeo Singh, Nagendranath Prasad,
Baldeo, Dhannoo Mistry, Sawarath Singh and Hardeo Singh did actually participate in delaying production.
The Chief Chemist, A. N. Kapur, submitted to
the Secretary one report on February 12, 1955 and
two more reports on February 13.
In the first
report he said that having received information at
about 9.30 A. M. that Guiab Singh, Evaporatorman,
1961
M/s. Bharat Sugw
Mills Lti.
v.
Shri Jai Singh
[)as Gupta J.
1~1
M/s. Bharat Sugar
Mills ltd.
v.
Slui Jai Sir11h
Das Gupta].
696
SUPREME COURT REPORTS
[1962]
was inciting persons who were doing periodical
cleaning of the Evaporators that day that they
should do the cleaning slowly as if tho "go-slow"
had already started in their case, he immodiately
went to the Evaporators and questioned Guiab
Singh about his alleged conduct and that Guiab
Singh ultimately admitted that it was true but
that ho had merely been saying what others had
decided.
In the second report marked Ex. 4 (b) the
Chief Chemist states that trouble strrted on tho
midnight of February 12 after "C" shift was OYer
and that he noticed "Baijnath Singh, Hira Sukul,
Harikishan Kuer, Ramdeo Singh, Ramayan Singh
and Golla among others asking other workers to
stay on and see that the go slow was actually started. He says also that the noticed Kawalpati and
Bachan, Centrifugal Coolies and a few others taking a prominent part in proclaiming that go slow
must bo started.
In the third report the Chief Chemist stated
that after 8 A. M. on Fcbruarv 13 he noticed
Kawalpati and Bachan and Amar.?tfaht1J, Jai Singh
and Guiab Singh and others going round the factory
and openly saying that as tho go slow had started
any workman who sided with the factory will be
severely dealt with. Wo can see no reason to
doubt the truth of tho statements made by the
Chief Chemist. Of the persons named by him,
Baijnath Singh, HarikiRhan I\ ucr and Ramdeo
Singh were also named by Ishawari Dayal as we
have already pointed out above. In addition to
these Hin Sukul, Ramayan Singh, Golla, Jai Singh
Amar :lfahto and Guiab Singh must be held to
have actually 11.'lked others to go slow and when
this fa.ct is taken with the admitted fact that "go
slow" was actually practised at the stages of production where these workmen were engaged there
can be no escapo from the conclusion that they
wcro guilty of active participation in go slow,
-
-
-
3 S.C.R. SUPREME COURT REPORTS
697
As regards Kawalpati and Bachan we have,
apart from this evidence of the Chief Chemist that
they were going round the factory saying that go
slow must be continued, the evidence of Bhikari
Rout that on February 14 he found these two, not
operating the machine, and sitting there on a
gunny bag and sugar was falling down from the
Pugmill.
From this evidence of Bhikari Rout
takt1n with the evidence of the Chief Chemist, it
appears clear beyond anv reasonable doubt that
these two workmen, Bachan and Kawalpati did
also actively participate in "go slow".
We are therefore of opinion that the evidence
adduced before the Tribunal clearly est11blishes that
the following
respondents,
HarikiE·han Kuer,
Baijnath Singh, Ramdeo Singh, Nagendranath
Prasad, Baldeo, Dhannoo l\Iistry, Swarath Singh,
Hardeo Singh, Kawai pa ti, Bachan, Ramayan Singh,
Jai Singh, Hira Sukul, Golla and Guiab Singh were
guilty of misconduct within the meaning of paragraph M cl. ( 1) sub-cl. (u) of the Standing Orders.
Of these Ramdeo Singh and Golla are reported to
be dead.
'
Before however permission can be granted to
dismiss them for this misconduct we have to see
whether the charge of mala fide and victimisation
brougbt against the management is true. The
workl!llen's suggestion which found favour with the
Tribunal was that it was because of the Union
activities of these 21 workmen that the manl\ge·
ment decided to take action against them and that
the allegation that they had taken part in the go
slow was merely a sham excuse. As regards the
above workmen who it is established by the evidence were in fact guilty of go slow, can it be said
that though the management takes action against
them for this misconduct the real reason for the
management's proposal is these people's Union
activities? We are unable to see any justification
for this view. If the misconduct had not been
1961
M / s. Bharat Sugar
Mills Ltd.
v.
Shri Jai Singh
Das Gupta J.
1961
M/s. Bharat Sugar
Mill• Ltd.
v,
Shr/ .Tai Singh
DaaGupta J.
GllS
StJPREllrE COURT REPORTS
[l!l62]
serious and still the management sought to dismiss them, taking advantage of the fact that under
the Standing Orders a punishment of di;missal
coulcl Le givcu, there might have Leen some scope
for an argument that the apparent reason for tho
mnnagement 's action was not the real rpason. It
is not possible huwcver to consider actual paiticipation in go slow as anything but vny serious misconduct and no management can be
accused
reasonably of mala fide or of revC1Jgcfulncss if it
propos('S punishment of dismisrnl for fUth conduct.
The Inclustrial Tribunal appears to have beerr
impr('SSP<l by the fact that 13 other workmen who were
suspended were pardoned and taken back while 21
were not allowed to join duty. It appears clear
that se">eral at least of the l:; who had been taken
hack wcro also active members of the Union. There
is no ground for saying therefore t.hat the manage·
mcnt discriminated against these 21 workmen
Lccanse of the fact that they were active members
of the Union. It may very well Le that they have
been taken back as their active participation in tho
go slow was not established. Without knowing
fully the circumstances under which those 0ther 13
were taken Lack to work it is not proper to hold
that there has been any discrimination against
these 21.
Learned Counsel for tho respondents next
contended ·that mala fide and victimisation w~re
\vrit large on the conduct of the management in
preventing the holding of a meeting for conciliation
which was attempted by the Assistant Labour
Commissioner. It is also urged that by this conduct
the company provoked the workmen to rosort to
go slow.
Even if it were found that the company
had deliberatoly avoided the proposed mooting there
would be no ground for saying that the workmen
had been "1>rovoked" to go slow.
lnspitc of the
recommendation of the go slow committee and the
resolution of Bihar Government "go slow" continued
to be a misconduct under the Standing Ordors .. and
-~
•
-
\.
ll 8.C.R;
SUPREME COURT REPORTS
699
a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission
of misconduct. Nor can we find-even' assuming for
the present that the company did deliberately pre·
vent the conciliation meeting before the 12th
February-that this showed an intention to victimise.
Before an industrial adjudication can find an
employer guilty of an intention to victimise there
must be reason to think that the employer was
intending to punish workmen for their Union activities, while purporting to take action ostensibly
for some other activity. It would be unreasonable
to think that the appellant, expected that if the
meeting was not held on the date as proposed the
workmen were sure to start go slow and that that
would give the management an opportunity of proceeding against the Union workers. It, was not unreasonable for the management to expect better sense
from workmen and to hope that they would not
commit misconduct too readily. While we do not.
wish to ilay that no unfair conduct on the part of the
management in negotiations over the worlrnrs'
threat to go slow would eyer justify a finding of
mala fides on the employer's part, we must clearly
say that the mere asking for adjournment of a conciliation me,eting i~ not such conduct on which malafides or an intention to victimise can be reasonably
based.
Apart from this, we are not satisfied that in
the present case the management was guilty of any
deliberate attempt to delay the conciliation meeting.
The reasons for asking an adjournment of the
meeting were clearly mentioned in the several telegrams sent by the management to the Labour
Commissioner and there is nothing on the recordjto
justify a conclusion that these reasons were not true
or honestly given.
Our attention was drawn to the delay in
holding the enquiry and the subsequent delay:· in
filing the application for permission to dismiss.
1~61
M/s. Bharat fSu_{ar
Mills Ltd.
v.
Shri Jai Sin·11h
Das Gpta J •
1961
Jl/r, Bliarst Su1ar
Mill< Lid.
v.
Shri jai Singh
D., Gu,ta ].
700
SUPREME COURT REPORTS
[1962)
That there has been great and indeed unusual delay
is clear. The charge-sheets were served on the
workml'n in l\Iarch 1955 and the explanations were
received about the middle of March, but the domestic enquir.v took placo in Sept!,mbcr 1955.
Trying
to cxpl>1in this delay of sevcral;months, Sarda, the
General Secretary, has stated thus :-"The enquiry
into the charge sheets could not be commenced
before the beginning of September, 1955, because of
my continued ill h~alth which necessitated complete
rest for sc~·ernl wc~ks at a time and also because
of my multifarious assignments which took mo many
a time to Patna and outside the Sta to of Bihar. I
could not assign ihe matter of holding th€ enquiries
to other officers namely Chief Engineer or tho Chief
Chemist because they were themselrns complainants against the workmen concerned."
We are unable to consider this explanation
wholly satisfactory and are indi.ned to think that
tho management showed lamcntablo callousness in
this matter of proceeding with th•i enquiry. In
cases of this nature the enquiry should be held as
early as possible, specially when the management
takes the step of putting the workmen under
suspension.
No application for pcrmissio11 to dismiss was
filed immediately.
It was only in August 1956
that such an application was filed under s. 22 of
the Industrial Disputes Appellate Tribunal Act be.
fore the I.abour Appellato Tribunal,
Calcutta.
But that was rendered i.nfructuous on account of
the disposal of the matter before the Labour Appellate Tribunal.
Tho present application was made
as late as December 30, 1956, aftor an application
by the workmen themselves under section 23 of tho
Industrial Disputos Appellate Tribunal Act
had
been withdrawn. We do :oot find any satisfactory ex·
planation for the management's delay in applying
for permission to dismiss. At the same time, it is
not po88ible to say that theso dolays show even
remotely \hat in making the application for per-
-
.....
3 S.O.R..
SUPREME OOURT REPOH.TS
70l
'
mission to dismiss the management was guilty of
mala fides or an intention to victimise.
We have therefore come to the conclusion
that the Tribunal's order in refusing permission to
diqmiss these workmen, viz., Harikishan Kuer, Baij·
nath Singh, Nagendranatb Prasad, Baldeo, Dhannoo
Mistry, Swarath Singh, Hardeo Sim(b, Kawalpati
Bachan, Ramayan Singh, Jai Singh, Hira Snlml and
Guiab Singh was entirely wrong and unjust and
cannot be allowed to stand. As however even
though no stay of the Tribunal's order was granted
when special leave was allowed by thi; Court and
still the workmen concerned have not been allowed
to work or paid their wages the permission should
not be granted to dismiss them before the date of
this judgment.
As the two re1pondents Ramdeo and Golla are
dead, there is no question of granting permission
now to dismiss them, even though on the evidence
on the record, the appellant might have been entitled to permission to dismiss tbeso two with
effect from this date, if they were living.
These
two will be entitled to wages till the date of their
death.
As regards the other respondents we are of
opinion that the application was rightly refused
inasmuch as the evidence adduced before the Industrial Tribunal does not establish the charge of misconduct against them.
We accordingly allow the appeal in part
1tnd set aside the order of the Industrial Tribunal
in respect of these 13 \Vorkmen named above and
order that the management is granted permission
to dismiss them with effect from the date of this
judgment. There will be no order as to costs.
Appeal allowed in part.
1961
M/s. Bh4rat Sugar
Mill• Ltd.
V•
Shri ]ai Smgh
DasGupa ].