# • • THE SUPREME COURT REPORTS INDJA GENERAL NAVIGATION AND RAILWAY CO. LTD v. THEIR ,WORKMEN

- **Citation:** [1960] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 86of1958
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. SuBBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-indja-general-navigation-and-railway-co-ltd-v-their-1856
- **Pages:** 32

## Headnote

Industrial Dispute-Illegal strike in public utility serviceLock out-Dismissal of workmen-Legality-Function of Industriat
Tribunal-Measure of punishment-Award, finality of-Power of
Supreme Court-Industrial Disputes Act, r947 (I4 of r947), ss. IJ,
r7A, 22, 24(3)-Constitution of India, Art. r36.
It was a contradiction in terms to say that a strike in a
public utility service, which was clearly illegal, could also be
justified. The law does not contemplate such a position nor is it
warranted by any distinction made by the Industrial Disputes
Act, 1947. It should be clearly understood by workmen who
participate in such a strike that they cannot escape their liability
for such participation and any tendency to condone such a strike
must be deprecated.
The only question of practical importance that arises in such
a strike is, what should be the kind and quantum of the punishment to be meted out to the participants and that question has to
be decided on the charge-sheet served on each individual workman and modulated accordingly.
In determining the question of punishment, distinction has
to be made between those who merely participated in such a
strike and those who were guilty of obstructing others or violent
demonstrations or defiance of law, for a wholesale dismissal of
all the workmen must be detrimental to the industry itself.
If the employer, before dismissing a workman, gives him
sufficient opportunity of explaining his conduct, and no question
of mala jides or victimisation arises, it is not for the Tribunal, in
adjudicating the propriety of such dismissal, to look into the
sufficiency or otherwise of the evidence led before the enquiring
officer or insist on the same dPgree of proof as is required in a
Court of Law, as if it was sitting in appeal over the decision of
the employer. In such a case it is the duty of the Tribunal to
uphold the order of dismissal.
Consequently, in the present case, where the appellants, who
were carrying on busiqess in water transport service, notified as
a public utility service, dismissed their workmen for joining an
ille~al strike, on enquiry but without serving a charge-sheet on
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October I4•
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each individual workman and the Industrial Tribunal directed
their reinstatement, excluding only those who had been convicted
f. G. N. & Rly.
under s. 143 of the Indian Penal Code but including those convictCo. Ltd.
ed under s. r88 of the Code, with full back-wages and allowances,-
v.
Held, that the decision of the Tribunal to reinstate those who
Their Worknien
had been convicted under s. 188 of the Code must be set aside
and the wages and allowances allowed to those reinstated must
be reduced by half and the award modified accordingly.
Held, further, that the Industrial Disputes Act, 1947, must
be read as subject to the paramount law of the land, namely, the
Constitution, and the finality attaching to an a\vard under ss. 17
and 17 A of the Act, must, therefore, yield to the overriding
powers of this Court under Art. 136 of the Constitution.
As the award in the instant case did not fall within the
provisos to s. 17 of the Act, it was not correct to contend that
the appellants had any other remedies thereunder to exhaust
before they could come up in appeal to this Court.
Nor was it correct to contend that the Government of Assam
was a necessary party in the appeal inasmuch as it had acted by
virtue of delegated powers of legislation under the Act in making
the award enforceable as law.
A State Government plays no
part in such a proceeding except to make the reference under
s. ro of the Act, nor has it anything to do with regard to the
publication of the award, which is automatic under s. 17 of the
Act, or its operation, unless the case falls within the provisos to
s. 17 A of the Act.
A lock-out lawfully declared under s. 24(3) of the Act, does
not cease to be legal by its continuance beyond the strike, although
such continuance may be unjustified,

## Text

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THE SUPREME COURT REPORTS
INDJA GENERAL NAVIGATION AND RAILWAY
CO. LTD.
v.
THEIR ,WORKMEN
(B. P. SINHA, C.J., P. B. GAJENDRAGADKAR and
K. SuBBA RAo, JJ.)
Industrial Dispute-Illegal strike in public utility serviceLock out-Dismissal of workmen-Legality-Function of Industriat
Tribunal-Measure of punishment-Award, finality of-Power of
Supreme Court-Industrial Disputes Act, r947 (I4 of r947), ss. IJ,
r7A, 22, 24(3)-Constitution of India, Art. r36.
It was a contradiction in terms to say that a strike in a
public utility service, which was clearly illegal, could also be
justified. The law does not contemplate such a position nor is it
warranted by any distinction made by the Industrial Disputes
Act, 1947. It should be clearly understood by workmen who
participate in such a strike that they cannot escape their liability
for such participation and any tendency to condone such a strike
must be deprecated.
The only question of practical importance that arises in such
a strike is, what should be the kind and quantum of the punishment to be meted out to the participants and that question has to
be decided on the charge-sheet served on each individual workman and modulated accordingly.
In determining the question of punishment, distinction has
to be made between those who merely participated in such a
strike and those who were guilty of obstructing others or violent
demonstrations or defiance of law, for a wholesale dismissal of
all the workmen must be detrimental to the industry itself.
If the employer, before dismissing a workman, gives him
sufficient opportunity of explaining his conduct, and no question
of mala jides or victimisation arises, it is not for the Tribunal, in
adjudicating the propriety of such dismissal, to look into the
sufficiency or otherwise of the evidence led before the enquiring
officer or insist on the same dPgree of proof as is required in a
Court of Law, as if it was sitting in appeal over the decision of
the employer. In such a case it is the duty of the Tribunal to
uphold the order of dismissal.
Consequently, in the present case, where the appellants, who
were carrying on busiqess in water transport service, notified as
a public utility service, dismissed their workmen for joining an
ille~al strike, on enquiry but without serving a charge-sheet on
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October I4•
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z959
each individual workman and the Industrial Tribunal directed
their reinstatement, excluding only those who had been convicted
f. G. N. & Rly.
under s. 143 of the Indian Penal Code but including those convictCo. Ltd.
ed under s. r88 of the Code, with full back-wages and allowances,-
v.
Held, that the decision of the Tribunal to reinstate those who
Their Worknien
had been convicted under s. 188 of the Code must be set aside
and the wages and allowances allowed to those reinstated must
be reduced by half and the award modified accordingly.
Held, further, that the Industrial Disputes Act, 1947, must
be read as subject to the paramount law of the land, namely, the
Constitution, and the finality attaching to an a\vard under ss. 17
and 17 A of the Act, must, therefore, yield to the overriding
powers of this Court under Art. 136 of the Constitution.
As the award in the instant case did not fall within the
provisos to s. 17 of the Act, it was not correct to contend that
the appellants had any other remedies thereunder to exhaust
before they could come up in appeal to this Court.
Nor was it correct to contend that the Government of Assam
was a necessary party in the appeal inasmuch as it had acted by
virtue of delegated powers of legislation under the Act in making
the award enforceable as law.
A State Government plays no
part in such a proceeding except to make the reference under
s. ro of the Act, nor has it anything to do with regard to the
publication of the award, which is automatic under s. 17 of the
Act, or its operation, unless the case falls within the provisos to
s. 17 A of the Act.
A lock-out lawfully declared under s. 24(3) of the Act, does
not cease to be legal by its continuance beyond the strike, although
such continuance may be unjustified,
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
86of1958.
Appeal by special leave from the Award dated
November 15, 1956, of the Industrial Tribunal, Assam,
at Dhubri.
M. 0. Setalvad, Attorney-General for India, S. N.
Mukherjee and B. N. Ghose, for the appellants.
Niha1·endu Dutt
JYiazumdar
and
Dipak Dutta
Choudhri, for the respondents.
1959. October 14.
The Judgment of the Court
was delivered by
Sinha J.
SINHA C. J.-This IS an appeal by special leave
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from the Award dated November 15, 1956, made by
the Industrial Tribunal, Assam. The dispute arose
b\ltween the employers, the Indian General Navigation
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SUPREME COURT B.EPORTS
& Railway Company Limited, carrying on business at
No. 4, Fairlie Place, Calcutta, and the Rivers Steam
Navigation Company Limited, carrying on business at
No. 2, Fairlie Place, Calcutta, which will be referred
to, in the course of this judgment, as 'the appellants',
and their workmen at Dhubri Ghat, represented by the
Dhubri Transhipment Labour. Union and Dhubri
Local Ghat Transhipment Labour Union, Dhubri,
which will be referred to hereinafter as .'the respondents'.
The Award aforesaid was published in the
Assam Gazette on December 19, 1956.
It is necessary to state the following facts in order
to appreciate the points arising for decision in this
case : The appellants carry on business of inland
water transport in North East India and in Pakistan,
in association with'. each other, and· are commonly
known as the Joint Steamer Companies. The appellants jointly maintain a large number of wharves;
jetties, godowns, etc., at different river stations in
India and in Pakistan, for the purposes of their
business. One such station is at Dhubri in Assam.
At that station, a large number of workmen are employed for the purpose of loading and unloading the
appellant's vessels and for transhipping goods from
railway wagons to the appellants' vessels and vice
versa;
Before May, 1954, such workmen were employed by a contractor called the Assam Labour Supply
Syndicate which will hereinafter be referred to as
'the Syndicate'.
Those workmen were organized
under two labour unions, called (1) the Dhubri Transbipment Labour Union which was affiliated to the
Indian National Trade Union Congress which is a
Federation of Trade Unions, and (2) the Dhubri
Local Ghat Transhipment Labour Union.
There were
differences between the Syndicate and its employees
who made certain demands, and has threatened to go
on strike to enforce their demands. Conciliation proceedings under the Industrial Disputes Act, 1947
(which will hereinafter be referred to as the Act), took
place, in the course of which certain agreements to be
referred to in greater detail hereinafter, were reached
between the Syndicate and the respondents on
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Co, Ltd.
v.
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4
SUPREMI<J COURT REPORTS [1960 (2)]
February 23, 1953, and March 30, 1953.
On May 3,
1954, by virtue of a Memorandum of that date, an
agreement was arrived at between the appellants and
the respondents, whereby the appellants agreed that
instead of employing a contractor to handle the work
of loading and unloading and transhipment of goods,
the appellants would employ supervisors and agents to
handle the work "pending the proposed Tripartite
Conference to decide the issue of permanent direct employment of employees for the future". The appellants also agreed to maintain continuity of service of
the workmen and the existing terms and conditions of
their service. The Tripartite Conference contemplated
by the Agreement, was to consist of the representatives of the appellants, the workmen and the Government of Assam. As a result of the Tripartite Conference held on July 9 & 10, 1954, an agreement was
reached betwef)n the appellants and the Indian
National Trade Union Congress, which was incorporated in the form of a letter dated July 16, 1954, from
the General Secretary of the Congress, Assam Branch,
Dhubri Ghat, to the several Unions at different
stations, including Dhubri. As a result of this agreement, the appellants agreed, inter alia, to introduce
permanent direct employment at all the transhipment
ghats of Assam, progressively, without prejudicing. the
agreement of May 3, 1954. It will be necessary hereinafter to consider some of the terms of this agreement
in detail, when dealing with the several points in
controversy between the parties.
After the agreement aforesaid, there arose certain
differences amongst the workmen represented by the
two Unions aforesaid, in respect of the election of
their office-bearers. As a result of those internal
dissensions amongst the employees, two rival groups,
each claiming to represent a section of the workmen,
came into existence.
The appellants, thereupon,
notified the _Indian National Trade Unions' Congress,
that recognition to the Dhubri Transhipment Labonr
Union, was being withdrawn pending satisfactory
settlement of the internal differences.
Thus, came
into existence, a new Trade Union known as the
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Dhubri Transhipment Wo.rkers' Union, in or about
July, 1955.
Meanwhile, between May 2, 1955, and
July 31, 1955, the appellants, ·on five ·different occasions and on different charges, dismissed eight of their
employees, after making such inquiries as they
thought necessary against those workmen, and after
giving them each an opportunity of explaining their
conduct.·
. On July 21, 1955, one B. Chakravarty, Secretary,
Dhubri Transhipment Labour Union, served a notice
on the appellants under sub-s. (i) of s. 22 of the Act,
tliat "I propose to call a strike on the 11th August,
1955, from zero hours, if the following demands be not
fulfilled within fourteen days on receipt of this notice".
Then followed an annexure containing ten demands
which need not be set out here.
A similar notice was
also served· by the Secretary Dhubri Local Ghat
Transhipment Labour Union on the same date, the
annexure in this case containing eleven demands. On
July 26, 1955, the Conciliation Officer of the Government of Assam, received the notice of the strike. He
held conciliation proceedings on August 6, 1955, but
those proceedings ended abruptly without arriving at
any settlement. On August 8, 1955, the said Conciliation Officer, who was the Labour Officer of Gauhati,
by his letter bearing the same date, informed the
Labour Commissioner, Assam, about the failure of the
·conciliation proceedings, and forwarded copies of that
letter to the appellants and. the workmen's Union at
Dhuhri. Without waiting for the statutory period of
seven days from the date of failure of the conciliation
proceedings, a large number of workmen concerned
went on strike with effect from the mid-night of
August 10, 1953, in pursuance of the notices of strike
aforesaid. They were alleged by the appellants not
only to have gone on strike, but also to have forcibly
entered the appellants' jetties and other working places
and prevented the loyal workmen, who were willing to
carry on the transhipment work, from carrying on
their normal work. The strike is, therefore,· alleged
to have been illegal. On August 11;1955, the District
Magistrate,. Goal para, promulgated an order
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v.
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6
SUPl'tEME COURT REPORTS [1960 (2)) -
s. 144 of the Code of Criminal Procedure, prohibiting
the "holding of any meetings, demonstrations, processions, or causing threat, obstructions, annoyance or
injury directed against the persons lawfully employed
in the following areas m the Dhubri Town and it$
suburbs". Then followed a specification of the ghats
to which the prohibition applied. This order was to
remain in force till September 10, 1955, In consequence of the aforesaid strike which was treated by
the appellants as illegal, they declared a lock-out on
August 11, 1955, in respect of 91 workmen named in
the notice issued to' them. Another lock-out notice
was issued on August 13, 1955, in respect of a much
larger number of workmen in different groups described as belonging to a particular Sardar's gang. The
legality of these lock-out notices,
was seriously
challenged by the respondents.
The Workers' Union
called off the strike with effect from August 19, and
the appellants lifted the lock-out with effect from
August 27.
The appellants took proceedings against
those employees who had taken part in the strike.
They suspended those workmen who were alleged to
to have not only taken part in the :;trike, but also had
obstructed those workmen who were willing to work.
But those workmen who were alleged to have only
participated in the strike, were not suspended during
the inquiry. On September 8, 1955, 37 of the employees were convicted under s. 188 of the Indian Penal
Code, for viola ti on of the aforesaid order under s. 144
of the Criminal Procedure Code, with the result that on
September 9, they were dismissed by the appellants.
Another batch of 52 employees were convicted under
s. 143/188 of the Indian Penal Code, on February 17,
1956.
Meanwhile, on September 13, 1955, the Government
of Assam had constituted a Board of Conciliation,
consisting of three persons, namely, (1) Labour Commissioner of Assam, as the Chairman, (2) D. N. Sarma of
Gauhati, as representing the interest of the employees,
and (3) P. J. Rayfield, as representing the interest of
the employers, with a view to promoting settlement of
the dispute between the appellants and their workmen
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at Dhubri.
The appellants alleged that they had
dismissed-their workmen as a result of the inquiry
held by their nominee into~ the conduct of the persons
who had participated in the alleged illegal strike al).d/
or had caused obstruction, before they became aware
of the constitution of the Board of Conciliation, as
aforesaid. On coming to know of the constitution of
t~e said Board of Conciliation, the appellants subseguently passed orders, holding the order of dismissal
pf the two hundred and twenty three employees in
abeyance, pending the disposal of their application to
the Board for permission to dismiss the · saiq two
hundred and twenty three employees. The Board of
Conciliation, by majority, P. J. Rayfield dissenting,
came to the conclusion that as regard the dismissal
of the thirty seven workmen, the Management had
violated s. 33 of the Act, because, in their opinion,
the proceedings of the Board of Conciliation had
commenced from August 26, and not from September
~3. As regards the permission sought by the Management to dismiss the suspended two hundred and twenty
three workmen, by a similar majority, it was held that
although the strike prima f acie was illegal, it was not
unjustified. The dissenting member, P. J. Rayfield,
recorded his note of dissent to the effect that the
conciliation• proceedings commenced on September 13,
1955, and not earlier, as decided by the majority, and
consequently, the dismissal of the thirty seven workmen (' discharge ' of 37 workmen, as stated in the
·note of dissent), was not in contravention of s. 33 of
the Act, and that the permission to dismiss the two
hundred and twenty three workmen on the ground
that they had been found guilty, by a departmental
inquiry, of participating in an illegal strike and forcibly
preventing others from attending work, should have
been granted. This conclusion was sought to be based
on th,e alleged legal position that the Board had no
power to withhold the permission applied for, arid had
not the power to decide as to the kind of punishment
to be imposed upon the workmen who had admittedly
.taken part in a strike which had unanimously beep
held to be ille~al. The dif?sentin~ note also sou~ht tc;i
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8
SUPREME COURT REPORTS [1960(2)]
show that the finding of the majority of the Board
that the strike was justified, was not based on a proper
appreciation of the facts of the case. The report of
the Board of Conciliation was published on December 5, 1955.
As the parties had come to a stalemate, the Government of Assam, by its order dated December 7; 1955,
as subsequently amended by its order dated January
23, 1956, referred the dispute to Shri Radhanath
Hazarika as an Industr.ial Tribunal, for the adjudication of the dispute on the following issues:
"1 (a) Are the Management of R.S.N. & I.G.N.
Railway Company Li111ited justified in dismissing
the following eight workers :
Manzoor Hussain, Sudam Singh, Idrish, Tazmal
Hussain (S/o S.K. Gaffur) Jahangir Sardar, Keayamat Hossain, Panchu Shah and Ram Ekbal Singh ?
(b) If not, what relief, if any, are they entitled
to?
(2) (a) Are the Management of R.S.N. & I.G.N.
Railway Company Limited justified in. dismissing
and/or suspending as the· case may be 260 workers
at Dhubri Ghat on or about the 29th August, 1955?
(b) If not, to what relief, if any, are the workers
entitled? "
The parties to the dispute filed their written statement before the Tribunal, and tendered both oral and
documentary evidence before it. The Tribunal made
its Award which was published in the Assam Gazette
on December 19, 1956, as already stated. The Tribunal held that the strike, though illegal, was justified,
but that in the absence of standing orders whereby
participation in any illegal strike, could justify a
punishment of dismissal, the appellants were pot
entitled to dismiss those workmen whose case was
before the Tribunal.
The Tribunal, by its A ward,
directed reinstatement of 208 out of 260 workmen
whom the appellants had dismissed, or had sought
permission to dismiss.
The remaining 52 workmen
were ordered to be refused reinstatement on the ground
that they had been convicted under s. 143 of the
lnqian Penal Code, which implied an offence involving
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use of criminal force. It also directed the appellants
to pay full wages and allowances from August 20, 1955,
till the date of reinstatement of the workmen who had
been directed to be reinstated.
The Tribunal also
held that the dismissal of the eight workmen who were
the. subject.matter of the issue l(a) aforesaid of the
Reference, was bad, and therefore, those 8 workmen
were also ordered to be reinstated with back wages.
The present appeal by special leave is directed against
the said A ward of the Tribunal.
Before we deal with the merits of the controversy
between the parties, it is convenient at this stage to
deal with certain arguments by way of preliminary
objections to the maintainability and competence of
the appeal, raised on behalf of the respondents. Those
objections are of a three-fold character, (1) no appeal
lies, (2) the appellants did not exhaust their statutory
remedies under s. 17 A of the Act, and (3) the appeal
is not competent also for the reason that the Government of Assam has not been impleaded as party-respondent to the appeal. In our opinion, there is no
substance in any one of these objections.
With reference to the first ground,· the argument
runs as follows: The Tribunal made its Award on
November 15, 1956, and submitted the same to the
Assam Government under s. 15 of the Act. On
December 8 of that year, the Government of Assam
directed the said Award to be published in the Assam
Gazette, and it was so published on December 19,
1956. According to the order of the State Government, the Award became enforceable under s. 17 A,
on the expiry of 30 days from the date of publication,
namely, December 19, 1956. Accordingly, the Award
became enforceable on January 18, 1957, and acquired
the force of law by the operation of the statute. By
virtue of s. 17(2) of the Act, the Award became "final
and shall not be called in question by any court in
any _manner whatsoever", subject to the provisions of
s. 17 A. It was, therefore, further contended that in
the events which had happened ·before January 18,
1957, the Award had become enforceable (1,Ud had
2
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10
SUPREME COURT REPORTS [1960(2)]
acquired the force of law by operation of the statute,
had, thus, passed beyond the pale of litigation and
adjudication by any court of law. This argument
has only to be stated to be rejected in view of the
provisions of the Constitution. It is manifest that the
provisions of the Act are subject to the paramount
law as laid down in the Constitution.
Article 136 of
the Constitution, under which this Court grants special
leave to appeal (in this case, from a determination of
the Triq_unal), cannot be read as subject to the provisions of the Act, as the argument on behalf of the
respondents would postulate. The provisions of the
Act must be read subject to the over-riding provisions
of the Constitution, in this case, Art. 136. Therefore,
whatever finality may be claimed under the provisions
of the Act, in respect of the Award, by virtue of ss. 17
and 17 A of the Act, it must necessarily be subject to
the result of the determination of the appeal by
special leave.
It was further contended that the Award had
merged in the orders of the Government, on publication in the Official Gazette, under s. 17 of the . Act,
but this is the same argument stated in another form,
and any argument based on the provisions of the,
Act, making the Award final and enforceable, must
always be read a.s being subject to the decision of this
Court, in the event of special leave being granted
against such determination by the Tribunal and as
adopted by the Government. The same argument
was advanced in still another form, namely, that the
appellants should have moved this Court before the
lapse of the time contemplated by s. 17 and s. 17 A of
the Act, that is to say, before January 18, 1957.
Apart from the consideration that this argument
tends to curtail the period of limitation, prescribed
by this Court by statutory rules, the operation of
ss. 17 and 17 A of the Act, is not automatically stayed
by making an application for special leave. It is only
by virtue of specific ordPrs made by this Court,
staying the operation of the Award or some such
order, that the appellant becomes, for the time being,
immune from the operation of those provisions of the
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Act, which impose penalties for the infringement of
the terms of the Award.
Adverting to the second branch of the preliminary
objection, it appears that the provisions of s. l'lA,
particularly, the provisos, have been sought to be
pressed in aid of the respondents' contention, without
realising that the Award in question in this case, does
not come within the purview of either of those
provisos. The State Government was not a party to
the Industrial dispute, nor was it an Award given by
a National Tribunal. Hence, there is no substance
in the contention that the appellants did not exhaust
their statutory remedies under s. 17 fl- of the Act.
The third branch of the preliminary objection is
based on the contention that ·the Government of
Assam was a necessary and proper party, as it had
acted under delegated powers of legislation under the
Act, in making the Award enforceable and giving it
the force of law. It is a little difficult to appreciate
how the State Government became a necessary or
proper party to this appeal. The State Government
does not play any part in the proceedings, except
referring the dispute to the Tribunal under s. 10 of
the Act.
The publication of the Award under s. 17,
is automatic on receipt of the same by the Government. Its coming into operation is also not subject
to any action on the part of the State Government,
unless the case is brought within the purview of either
of the provisos to s. 17 A. In view of these considerations, it must be held that there is no merit in the
preliminary objection. The appeal must, therefore,
be determined on its merits.
On the merits of the controversy between the
parties, it has been argued by the learned counsel for
·the appellants that the Tribunal, having held the
strike to be illegal, has erred in holding that it was
justified; that an illegal strike could never be justified
and that the Tribunal was wholly in error in losing
sight of the fact that the appellants were carrying on
what had been notified as a public utility service. In
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this connection, it was further argued that in view of
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Their Workmen
Sinha].
'
12
SUPREME COURT REPORTS [1960 (2))
the proviso to s. 10(1) of the Act, the State Government was bound to make a Reference of the dispute
to an Industrial Tribunal when notice of strike under
s. 22 of the Act had already been given, and that,
therefore, the failur(• of the employer to enter into
direct negotiations with the employees, upon receipt of
the strike notice, could not be used by the Tribunal
for coming to the finding that the strike was justified.
It was also urged that the Tribunal had clearly erred
in holding that the lock-out declared by the appellants,
was illegal, and that, in coming to that conclusion, it
had over-looked the provisions of s. 24(3) of the Act.
The Tribunal, it was further argued, had erred in holding that, in the absence of standing orders to the
effect that participation in an illegal strike is a gross
misconduct, an employer could not dismiss its workmen for mere participation in an illegal strike. Assuming that the last-stated argument was not well-founded,
it was argued that the standing orders governing the
relations between the Syndicate and the workmen,
would also govern the relations between the appellants
and the workmen, as a result of the agreement aforesaid
whereby the appellants undertook all the liabilities of
the Syndicate in relation to the workmen, and guaranteed to them the same conditions of service.
In this
connection, it was also argued that the Tribunal had
made a serious mistake of record in treating the
standing orders .of the Syndicate as a mere draft and,
therefore, of no binding force as between the employers
and the employees; that the Tribunal
erred, while
considering the case of the
eight workmen dismissed before the commencement of the strike, in
proceeding upon an unfounded assumption that no
charge-sheets had been served upon those workmen
during the inquiry against them, and that, therefore,
the Award, in so far as it related to those 8 workmen,
was entirely erroneous.
As against the two hundred
and eight workmen ordered by the Tribunal to be
reinstated, it was argued that the departmental inquiry
held by the appellants had resulted in the distinct
finding that they had not only participated in the
illegal strike, but had also instigated loyal workmen
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SUPREME COURT REPORTS
13
to join in the illegal strike, and had obstructed transhipment work by loyal workmen.
In this connection, it
was also argued that in any view of the matter, the
thirty seven persons, who had been convicted by the
criminal court under s. 188 of th(l Indian Penal Code,
for having transgressed the prohibitions contained in
the prohibitory order under s. 144 of the Code of
Criminal Procedure, were' clearly liable to be dismissed
on the findings of the criminal court itself, apart from
any other considerations bearing on the regularity of
the inquiry against them; that the Tribunal was in
error in holding that the inquiry against the dismissed
workmen was not in accordance with the prescribed,
procedure; and lastly, that this was not a case of
refostatement of the dismissed workmen, and that '
only compensation should have been awa.rded to
·them.
·
On behalf of the respondents, their learned counsel,
besides raising the preliminary objection already dealt
with, urged that the Tribunal was fully justified in
holding that the strike, though illegal, was " perfectly
justified" and virtually provoked by the appellants.
Though in the statement of the case, the argument
had been raised that the strike could not be illegal,
because the notification declaring the service at the
ghats to be public utility service, was ultra vires, tha:t
argument was not persisted in before us, but it was
vehemently argued that there were no standing orders
either of the Syndicate or of the appellants, which
could govern the service conditions· of the workmen,
and that in any event, mere participation in an illegal
strike would not entitle the employers to dismiss those
workmen who had joined the strike; that the dismissal
orders in all cases, were sheer acts of victimization and
unfair labour practice. It was also sought to be argued
that the lock-out was entirely illegal, and that in any
view of the matter, its continuance after the strike
had been called of, was wholly unjustified and against
the principles of "social justice".
Further, it was
urged that the appellants had dismissed and/or suspended 260 workmen without framing any· specific charges
against them ; that the dismissal of the eight workmen
z959
J .. G. N. & Rly.
Co. Ltd.
v.
Their Workmen
Sinha].
1959
I. G. N. & Rly.
Co.Ltd.
v.
Their Workmen
Sinha j.
'
14
SUPREME COURT REPORTS [1960(2))
in view of the incidents before the commencement cif
the strike, was also illegal, and in any event, irregular,
because, it was urged, no specific charges had been
framed against them. It was also sought to be argued
that the notice, inviting the workmen to join their
work, being unconditional without any reservations,
amounted to a condonation of the strike, and therefore,
the dismissal orders against the two hundred and sixty
workmen were bad in law.
Some other arguments
also were advanced on behalf the respondents, but we
do not propose to take notice of them, because they
were ultimately found to be without any foundation in
the record of the case. As a matter of fact, the arguments on behalf of the respondents, were not marked
by that strict adherence to the record of the case, or
the case made out before the Tribunal, as ought to be
t,he case before courts of justice generally, and certainly,
before the highest Court in the land.
Now, turning to the merits, it is better to deal with
the first issue first, that is to say, whether the cli~mis
sal of the eight workmen, named in the Issue as
amended, was justified, and if not, to what relief they
were entitled. The Tribunal dealt with the individual
cases of those workmen, and came to the conclusion
that the dismissal of none of them was justified, and
that, therefore, all of them were entitled to reinstatement with all their back wages and other benefits
accruing to them from the date of their suspension and
subsequent dismissal until the date of their reinstatement, m.inus what had been paid to them. Thus, the
first issue in both the parts, was decided entirely in
favour of the workmen.
We have, therefore, to
examine how far the determination of Tribunal on the
first issue, is open to question.
The cases of Manzoor
Hussain, Sudama Singh, Idrish and Tazmal Hussain,
have been dealt with together by the Tribunal below.
These four workmen had been dismissed by the appellants, upon a report
made
by
Rayfield, the
enquiring officer under the
appellants, on the
allegation that they had assaulted their Labour
Supervisor S. P. Tevari on May 2, 1955.
This
charge against those four workmen, was examined by
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SUPREME COURT REPORTS
15
a Magistrate who tried them for the alleged assault
on Tewari. The Magistrate found them not guilty
and acquitted them by his judgment given in April,
1956. The ~epartmental inquiry by Rayfield was
held on May 17, 1955, when a. member of witnesses
were examined by him on behalf ·of the appellants.
In their joint written statement, these four workmen
stated that as the police case was pending against
them in regard to these very charges, they were_ not
in a position to make any further statement in their
defence. The Tribunal came to the conclusion that,
on the,material before it, it had not been made nut
that Tewari had been actually assaulted, while on
duty, and that the dismissal order was passed "possibly with a view to frighten the other workmen and to
satisfy the whims of Tewari". We have examined the
record, and we do not find any justification for differing from the conclusions of the Tribunal.
·
With reference to the case against Panchu Shah
and Ram Ekbal Singh, it appears that the Tribunal
definitely came to the conclusion that their dimissal
order was vitiated because it was an act of victimization and was mal,a fide. In the face of this clear
finding, we do not think that we can interfere with
the determination of the Trlbunal in respect of these
two workmen.
But the case against Jahangir Sardar and Keayamat Hussain, stands on a different footing.
The
charge against Jahangir was two-fold, namely, (1)
wilful insubordination and disobedience, and (2) conduct prejudicial to good order and discipline. To
these charges, Jahangir demurred and objected, saying
he could not " understand the reasons for the chargesheet "-
On this demurrer, a letter dated May 7,
1955, was issued to him, giving him the details of the
acts charged against him, with reference to the time,
date and place. The charge against Keayamat was
similarly a two-fold one, namely, (1) disorderly
behaviour and inciting others to disturbance and
violence, and (2) conduct prejudicial to good order
and discipline. Keayamat also demurred to the
charge in the same way that it was vague, and that
•
I959
J. G. N. & Rly.
Co. Ltd.
v.
Their Workmen
Sinh.a J.
I959
I. G. N. & Rly.
Co. Ltd.
v.
Their H1orkmen
Si"nha f,
• •
16
SUPREME COURT REPORTS [1960(2))
he was not aware of anything wrong having been
done by him. On ]\fay 7, Keayainat was also given
a similar letter, explaining to him the details of the
charge. aforesaid, with reference to the time, place and
date of the acts which formed the gravamen of the
charge against him.
A number of witnesses were
examined by Rayfield who held the inquiry. In both
these cases, the Tribunal refused to accept the
result of the inquiry, chiefly on the ground that no
specific charge had been bid against them, and
that the allegations were much. too vague. In recording this find_ing, the Tribunal has fallen into a grievous error of record. It has completely omitted to
consider the letter issued to both these workmen on
May 7, giving foll particulars of the charges against
them. If it had c0nsidered that letter issued to both
these workmen, it would not have fallen into this
serious error which has vitiated its award in respect
of them. The Tribunal further proceeded to comment
on the evidence led before the enquiring officer ·and
remarked that the evidence was meagre or insufficient. It also observed that the "degree of proof,
even in the departmental enquiry, is the same as
required in a Court of Law". In our opinion, the
Tribunal misdirected itself in looking into the sufficiency of proof led before the enquiring officer, as
if it was sitting in appeal on the decision of the
employers.
ln the case of these two employees,
there is no finding by the Tribunal that the order
of dismissal against them, was actuated by any
mala :fides, or was an act of vicitimization. In view
of these considerations, the dismissal order made by
the appellants on a proper inquiry, after giving the
the workmen concerned sufficient
opportunity of
explaining their conduct, must be upheld. The appeal
in respect of the.se two workmen, must, therefore, be
allowed, and the order of the Tribunal in respect of
them, accordingly, set aside.
The order of the
Tribunal in respect of the other six workmen, is
confirmed.
Having dealt with the orders of dismissal in respect
of the incidents before the strike of August 1 I, Hl55,
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SUPREME COURT REPORTS
17
we now turn to the strike itself. The first question
that arises in this connection, is whether the strike was
illegal, as alleged by the appellants and as found by
the Tribunal. The learned counsel for the respondents
sought to reopen the finding about the illegality of the
strike, basing his submissions mainly on the contention
that there were no conciliation proceedings pending
either in fact or in law on the date of the strike, and
that, therefore, the finding of the Tribunal was not
correct. It was not disputed on behalf of the respondents that the notices of the strike given by the workmen on July 21, 1955, had been duly received by the ·
Conciliation Officer on July 26, 1955, and that the
conciliation proceedings were commenced on August 6,
1955. \Vhat was contended on their behalf, was that
the proceedings had to be stopped, as it appears from
the record of those proceedings, without any settlement
of the dispute as the "workers' representative expressed their inability to take further part in the
proceedings, on a question of leave to their other
representatives". We shall examine the question later
as to which party was to blame for the break-down of
the conciliation proceedings at the very outset. It is
enough to. observe that under s. 20 of the Act, the
conciliation proceedings must be deemed to have
commenced on July 26, 1955, when the notice of the
strike was received by the Conciliation Officer, and
those proceedings shall be deemed to have concluded
when the report of the Concilia.tion Officer is received
by the Government. In this case, the report to the
Government was made by the Conciliation Officer on
August 8, 1955. It is not absolutely clear as to when
this report of the Conciliation Officer was actually
received by the Government. It is clear, therefore,
that the conciliation proceedings certainly lasted
between July 26 and August 8, 1955. The strike,
having commenced on August 11, was clearly illegal in
view of the provisions of s. 22 of the Act. We must,
therefore, hold in agreement with the Tribunal, that
the strike was clearly illegal. ~
The Tribunal, having held that the strike was
illegal, proceeded to discuss the question whether it
3
r959
I. G. N. & R/y.
Co. Ltd.
v.
Their Workmm
Sinha].
1959
I G. N. & Rly.
Co. Ltd.
v.
Their Workmen
Sinha].
18 -
SUPl'tEME COURT REPORTS [1!160(2)]
was justified, and came to the conclusion that it was
"perfectly justified". In the first place, it is a little
difficult to understand how a strike in respect of a
public utility service, which is clearly, illegal, could at
the same time be characterized as "perfectly justified".
These two conclusions cannot in law co-exist. The law
has made a distinction between a strike which is illegal
and one which is not, but it has not made any distinction between an illegal strike which may be said to be
justifiable and one which is not justifiable. This
distinction is not warranted by the Act, 'and is wholly
misconceived, specially in the case of employees in a
public utility service. Every one participating in an
illegal strike, is liable to be dealt with departmentally,
of course, subject to the action of the Department
being questioned before an Industrial Tribunal, but it
is not permissible to characterize an illegal strike as
justifiable. The only question of practical importance
which may arise in the case of an illegal strike, would
be the kind or quantum of punishment, and that, of
course, has to be modulated in accordance with the
facts and circumstances of each case. Therefore, the
tendency to condone what has been declared to be
illegal by statute, must be deprecated, and it must be
clearly understood by those who take part in an
illegal strike that thereby they make themselves liable
to be dealt with by their employers.