Full Judgment Text
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PETITIONER:
WORKMEN OF MOTIPUR SUGAR FACTORY (PRIVATE)LIMITED
Vs.
RESPONDENT:
MOTIPUR SUGAR FACTORY
DATE OF JUDGMENT:
30/03/1965
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
RAMASWAMI, V.
CITATION:
1965 AIR 1803 1965 SCR (3) 588
CITATOR INFO :
R 1972 SC 136 (33)
R 1972 SC 277 (11)
R 1972 SC1031 (51,57)
R 1973 SC1227 (22,42)
R 1975 SC1900 (7)
R 1978 SC1380 (8)
R 1979 SC1652 (18)
RF 1980 SC1896 (68)
R 1984 SC 289 (15)
ACT:
Industrial Disputes--Discharge of workmen on account of go
slow--Reference as to whether discharge justified--Tribunal,
if could decide go-slow--No enquiry before discharge--if
discharge could be justified before Tribunal.
HEADNOTE:
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
minimum output, he will be no longer employed; and that he
must record his willingness in the office by a certain time,
failing which he shall stand discharged from the service of
the respondent without any further notice. Because the
appellants, who were 119 of such workmen. failed to record
their willingness, the respondent issued a notice
discharging their services. The respondent held no enquiry
as required by the Standing Orders before dispensing with
the, services of the appellants. A general strike followed
resulting in a joint application by both the parties to the
Government and the Government referred the question to the
Tribunal, whether the discharge of the workmen was
justified. The Tribunal came to the conclusion that there
was go-slow during the period, and consequently held that
the discharge of the workmen was fully justified. In appeal
by Special Leave the appellant contended that (i) all that
the Tribunal was concerned with was to decide whether the
discharge of the workmen for not giving an undertaking was
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justified or not, and that it was no part of the duty of the
Tribunal to decide whether there was go-slow which would
justify the order of discharge; (ii) Since the respondent
held no enquiry as required by the Standing Orders, it could
not justify the discharge before the Tribunal and (iii) the
finding of the Tribunal that go-slow, had been proved was
perverse and the Tribunal had ignored relevant evidence in
coming to the conclusion.
HELD: The contentions must be rejected.
(i) Taking into account the wide terms of reference, the
manner in which it was understood before the Tribunal, and
the fact that it must b.e read alongwith the two notices,
particularly because it was made soon thereafter at the
joint application of the parties, the Tribunal was entitled
to go into the real dispute between the parties, namely
whether the discharge was justified on the ground that there
was misconduct in the form of go-slow by the workmen
concerned. [596D]
(ii) No distinction can be made between cases when the
domestic enquiry is invalid and those where no enquiry has
in fact been held.
This Court has consistently held that if the domestic
enquiry is irregular, invalid or improper, the Tribunal may
give an opportunity
589
to the employer to prove his case and in doing so the
Tribunal tries the merits itself. [598A-C]
Case law referred to.
(iii) As the case involved the discharge of 119 workmen,
this Court went into the evidence, and the evidence showed
that the decision of the Tribunal was not wrong that there
Was go-slow and that the discharge was fully justified.
[598E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1964.
Appeal by special leave from the Award dated May 11,
1962, of the Industrial Tribunal, Bihar, Patna in Reference
No. 4 of 1961.
Ranen Roy, Jai Krishan, G.S. Chatterjee, E. Udayarathnam
for A.K. Nag, for the appellants.
Niren De, Addl. Solicitor-General and Naunit Lal, for
the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the
award of the Industrial Tribunal, Bihar. It relates to the
discharge of 119 workmen of the respondent who were employed
as cane carrier mazdoors or as cane carrier supervisors or
jamadars. All these were seasonal workmen. It is necessary
to set out in some detail the circumstances leading to the
discharge. The respondent is a sugar factory and the
crushing season starts usually in the first half of November
each year. We are concerned in the present appeal with
November and December 1960. It appears that from the season
1956-57, the respondent introduced an incentive bonus scheme
in the factory. The scheme continued thereafter from season
to season with certain changes. It also appears that in the
beginning of each season, the respondent used to put forward
the incentive bonus scheme and consult the workmen. The same
thing was done when the season 1960-61 was about to start in
November 1960. But the scheme for this season proposed by
the respondent contained certain changes which were
apparently not acceptable to the workmen. One of the
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features in the scheme was that the crushing of sugar cane
per day should be 32,000 maunds. The general secretary of
the union of the workmen suggested certain alterations for
the consideration of the respondent on November 7, 1960, and
one of the main alterations suggested was that the norm for
per day’s crushing should be 125,000 maunds of cane and
thereafter incentive bonus should be given at a certain
rate. No agreement seems to have reached on the incentive
bonus scheme, and the complaint of the respondent was that
the secretary incited the workmen to go slow in consequence
of the change in the scheme. Consequently mild go-slow in
cane the carrier department which is the basic department in
a sugar mill began from the very start of the season on
November 10, 1960. The
L/P(N)4SCI
590
respondent’s case further was that on November 27, 1960, the
workmen in the cane carrier department started in
combination with one another to go-slow deliberately and
wilfully and in a planned manner and thus reduced the
average daily crushing to 26,000 maunds cane which was much
less than the average crushing in previous seasons. This
conduct of the workmen was said to be highly prejudicial to
the respondent and besides being technically unsafe, had
brought into existence an acute shortage in the fuel
position which might have resulted in the complete stoppage
of the mill and a major breakdown of the machinery. When the
position became serious the respondent issued a general
notice on December 15, 1960 inviting the attention of the
workmen concerned to this state of affairs which had been
continuing of any rate since November 27, 1960. This notice
was in the following terms:--
"At the instigation of Shri J. Krishna, the
General Secretary of your Union, you since the
very beginning of this season, have been
failing in your duty to ensure adequate and
regular loading of the cane carrier, and with
effect from the 27th November, 1960, you, in
combination with each other, have deliberately
and wilfully resorted to a clear ’go-slow’
tactics, a fact openly admitted by the above-
named General Secretary of your Union in
presence of the Labour Superintendent and
Labour Officer Muzzffarpur, in course of
discussions held on the subject in the office
of the Assistant Labour Commissioner on the
6th December, 1960. You have deliberately
reduced the average daily crushing to more or
less 26,000 maunds out of which more than
2,000 maunds is due to the newly introduced
device of direct feeding of the cane carrier
by cane carts weighed during nights
and not
attributable to any effort on your part. Thus
the actual crushing given by you is
practically something between 23,000 and
24,000 maunds only which is highly
uneconomical and technically unsafe for this
factory with the installed crushing capacity
of more than 1,200 tons a day.
"About 14,000 bales of extra bagasse kept in
stock as reserve have already been consumed in
the past 12 days or so and now the factory is
faced with a situation when at any moment its
boilers may go out of steam for want of
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bagasse-fuel leading to an abrupt stoppage
of the mills and finally resulting into a
major breakdown of machineries.
"It is therefore hereby notified that
unless you voluntarily record your willingness
individually to discharge your duties
faithfully and diligently by feeding the cane
carrier so as to give a minimum average daily
crush of 32,000 maunds, excluding stoppages
other than those
591
due to overloading or under loading of the
cane carrier, you will be considered to be no
longer employed by the company. You must
record your willingness in the office of the
Factory Manager on or before 4 P.M. of
Saturday the 17th December, 1960, failing
which you shall stand discharged from the
service of the company without any further
notice with effect from 18-12-1960 and your
place will be filled by recruiting other
labour to man the cane carrier station."
This notice was put on the notice-board along with
translations in Hindi and Urdu and it was also sent
individually to the workmen in cane carrier department. A
copy was also sent to the Secretary of the union with the
workmen concerned to submit their willingness as desired by
the respondent in the notice in question either individually
or even collectively through the union. The secretary of the
union replied to this notice on the same day and said that
it was "full of maliciously false and mischievous
statements". The secretary also denied that the workmen had
adopted go-slow tactics or that he had advised the workmen
to adopt such tactics. Finally the secretary said that it
was simply fantastic to ask a worker to give an undertaking
to crush at least 32,000 maunds per day and if the
service of any workman was terminated on his not giving the
undertaking, the responsibility would be that of the
respondent itself. The respondent’s case was that three
workmen gave undertakings as required in the notice while
the rest did not. Thereafter the situation in the factory
deteriorated and the workmen grew more and more unruly and
even started entering the factory without taking their
attendance token. In consequence of this attitude of the
workmen, the respondent issued a notice at 5 p.m. on
December 17, 1960 which was in the following terms:
"The following workers of the cane carrier
station who failed to record their willingness
in factory manager’s office by 4 p.m. this day
the 17th December, 1960, to work faithfully
and diligently in accordance with the
management’s notice dated 15-12-1960, stand
discharged from the company’s service and
their names have been struck off the rolls
with effect from 18th December 1960. From now
on, the workers concerned have forfeited their
right to go to and occupy their former place
of work and any action contrary to this on
their part will make them liable to
prosecution for criminal trespass.
"Their final account will be ready for payment
by 4 p.m. on the 19th December 1960, when, or
whereafter, they may present themselves at the
company’s Office for receiving payment of
their wages and other dues, if any, during
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working hours", and then mentions the names of
119 workmen of the cane carriers department.
592
Thus the services of the workmen concerned stood discharged
from December 18, 1960 under this notice. This was followed
by a general strike in pursuance of the notice served on the
respondent by the union on December 17, 1960. The strike
continued upto December 22, 1960 when as a result of an
agreement it was decided that the case of the discharged
workmen and the question of wages for the strike period be
referred to adjudication. Consequently a joint application
by both parties was made to Government on December 21,
1960. The Government then made a reference of the following
two questions to the tribunal on January 25, 1961:--
1. Whether the discharge of workmen mentioned
in the Appendix was justified. If not,
whether they should be re-instated and/or they
are entitled to any other relief?
2. Whether the workmen be paid wages for
the period 16-00 hrs. on December 18, 1960 to
8-00 hours on December 22, 1960?
It may be mentioned that the respondent had held no enquiry
as required by the standing Orders before dispensing with
the services of the workmen concerned. Therefore, when the
matter went before the tribunal, the question that was tried
was whether there was go-slow between November 27, 1960 and
December. 15, 1960. The respondent led evidence, which was
mainly documentary and based on the past performance of the
factory to show that there was in fact go-slow by the
workmen concerned during this period. The appellants on the
other hand also relying on the record of the respondent
tried to prove that the cane carrier department had been
giving normal work in accordance with what had happened in
the past in connection with cane crushing. That is how the
tribunal considered the question on the basis of the
relevant statistics supplied by both parties and also oral
evidence whether there was go-slow during this period or
not. After considering all the evidence it came to the
conclusion that there was go slow during this period.
Consequently it held that the discharge of the workmen was
fully justified. It therefore answered the first question
referred to it in favour of the respondent. The second
question with respect to wages for the strike period was not
pressed 9n behalf of the appellants and was therefore
decided against them. Thereafter the appellants came to this
Court and obtained special leave; and that is how the matter
has come up before us.
We are concerned in the present appeal only with the
first question which was referred to the tribunal. Learned
counsel for the appellants has raised three main contentions
before us in support of the appeal. In the first place it
is contended that the tribunal misdirected itself as to the
Scope of the reference and that all that the tribunal was
concerned with was to decide whether the discharge of the
workmen for not giving an undertaking was justified
593
or not, and that it was no part of the duty of the tribunal
to decide whether there was go-slow between the relevant
dates which would justify the order of discharge. Secondly,
it is urged that the respondent had given no charge-sheets
to the workmen concerned and had held no enquiry as required
by the Standing Orders. Therefore, it was not’ open to the
respondent to justify the discharge before the tribunal, and
the tribunal had no jurisdiction to go into the merits of
the question relating to go-slow. Lastly it is urged that
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the finding of the tribunal that go-slow had been proved was
perverse and the tribunal had ignored relevant evidence in
coming to that conclusion. We shall deal with these
contentions seriatim.
Re. (1)..
We have already set out the relevant term of reference
and it will be seen that ’it is wide and general in terms
and asks the tribunal to decide whether the discharge of the
workmen concerned was justified or not. It does not mention
the grounds on which the discharge was based and it is for
the tribunal to investigate the grounds and decide whether
those grounds justify discharge or not. So if the tribunal
finds that the discharge was due to the use of go-slow
tactics by the workmen concerned it will be entitled to
investigate the question whether the use of go-slow tactics
by the workmen had been proved or not.
But the argument on behalf of the appellants is that the
notice of December 17 gives the reason for the discharge and
the tribunal confined only to that notice and has to
consider whether the reason given in that notice for
discharge is justified. We have already set out-that,notice
and it certainly says that the workmen mentioned at the foot
of the notice had failed to record their willingness to work
faithfully and diligently in accordance with the
respondent’s notice of December 15, 1960, and therefore they
stood discharged from the respondent’s services and their
names had been struck off the rolls from December 18, 1960.
So it is argued that the reason for the discharge of the
workmen concerned was not go-slow but their failure to
record their willingness to work faithfully and diligently..
The tribunal had therefore to see whether this reason for
the discharge of the workmen was justifiable, and that it
had no jurisdiction to go beyond this and to investigate the
question of go-slow.
We are of opinion that there is no force in this
argument. Apart from the question that both parties before
the tribunal went into the question of go-slow and
voluminous evidence was led from both sides either to prove
that there was go-slow or to disprove the same, it appears
to us that it would be taking much too technical a view to
hold that the discharge was due merely to the failure of the
workmen to give the undertaking and that the go-slow had
nothing to do with the discharge. We are of opinion that
the two notices of December 15 and December 17 have to be
read together and it may be pointed out that the notice of
December 17th does refer to the earlier notice of December
15th. If we read the two
594
notices together, there can be in our opinion be no doubt
that though the discharge is worded as if it was due to the
failure to record their willingness to work faithfully and
diligently, it was really due to the workmen concerned using
go-slow tactics. Notice of December 15, is in two parts. The
first part sets out the facts and states what the workmen
had been doing from the very beginning of the season and
particularly from November 27, 1960. It states that on the
instigation of the secretary of the union, the workmen had
been failing in their duty to ensure adequate and regular
loading of the cane carrier from the very beginning of the
season. It further charges that with effect from November 27
they had in combination with one another deliberately and
wilfully resorted to a clear go-slow, a fact said to have
been openly admitted by the secretary in the presence of the
Labour Superintendent and Labour Officer, Muzaffarpur, in
course of discussions held in the office of the Assistant
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Labour Commissioner on December 6, 1960. The notice then
says that the average daily crushing is 26,000 maunds out of
which more than 2,000 was due to the newly introduced device
of direct feeding of the cane carrier by cane carts weighed
during nights and not attributable to any effort on the
workmen’s parts; thus the actual crushing had been
practically reduced to something between 23,000 to 24,000
maunds per day, which was highly uneconomical and
technically unsafe for the factory which had an installed
crushing capacity of more than 1,200 tons a day i.e. over
32,000 maunds a day. The notice also says that about 14,000
bales of extra bagasse kept in stock as reserve and already
been consumed in the last twelve days and the factory was
faced with a situation when at any moment its boilers might
go out of steam for want of bagasse-fuel leading to an
abrupt stoppage of the mill and finally resulting in a major
break-down of machinery.
These facts which were given in the first part of the
notice dated December 15, 1960 really show the charge which
the respondent was making against the workmen concerned.
Having made this charge of go-slow in the manner indicated
in the first part of the notice (and it may be mentioned
that this notice was not only put on the notice-board but
was given to each workmen individually), the respondent then
indicated in the second part what action it intended to
take. In this part the respondent told the workmen
concerned that unless they voluntarily recorded their
willingness individually to discharge their duties
faithfully and diligently by feeding the cane carrier so as
to give a minimum average daily crush of 32,000 maunds,
excluding stoppages other than those due to over-loading or
under-loading of the cane carrier, they would be considered
to be no longer employed by the respondent. They were given
time up to 4 p.m. on December 17, 1960 to record their
willingness failing which they would stand discharged from
the respondent’s service without any further notice with
effect from December 18, 1960. The second part of the
notice thus indicated to the workmen concerned how much they
had to crush every
595
day to avoid the charge of go-slow. It further indicated
that the respondent was prepared to let bygones be bygones
if the workmen concerned were prepared to give an
undertaking in the manner desired. Assuming that this
course adopted by the respondent was unjust and even
improper, reading of the two parts of the notice of December
15, 1960 shows that in the opinion of the respondent was the
normal cane crushing per day and what was the charge of the
respondent against the workmen concerned in the matter of
go-slow and what the respondent was prepared to accept if
the workmen were agreeable to the claim of the respondent.
It is clear therefore from the notice which was given on
December 15, 1960 that the respondent thought that 32,000
maunds should be the normal crush every day excluding
stoppages other than those due to over-loading or under-
loading of the cane carrier. It also charged the workmen
with producing much less than this for the period from
November 27, 1960 to December 15, 1960, though it was
prepared to 1st bygones be bygones, provided the workmen in
future undertook to give normal production. It is in the
background of this charge contained in the notice of
December 15, 1960 that we have to read the notice of
December 17, 1960. That notice says that the workmen had
failed to record their willingness to work faithfully and
diligently in accordance with the notice of December 15,
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1960 and therefore they stood discharged, meaning thereby
that the respondent was charging the workmen with go slow as
indicated in the notice of December 15, 1960 and that as
they were not prepared to give normal production even in
future they were being discharged. Therefore, though in
form the notice of December 17, 1960 reads as if the workmen
were being discharged for not giving the undertaking as
desired, the real basis of the notice of discharge of
December 17, 1960 is the use of goslow which had already
been indicated in the notice of December 15 given to each
workman individually also.
The reference was made on the joint application of both
parties. If all that the workmen desired in their joint
application for reference was that it should only be
considered whether the discharge of the workmen for refusing
to give an undertaking was justified, there was nothing to
prevent the workmen to insist that in the joint application
this matter should be specifically mentioned. In the joint
application the first matter which was specified was in
these terms:
"Whether the discharge of workmen mentioned in
the appendix was justified? If not, whether
they should be reinstated and/or
they are
entitled to any other relief?"
Now if all that was desired was that the tribunal should
go into the question whether the discharge of the workmen on
the ground that they had failed to give the undertaking
should be investigated, it would have been easy to put this
term only in the reference in the joint application thus;
"Whether the discharges of the workmen mentioned in the
appendix on the
596
ground of their failure to give an undertaking was
justified?" The very fact that the matter specified as in
dispute was put in the wide words already quoted above shows
that the parties did not wish to confine their dispute only
to the question whether the discharge on the ground of
failure to give an undertaking was justified. Further we
have already indicated that both parties understood the
dispute to be whether go-slow was justified or not and that
is why voluminous evidence was led before the tribunal. The
wide terms in which the reference was made along with the
notice of December 17th read with the notice of December
15th leave no doubt in our mind that the reference included
investigation of any cause which might have led to the
discharge of the workmen. There is no doubt in this case
that even though notice of discharge was pharsed as if the
discharge was being made on account of the failure to give
an undertaking the real reason for the discharge was that
the workmen had been guilty of go-slow between November 27
and December 15 and were not prepared in spite of the
respondent’s giving them a chance to improve to show better
results. Therefore taking into account the wide terms of
reference, the manner in which it was understood before the
tribunal, and the fact that it must be read along with the
two notices of December 15 and 17, 1960, particularly
because it was made soon thereafter at the joint application
of the parties, we have no doubt that the tribunal was
entitled to go into the real dispute between the parties,
namely whether the discharge was justified on the ground
that there was misconduct in the form of go-slow by the
workmen concerned between November 27, 1950 workmen
therefore on this head must be rejected.
Re. 11).
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Then we come to the question whether it was open to the
tribunal when there was no enquiry whatsoever by the
respondent to hold an enquiry itself into the question of
go-slow. It was urged on behalf of the appellants that not
only there was no enquiry in the present case but there was
no charge either. We do not agree that there was no charge
by the respondent against the workmen concerned. The first
part of the notice of December 15, 1960 which was served on
each individual workmen was certainly a charge by the
respondent telling the workmen concerned that they were
guilty of go-slow for the period between November 27 and
December 15, 1960. It is true that the notice was not
headed as a charge and it did not specify that an enquiry
would follow, which is the usual procedure when a formal
charge is given. Even so, there can be no doubt that the
workmen concerned knew what was the charge against them
which was really responsible for their discharge from
December 18, 1960.
It is now well-settled by a number of decisions of this
Court that where an employer has failed to make an enquiry
before dismissing or discharging a workman it is open to him
to justify the action before the tribunal by leading all
relevant evidence before it,
597
In such a case the employer would not have the benefit
which he had in cases where domestic inquiries have been
held. The entire matter would be open before the tribunal
which will have jurisdiction not only to go into the limited
questions open to a tribunal where domestic inquiry has
been properly held (see Indian Iron & Steel Co. v. Their
workmen(1) but also to satisfy itself on the facts adduced
before it by the employer whether the dismissal or discharge
was justified, We may in this connection refer to M/s Sasa
Musa Sugar Works (P) Limited v. Shobrati Khan(2), Phulbari
Tea Estate v. Its Workmen(3) and the Punjab National Bank
Limited v. Its Workman(4) There three cases were further
considered by this court in Bharat Sugar Mills Limited. v.
Shri Jai Singh(5), and reference was also made to the
decision of the Labour Appellate Tribunal in Shri Ram
Swarath Sinha v. Belaund Sugar Co. (6) It was pointed out
that "the import effect of commission to hold an enquiry was
merely this: that the tribunal would not have to consider
only whether there was a prima facie case but would decide
for itself on the evidence adduced whether the charges have
really been made out". It is true that three of these
cases, except Phulbari Tea Estate’s case(3), were on
applications under s. 33 of the Industrial Disputes Act,
1947. But in principle we see no difference whether the
matter comes before the tribunal for approval under s. 33 or
on a reference under s. 10 of the Industrial Disputes Act,
1947. In either case if the enquiry is defective or if no
enquiry has been held as required by Standing Orders, the
entire case would be open before the tribunal and the
employer would have to justify on facts as well that its
order of dismissal or discharge was proper. Phulbari Tea
Estate’s(9) was on: a reference under s. 10, and the same
principle was applied there also, the only difference being.
that in that case, there was an enquiry though it was
defective. A defective enquiry in our opinion stands on the
same footing as no enquiry and in either case the tribunal
would have jurisdiction to go into the facts and the
employer would have to satisfy the tribunal that on facts
the order of dismissal or discharge was proper.
If it is held that in cases where the employer
dismisses his employee without holding an enquiry, the
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dismissal must be set aside by the industrial tribunal only
on that ground, it would inevitably mean that the employer
will immediately proceed to hold the enquiry and pass an
order dismissing the employee once again. In that case,
another industrial dispute would arise and the employer
would be entitled to rely upon the enquiry which he had held
in the mean-time. This course would mean delay and on the
second occasion it will entitle the employer to claim the
benefit of the domestic enquiry given. On the other hand,
if in such cases the employer is given an opportunity to
justify the
(1) [1958] S.C.R. 667.
(2) [1959] Supp. S.C.R. 836.
(3) [1960] IS.C.R. 32.
(4) [1960] I.S.C.R.806.
(5) [1962] 3 S.C.R.684.
(6) [1954] L.A.C.697.
598
impugned dismissal on the merits of his case being
considered by the tribunal for itself and that clearly would
be to the benefit of the employee. That is why this Court
has consistently held that if the domestic enquiry is
irregular, invalid or improper, the tribunal give an
opportunity to the employer to prove his case and in doing
so the tribunal tries the merits itself. This view is
consistent with the approach which industrial adjudication
generally adopts with a view to do justice between the
parties without relying too much on technical considerations
and with the object of avoiding delay in the disposal of
industrial disputes. Therefore, we are satisfied that no
distinction can be made between cases where the domestic
enquiry is invalid and those where no enquiry has in fact
been held. We must therefore reject the contention that as
there was no enquiry in this case it was not open to the
respondent to justify the discharge before the tribunal.
Re. (iii)
The question whether there was go-slow during the period
from November 27 to December 15, 1960 is a question of fact
and the tribunal has come to the conclusion that there was
go-slow during this period. Ordinarily this Court does not
go into findings of fact recorded by a tribunal unless there
are special reasons, as, for example, where the finding is
based on no evidence,--which of course is not the case here.
Learned counsel for the appellants however urges that the
finding of the tribunal that the workmen concerned were
guilty of go-slow is perverse and that evidence which was
relevant and material has been ignored. As the case
involves the discharge of as many as 119 workmen we have
decided to go broadly into the evidence to see whether the
finding of the tribunal is patently wrong.
For this purpose we may first refer to the past history of
the working of the respondent factory. It appears that till
this court condemned the practice of go-slow in the case of
Bharat Sugar Mills(1). It was not unusual in the State of
Bihar for workmen to give notice of go-slow to employers as
if it was a legitimate weapon to be used in matters of
dispute between the employers and the workmen. In the
present case the respondent had complained as far back at
1950 that go-slow was being resorted to. In 1950 a court of
enquiry was constituted to enquire into this question and it
made a report that there was a slow-down on the part of the
workman for several days in February-March 1950. It also
came to the conclusion that the slow-down was instigated
and sponsored by union leaders. In 1951, the workmen gave
notice of go-slow in case their demands were not fulfilled
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(vide Ex. A-1) Similar notices were given in 1952 (vide Ex.
A-2), In 1954 (vide Ex. A-3 and A-4) and in 1955 (vide Exs.
A-5, A-6 and A-7 and on some occasions threats of go-slow
did actually materialise. Besides these notices the
management had occasion to complain in 1955. 1957, and 1958
more than once that go-slow was being
(x) [1962] 3 S.C.R,. 684.
599
resorted to at the cane carrier. Thus it appears that
resorting to go-slow was a common practice in this factory.
It is in the background of this persistent attitude of the
workmen that we have to see what happened in November 1960.
We have already referred to the fact that the workmen were
dissatisfied with the new incentive bonus scheme proposed by
the respondent. It is not necessary to go into the merits
of this new scheme which was proposed in September 1960.
But it appears that when there was dispute in the 1959-60
season on the question of how much cane should be crushed,
the secretary of the union had accepted in a conference with
the Assistant Labour Commissioner that there had been a
drop in the amount of cane crushed, though he maintained
that it was still the average crush. He had also stated then
that the workmen were dissatisfied with the incentive bonus
scheme in that season and had withdrawn the extra efforts
they were putting in after the introduction of the incentive
scheme for the first time in 1956-57. Further it was
admitted by the secretary in his evidence that when the
bonus scheme was proposed in 1960-61, it was considered by
the workmen in a meeting and it was decided that if the new
system was introduced without the consent of the workmen
they would not put in any extra effort for giving more than
what was the normal crush in the mill. The evidence also
shows that there were conferences about the new scheme and
at one stage the respondent suggested that the norm should
be 30,000 maunds crush per day while the union was agreeable
to 29,500 maunds per day. But there was no agreement in
this behalf and so that workmen carried out their resolve
not to put in extra efforts to give more than the average
normal crushing per day. Thus the season which began in
November 1960 started with the withdrawal of extra efforts
by the workmen which in plain terms means that the workman
were not prepared to do what they had been doing in this
previous season 1959-60 and were slowing down production as
compared to what it was in 1959-60. It is in the background
of this history and this admission that we have to look
broadly into the evidence to see whether the tribunal’s
conclusion that there was go-slow is justified.
The main contention on behalf of the respondent in this
connection is that one has to see is that is called crushing
speed for a day of 24 hours and it is this crushing speed
which would determine whether there was go-slow during the
period in dispute. It has been urged that crushing speed per
24 hours is different from the actual crushing per day or
the average crushing for a period, for the actual crushing
per day from which the crushing speed is arrived at depends
on a number of factors, particularly it depends on the
amount of stoppages that take place during the day and if
there are more stoppages the actual crushing on a particular
day would necessarily go down. Crushing speed per twenty-
four hours on the other hand is arrived at by excluding the
stoppages and then working out what would be the amount of
cane
600
crushed in 24 hours if there had been no stoppages. The
case of the respondent further is that when it gave the
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notice on December 15, 1960 asking for a crush of 32,000
maunds per day it really meant that the workmen should work
in such a way as to give a crushing speed of 32,000 maunds
per day, though the words "crushing speed" were not actually
used in the notice. It is however pointed out that the
notice when it mentions 32,000 maunds as the normal crush
expected per day excluded stoppages other than those due to
over-loading or under-loading of the cane carrier.
Therefore, the respondent wanted the workmen to give a
crushing speed of 32,000 maunds per day which would exclude
stoppages, the only exception being stoppages due to over-
loading or underloading, which, according to the respondent,
is due to the deliberate action of the cane carrier workmen
to cause stoppages, We think that this explanation of what
the respondent meant when it gave the notice of average
daily crush of 32.000 maunds is reasonable, for it is
impossible to accept that 32,000 maunds were required to be
crushed irrespective of stoppages, beyond the control of the
workmen. Further it is not in dispute that the labour force
was more or less the same throughout these years, and
therefore we have to see whether during the period from
November 27 to December 15, 1960 there was any significant
drop in the crushing speed. If there was such a significant
drop that could only be due to go-slow tactics which have
been euphemistically called withdrawal of extra efforts.
It is necessary therefore to took at the charts produced
in this case to determine this question. The appellants
mainly relay on chart Ex. W-3. That is however a chart of
actual crushing per day during the period from 1954-55 to
1960-61 and has nothing to do with crushing speed which in
our opinion would be the determining factor in finding out
whether there was go-slow. The actual crush may vary as we
have already said due to so many factors, particularly due
to stoppages for one reason or the other. The respondent
produced another chart Ex. W-4 which shows the crushing
speed for the entire season from 1954-55 to 1959-60. We
consider that it would not be proper to take the figures for
the years 1956-57 to 1959-60 in which years incentive bonus
schemes were in force and which according to the workmen
resulted in extra efforts on their part. But the figures of
1954-55 and 1955-56 would be relevant because in these years
there was no incentive bonus scheme and no night weighment
’of carts. The workmen have also produced a chart showing
cane crushed, actual crushing days and crushing per day; but
this chart does not show the crushing speed and does not
take into account the stoppages. It merely shows the actual
number of working days and the average per day. That however
would not be an accurate way of finding out whether in fact
there was go-slow during the period with which we are
concerned. The respondent’s chart Ex. W-4 while showing the
same amount of actual crushing also shows what would be the
crushing
601
speed per 24 hours after excluding stoppages. This chart in
our opinion is the proper chart for determining whether
there was go slow during the revelant period. Now
according to this chart (Ex. W-4) the daily average crushing
speed in 1954-55 was 29,784 maunds and in 1955-56, 30,520
maunds without incentive bonus and without night weighment
of carts. It appears that from the middle of 1959-60 season
night weighment of carts started and it is not in dispute
that resulted in an increase in the daily crushing and this
increase is put at over 2,000’ maunds per day by the
respondent; the secretary of the union admitted that this
would result in an increase of about 2,500 maunds per day.
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We have already said that in the years 1954 and 1955 there
was no incentive bonus and if these figures are accepted as
giving the average crushing speed per day (when there was no
incentive bonus and no weighment of carts at night) it would
in our opinion be not improper to accept that the crushing
speed with night weighment of carts would be in the
neighbourhood of 32,000 maunds per day in view of the
admission that night weighment of carts resulted in an
increase of crushing by about-2,000 maunds to 2,500 maunds
per day. Therefore, when the respondent gave notice on
December 15, 1960 that the average crushing per day should
be 32,000 maunds excluding stoppages (except those due to
over-loading or underloading of the cane carrier, for which
the workmen would be responsible) it Cannot be said that the
respondent had fixed something which was abnormal. It is
true that when negotiations were taking place in connection
with the incentive bonus scheme for the year 1960-61, the
respondent was prepared to accept a crushing speed of 30,000
maunds per day above which the incentive bonus scheme would
apply. That is however easily understood for a proper
incentive bonus scheme always fixes a norm which is slightly
lower than the average in order that there may be greater
incentive to labour to produce more than the average. Even
so, when the incentive bonus scheme for 1960-61, was not
acceptable to the workmen and they had already decided to
withdraw what they called extra effort, the respondent would
not be unjustified in asking for the full average crushing
speed based on the production of the years 1954-55 and 1955-
56, when there was no incentive bonus scheme and no night
weighment of carts.
It has been urged on behalf of the appellants that the
crushing speed of 32,000 maunds per 24 hours is not
correctly arrived at for it does not take into account half
hour’s rest per shift which is permissible under s. 55(1) of
the Factories Act, No. 63 of 1948. Thus, according to the
appellants, crushing speed should be worked out on 22 1/2
hours per day and the crushing will then be less by 1/16th
and will only come to 30,000 maunds per day. Reliance in
this connection is placed on s. 55(2) of the Factories Act,
which lays down that "the State Government ...... may by
written order and for the reasons specified therein, exempt
any factory from the provisions of sub-section (1) so
however that the total number of hours worked by a worker
without an interval does not exceed
602
six. It is therefore urged that the workmen were entitled
to half an hour’s rest per shift in any case because the
shift was for eight hours. The respondent on the other hand
relies on s. 64(2) (d) for the Factories Act and its case is
that the State Government had made rules under that
provision in connection with sugar factories, which apply to
it. Section 64(2) (d) is in these terms:--
"The State Government may make rules in
respect of adult workers in factories
providing for the exemption, to such extent
and subject to such conditions as may be
prescribed--
(d) of workers engaged in any work which
for technical reasons must be carried on
continuously from the provisions of sections
51, 52, 54, 55 and 56;
We are of opinion that this provision in s. 64(2) (d) being
a special provision will over-ride both sub-ss. (1) and (2)
of s. 55, for it gives power to the State Government by
making rules to exempt certain types of factories from the
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application of the whole of s. 55, subject to such
conditions and to such extent as the rules may provide. It
appears that rules were framed in this behalf by the
Government of Bihar in 1950 by which sugar factories were
exempted from the application of s. 55 for purposes of
handling and crushing of cane, among others. subject to the
condition that the workers concerned shall be allowed to
take light refreshment or meals at the place of their
employment, or in a room specially reserved for the purposes
or in a canteen provided in the factory, once during any
period exceeding four hours. Thus cane crushing operations
are exempt from s. 55(1) and s. 55(2) subject to the
condition mentioned above. We may also refer to s. 64(5)
which lays down that the rules made under this section shall
remain in force for not more than three years. The rules to
which reference has been made are of 1950; but there is
nothing to show that these rules were not continued after
every interval of three years and the position that the
exemption applies to sugar factories even now as provided in
these rules was not disputed. We shall therefore proceed on
the basis that the exemption applied to sugar factories in
Bihar. In view of this, the workmen cannot claim half an
hour’s rest per shift as urged on their behalf, though
sometime must be allowed for refreshment or light meals as
provided in the provision granting exemption. This means
that a few minutes would be allowed to each individual in
turn in each shift for light refreshment or meals in such a
way that the work does not stop. If we make a total
allowance of half an hour or so in this connection the
average crushing speed would be reduced to slightly over
31,000 maunds per day and that is all the adjustment that
the appellants can claim in view of the exemption under s.
64(2) (d).
Let us now turn to the actual position between November
27 and December 15, 1960. This will appear from chart Ex.
W-7.
603
That chart shows a crushing speed of 29,859 maunds per day
from November 10 to 26, when, according to the respondent,
there was only mild go-slow. We are however concerned with
the period from November 27 to December 15, 1960 and the
crushing speed for 24 hours during that period was 27,830.
Now if we take the average crushing speed as 32,000 maunds
per 24 hours without any adjustment or even a little over
31,000 maunds with adjustment following upon the rule
relating to exemption from s. 55, there is certainly a
significant drop in average crushing speed during this
period. Further we find that there is a significant drop
even as compared to the period between November 10 to 26,
1960, inasmuch as the drop was over 2,000 maunds per day.
Therefore it cannot be said that the tribunal was incorrect
in its conclusion that there had been go-slow during the
period from November 27 to December 15. It may be added
that when comparisons are made on the basis of crushing
speed and labour force is more or less constant, as is the
ease here, other minor factors to which our attention was
drawn on behalf of the appellants during argument do not
matter at all. Even if we take the figure of 30,000 maunds
as the crushing speed which the respondent had put forward
at the time of the discussion on the incentive bonus scheme,
we find that though there was not much difference during the
period from November 10 to November 26, there was a
significant drop of over 2,000 maunds per day from November
27 to December 15. Looking at the matter in this broad
way--and that is all that we are prepared to do, for we are
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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.
Finally, it is urged that notice was given to the
workmen on December 15 and they were discharged on December
17, 1960 without giving them a change to give the necessary
production as desired in the notice. 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 was
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 this view of the matter, the appeal fails and is
hereby dismissed. In the circumstances we order parties to
bear their own costs.
Appeal dismissed.
604