Full Judgment Text
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PETITIONER:
LAKSHMI DEVI SUGAR MILLS LTD.
Vs.
RESPONDENT:
PT. RAM SARUP.(and connected appeal)
DATE OF JUDGMENT:
24/10/1956
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
DAS, S.K.
MENON, P. GOVINDA
CITATION:
1957 AIR 82 1956 SCR 916
ACT:
Industrial Dispute-Application for permission to dismiss
workmen-Jurisdiction of Appellate Tribunal-Scope of enquiry-
Interim order of suspension by employer pending enquiry and
receipt of permission-If amounts to a lock-out-If amounts to
punishment -Prior Permission of the Appellate Tribunal, if
required-Enquiry by General Manager-Non-co-operation by
workmen-Enquiry not held within the prescribed time-If a
breach of Standing Orders Industrial Disputes (Appellate
Tribunal) Act (XLVIII of 1950), ss. 22, 23-Industrial
Disputes Act (XIV of 1947), s. 33(a)(b)--Standing Orders,
cl. L 12.
HEADNOTE:
Seventy-six workers of the appellant company resorted to a
tools-down strike in sympathy with a dismissed -co-worker.
Repeated attempts to persuade them to resume work having
failed the General Manager suspended them until further
orders. After midday recess the Management sought to
prevent the workers from entering the mills but they
violently entered the mills and the Police had to be called
in by the company to keep the peace. Charges of misconduct
and insubordination were thereafter framed against the
workers and they were called upon to show cause in an open
enquiry to be held by the General Manager why disciplinary
action should not be taken against them and the order of
suspension was extended pending the enquiry. The workers
took up an attitude of total non-cooperation and the
atmosphere was tense with the result that the enquiry could
not be held within 4 days. The Management decided to
dismiss the workers as a result of the enquiry but as an
appeal was then pending before the Labour Appellate
Tribunal, the company applied to it under s. 22 -of the
Industrial Disputes (Appellate Tribunal) Act of 1950 for
permission to do so and extended the period of suspension
pending receipt of such permission. The workmen in their
turn filed an application under a. 23 of the Act to the
Appellate Tribunal for requisite action to be taken against
the company for having contravened s. 22(b) of the Act by
resorting to an illegal lock-out and thereby punishing them
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without its prior permission. The Appellate Tribunal held
that the company had not held the enquiry within the time
specified by el. L 12 of the Standing Orders and on that
ground dismissed its application. It allowed the
application of the workers holding that the wholesale
suspension of the workers and preventing them from
continuing work. after the mid-day recess amounted to a
lock-out
917
and punishment by the company and contravened s. 22(b) of
the Act and directed their reinstatement. The company
appealed. It was contended on behalf of the company that
there had been neither a breach of el. L 12 of the Standing
Orders nor a contravention of s. 22(b) of the Act.
Hold, that the contentions were correct and the appeals must
succeed.
The conduct of the company did not come within the
definition of a lock-out and even if there was any lock-out
it was in consequence of the illegal strike resorted to by
the workmen and as such could not be deemed to be illegal by
virtue of s. 24(3) of the Industrial Disputes.Act, 1947.
Moreover, even assuming that the company declared an illegal
lock-out it was not necessary for it to obtain the
permission of the Appellate Tribunal under s. 22 of the Act
before it could do so.
A lock-out was neither an alteration of the conditions of
service within the meaning of el. (a) nor a discharge or
punishment by dismissal or otherwise within the meaning of
el. (b) of s. 33 of the Industrial Disputes-Act, 1947 or
under s. 22 of the Industrial Disputes (Appellate Tribunal)
Act, 1950 and no permission was, therefore, required for its
declaration. If the lock-out was illegal the workmen had
their remedy under s. 26 of the Industrial Disputes Act and
in any event they had the right to have the dispute referred
for adjudication.
Jute Workers Federation, Calcutta v. Clive Jute Mills
([1951] 11 L.L.J. 344) and Colliery Mazdoor Congress,
Asansol v. New Beerbhoom Coal Co. Ltd. ([1952] L.A.C. 219),
approved.
The Company having been declared a public utility concern,
the workers had no right to go on strike without giving a
notice in terms of s. 22(1) of the Industrial Disputes Act,
1947 and the tools-down strike resorted to by them was
illegal and the company was within its rights in suspending
them.
Buckingham and Carnatic Co. Ltd. v. Workers of the
Buckingham and Carnatic Co. Ltd., ([1953] S.C.R. 219),
referred to.
Mere failure to hold an enquiry within the period of four
days prescribed by el. L 12 of the Standing Orders could
not determine the matter before the Appellate Tribunal and
where, as in the instant case, the delay was due to the
conduct of the workers it was sufficiently explained.
Where full and free opportunity was given to the workers to
be present and defend themselves in a duly notified enquiry
and they failed to do so, the Management was quite within
its right to come to its own conclusion as to their guilt
and the punishment to be meted out to them and it was not
open to the workmen thereafter to urge that such enquiry was
not fair or impartial or violated the principles of natural
justice.
918
There could be no punishment so long as there was no offence
and any action of the employer to the detriment of the
workers’ interest would not amount to punishment. The law
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did not contemplate anything like a contingent punishment of
a worker and, consequently, where there was an interim order
of suspension pending an enquiry or the grant of permission
by the Appellate Tribunal, the question of pay for the
period of such suspension depending on whether or not the
permission would be granted, such suspension would not
amount to punishment even where it was of an indefinite
duration so as to attract the operation of s. 22 of the In-
dustrial Disputes (Appellate Tribunal) Act, 1950.
Champdany Jute Mills and Certain Workmen, ([1952) 1 L.L.J.
554), Joint Steamer Companies and -Their Workmen, ([1954] II
L.L.J. 221), Assam Oil Co. Ltd. v. Appalswami, ([1954] 11
L.L.J. 328), Standard Vacuum Oil Co. v. Gunaseelan, M. G.
([1954] II L.L.J. 656), relied on.
Under that section the only thing that the Appellate
Tribunal had to consider was whether a prima facie case had
been made out by the employer for lifting the ban imposed by
the section and if, on the materials before it, it was
satisfied that there bad been a fair enquiry in the
circumstances of the case and the Management had bona fide
come to the conclusion that the worker was guilty of
misconduct with which he had been charged and it would be
detrimental to discipline and dangerous in the interests of
the company to continue him in its employ, a prima facie
case was made out and the Tribunal would be bound to permit
the employer to punish the workman. It would be no part of
its duty to judge whether the punishment was harsh or
excessive, except so far it might bear on the bona fides of
the Management, and could only grant the permission as
sought for or refuse it and the question of the propriety of
the punishment could be decided only by the appropriate
Tribunal appointed by the Government for adjudicating the
industrial dispute which would ensue upon the action of the
management.
Atherton West & Co. Ltd. v. Suti Mills Mazdoor Union and
Others, ([1953] S.C.R. 780), The Automobile Products of
India Ltd. v. Bukmaji Bala & Others, ([1955] 1 S.C.R. 1241)
Champdany Jute Mills and Shri Alijan, ([1952] II L.L.J.
629), R.B.S. Lachmandas Mohan Lal & Sons Ltd. and Chini Hill
Karmachari Union, ([1952] II L.L.J. 787) and Assam Oil
Companies’ Case, ([1954] L.A.C. 78), referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 244 and 245
of 1954.
Appeals from the judgment and order dated August 19, 1952,
of the Labour Appellate Tribunal of India (Calcutta) at
Allahabad in Miscellaneous Cases Nos, C-91 and 93 of 1952.
919
N. C. Chatterji, H. J. Umrigar, J. B. Dadachanji, S. N.
Andley and Rameshwar Nath, for the appellant in both
appeals.
Purshottam Tricumdas, R. Ganapathy Iyer and B. P.
Maheshwari, for respondents in both appeals. M. C. Setalvad,
Attorney-General for India, Porus A. Mehta and R. H.
Dhebar, for the Intervener.
1956. October 24. The Judgment of the Court was delivered
by
BHAGWATI J.-These two appeals :by special leave arise out of
an order of the Labour Appellate Tribunal of India, Lucknow
Bench, by which it dismissed the application of the
appellant under s. 22 of the Industrial Disputes (Appellate
Tribunal) Act, 1950, hereinafter referred to as the Act for
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permission to dismiss the respondents from its employ and
allowed the application of the respondents under s. 23 of
the Act for reinstatement.
The respondents are 76 employees of the appellant, a limited
company of Sugar Mills, situated in village Chitauni in the
district of Deoria and were working in the engineering
department of the mills in the mill house, boiling-house and
the workshop sections. There were disputes between the
appellant and its workmen and, on the date in question,
i.e., May 27, 1952, there was pending before the Labour
Appellate Tribunal an appeal which was registered as Cal-
101/51. It appears that one Motilal Singh, an employee of
the appellant, had been dismissed by it sometime prior
thereto and he had been inciting the workmen to make common
cause with him, and, at a meeting held the previous night,
some sort of action had been decided upon. When the workmen
of the appellant entered the mills on the morning of May 27,
1952, these 76 workmen, though they entered their respective
sections of the engineering department, did not commence any
work from 7 a.m. as they should have done. The sectional
engineers in-charge asked these workmen as to why they did
not commence their work and became a ware of their intention
to resort
920
to a tools-down strike. They reported the fact to the Chief
Engineer who sent a slip to the General Manager informing
him that the workers had gone on a tools down strike. The
General. Manager thereupon personally went to the workshop,
mill house and -the boiling house and asked these workmen
not to resort to such strike but the latter did not pay any
heed to his advice. -The General Manager then asked the
Chief Engineer to persuade these workmen to commence the
work, give them time for about 2 hours till 10-30 a.m. and
report to him if, in spite of his persuasions, they did not
commence work. The persuasions of the Chief Engineer and
also of the section engineers proved of no avail and the 76
workmen persisted in their attitude with the result that the
section engineers made their reports to the General Manager
through the Chief Engineer giving the names of the workmen
belonging to their respective sections who had resorted to
the tools-down strike with effect from 7 a.m. that day.
These reports were endorsed by the Chief Engineer and passed
on to the General Manager who,in his turn, passed an order
at about 10-30 a.m. suspending these 76 workmen till further
orders. The order for suspension was communicated to these
workmen through their sectional heads and was also pasted on
the notice board of the mills. There was a recess between
11 a.m. and 1 p.m. and when the gates were opened at 1 p.m.
these 76 workmen, in spite of the warnings of the
gatekeepers and Jemadar to the contrary, rushed into the
mills, entered their respective sections and adopted a
threatening attitude. The sectional engineers made reports
to the General -Manager in regard to this occurrence and
these reports also were endorsed by the Chief Engineer and
passed on by him to the General Manager. The situation
which was created by these workmen by forcibly entering
their respective sections and continuing there threatening
violence was explosive and the management had to call in the
police in order to avert violence and damage to the
property. The police came in at 5 p.m. and order appears to
have been restored. There was no untoward incident that day
921
but the management appears to have viewed the situation
with, seriousness and approached the Regional Conciliation
Officer the next day in order to ask for advice in regard to
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the dismissal of these workmen. The Regional Conciliation
Officer, however, pointed out to the General Manager that,
in view of the pendency of the appeal before the Labour
Appel, late Tribunal, he had no jurisdiction to entertain
any application for such permission and referred the General
Manager to the Labour Appellate Tribunal. The workmen, on
the other hand, got a letter dated May 28, 1952, addressed
to the General Manager by the General Secretary of the Chini
Mill Mazdoor Sangh to the effect that they had gone to the
gates of ’the mills as usual at 7 a.m. that day to attend to
their work but they were not allowed to enter the mill pre-
mises. They charged the management with the intention to
victimise them -on the charge of a tools down strike and
stated that they had neither struck nor intended to strike
but had been prevented from attending to their work and had
therefore been advised to go back to their quarters with a
view to maintain peace. The last paragraph of that letter
was very significant. The General Manager was told that if
he did not mend his illegal mistakes and did not take the
workmen back on duty he would be responsible for any breach
of peace.
After receipt of that letter it was evident that the workmen
would resort to violent measures in order to attend to their
work and a breach of peace was apprehended. The management
evidently continued the police precautions and, after having
waited for some time, the General Manager furnished to these
76 workmen on June 2, 1952, a charge-sheet wherein he
charged them with having committed misconduct within the
meaning of cl. L. I (a) and (b) and wailful insubordination
within the meaning of el. L. I (a), (b) and (w) of the
Standing Orders. He called upon them to show cause within
24 hours of the receipt of the charge-sheet why disciplinary
action should not be taken against them and gave them
intimation that an open enquiry in connection with the said
charges
120
922
would be held by him at 8 a.m. on June 6, 1952. He also
intimated that if all the workmen arranged to present
themselves earlier than June 6, 1952, he would take up the
said enquiry earlier provided, however, an intimation was
received to that effect from them or from their Union. The
workmen were to remain suspended till the enquiry was
finished.
The workmen addressed uniform letters to the General Manager
denying that there was any tools down strike on May 27,
1952, and alleging that the sectional heads and the Chief
Engineer bad conspired together "under some mysterious
preconceived plans" and stated that no useful purpose would
be served by holding an enquiry on the 1 1 th day of their
suspension. They pointed out that such indefinite period of
suspension during the pendency of the appeal before the
Labour Appellate Tribunal and Reconciliation Board was
illegal and unjustified and was in utter disregard of the
Standing Orders. By their further letter dated June 5,
1952, similarly addressed to the General Manager, they
voiced their apprehension that they would not get any
justice from an enquiry held by the management itself and
asked for investigation by an impartial tribunal. The
management, however, held the enquiry as intimated at 8 a.m.
on June 6, 1952. The workmen non-co-operated and did not
present themselves at the enquiry.
The General Manager immediately addressed a letter to these
workmen putting on record that- in spite of the orders
conveyed by him earlier the workmen had disobeyed the. same
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and had not appeared at the appointed time and place for the
enquiry into the tools-down strike. He pointed out that by
not appearing in this manner they had made themselves liable
to dismissal for insubordination, and intimated that the
management was applying to the proper authorities for
permission to dismiss them pending receipt of which the
workmen would remain under suspension. This letter was
received by the workmen at 9 a.m. that day and they replied
through the General Secretary of the Chini Mill Mazdoor
Sangh repeating that a demand had been made for an
923
investigation by an impartial tribunal and in so far as no
impartial tribunal had been appointed they were not
agreeable to present themselves and submit their defence at
the enquiry which was conducted by the management itself.
The appellant thereafter made the necessary application
under s. 22 of the Act before the Labour Appellate Tribunal
of India, Lucknow Bench, for permission to dismiss these 76
workmen. In the affidavit which was filed in support of
that application, all the facts herein before mentioned were
set out in extenso and it was pointed out that the
management, after giving full consideration to the
explanations and offering every possible opportunity to
these workmen to explain their conduct coupled with the
unreasonable attitude adopted by them, had adjudged them
guilty of misconduct under cl. L. I (a), (b) and (w) of the
Standing Orders and considered that any further employment
of these workmen would be extremely detrimental to
discipline and dangerous in the interests of the industry.
The workmen, in their turn, filed on June 9, 1952, an
application under s. 23 of the Act for requisite action to
be taken against the appellant for having contravened s.
22(b) of the Act by inflicting on them the punishment in the
shape of harassment by resorting to an illegal lookout for
an indefinite period with effect from May 27, 1952, without
obtaining the prior permission of the , Labour Appellate
Tribunal and "thereby acting contrary to law and resorting
to mala fide actions in direct violation of the provisions
of the Standing Orders in continuation of the management’s
anti-trade (Union) activities".
Counter-affidavits were made by the workmen as also the
management in reply to both the above applications. The
Labour Appellate Tribunal held that the appellant did not
act in strict compliance with cl. L. 12 of the Standing
Orders and was, therefore, not entitled to ask for
permission to dismiss the 76 workmen. It accordingly
dismissed the appellant’s application under s. 22 of the
Act. In regard to the application of the workmen under s.
23 of the Act, it held
924
that the wholesale suspension of the 76 workmen and their
prevention from resuming work at I p.m. after the lunch hour
amounted to a lockout and that this conduct of the appellant
amounted to punishment of the workers whether by dismissal
or otherwise and was, therefore, in contravention of s.
22(b) of the Act. It accordingly ordered the reinstatement
of the workmen if they presented themselves at the office of
the General Manager during office hours on any day within 15
days of the order and also ordered payment of half the
salary and allowances for the period of non-payment, viz.,
from the date of their suspension up to the date on which
they were taken back in service.
Shri N. C. Chatterjee for the appellant before us has
strenuously urged that the workmen had resorted to the
tools-down strike which was an -illegal strike and that the
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appellant was well within its rights in suspending the
pending enquiry and also pending the application for
permission to dismiss them made before the Labour Appellate
Tribunal. Even if it be held that the appellant had
declared a lockout, such a lockout was in consequence of the
illegal strike resorted to by the workmen and could not be
deemed to be illegal. He further urged that the management
had held an enquiry into the illegal strike which had been
resorted to by the workmen and found that the workmen were
guilty of misconduct and insubordination within the meaning
of cl. L. I (a), (b) and (w) of the Standing Orders and the
appellant rightly came to the conclusion that any further
employment of these workmen would be extremely detrimental
to discipline and dangerous in the interests of the indus-
try. He also contended that the delay in holding the
enquiry was not unreasonable and the suspension of the
workmen pending enquiry for more than four days was due to
sufficient reason, the atmosphere created by the non-
cooperation of the workers being so tense as not being
appropriate for the holding of an enquiry within those four
days, that there was no breach of cl. L. 12 of the Standing
Orders and that the Labour Appellate Tribunal was in error
when it
925
refused to grant the application under s. 22 of the Act.
Civil Appeal No. 245 of 1954 which is directed against the
order of the Labour Appellate Tribunal under s. 23 of the
Act may be disposed of at once. The Labour Appellate
Tribunal was of opinion that the conduct of the appellant in
preventing the workmen from continuing work after I p.m. on
May 27, 1952, came within the definition of a lockout and
the workmen being employed in a public utility concern such
lockout would be illegal without a proper notice. It was
further of opinion that this conduct amounted to punishment
of a worker whether by dismissal or otherwise and was,
therefore, in contravention of s. 22(b) of the Act. This
conclusion of the Labour Appellate Tribunal was, in our
opinion, based on a misapprehension of the whole position.
The position had been summed up by the Labour Appellate
Tribunal in the following words:-
"As a matter of fact the management never thought of a
lockout. Their idea was to suspend the suspected persons
pending enquiry for which they gave a notice".
If this was the correct position, the conclusion reached by
the Labour Appellate Tribunal that the conduct of the
management came within the definition of a lockout was
absolutely unjustifiable. The Labour Appellate Tribunal
recorded its inability to come to a definite finding as to
what was the position which obtained on May 27, 1952. It
observed-
"We have got a number of affidavits in support of the
parties’ case and there is oath against oath. We do not
find ourselves in a position to hold definitely as to what
was the exact situation. But it does appear to us that a
mountain has been made of a mole hill and conclusions have
been arrived at without going deep into the matter".
Even if the parties had made a mountain of a mole hill and
had reached conclusions without going deep into the matter,
it was certainly the business of the Labour Appellate
Tribunal itself to record a finding of fact in regard to the
situation as it obtained on
926
that day. This unfortunately the Labour Appellate Tribunal
did not do and it came to record its conclusion, that the
conduct of the management came within the definition of a
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lockout without realizing that such conclusion was
inconsistent with what it’ had stated a little earlier that
the management as a matter of fact never thought of a
lockout. -We have been taken through the whole evidence by
the learned counsel for the appellant and there is clear
documentary evidence to show that the 76 workmen resorted to
a tools-down strike from 7 a.m. on May 27, 1952. The
reports which were made by the section engineers and sent to
the General Manager through the Chief Engineer were clear
and categoric in regard to such tools-down strike having
been resorted to by the workmen in question and the list of
the 76 workmen which was prepared by the General Manager
ordering their suspension was based on those reports. The
further reports which were made by the section engineers
again sent by them to the General Manager through the Chief
Engineer in the afternoon of May 27, 1952, also were clear
and categoric in regard to the said workmen having been
asked not to enter the workshop, the boiling house and the
mill house at 1 p.m. but their having entered the same
threatening violence. A faint attempt was made to charge
the section engineers and the Chief Engineer with having
conspired "under some mysterious preconceived plans" but the
same rested merely on a bare allegation and was not
substantiated by any tangible evidence. Even though there
was some conflict of evidence in regard to the time when the
notice of suspension was given by the General Manager to
these workmen and when the notice in that behalf was pasted
on the notice-board of the appellant, it is abundantly clear
on the documentary evidence above referred to that the 76
workmen resorted to a tools down strike from 7 a.m. on the
morning of May 27, 1952, that they were suspended till
further orders immediately after the receipt by the General
Manager of the first series of reports from the section
engineers, that they were prevented from entering the
premises
927
at I p.m. but entered the same threatening violence. If
this is the true position it follows that there was no
lockout declared by the appellant, much less an illegal
lockout. The workmen bad resorted to an illegal strike and
the General Manager rightly ordered that the workmen
indulging in such strike should be suspended pending further
orders which obviously meant pending enquiry into their
conduct and the obtaining of the permission to. dismiss them
as a result of such enquiry if the management thought fit.
If there was thus no illegal lockout at all, the conclusion
reached by the Labour Appellate Tribunal in that behalf was
absolutely unjustified. Even if there had been a lockout as
concluded by the Labour Appellate Tribunal the same was in
consequence of the illegal strike which had been resorted to
by these workmen and could not by virtue of s. 24(3) of the
Industrial Disputes Act, 1947, be deemed to be illegal.
There is, however, a more fundamental objection that, even
if the appellant be held responsible for having declared an
illegal lockout, the lockout would not come within the ban
of s. 22 of the Act. The Labour Appellate Tribunal had
before it an earlier decision of its own in Jute Workers
Federation, Calcutta v. Clive Jute Mills(1), in which the
same question had beed considered with reference to s. 33 of
the Industrial Disputes Act, 1947. In that case, a lockout
had been declared which involved 4,000 workers of the
company and a preliminary contention was urged that there
was no contravention of the provisions of s. 33 of the
Industrial Disputes Act, 1947. The Labour Appellate
Tribunal considered the question whether the lockout had (1)
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in fact altered the conditions of service of the workmen to
their prejudice, or (2) had the effect of discharge, or (3)
amounted to punishment of the workmen. It came to the
conclusion that a lockout had not the effect of a discharge,
for a lockout does not automatically terminate the services
of the workmen. It did not also amount to punishment, for
punishment presup-
(1) [1951] II L.L.J. 344.
928
poses an offence or misconduct. A lockout is generally
adopted as a security measure and may in certain cases be
used as a weapon corresponding to what the employees have in
the shape of a strike and that, therefore, a. 33(b) would
not be contravened by the company by. declaring a lockout.
The Labour Appellate Tribunal then considered whether a
lockout would attract the operation of s. 33(a). It was of
opinion that no automatic termination of the services of the
employees was brought about by a lockout and the question
was whether any of the conditions of service was altered
thereby to their prejudice. The contention of the Union was
that the conditions of service were altered to the prejudice
of the workmen because those employees did, not in fact get
their pay during the period of the lockout with the
possibility of losing it. This contention was negatived and
the Labour Appellate Tribunal was of opinion that the
conditions of their service would be altered by the lockout
if the employees lost their right to receive their pay
during the period of lockout in ’all circumstances but the
question whether they would be entitled to get their pay
during that period could not be postulated with certainty
for that would depend on a variety of considerations.. In
the opinion of the Labour Appellate- Tribunal to bring a
case within s.-33(a), the questioned act of the employer
must directly and in fact alter the conditions of service to
the prejudice of the workmen concerned, that is to say, the
moment the lockout was declared. The possibility that they
may or may not get their pay meant that the lockout may or
may not alter the conditions of their service to their
prejudice. Section 33(a) would not, therefore, be attracted
by the mere fact of a lockout. The Labour Appellate
Tribunal thus came to the conclusion that -neither s. 33(a)
nor s. 33(b) would be contravened by the company in de-
claring the lockout.
This decision of the Labour. Appellate Tribunal was
followed in Colliery Mazdoor Congress, Asansol, v. New
Beerbhoom Coal Co. Ltd.(1) and the Labour
(1) 11952] L A.C. 219.
929
Appellate Tribunal there held that a lockout did not come
within the ambit of s. 33 and, therefore, no permission
under that section was required for declaring a lockout.
We agree with the reasoning adopted in the above cases and
are of opinion that a lockout is neither an alteration to
the prejudice of the workmen of the conditions of service
applicable to them within the meaning of cl. (a) nor a
discharge or punishment whether by dismissal or otherwise of
the workmen within the meaning of cl. (b) of s. 33 of the
Industrial Disputes Act) 1947, or s. 22 of the Industrial
Disputes (Appellate Tribunal) Act, 1950, and that,
therefore, no permission of the Conciliation Officer, Board
or Tribunal as the case may be is necessary to be obtained
before a lockout can be declared. If the lockout is legal,
no question can at all arise. If, on the other hand,, the
lockout is illegal, a remedy is provided in s. 26 of the
Industrial Disputes Act, 1947. The employees affected by a
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lock-out would in any event be entitled to refer the
industrial dispute arising between themselves and the
employer for adjudication by adopting the proper procedure
in regard thereto.
The Labour Appellate Tribunal was, therefore, clearly in
error when it came to the conclusion that the conduct of the
appellant came within the definition of a lockout and that
it amounted to punishment of the workmen whether by
dismissal or otherwise and was, therefore, in contravention
of s, 22(b) of the Act. The application of the respondents
under s. 23 of the Act was accordingly liable to be
dismissed and should have been dismissed by the Labour
Appellate Tribunal. Civil Appeal No. 245 of 1954 will,
therefore, be allowed and the order of the Labour Appellate
Tribunal reinstating the respondents in the service of the
appellant will be set aside.
Coming now to Civil Appeal No. 244 of 1954, the first
question to determine is whether the respondents had
resorted to an illegal strike. We have already pointed out
the circumstances under which the 76 workmen resorted to the
tools-down strike from 7 a.m. on May 27, 1952, and recorded
the finding
121
930
that they not only resorted to such strike but persisted in
their attitude in spite of the persuasions of the Chief
Engineer and the General Manager of the appellant. The
appellant having been declared a public utility concern, the
workmen were not entitled to resort to such strike without
giving to the appellant notice of the strike in terms of s.
22(1) of the Industrial Disputes Act, 1947, and the tools-
down strike which was resorted to by them was, therefore, an
illegal strike. The fact that the strike was of a short
duration viz., from 7 a.m. till 10-30 a.m. would not
exculpate the respondents from the consequence" of having
resorted to such illegal strike, the avowed intention of the
strikers being not to resume work until their pre-concerted
plan conceived at, the meeting held on the previous night
was carried out. The strike resorted to by the workmen was
of an indefinite duration. and the management, having failed
in its attempts to persuade the workmen to resume their work
was well within its rights to suspend these workmen pending
further orders. (Vide Buckingham and Carnatic Co. Ltd. v.
Workers of the Buckingham’ and Carnatic Co. Ltd.(1)).
The Labour Appellate Tribunal did not decide this issue at
all but only considered the alleged non-compliance by the
appellant of cl. L. 12 of the Standing Orders as
determinative of the whole enquiry before it observing that
"although the delay (in holding the enquiry) was not
unreasonable, there was no doubt that the management did
violate the letter of the rule". It further observed that
there was no sufficient reason indicated for extending the
period of suspension beyond the period of four days provided
in cl. L. 12 of the Standing Orders, the tension created by
the non-co-operation of the workers not having been
considered sufficient to preclude the management from
collecting materials for conducting the enquiry within the
said period of 4 days, This reasoning of the Labour
Appellate Tribunal was unsound. Having once come to the
conclusion that the delay was not unreasonable, there was no
justification for the further
(1) [1953] S.C.R. 219.
931
conclusion reached by the Labour-Appellate Tribunal that the
tension created by the non-co-operation of the workers was
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not a sufficient reason for extending the period of such
suspension. The workmen had forcibly entered the premises
of the mills in spite of the warnings of the watchmen and
the Jemadar and had also entered the workshop, the boiling
house and the mill house and continued to stay there
threatening violence. In their letter dated June 3, 1952,
they had also threatened the General Manager that if he did
not mend his illegal mistakes and did not take the workmen
back on duty be would be responsible for any breach of
peace. This was enough evidence of their mentality and the
management naturally enough apprehended breach of peace at
the hands of these workmen. If this was the tense
atmosphere created by the non-co-operation of the workmen,
the management was perfectly justified in postponing the
enquiry by a few days and continuing the workmen under sus-
pension. The delay which was thus caused in furnishing the
charge-sheets and giving notice of the enquiry to these
workmen on June 2, 1952, was, therefore, sufficiently
explained and if there was any one responsible for this.
delay it was the workmen and not the management. It did not
then lie in the mouth of the workmen to protest against this
delay in the enquiry and trot out their suspension for a
period exceeding four day’s as an excuse for abstaining from
the enquiry. As a matter of fact, the management intimated
to the workmen that -in spite of June 6, 1952, having been
fixed as the date for the open enquiry, the management would
be prepared to take up the enquiry earlier provided an
intimation was received either from the workmen or from
their Union to that effect. Instead of responding to this
gesture of the appellant the workmen persisted in asking for
an independent enquiry and non-co-operated with the
management in the enquiry which was ultimately held by it as
notified at 8 a.m. on June 6, 1952. We are of opinion that
under the circumstances the appellant was not guilty of
having contravened el. L. 12 of the Standing Orders and the
Labour Appellate
932
Tribunal was in error when it came to the contrary
conclusion and dismissed the application of the appellant
under s. 22 merely on that ground without making any further
enquiry into the circumstances of the case. It appears that
the Labour Appellate Tribunal was driven to take this step
because it found itself unable to hold definitely as to what
was the exact situation on May 27, 1952. We shall only
observe that if the Labour Appellate Tribunal had really ap-
plied its mind to the question it would have come -to the
conclusion that the respondents in fact did resort to the
illegal strike from 7 a.m. on May 27, 1952, and that there
was no contravention of cl. L. 12 of the Standing Orders by
the appellant.
The next question that falls to be determined is whether the
enquiry which was held by the management on June 6, 1952,
was a fair enquiry and whether the General Manager observed
the principles of natural justice in the conduct of that
enquiry Due notice of the enquiry was given to the
respondents by the letter of the management addressed to
them on June 2, 1952, and if the respondents did not avail
themselves of the opportunity of presenting themselves and
defending their action at the enquiry they had only
themselves to blame for it. It was within the province of
the management to hold such an enquiry after giving due
notice thereof to the respondents and to come to its own
conclusion as a result of such enquiry whether the
respondents were guilty of the charges which had been
leveled against them. If full and free opportunity was
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given to the respondents to present themselves at the
enquiry and defend themselves it could not be said that the
enquiry was anything but fair. No principles of natural
justice were violated and the management was at liberty to
come to its own conclusions in regard to the culpability of
the respondents and also to determine what punishment should
be meted out to the respondents for the misconduct and
insubordination proved against them. If the ban which is
imposed by s. 22 of the Act had not been in existence, the
management would have been entitled to impose the punishment
on the
933
respondents and dismiss them without anything more, if it
honestly came to the conclusion that dismissal of these
workmen was the only punishment which should be meted out to
them in all the circumstances of the case. The respondents
would no doubt then have been entitled to refer the
industrial dispute which arose out of their dismissal for
adjudication by adopting the proper procedure set out in the
Industrial Disputes Act, 1947, and the Industrial Tribunal
appointed by the Government for the adjudication of such
dispute would have been in a position to thrash out all the
circumstances and award to them the appropriate relief This
course was, however, not open to the appellant by reason of
the pendency of the appeal before the Labour Appellate
Tribunal and the only thing which the appellant could do,
therefore, was, after coming to its own conclusion as a
result of such enquiry, to apply to the Labour Appellate
Tribunal under s.22 of the Act for permission to dismiss the
respondents and this the appellant did on June 8, 1952. It
was not open to the respondents then, having regard to the
attitude which they had adopted throughout in relation to
the said enquiry, to urge that the enquiry was not fair or
impartial or that the principles of natural justice had been
violated by the General Manager of the appellant in the
conduct of the enquiry.
It was, however, urged on behalf of the respondents that the
suspension for an indefinite period beyond the period of
four days provided in cl. L. 12 of the Standing Orders was
a punitive measure and the appellant was not justified in
imposing that punishment on them without the permission of
the Labour Appellate Tribunal. It was contended that such
suspension involved loss of pay by the respondents and being
of an indefinite duration inflicted such harassment on them
that it could not be deemed to be anything except a
punishment. We do not accept this contention. It has been
rightly held by the Labour Appellate Tribunal that
suspension without pay pending enquiry as also pending
permission of the Tribunal under the relevant section could
not
934
be considered a punishment as such suspension without
payment would only be an interim measure and would last till
the application for permission to punish the workman was
made and the Tribunal bad passed orders thereupon. If the
permission was accorded the workman would not be paid during
the period of suspension but if the permission was refused
he would have to be paid for the whole period of suspension.
There is nothing like a contingent punishment of a workman
and therefore such suspension could not be deemed to be a
punishment of the workman at all. Such suspension would of
necessity be of an indefinite duration because to get a
written permission of the Tribunal would mean delay and no
Tribunal would likely issue any order without notice and
without hearing all the parties concerned. Orders for
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suspension were meant only as security measures or precau-
tionary ones taken in the interest of the industry itself or
its employees in general. These measures were sometimes
called for immediately after an incident and any delay,
however small, might defeat the purpose for which such
measures were intended. It would therefore be necessary to
adopt these measures immediately and to suspend the workman
pending the enquiry as also the permission to be obtained
from the appropriate Tribunal for dismissing him if as a
result of the enquiry the, management thought fit to inflict
such punishment upon him. The suspension., however, would
not be a punishment by itself. The ordinary dictionary
meaning of the word "Punish" is "to cause the offender to
suffer for the offence" or "to inflict penalty on the
offender" or "to inflict penalty for the offence" (Concise
Oxford Dictionary, 4th Ed.). Punishment can be otherwise
defined (Vide Law Lexicon by P.R. Aiyar, 1943 Ed.) as
penalty for the transgression. of law, and the word cc
punish" denotes or signifies some offence committed by the
person who is punished. Any action of the employer to the
detriment of the workman’s interest would not be punishment
so long as no offence was found to have been committed by
the workman. The suspension under such circumstances,
therefore, could
935
not be a punishment even though it may be of an indefinite
duration and would not attract the operation of s. 22 of the
Act. It could not be contended, therefore, that suspension
without pay even for an indefinite period pending enquiry or
pending the permission of the appropriate Tribunal to
dismiss the workman would be a punishment which would
require permission under s. 22 of the Act before the same
could be meted out to the workman. (Vide Champdany Jute
Mills And Certain Workmen(1); Joint Steamer Companies And
Their Workmen(2); Assam Oil Co. Ltd. v. Appalswami(3);
Standard Vacuum Oil Co. v. Gunaseelan, M. O.(4)).
The scope of the enquiry before the Labour Appellate
Tribunal under s. 22 of the Act has been the subject-matter
of decisions by this Court in Atherton West & Co. Ltd. v.
Suti Mill Mazdoor Union and Others(5) and The Automobile
Products of India Ltd. v. Rukmaji Bala & Others(6). The
Tribunal before whom an application is made under that
section has not to adjudicate upon any industrial dispute
arising between the employer and the workman but has only
got to consider whether the ban which is imposed on the
employer in the matter of altering the conditions of
employment ’to the prejudice of the workman or his discharge
or punishment whether by dismissal or otherwise during tile
pendency of the proceedings therein referred to should be
lifted. A prima facie case has to be made out by the
employer for the lifting of such ban and the only
jurisdiction which the Tribunal has is either to give such
permission or to refuse it provided the employer is not
acting mala fide or is not resorting to any unfair practice
or victimization. It cannot impose any conditions on the
employer before such permission is granted nor can it
substitute another prayer for the one which the employer has
set out in his application. If the permission is granted,
the ban would be lifted and the employer would be at
liberty, if he so chooses thereafter, to deal out the
(1) [1952] I L.L.J. 554.
(2) [1954] II L.L.J. 328. [1953] S.C.R. 780.
(4) [1951] II L.L J. 221.
(5) [1954] II L.L.J. 656.
(6) [1965] 1 S.C.R. 1241,
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936
punishment to the workman. On such action being taken by
the employer the workman would be entitled to raise an
industrial dispute which would have to be referred to the
appropriate Tribunal for adjudication by the Government on
proper steps being taken in that behalf. When such
industrial dispute comes to be adjudicated upon by the
appropriate Tribunal, the workman would be entitled to have
all the circumstances of the case scrutinized by the Tribu-
nal and would be entitled to get the appropriate relief -at.
the hands of the Tribunal. If, on the other hand, such
permission is refused, the parties would be relegated to the
status quo and the employer would not be able to deal out
the punishment which he intends to do to the workman. Even
then an industrial dispute might arise between the employer
and the workman if the workman was not paid his due wages
and other benefits. Such industrial dispute also would have
to be referred to the appropriate Tribunal by the Government
and the Tribunal would award to the workman the appropriate
relief having regard to all the circumstances of the case.
The Tribunal before whom such an ’application for permission
is made under s. 22 of the Act would not be entitled to sit
in judgment on the action of the employer if once it came to
the conclusion that a prima facie case had been made out for
dealing out the punishment to the workman. It would not be
concerned with the measure of the punishment nor with the
harshness or otherwise of the action proposed to be taken by
the employer except perhaps to the extent that it might bear
on the question whether the action of the management was
bona fide or was actuated by the motive of victimization.
If on the materials before it the Tribunal came to the-
conclusion that a fair enquiry was held by the management in
the circumstances of the case and it bad bona fide come to
the conclusion that the workman was guilty of misconduct
with which he had been charged a prima facie case would be
made out by the employer and the Tribunal would under these
circumstances be bound to give the requisite permission to
the employer to deal
937
out the punishment to the workman. If the punishment was
harsh or excessive or was not such as should be dealt out by
the employer having regard to all the circumstances of the
case the dealing out of such punishment by the employer to
the workman after such permission was granted would be the
subject-matter of an industrial dispute to be raised by the
workman and to be dealt with as aforesaid. The Tribunal,
however, would have no jurisdiction to go into that question
and the only function of the Tribunal under s. 22 of the Act
would be to either grant the permission or to refuse it.
(Vide Champdani Jute Mills And Shri Alijan(1); R.B S.
Lachmandas Mohan Lal & Sons Ltd. And Chini Mill Karmachari
Union(2) Assam Oil Companies’ case(3)).
In the circumstances of the present case, once the appellant
succeeded in establishing that the workmen had resorted to
an illegal strike from 7 a.m. on May 27, 1952, that a fair
enquiry into the alleged misconduct and insubordination of
the workmen had been held by the management without
violating any principles of natural justice, that the
management had as a result of such enquiry found that the
workmen had been guilty of misconduct and insubordination
with which they had been charged -and that the management
had come to the bona fide conclusion that continuing the
workmen in its employ was detrimental to discipline and
dangerous in the interests of the appellant, the Labour
Appellate Tribunal ought to have held that a prima facie
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case for the dismissal of the workmen had been made out by
the appellant and ought to have granted the appellant the
permission to dismiss the workmen.
We are, therefore, of opinion that the Labour Appellate
Tribunal was clearly in error in rejecting the application
of the appellant under s. 22 of the Act and refusing it the
permission to discharge the respondents from its employ.
Civil Appeal go. 244 of 1954 will, therefore, be allowed and
the order of
(1) [1952] II L.L.J. 629. (2) [1952] II L.L.J. 787,
(8) [1954] L.A.C. 78.
122
938
the Labour Appellate Tribunal dismissing the application
under s. 22 of the Act will be set aside. The appellant
will be granted permission under s. 22 of the Act to
discharge the respondents from its employ.
Under the orders of the Court, one-half of their salary has
been already paid by the appellant to the respondents from
May 27, 1952, onwards. As a result of this decision, the
appellant would be entitled to recover the same back from
them. Shri N. C. Chatterjee appearing on behalf of the
appellant has, however, stated that the appellant would
forego the recovery of that amount and would also keep the
respondents on the reserve list to be employed in the mills
as and when there were vacancies in their permanent cadre.
We hope that the respondents will take this offer in the
true spirit with, which it has been made on behalf of the
appellant and behave better in the future. Shri N. C.
Chatterjee has also left the question of costs of both these
appeals to us and we do order that, in all the circumstances
of the case, it would be proper that each party do bear and
pay its own costs of both these appeals.
Appeals allowed.
939