Full Judgment Text
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PETITIONER:
WORKMEN OF THE MOTOR INDUSTRIES CO. LTD.
Vs.
RESPONDENT:
MANAGEMENT OF MOTOR INDUSTRIES CO. LTD.,BANGALORE
DATE OF JUDGMENT:
15/04/1969
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
BHARGAVA, VISHISHTHA
VAIDYIALINGAM, C.A.
CITATION:
1969 AIR 1280 1970 SCR (1) 304
1969 SCC (2) 13
CITATOR INFO :
RF 1972 SC1216 (3)
ACT:
Industrial Dispute-Strike by workmen without notice against
terms of settlement between workmen’s association and
management-Strike whether saved from being illegal because
call not given by association-Strike in breach of terms of
settlement is illegal under s. 29 of Industrial Disputes
Act, 1947-Distinction between illegality under s. 24 and s.
29-Unfair labour practice-Victimisation-Findings of enquiry
officer whether perverse.
HEADNOTE:
There was settlement entered into on December 23, 1964
between the Motor Industries Company Employees Association
and the management of the company. Under el. 5 of the
agreement it was agreed inter alia that the workmen will not
go on strike without at least four days’ notice. How,ever
on May 11, 1966 the workmen went on strike without notice as
a protest against the suspension of one of the workmen.
Later in the day after discussions the workmen resumed work.
On May 18, 1966 the establishment officer submitted a
complaint to the Chief Personnel Officer as a result of
which charge-sheets alleging stoppage of work, abandoning
place of work and inciting clerks and officers to join the
strike were served upon five of the workmen. Against one of
them the charge of disorderly conduct and intimidation was
also made. The enquiry officer held three of the charged
workmen guilty of acts of misconduct under standing order
22(2), (3), (13) and (18). The management passed orders of
,dismissal against the three workmen. The industrial
dispute thus arising was referred to, the Labour Court which
held that the said enquiry was validly held and that the
management were justified in passing the orders of
dismissal.
In appeal by special leave the following contentions were
raised on behalf of the workmen-appellants : (i) that the
said association not having given a call for the said strike
the said charges were misconceived and the orders of
dismissal were consequently not sustainable; (ii) that the
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said strike, which was spontaneously staged by the workmen,
was not illegal under s. 24 of the Industrial Disputes Act
nor was it in contravention of any law as required by
standing order 22(2) and (3); (iii) that the said
disciplinary proceedings were in contravention of the
agreement arrived at on May 11, 1966, and therefore, the
dismissal following such disciplinary proceedings amounted
to unfair labour practice; (iv) that the orders of dismissal
were passed on charges including that of intimidation though
the misconduct of intimidation was not found by the enquiry
officer and hence the said orders were illegal; (v) that to
punish only three workmen when a large number of workmen had
taken part in staging the strike and in inciting others to
join it constituted victimisation, (vi) that the finding of
the enquiry officer were based on no evidence or were
perverse in that no reasonable body of persons could have
arrived at them on the evidence before him.
HELD : (i) Clause 5 of the settlement dated December 23,
1964 did not contemplate any dichotomy between the
association and the workmen
305
as suggested on behalf of the appellants. Such an
interpretation is repugnant to the principle that a
settlement once arrived at by the association must be
regarded as one made by it in its representative character,
and therefore binding on the workmen. Therefore, although
the settlement mentioned in cl. 5 the management, workmen
and the association, the expression ’workmen’ therein was
unnecessary, for without that expression also it would have
been as efficaciously binding on the workmen as on the
association. This conclusion was strengthened by the fact
that the settlement mentioned the management and the
association on behalf of the workmen only as the parties
thereto and the signatories thereto also were only the
representatives of the two bodies. [309 F-H]
Further, the appellants’ contention if accepted would lead
to a surprising result, namely, that though a strike at the
instance of the association required four days’ notice, a
notice by the workmen without any call from the association
would not require any such notice and that the settlement
left complete liberty to the workmen to launch a sudden
strike. The first contention on behalf of the workmen had
therefore to be rejected. [309 D]
(ii) Read in the context of the other provisions of Part I
of the settlement of which it was part, cl. 5 was intended
to prohibit (a) direct action without notice by or at the
instance of the association and (b) strikes by workmen
themselves without the approval of the association. The
words ’in no case’ used in the clause emphasized that direct
action by either party without notice should not be resorted
to ’for any reason whatsoever. There could be no doubt that
the settlement was one as defined by s. 2(p) of the
Industrial Disputes Act and was binding on the workmen under
s. 18(3) of the Act until it was validly terminated and was
in force when the said strike took place. The strike was a
lightning one, was resorted to without notice and though it
was not at the call of the association, it was in breach of
cl. 5. [311 A--C]
The strike was in the matter of suspension of one of the
workmen pending a domestic enquiry against him, a matter
which obviously was -not one of the matters covered by the
said settlement. It was, therefore, not a strike illegal
under s. 24 read with s. 23(c). However being in con-
travention of cl. 5 of the said settlement and that
settlement being binding on the workmen concerned and in,
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operation at the time was punishable under s. 29 and
therefore. illegal under that section. [312 F]
The strike being illegal, standing order 22 would apply and
participating in or inciting others to join such a strike
would amount to misconduct for which the management was
entitled to take disciplinary action. The second contention
on behalf of the workmen must also, therefore, fail. [313 D]
The Tata Engineering & Locomotive Co. Ltd. v. C. B. Mitter,
C.A. No. 633/1963 dt. 2-4-1964, referred to.
(iii) The Labour Court on the evidence held that the
association failed to prove that the management had agreed
in order to end the strike on May 11, 1966, not to take
action against any of the workmen in connection with the
strike, though it may be that they might have agreed not to
victimise any workmen for participating in the strike. In
fact the management did not impose any penalty against any
workman for joining the strike, not even against the three
concerned workmen. This finding being purely one of fact
and the Labour Court having given cogent reasons for it this
Court would not interfere with it. The contention alleging
unfair labour practice must also therefore fail. [313 G-H]
306
(iv) Although in his report the enquiry officer did not use
the expression ’intimidation’ the evidence which he accepted
was that the workman in question thumped his hand on the
table and used threatening words to .an officer of the
company. The Enquiry officer’s finding of disorderly
behaviour must therefore be held to include acts of
intimidation. Accordingly the contention that the orders of
dismissal were bad as they took to account the charge of
intimidation of the company’s officers although the enquiry
officer had found that charge was not proved, must be
rejected. 13 14 B--G]
(V) The evidence showed that the three workmen concerned
were in the forefront of the crowd which entered the
premises of the company and committed and incited disorderly
behaviour. In taking action against them and not the rest
of the workmen there was no discrimination and no
victimisation. [315 C]
Burn & Co. Ltd. v. Workmen, [1959] 1 L.L.J. 450,
distinguished.
(vi) There was no substance in the contention that the
findings of the enquiry officer were based on no evidence or
were perverse.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2123 of 1968.
Appeal by special leave from the Award dated March 23, 1968
of the Labour Court, Bangalore in Reference No. 39 of 1967.
M. K. Ramamurthi, B. R. Dolia, S. Pappu and Vineet Kumar,
for the appellants.
H. R. Gokhale, C. Doraswamy and D. N. Gupta, for respon-
dent No. 1.
The Judgment of the Court was delivered by
Shelat, J This appeal, founded on special leave, arises out
,of an industrial dispute between the respondent-company and
the Motor Industries Company Employees Association which the
Government of Mysore referred to the Labour Court,
Bangalore, for adjudication under S. 10 (1) (c) of the
Industrial Disputes Act, 1947. The dispute related to the
dismissal by the management of three workmen, Sandhyavoo, G.
Prabhakar and M. V. Vasudevan out of the five workmen
against whom the management had held a domestic enquiry at
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which they were found guilty of acts; of misconduct charged
against them.
The facts leading to the said dispute and the reference are
as follows :
On August 24, 1964 the said association handed over to the
management a charter of demands. Negotiations between the
parties having failed, the demands were taken before the
conciliation officer when the parties arrived at a
settlement dated December 23, 1964. On April 29, 1966, the
management issued a notice suspending for a day, i.e., May
4, 1966, one B. G. Shenoy
307
as and by way of penalty. In consequence of a protest by
the association, the said suspension was postponed and on
May 10, 1966, the management served -a charge-sheet on
Shenoy and suspended him pending an enquiry. On May 11,
1966 the association demanded withdrawal of the said
suspension and the said charge-sheet. Discussions took
place on that day from 9.45 A.M. to 12.30 P.M. between the
association and the management and the parties thereafter
adjourned at 1 P.M. for lunch having decided to resume the
talks at 2.30 P.M. At 2 P.M. the first shift ended and the
workers of the second shift began to come, in. The workmen
of the first shift, however, stayed on and those of the
second shift along with the workmen of the general shift
joined them and all of them went on strike. The discussions
which were resumed at 2.30 P.M. ended in an agreement at 5
P.M. and the workmen returned to work. On May 18, 1966 the
assistant establishment officer submitted a complaint to the
chief personnel officer alleging certain acts of misconduct
by a crowd of workmen mentioning therein the names of five
of them including the said three workmen. On May 25, 1966
charge-sheets alleging stoppage of work, abandoning the
place of work, inciting clerks and officers of G. 2
department to join the said strike, disorderly behaviour
including intimidation and assault on one, A. Lakshman Rao,
were served upon those five workmen. Correspondence
-thereafter ensued between the association and the
management wherein the association protested against the
management’s decision to adopt disciplinary action against
the said five workmen despite the agreement arrived at on
May 11, 1966. Thereafter, a domestic enquiry was held on
June 30, 1966 which was completed on July 27, 1966 when the
enquiry officer made his report holding the said three
workmen, Sandhyavoo, Prabhakar and Vasudevan, guilty of acts
of misconduct under standing order 22(2), (3), (13) and
(18). He exonerated the other two workmen except on the
charge of participating in the strike and loitering about
under clauses (2) and (18) of the said standing order. On
August 12, 1966, the management, agreeing with the report,
passed orders of dismissal against the said three workmen
which gave rise to the said reference. On March 23, 1968
the Labour Court gave its award holding that the said
enquiry was validly held and that the management were
justified in passing the said orders of dismissal.
Mr. Ramamurthi, appearing for the association, challenged
the said award on the following grounds : (1) that the said
association not having given a call for the said strike, the
said charges were misconceived and the orders of dismissal
were consequently not sustainable; (2) that the said strike,
which was spontaneously staged by the workmen, was not
illegal under s. 24 of the Industrial Disputes Act, nor was
it in contravention of any law as
308
required by standing order 22(2) and (3); (3) that the said
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disciplinary proceedings were in contravention of the
agreement arrived -at on May 11, 1966, and therefore, the
dismissal following such disciplinary proceedings amounted
to unfair labour practice; (4) that the orders of dismissal
were passed on charges including that of intimidation though
the misconduct of intimidation was not found proved by the
enquiry officer and hence the said orders were illegal; (5)
that to punish only three workmen when a large number of
workmen had taken part in staging the strike and in inciting
others to join it constituted victimisation; and (6) that
the findings of the enquiry officer were based on no
evidence or were perverse in that no reasonable body of
persons could have arrived at them on the evidence before
him.
The argument on which the first contention was based was
that the settlement dated December 23, 1964 was arrived at
between three parties, the management, the association and
the men, and that the association being the union registered
under the Trade Unions Act was an entity distinct from the
workmen. Under cl. 5 of the settlement it was the
association which was obliged to give four days’ notice if
it decided to resort to strike, go-slow tactics or other
coercive action. The said clause did not impose any such
obligation on the workmen. The workmen thus having no such
obligation and the said strike being a spontaneous one,
without any call for it from the association, it could not
be said to be in breach of the said settlement, and
therefore, would not fall under the mischief of s. 23 of the
Act, the first condition of which is that to be illegal
under s. 24 read with s. 23 it must be, in breach of -a
contract. Standing order 22 requires that participating in
a strike would be misconduct if it is in breach of some
provision of law. But as the strike was not in
contravention of s. 23, it would not constitute misconduct
under that standing order. Therefore, the charges against
the said three workmen were misconceived and the orders of
dismissal passed against them on the basis that they stood
established were bad. In our view this argument cannot be
sustained. The construction of cl. 5 of the settlement
suggested by Mr. Ramamurthi is contrary to (a) the tenor of
that settlement, (b) the provisions of the Industrial
Disputes Act under which a settlement arrived at between an
employer and a union representing the employees during
conciliation proceedings is binding not only on such union
but also the workmen whom it represents and (c) the
principles of collective bargaining recognised by industrial
law. The settlement was a package settlement by which the
management and the workmen, through their association,
arrived at certain terms in the presence of the conciliation
officer. The settlement, besides settling the demands
contained in the said charter of demands, sets out the
necessity of harmonious relations and of cooperation between
the
309
management and the workmen so as to promote higher and
better production. It was to achieve this object that
direct action on the part of either of them such as a strike
by the workmen and a lockout by the employer without notice
was prohibited. Evidently the provision for four days’
notice before any direct action was taken by either of them
was provided for so that during that period if. there was
any grievance it could be ironed out by negotiations. Cl. 5
of the settlement falls in two parts : (I) the substantive
part, and (2) the corollary thereof. The first part inter
alia provided that neither the association nor the
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management would resort to any direct action, such as
strike, go-slow tactics or lock-out or any such coercive
action without giving to the other a four days’ notice. The
second part provided an undertaking on the part of the
association to cooperate with the management, if there was
any strike by workmen without any call therefore from the
association, if the management were to take disciplinary
action against the workmen. If the construction of cl. 5
suggested by Mr. Ramamurthi were to be accepted it would
lead to a surprising result, namely, that though a strike at
the instance of the association required four days notice, a
strike by the workmen without any call from the association
would not require any such notice and that the settlement
left complete liberty to the workmen to launch a sudden
strike. Such a construction appears on the very face of it
contrary to the object and purpose of the settlement and
particularly cl. 5 which envisages a notice period of four
days to enable the parties to resolve a dispute before
direct action on its account is resorted to by either them.
The suggested construction is also untenable, for surely the
association irrespective of the workmen cannot by itself
resort. to any direct action. How can, for instance, the
association resort to go-slow tactics without giving a call
for it to the workmen ? It is obvious, therefore, that cl.
5 does not contemplate any dichotomy between the association
and the workmen as suggested by, Mr. Ramamurthi, besides
being repugnant to the principle that a settlement arrived
at by the association must be regarded as one made by it in
its representative character, and therefore, binding, on the
workmen. Therefore, although the settlement mentions in,
cl. 5 the management, workmen and the association, the
expression ’workmen’ therein was unnecessary, for, without
that expression also it would have been as efficaciously
binding on the workmen as. on the association. This
conclusion is strengthened by the fact that the settlement
mentions the management and the association, on behalf of
the workmen only as the parties thereto and the signatories
thereto also are only the representatives of the two bodies.
None of the workmen, nor any one separately representing
them affixed his signature to it. If a lighting strike
without notice is illegal under any provision of law (a
question which we shall presently consider standing order 22
would come into operation and starting or joining such a
strike and inciting others to
L 13 Sup.C.I,/69-6.
310
join it would amount to misconduct for which disciplinary
action by the management would be possible.
The next question is whether the management could validly
take disciplinary action against the workmen concerned in
respect ,of the said strike. The recitals of the said
settlement show that as a result of the association
presenting the said charter of demands negotiations between
the management and the association took place on the said
demands as also on certain proposals made by the management,
that on their failure conciliation proceedings took place in
the course of which the parties arrived at the said
settlement which, as aforesaid, was signed by the
representatives of the management and the association in the
presence of the conciliation officer. The settlement thus
was one under S. 12(3) of the Industrial Disputes Act and
rule 59 of the Rules made thereunder by the Government of
Mysore. It was to come into force as from January 1, 1965
and was to remain in force for three years and was
thereafter to continue to be in force until its termination
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by either side. It is clear from Part I thereof that the
object with which it was made was to promote harmonious
relations and cooperation between the company, the
association and the workmen so that the company may on the
one hand be able to achieve increased production and on the
other be in a position to afford maximum opportunity for
continued employment. To accomplish these aims it was
agreed that the company on its part should be managed on
sound and progressive lines and the association and the
workmen on their part should combat any wasteful practices
adversely affecting workmanship and production and assist
the management in apprehending persons responsible for acts
such as theft, sabotage and other subversive activities. As
cl. 5 of the settlement itself states it was "in order to
ensure continuation of smooth working" that the company and
the association agreed that in no case would either of them
resort to direct action such as lock-outs, strikes, go-slow
and other coercive action without four days, notice and that
should one or more workmen resort to any such direct action
without the approval of the association, the association
Would cooperate with the company in any disciplinary action
which the company would take against such workmen. Then
follows the agreement on the said demands of the workmen,
and the proposals made by the management in the details of
which it is not necessary to go, and finally, the agreement
that the parties would adhere to the code of discipline and
the grievance procedure annexed as annexure IV to the
-settlement. The said code also inter alia provided that
there should be no strike or lock-out without notice, that
neither party should resort to coercion intimidation,
victimisation or go-slow tactics, that they would avoid
litigation, sit-down and stay-in strikes and lock-outs and
would not -permit demonstrations which are: not peaceful or
rowdyism. Read
311
in the context of the other provisions of Part 1 of the
settlement of which it is part, cl. 5 was intended, to
prohibit (a) direct action without notice by or at the
instance of the association, and (b) strikes by workmen
themselves without the approval of the association. The
words "in no case" used in the clause emphasise that direct
action by either the party without notice should not be re-
sorted to for any reason whatsoever. There can be no doubt
that the settlement was one as defined by s. 2(p) of the
Industrial Disputes Act and was binding on the workmen under
s. 18 (3) of the Act until it was validly terminated and was
in force when the said strike took place. The strike was a
lightning one, was resorted to without notice and was not at
the call of the association and was, therefore, in breach of
cl. 5.
Could the management then take disciplinary action against
the concerned workmen in respect of such a strike ? Standing
order 22 enumerates various acts constituting misconduct.
Cls. 2, 3, 13 and 18 provide that striking either singly or
in combination with others in contravention of the
provisions of any Act, inciting any other workmen to strike
in contravention of any law, riotous or disorderly behaviour
or any act subversive of discipline and’ loitering within
the company’s premises while on duty or absence without
permission from the appointed place of work constitute
misconduct. The point is whether participation in and
incitement to join the said strike were in respect of a
strike which was in contravention of any Act or law.
Section 23 provides that no workman employed in an
industrial establishment shall go on strike in breach of
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contract and during the period in which a settlement is in
operation, in respect of any of the matters covered by such
a settlement. The prohibition against a workman going on
strike thus envisages two conditions; (a) that it is in
breach of a contract and (b) that it is during the period in
which a settlement is in operation and is in respect of any
of the matters covered by such settlement. The said
settlement was a contract between the company and the
association representing the workmen -and it was in
operation on May 11, 1966. But was it in respect of a
matter covered by the settlement ? Under s. 24 a strike is
illegal if it is commenced in contravention of s. 23.
Section 26 inter alia provides that any workman who
commences, continues or otherwise acts in furtherance of a
strike which is illegal under the Act shall be punished with
imprisonment for a term extending to one month or with fine
which may extend to Rs. 50 or with both. Section 27
provides punishment of a person who instigates or incites-
others to take part in or otherwise acts in furtherance of
an illegal strike, The strike envisaged by these two
sections is clearly the one which is illegal under s. 24
read with s. 23. A strike in breach of a contract during
the operation of a settlement and in respect of a matter
covered by that settlement falls under s. 23 (c). But
whereas s. 26
312
punishes a workman for going on an illegal strike or for any
act in furtherance of such a strike,, s. 29 lays down the
penalty for a person, not necessarily a workman, who commits
breach of a term of a settlement which is binding under the
Act. It is, therefore, an offence for any person on whom -a
settlement is binding under the Act to commit a breach
thereof and the legislature has viewed it to be a more
serious offence, for, it has a higher punishment of
imprisonment extending to six months than the punishment for
commencing etc. an illegal strike under s. 26. Thus,
commencing, a strike or acting in furtherance of it in
breach of a settlement binding on the -person who so
commences it or acts in its furtherance is an offence
punishable under s. 29.
It is clear that there is a distinction between a strike in-
visaged by s. 23 (c) in respect of a matter covered by a
settlement and a strike in breach of a settlement envisaged
by s. 29. That position was conceded by Mr. Gokhale for the
management. But his argument was that the strike in
question was, firstly, in respect of a matter covered by the
said settlement, namely, its prohibition without notice
while that settlement was in force and secondly that it was
in breach of that settlement, and consequently, it was
illegal both under s. 24 and s. 29. This contention does
not seem correct, firstly, because though an agreement not
to resort to a strike without notice would be the subject
matter of a settlement, a strike in contravention of such an
agreement is not in respect of any of the matters covered by
such settlement. Secondly, such a construction would mean
as if Parliament intended to provide two different
penalties, one under s. 26 and the other under s. 29, for
the very same offence, one higher than the other, an
intention difficult to attribute. The strike was in the
matter of the suspension of the said Shenoy pending a
domestic enquiry -against him, a matter which obviously was
not one of the matters covered by the said settlement. It
was, therefore, not a -strike illegal under s. read with s.
23(c). However, the strike was in contravention of cl. 5 of
the said settlement and that settlement being binding on the
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workmen concerned and in operation at the time was punish-
able under s. 29, and therefore, illegal under that section.
The question whether a strike in contravention of a similar
clause in a settlement was illegal arose in The Tata
Engineering and Locomotive Co. Ltd. v. C. B. Mitter & Anr.
(1) As in cl. 5 of the settlement before us, the settlement
there also provided that "in no case" would the parties
thereto resort to direct action such as lockouts, strikes,
go-slow and other direct action without four days’ notice.
The strike in question was commenced in respect of a demand
by a workman for a pair of gum-boots, a demand
(1) C.A.No. 633 of 1963, dec. on April 2,1964.
313
not covered by the settlement. It was common ground that
the strike would not fall within the ambit of s. 24 but the
-controversy was whether it was otherwise illegal, the
workmen’s contention being that it was not, as the said
clause against. a strike without notice applied only to one
declared for enforcing one or the other demands which formed
the subject matter of the settlement and since the strike
arose out of a matter not covered by the settlement, that
clause was inapplicable. This Court negatived the conten-
tion and held that the words "in no case" in that clause
meant a strike for whatever reason and though it was
conceded that it was not illegal under s. 24, it was,
nevertheless, held to be illegal not because it was in
respect of a matter covered by the said settlement but
because it was in contravention of the settlement which was
binding on the concerned workmen, which meant that the Court
held the strike to be illegal under s. 29. In our view the
decision in the present case must be the same. The strike
was illegal not under s. 24 but because it was in
contravention of the settlement binding on the workmen
concerned. Consequently, standing order 22 would apply and
participating in or inciting -others to join such a strike
would amount to misconduct for which ,the management were
entitled to take disciplinary action.
But against that position, the argument was that the
agreement dated May 11, 1966 under which the workmen called
off the strike also provided that no disciplinary action
would be taken against any workmen in respect of the strike
on that day and that therefore the proceedings taken against
the three workmen in violation of that agreement amounted to
unfair labour practice. The agreement was oral. According
to Bernard, Secretary of the association, the agreement *as
that (a) the charges and the suspension order passed against
the said Shenoy should be withdrawn (b) the company should
pay the wages for the 31 hours period ,of the strike
provided the workmen made good the loss of production during
that period, and (c) the management would take no action
against any one for going on strike. The evidence of
Martin, the company’s technical director, on the other hand,
was that the company agreed only not to punish the said
Shenoy and to consider paying wages for the hours of the
strike. The Labour Court on this evidence held that the
association failed to prove that the management had agreed
not to take action against any of the workmen in connection
with the strike though it may be that they might have agreed
not to victimise any workman for participating in the
strike. In fact, the management did not impose any penalty
against any workman for joining the strike, not even against
the three concerned workmen. This finding being purely one
of fact and the Labour Court having given cogent reasons for
it we would not interfere with it without the utmost
reluctance. We have been taken through the evidence and the
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correspondence between the
314
parties but we fail to see any error on the part of the
Labour Court in reaching that finding.
The next contention was that the orders of dismissal were
bad as they took into account the charge of intimidation of
the company’s officers although the enquiry officer had
found that that charge was not proved. The charge-sheets,
exs. M/4A, M/5A -and M/6A against the three workmen alleged
in express terms disorderly behaviour and intimidation. The
report of the enquiry officer against the said Vasudevan
clearly stated that the enquiry officer accepted the
evidence of the management’s witnesses and that on that
evidence -all the charges against him stood proved. While
summarising those charges, he, no doubt, did not in so many
words use the expression "intimidation". But the evidence
which he, as aforesaid, accepted, was that Vasudevan along
with other workmen entered the G. 2 department at about 3
P.M. on that day and thumping his hand on the table of the
said Lakshman Rao threatened that officer in the following
words : "now I am in the forefront of the crowd]. You
cannot do anything. You ask your people to come out and you
also come out. Otherwise you can see what we can do for you
now". The said Lakshman Rao had also deposed that he was
surrounded by the workers who started pushing and pulling
him. The evidence of other officers was that as the crowd
which forced its way into this department got unruly they
were also forced to leave their places of work. The
evidence against Prabhakar was that he too was in the fore-
front of that crowd which squeezed Lakshman Rao and some
members thereof inflicted kicks on him. Similarly, there
was the evidence of one Raja, the assistant personnel
officer, and others that Sandhyavoo was one of those in the
forefront of that crowd. According to Raja. Sandhyavoo
tried to lift him from his seat with a view to force him to
leave his table and finding that the crowd had become
restive he left his place. Acceptance of this evidence by
the enquiry officer must necessarily mean acceptance of the
version of these officers that they were intimidated by the
crowd which forced its way into their department led by
these three workmen. Though the enquiry officer has not, in
so many words, used the expression ’intimidation’ his
finding of disorderly behaviour must be held to include acts
of intimidation.
Lastly, were the orders of dismissal against the three
workmen acts of victimisation on the part of the management
when admittedly a large number of workmen had staged the
strike and also incited others to join that strike ? The
orders against the three workmen being identical in terms we
take the orders passed against Vasudevan as a specimen.
That order sets out four acts of misconduct by him; (1)
striking or stopping work, (2) inciting, (3) riotous and
disorderly behaviour and (4) loitering -about in the
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company’s premises. Though each one of these acts,
according to the order, was misconduct punishable with
dismissal, the order states that so far as acts 1 and 4 were
concerned, the management. did not wish to take a serious
view of them as a large number of "misguided" workmen had
stopped work and left their places of work without
permission. The management, therefore, took action only in
respect of acts failing under cls. 3 and 13 of standing.
order 22 evidently for the reason that they considered
incitement, intimidation and riotous and disorderly
behaviour as "very grave in nature". We do not think that
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in taking this view the, management discriminated against
the three workmen concerned as against. the rest or that
they dismissed them with the object of victimising. The
evidence in the enquiry clearly disclosed that when the
crowd forced its way into the G. 2 department it was led by
these three workmen, all of whom were in the forefront
thereof and two of them had defiantly forced the officers to
leave their tables. One. of them had threatened as to what
he and the others who were behind him in that crowd could do
to him if he did not comply and the other had tried even to
lift another officer from his chair to compel him to leave
his place of work. In these circumstances. the management
cannot be blamed if they took a serious view of these acts
of the three workmen concerned, who had taken up their
position in the forefront of that crowd, a position
indicative of their having led, that crowd into that
department and having, acted as its leaders. An act of
discrimination can only occur if amongst those equally
situated an unequal treatment is meted out to one or more of
them. Having been found to be the leader& of the crowd,
action taken against them cannot on any principle be
regarded as discriminatory or unequal. The decision in Burn
& Co. Ltd. v. Workmen(1) relied on by Mr. Ramamurthi has
no, bearing on the facts of this case and cannot assist him.
Once a misconduct graver than that of the rest was found
proved against these three workmen and for which the
punishment is dismissal, victimisation cannot legitimately
be attributed to the management.. It is relevant in this
connection to remember that so far as their participation in
the strike and loitering about were concerned, no,, action
was taken against these three workmen on the ground that
those acts were common with those of the rest of the
workmen. In view of these facts it is not understandable
how the impugned’ orders of dismissal could be characterised
as acts of victimisation. It is also not possible to say
that the finding of incitement and disorderly behaviour of
these three workmen was perverse or such, as no reasonable
body of persons could come to on the evidence on record on
the ground only that the others also were guilty of those
acts. For, there would be nothing wrong if those who misled
or misguided other workmen were selected for disciplinary
action
(1) [1959] 1 L.L.J. 450.
and not the victims of their persuasion, who in following
their A precept did similar acts.
In our judgment the orders of dismissal, based on the
findings in the domestic enquiry which did not suffer from
-any infirmity, could not be successfully impeached, and
therefore, the Labour Court was right in upholding them.
The appeal fails and is dismissed. There will be no order
as to costs.
Appeal dismissed.
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