M S Haldyn Glass Limited and Another Vs Maharashtra General Kamgar Union and Others - Citation 1144747 - Court Judgment

Judgment:

1. As substantially common questions of law and fact arise in these batch of Petitions, they are being disposed of by this common judgment and order.

2. All these Writ Petitions take exception to the Awards made by the 1st and 10th Labour Courts, Mumbai. The Labour Courts have denied the relief of reinstatement to the dismissed workmen. However, compensation / back wages in the range of Rs.2 Lacs to Rs.6 Lacs came to be awarded to most of the workmen involved in the dispute.

3. The Writ Petition No.1892 of 2008 has been preferred by the Union objecting to denial of reinstatement or in the alternate urging that the compensation / back wages awarded is not commensurate. The rest of the Writ Petitions have been preferred by the employer, contending that no relief whatsoever ought to have been granted in favour of the union / workmen.

4. For the sake of convenience, the particulars of the References, workmen involved therein, relief granted etc. are set out in the chart beneath :-

1st LABOUR COURT:

Sr. No	W.P. No.	Reference No.	Workmen concerned	Relief granted (compensation)
1.	972/2008	802/1988	1. Vasant Shripat Mahadik2. Sidhayee Jagnu (examined) 3. Sabhajeet (examined) 4. Babaji Prasad 5. Asappa Nagappa	1. Unclear2. Rs. 6 Lacs 3. Rs. 6 Lacs 4. unclear 5. unclear
2.	973/2008	798/1988	1. Prakash Ramchandra2. Ramlakhan Sadhu 3. Prabhakar Devu (examined) 4. Narsaappa Sayappa 5. Ganpat Shivram	1. Unclear2. Unclear 3. Rs.6 lacs 4) Unclear 5) Unclear
3.	974/2008	830/1988	1. Dashrath Vithal Kharat2. Jahid Hussain (examined) 3. Ramshankar Sharma 4. Abdul Ghani 5. Ramkripal 6. Ramkumar Varma (exaimed)	1. unclear2. Rs. 5 Lacs 3. unclear 4. unclear 5. unclear 6. Rs.6 Lacs
4.	975/2008	811/1988	1. Balkrishna Hanumanta Rane2. Mohammed Sharif Sarju (examined) 3. Bhimrao Maruti	1. Rs.2 Lacs2. Rs. 6 Lacs 3. unclear
5.	976/2008	801/1988	1. Mohan Methasaram Yadav2. Parasnath Bhagwati Tiwari 3. Kundanlal G. 4. Budhiram B. 5. Raj Bahadur Singh 6. Mohammd Ayub 7. Lalji Ramchandra	1. unclear2. unclear 3. Rs. 3 Lacs 4. unclear 5. Rs. 3 Lacs 6. unclear 7. unclear
6.	977/2008	797/1988	1. Mohan Bapusaheb Raje Shirke (examined)2. Purshottam Bapusaheb Raje Shirke (examined) 3. Laxman Shivram Ghat (examined)	1. Rs. 3 Lacs2. Rs. 3 Lacs 3. Rs.3 Lacs
7.	979/2008	809/1988	1. Jaggu Shyamlal (examined)2. Kishor Bhaggu Rane 3. Santosh Nihal Patil 4. Tukaram Ganpat 5. Sonu Parshuram (examined) 6. Limbaya Sainath 7. Pandurang Aysu	1. Rs. 6 Lacs2. unclear 3. unclear 4. unclear 5. Rs.6 Lacs 6. unclear 7. unclear
8.	1095/2008	800/1988	1. Mohammed Farid2. Pyarelal 3. Nasir Ahmed (examined) 4. Ramnath Ramkishan 5. Balaram Tukaram 6. Uttam Tukaram (examined)	1. unclear2. unclear 3. Rs. 5 Lacs 4. unclear 5. unclear 6. Continuity in service from 24.6.1986 till 21.6.2006
9.	1096/2008	810/1988	1. Nagurao Gyanba (examined)2. Sabir Ali (examined) 3. Asgar Hussain	1. Rs. 4 Lacs2. Rs. 4 Lacs 3. Rs. 3 Lacs
10.	1097/2008	799/1988	1. Manohar Shinde2. Babulal Choudhary 3. Anand Jayram (examined)	1. unclear2. unclear 3. Rs.4 Lacs

10th Labour Court

Sr. No	W.P. No.	Reference No.	Workmen concerned	Relief granted (compensation)
1.	978/2008	813/1988	1. Shivaji Suryabhan2. Amritlal Ram Avtar 3. Maghum Prasad Girdharilal 4. Tulsi Ram achai Sharma 5. Dilip Tukaram (examined)	1. Rs. 2 Lacs2. Rs. 2 Lacs 3. Rs. 2 Lacs 4. Rs. 2 Lacs 5. Rs.4 Lacs
2.	1083/2008	805/1988	1.ChandrakantSakharamMayekar 2. Manohar Kaluram Mohite 3. Sheeth Besant 4. Mahango Gopi 5. Rukanna Yallappa	1. Rs. 2 Lacs2. Rs. 2 Lacs 3. Rs. 2 Lacs 4. Rs. 2 Lacs 5. Rs. 2 Lacs
3.	1084/2008	807/1988	1. Bhimayya Balappa2. Baban Sakharam 3. Kishan Tukaram 4. Haridas Vithal 5. Dukhiram Ram Avtar * The Labour Court has awarded Rs.2 Lacs to one Rajavandi Subaiya	1. Rs. 2 Lacs2. Rs. 2 Lacs 3. Rs. 2 Lacs 4. Rs. 2 Lacs 5. Rs. 2 Lacs
4.	1085/2008	804/1988	1. Banarasi Rahunath Pasi2. Narayan Waman	1. Rs. 2 Lacs2. Rs. 2 Lacs

5. The employer Haldyn Glass Limited had established an industry for the manufacture of glass wares in Mumbai and employed close to about 600 workmen in various capacities. It is the case of the employer that the workmen involved in the present dispute participated in an illegal strike between the period 1984 and 1986. At some stage, the employer did offer the workmen an opportunity to resume duties upon furnishing of bond / undertaking of good conduct. Most of the workmen furnished such bond / undertaking and resumed duties. However, the workmen involved in the present dispute declined. Accordingly, they were placed under suspension and domestic enquiry held into the charges levelled against them. Based upon the enquiry report, such workmen came to be dismissed from services.

6. In contrast, it is the case of the workmen involved in the present dispute, that on account of their aligning with the Maharashtra General Kamgar Union led by Dr. Datta Samant, the employer commenced a tirade of harassment and victimization against them. The workmen, though desirous of working, were illegally locked out. Only such of the workmen who consented to give up the membership of the union and furnish bonds / undertakings, were permitted to resume duties. The domestic enquiry held against the workmen was farcical, in as much as the Enquiry Officer was the junior colleague of the Advocate retained by the employer on regular basis. The enquiry was in breach of principles of natural justice and fair play. In any case, the findings recorded in the enquiry report, were totally perverse. The dismissal from services, was therefore ex facie illegal and unjustified.

7. In the wake of dismissals, the workmen through their union raised industrial disputes. The same were admitted to conciliation. Conciliation proceedings ended in failure and finally the Appropriate Government, in exercise of powers conferred by Section 10(1)(c) of the Industrial Disputes Act, 1947 (said Act) made References to the 1st and 10th Labour Courts, as indicated in the chart above.

The terms of Reference, read as follows :

œthat the following workers (names given below) should be reinstated with full back-wages and continuity of services with effect from 24.6.1986?

8. Ideally, the employer ought to have held a separate domestic enquiries in relation to each of the workmen involved in the dispute. However, the workmen were grouped, each group comprising 2 to 7 workmen and separate domestic enquiries were held group wise. Possibly, on account of this reason, separate References came to be made to the Labour Courts. Again, ideally References ought to have been made to or decided by any one Labour Court. However, almost ten references came to be made to the 1st Labour and four references, to the 10th Labour as is clear from the chart above. There is some variance between the Awards made by the 1st and 10th Labour Courts, which to some extent has compounded the difficulties in resolving the issues raised in the present batch of Writ Petitions.

9. The 1st Labour Court, in its Part-I Awards, has ruled that the domestic enquiry held by the employer was neither fair nor proper. The employer, was then permitted to adduce evidence in support of the charges against the workmen. Upon consideration of the same, the 1st Labour Court has recorded conclusions that the charges levelled against the workmen have not been proved and consequently the penalty of dismissal from services was neither legal nor justified. However, accepting the employer's contention that the industry has been closed down since the year 2006, the 1st Labour Court declined relief of reinstatement, but awarded compensation ranging between Rs.2 Lacs to Rs.6 Lacs in respect of most of the workmen involved in the References before it. This is again clear from the chart above.

10. The 10th Labour Court, on the other hand in its Part-I Awards, ruled that the domestic enquiry held by the employer was fair and proper. However, on the basis of the material before it, came to the conclusion that the workmen had involved themselves in a minor misconduct of participating in a strike and in absence of any evidence as to violence or subversive activities, the penalty of dismissal from service was grossly disproportionate. On basis of such conclusion, the 10th Labour Court awarded most of the workmen compensation at the rate of Rs.2 Lacs per workmen. One of the workmen, Dilip Tukaram, was however awarded compensation of Rs.4 Lacs, possibly on account of his having deposed on the aspect of gainful employment. This is again indicated in the chart above.

11. In the References, when adjudication had reached a fairly advanced stage, the employer raised and pressed the issue of the maintainability, inter alia, on the ground that the Union which had raised the disputes did not represent the majority of the workmen in the industry and consequently what was referred, was not an industrial dispute within meaning of Section 2(k) of the said Act. This objection was upheld by the Labour Court vide an Award dated 19.09.2003. The Union preferred Writ Petition No. 2680 of 2004, which was allowed by a learned Single Judge of this Court vide judgment and order dated 03.12.2004. In Appeal No.902 of 2005 preferred by the employer, the Division Bench of this Court declined interference but reserved liberty to the employer to raise the issue of maintainability, in case, the ultimate Awards that may be passed by the Labour Courts go against the employer and the employer chooses to question the same by preferring Writ Petitions before this Court. The Appeal Court, in its judgment and order dated 21.10.2005 made it clear that the Single Judge taking up such Writ Petitions, will then consider the issue of maintainability of Reference without being influenced by the observations made in the judgment and order dated 03.12.2004 passed in Writ Petition No.2680 of 2004. Armed with such liberty, the employer has re-raised the issue of maintainability of References in these batch of Writ Petitions and the same is required to be considered, uninfluenced by the judgment and order dated 03.12.2004 passed in Writ Petition No. 2680 of 2004.

12. In the light of contradictory Awards made by the 1st and 10th Labour Courts, normally a remand for fresh adjudication by any one Labour Court would have been a preferred option. However, it must be noted that the dispute relates back to the years 1984 and 1986. The industry is said to have closed down in the year 2006. The precise fate of the workmen involved in the disputes is not known, but it is not difficult to imagine the same, either. Remand under these circumstances would perhaps constitute a cure more harmful than the disease itself. To require the parties to turn back and revisit the tormented times between 1984 and 1986 after an advance of over three decades, seems to this Court, hardly any realistic or pragmatic option. In these circumstances, the Petitions shall have to be decided on the basis of material on record, keeping in mind the legal principles which inhere industrial adjudication and the limits imposed upon this Court in the exercise of power of judicial review.

13. As observed earlier, it is the case of the employer that the workmen struck work in breach of law and without any shred of justification. In contrast, it is the case of the workmen that the employer was opposed to the workmen aligning with the Maharashtra General Kamgar Union and in order to break the unity of the workmen, the employer practised victimization and indulged into unfair labour practices. The workmen were illegally and unjustifiably locked out. Only such of the workmen who agreed to relinquish membership of the union and furnish bonds/undertakings of good conduct, were permitted to resume duties. It is the case of the workmen that they had never proceeded on any illegal strike, but rather they were prevented from resuming duties despite attempts on their part to do so.

14. Both, the employer and the union preferred complaints before the Industrial Court invoking the provisions of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (MRTU). The employers Complaint being ULP No. 394 of 1984 and the union's Complaint being ULP No.407 of 1984. By common order dated 23.06.1986, the Industrial Court allowed Complaint ULP NO.394 of 1984 but dismissed Complaint ULP No. 407 of 1984. It is the case of the workmen that soon after the dismissal of their Complaint by order dated 23.06.1986, they attempted to once again resume duties. However, the employer placed them under suspension, issued charge sheets, held farcical domestic enquiries and finally dismissed them from services.

15. In the backdrop of the aforesaid facts and circumstances, Mr. Vaidya, the learned counsel for the employer made the following submissions on behalf of the employer :

(A) The References, in the present case relate to Section 10(2) of the said Act which contemplates reference only upon an application by a recognized union or upon satisfaction of the Appropriate Government that persons applying for Reference, represent the majority of each party. In the present case, the union was neither recognized union nor did it represent the majority of the workmen in the employers undertaking. The Reference was consequently incompetent. In any case, and without prejudice, Mr. Vaidya submitted that where any union raises a dispute, the same has to relate to an actual industrial dispute as defined under Section 2(k) of the said Act. The validity of such dispute cannot be sustained by resort to the provisions of Section 2-A of the said Act, which concern 'deemed industrial dispute'. Accordingly, the References in the present cases were totally incompetent. In support of such plea, Mr. Vaidya placed reliance upon the decisions in case of Bombay Union of Journalists vs. The Hindu (1963 AIR (SC) 318), State of Punjab vs. Gondhara Transport Co.,(1975 AIR (SC) 531 Titagarh Jute Factory vs. Sriram Tiwari (1979 LIC page 513) and Chemicals and Fibres of India vs. D.G. Bhoir (1975 AIR (SC) 1660).

(B) The Part-I Awards made by the 1st Labour Court are illegal and perverse. In making such Awards, the 1st Labour Court merely adverted to some alleged breaches of procedure or alleged breaches in compliance with the principles of natural justice. However, the 1st Labour Court failed to advert to the issues of the consequent prejudice. For this reason itself the part-I Awards made by the 1st Labour Court are unsustainable and deserve to be interfered with. In support of such plea, Mr. Vaidya placed reliance in the cases of State Bank of Patiala and Ors. v. S.K. Sharma (1996 II CLR page 29(SC), National Organic Chemical Ltd. v. Pandit Ladaku Patil(2008 (3) CLR Page 716), Canara Bank and Ors. v. Debasis Das and Ors.,(2003 (4) SCC page 557) Divisional Manager, Plantation Division, Andaman and Nicobar Islands v. Mannu Barrick and Ors.(2005 (2) SCC page 237) and Om Prakash Mann v. Director of Education (Basic) and Ors.(2006) 7 SCC page 558)

(C) Finally Awards made by both, the 1st and 10th Labour Courts are illegal and perverse. On the basis of the material on record, no conclusion was possible that the workmen have committed no misconduct at all or that they have committed only a minor misconduct. The penalty imposed in the present case was proportionate, particularly since the issue of penalty is within the managerial domain. The Labour Court failed to appreciate that out of 600 workmen in the industry, only handful of workmen including those involved in the present dispute failed to submit undertaking / bond of good conduct. In the circumstances, the imposition of penalty of dismissal from services upon them was by no means disproportionate or in any case grossly disproportionate. In this regard, Mr. Vaidya placed reliance upon the judgment in the case of North -Eastern Karnatka RT Corporation vs. Ashappa,(2006 (5) SCC page 137) LIC of India vs R. Dhandapani (2006 (13) SCC page 613)and Government of India and Anr. vs. George Philip (2006 (13) SCC page 1).

(D) The Labour Courts were duty bound to place greatest emphasis upon the order dated 23.06.1986 passed by the Industrial Court under the provisions of MRTU. This order, in terms had declared the strike resorted to by the workmen as 'illegal'. The order dated 23.06.1986 had not been challenged by the workmen/union. Accordingly, the same had attained finality and was virtually binding upon the Labour Court in deciding References under the said Act. In this regard, reliance was placed upon the provisions contained in Section 59 of the MRTU and the decision in the case of UshaBreco Mazdoor Sangh vs. Management of Usha Breco Limited and anr.(2008 (5) SCC Page 554) (E) Finally, most of the workmen involved in the dispute did not themselves depose before the Labour Court on the aspect of gainful employment. In the circumstances, an adverse inference ought to have been drawn against them and no compensation whatsoever ought to have been awarded in their favour.

16. Mr. Ganguli, learned counsel appearing for workmen / union countered and contested the submissions made by Mr. Vaidya and proceeded to make the following submissions in support of the workmen / union's case:

(A) The References in the present cases are not relatable to Section 10(2) of the said Act but the same are relatable to Section 10(1) (c) of the said Act. This issue stands decided against the employers by the rulings in the case of Mumbai Kamgar Sabha vs. Abdullabhai Faizullabhai (AIR 1976 SC 1455) and National Asphalt Products Construction Co. vs. N.M. Kothari and ors.( 1977 Lab I.C. 1300 (Bom. H.C.)

(B) The findings of the 10th Labour Court that domestic enquiries were fair and proper are vitiated by perversity and non application of mind. In particular, the 10th Labour Court has not even adverted to the issue of perversity of findings.

(C) Even if domestic enquiries are held to be procedurally fair and proper, the Labour Courts in exercise of powers under Section 11-A of the said Act are duty bound to address themselves to the issue of perversity of findings in the enquiry report. The enquiry reports in the present case almost entirely proceeded on the basis of order dated 23.06.1986 passed by the Industrial Court under MRTU. In the case of KanakIndustries vs. General Labour Union (2007 111 LLJ 327) , a Division Bench of this Court has ruled that findings / declarations made by the Industrial Court under the provisions of MRTU are only in the context of limited jurisdiction under the MRTU. Such findings / declarations can never be relied upon propriovigore.

(D) There is no material on record which establishes that the industry has closed down since 2006. The findings on this aspect are in the nature of surmises and conjectures. The Labour Court, therefore, ought to have granted the relief of reinstatement with all consequential benefits or in any case substantially additional compensation ought to have been awarded as compensation in lieu of reinstatement. The denial, is contrary to well settled provisions in industrial adjudication.

17. The first issue to be determined relates to the very maintainability of the References. In this regard, it is necessary to refer to the provisions contained in Section 10 of the said Act, the relevant extracts of which are transcribed below for the sake of convenience:

œ10. Reference of disputes to Boards, Courts or Tribunals.- (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing

(a) ......

(b) .......

(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

Provided ......

Provided .......

Provided ......

(1-A) .......

(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, Labour Court, Tribunal, or National Tribunal, the Appropriate Government, on such application being made by a Union recognized for any undertaking under any law for the time being in force, and in any other case, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.?

(Emphasis supplied)

18. Mr. Vaidya's submission that the present References relate to Section 10(2) of the said Act is clearly misplaced. The Reference orders, in terms refer to Section 10(1)(c) of the said Act. Even otherwise, from the circumstances attendant, it is clear that the References relate to Section 10(1)(c) and not to Section 10(2) of the said Act. The scope and import of the said two sub sections is quite distinct and distinct. The very phraseology employed by the legislature in the two sub sections will bear out the differences.

19. The crucial words and phrases like œon such application being made by a Union recognized for any undertaking ¦............? œif satisfied that the persons applying represent the majority of each party? œshall make reference accordingly? as appearing in Section 10(2) of the said Act are conspicuous by their absence in Section 10(1) of the said Act. In fact, it is pertinent to note that reference to to 'recognisedUnion' did not appear even in section 10(2) of the said Act as originally enacted. These words have been introduced in the said Act, in so far as its applicability to State of Maharashtra is concerned by the MRTU. This amending Act, however, has left the provisions contained in Section 10(1) of said Act untouched. Therefore, to introduce the concept of 'recognisedUnion' into Section 10(1)(c) of the said Act, would amount to doing violence, not just to the text of the sub section, but also to the legislative intent behind the enactment.

20. There is considerable difference between the scope and import of Section 10(2) and Section 10(1)(c) of the said Act. Section 10(2) of the said Act contemplates parties to an industrial dispute applying in the prescribed manner, whether jointly or separately, for a reference of the dispute to the appropriate forum. This means and implies that the reference as contemplated under Section 10(2) of the said Act is essentially or at least to a great extent consensual reference as between the parties to the industrial dispute. There does not appear to be any discretion vested in the appropriate Government to refuse a reference under Section 10(2) of the said Act, once it is established that the predicates prescribed have been fulfilled. The legislature has employed the phrase 'shall make the reference accordingly' in Section 10(2) of the said Act unlike the phraseology employed in Section 10(1), which reads 'it may at any time ¦.................refer the dispute?. It is in this context that the requirements that a recognised union or persons representing majority of each party seek a reference have been prescribed. In the present case, since the references have been made in exercise of powers conferred by Section 10(1)(c) of the said Act, it is impermissible to read into such exercise any requirements prescribed under Section 10(2) of the said Act.

21. The submission that no reliance can be placed upon the provisions contained in Section 2A of the said Act for the purposes of sustaining the validity of the references in question, is hyper technical, particularly in the context of industrial adjudication. In the case of Mumbai Kamgar Sabha (supra), the Supreme Court observed that in a battle between the workers and employers, the Union represents, as a collective noun, the numerous workmen whose presence is indubitable in the contest, though formally invisible on the party array. The substance of the matter is obvious and formal defects, in such circumstances, fade away. The Supreme Court went on to observe that the Court was not dealing with a civil litigation governed by the Civil Procedure Code, but with an industrial dispute where the process of conflict resolution is informal, rough and ready and invites a liberal approach. Procedural prescriptions are handmaids, not mistresses, of justice and failure of fair play is the spirit in which Courts must view processual deviances.

22. Nevertheless, reference to provisions contained in Section 2(k) and Section 2A of the said Act, may not be out of place. The two provisions read as under:

Section 2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labor, of any person;

Section 2-A - Dismissal, etc., of an individual workman to be deemed to be an industrial dispute 2[(1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any Union of workmen is a party to the dispute..

3[(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1)..

23. The definition of œindustrial dispute? contained in Section 2(k) of the said Act makes no reference to Union of workmen or other workmen in relation to raising of an industrial dispute. However, the interpretation placed upon the term by the Courts required that an industrial dispute must be a collective dispute, a dispute in which the workmen have community of interest as opposed to a mere individual dispute. It was, however, realised that such an interpretation had the potential of causing undue hardships in cases of disputes arising out of dismissal, discharge, retrenchment or termination of services of an individual workman, particularly, where the Union of workmen or other workmen were not prepared to support or espouse the cause of any such individual workman. The legislature, therefore, stepped in by way of introducing Section 2-A in the said Act. Section 2-A of the said Act provides that any dispute arising out of the dismissal, discharge, retrenchment or termination of the services of an individual workman shall be œdeemed to be an industrial dispute?, notwithstanding that no other workmen or any Union of workmen is a party to the dispute. Thus, it is clear that the very purpose of enactment of Section 2-A was too widen the definition of 'industrial dispute' over that contained in Section 2(k) of the said Act. Therefore, whether the dispute referred to in the order of reference is an industrial dispute within the meaning of clause 2 (k) or a deemed industrial dispute within the meaning of Section 2-A of the said Act, makes no difference, either to the power of the appropriate Government to refer the same to the Tribunal/Court or for that matter the competence of the Tribunal/ Court to adjudicate upon the same. At the highest, the difference before the Tribunal/Court may be processual and not substantive. Therefore, as long as the dispute is one arising out of dismissal, discharge, retrenchment or termination of a workman, it will constitute an 'industrial dispute' capable of being referred to Tribunal/Court for adjudication in terms of Section 10 of the said Act. The source of power to make a reference of an industrial dispute for adjudication is found in Section 10 of the said Act. This source does not require the appropriate Government to state in the reference order whether it relates to an industrial dispute under Section 2(k) or a deemed industrial dispute under Section 2-A of the said Act. As long as the appropriate Government is satisfied as to the existence or the apprehension of an industrial dispute, reference is certainly competent. The legislative intent behind introduction of Section 2A of the said Act, certainly was not to restrict the powers of the appropriate Government in the matter of making reference. Rather, the intent was to relieve the appropriate Government from the fetters that may have been imposed upon it on account of judicial interpretation of the term œindustrial dispute? as defined in Section 2(k) of the said Act.

24. The statement of objections and reasons contained in the bill for introduction of Section 2-A in the said Act will bear out that the prime intention in enactment of Section 2-A was to enable cases of individual dismissal and discharges to be referred to the adjudication under the said Act, notwithstanding, the circumstance that such dispute may not have been sponsored by Union or number of workmen. Relying upon the very same provisions, it would impermissible to impose or introduce any restrictions upon the powers of appropriate Government to make a reference.

25. In the case of National Asphalt Products Construction Co. (supra) , a similar submission raised on behalf of the employer was turned down by the Division Bench of this Court by observing thus:

œ8. We are further of the view that even assuming that the dispute was not supported by any of the other workmen, it was still capable of being referred to adjudication under S. 10 of the said Act, since it was an industrial dispute within the meaning of S. 2-A of the said Act. The contention raised by Mr. Ramaswami relates more to the from than to the substance of the dispute, because after the amendment of the Industrial Disputes Act by addition of S. 2-A, which came into force on 1-12-1965, the distinction between a dispute or difference arising out of discharge, dismissal, retrenchment or termination of the service of an individual workman in any other manner, raised by the workman concerned and that raised on his behalf by other workmen, has no significance, so far as its reference and adjudication is concerned. It must be remembered in this connection that neither clause (k) of S. 2 nor any other provision in the said Act mentions a Union of workmen or other workman in connection with the raising of a dispute. It is only the interpretation placed by the Courts on the definition "industrial dispute" given in the said clause (k) which requires that the dispute to be an industrial dispute should be a collective dispute and not an individual dispute. This was necessary because disputes between a workman or workmen on the one hand and the employer on the other, for the resolution of which the Act has been placed on the Statute book, may be of various kinds. Such disputes may relate to the general conditions of service in which all the workmen are interested or it may relate to the termination of service of a workman or workmen, in which others are not interested. If a dispute relating to the general conditions of service is allowed to be raised by an individual workman, that would defeat the very purpose and the object of the said Act, and it was to prevent this, that although the Act did not in so many words state so, the definition of the expression "industrial dispute" in the said clause (k) was interpreted to mean collective dispute espoused by a substantial number of workmen, as distinguished from individual dispute, unsupported by other workmen. Since this definition of industrial dispute was likely to lead and did lead to hardship in cases of disputes of industrial workmen arising out of termination of their services, it was necessary to make provision for raising of such disputes by individual workman, although the same were not supported by other workmen. It was to meet this need that S. 2-A was introduced in the said Act. It must also be remembered in this connection that by the said S. 2-A, what an individual workman is allowed to raise as an industrial dispute is only a dispute arising out of the termination of his services by either of the various modes. He cannot raise any other dispute as an industrial dispute. This being so, all that was done by S. 2-A was to widen for the purpose and to the extent discussed above the definition of "industrial dispute" given in clause (k) of S. 2 of the said Act. Therefore, whether the dispute referred to in the order of reference is an industrial dispute within the meaning of clause (k) of S. 2, or S. 2A of the said Act, is of no consequence so far as the power of the Labour Court to adjudicate the same in service of concerned. In one case it will be the workmen of an employer collectively who will be a party to the dispute and in the other case, it will be the individual workman or workmen concerned. So long as the dispute is one arising out of the termination of service of an employee in one of the various manners, it will constitute an industrial dispute capable of being referred to adjudication under S. 10 of the said Act.

9. The source of power to make the reference of an individual dispute for adjudication lies in S. 10 of the said Act. There is no provision in S. 10 which requires the Government to mention, while making the reference that it is doing so in connection with an industrial dispute as defined in S. 2(k) or S. 2-A of the said Act. Hence, a mere absence of reference either to S. 2(k) or S. 2-A of the said Act in the order of reference will not go to show that it is not an industrial dispute within the meaning of either of the two provisions. Nor is the order of reference assailable on the ground that it does not indicate whether the dispute referred is under one or the other of the two provisions, since the law does not require the Government to do so. If a question does arise as to whether a dispute is one as defined under S. 2(k) or S. 2-A, it is for the adjudicating authority to ascertain the same from the material on record.

10. For all the aforesaid reasons, we are of the view that there is no substance in the preliminary point raised on behalf of the petitioner-company. We are in agreement with the finding given by the Labour Court, for the reasons stated above, that what was referred to it for adjudication was an industrial dispute within the meaning of clause (k) of S. 2 of the said Act, as it was espoused by the other workmen of the petitioner-company. We are further of the view that for the purpose of adjudication of the dispute, it is immaterial whether the dispute was one as defined under S. 2(k) or S. 2A of the said Act. It is for this reason that we have also not been able to understand the purpose for which the petitioner-company was advised to raise the said preliminary point.?

26. The reliance by Mr. Vaidya upon the authority in the case of Chemicals and Fibres of India Limited (supra), is misplaced. The facts and circumstances in the said case are totally at variance with the facts and circumstances of the present case. The question for consideration in the said case was whether when a reference is pending before the labour Court in respect of a matter falling under Section 2-A, any strike by other workers would be legal in the light of provisions contained in Section 23 of the said Act. In the light of the provisions contained in Section 2(k), 2-A and 23 of the said Act, the Supreme Court ruled that pendency of a dispute between an individual workman and the employer, does not attract under Section 23 of the said Act. Thus the phrase 'during the pendency of the proceedings' appearing in Section 23(b) of the said Act were interpreted in the context to mean the pendency of proceedings in relation to an industrial dispute espoused by a Union of workmen or number of other workmen in the establishment and not to any proceedings arising out of an individual dispute between a workman and the employer. Thus, in the case of Chemicals and Fibres of India Limited (supra), the Supreme Court was called upon to interpret the provisions of Section 23(b) of the said Act contextually. Position in the present case is totally at variance with the fact situation as obtained in the said case.

27. The rulings in the cases of Bombay Union of Journalists (supra) and State of Punjab v. Gondhara (supra) are clearly distinguishable, inasmuch as reference in the said cases came to be made even prior to introduction of Section 2-A of the said Act. The decision of the learned Single Judge of the Calcuatta High Court in the case of TitagarhJute Factory (supra) is in conflict with the decision of the Division Bench of this Court in the case of National Asphalt Products Constructions Co. (supra).

For the aforesaid reasons, I am unable to see any merit in the contention of the Mr. Vaidya as to maintainability of references.

28. The second issue, which arises for consideration concerns the legality and fairness of the domestic enquiry held by the employer for enquiry into the charges leveled against the workmen involved in the references. For this purpose, Mr. Vaidya handed in two sets of enquiry proceedings which form the subject matter of Reference (IDA) No.811 of 1988 “ Writ Petition No.972 of 2008 decided by the 1st Labour Court and in Reference (IDA) No.813 of 1988 “ Writ Petition No.978 of 2008 decided by the 10th Labour Court. Mr. Vaidya assured me and Mr. Ganguli did not seriously dispute that the two sets of proceedings are representative of the rest of the proceedings, which form the subject matter of the remaining References/Petitions. There is no substantial difference between the two sets of enquiry proceedings themselves. In these circumstances, as observed earlier ideally all references ought to have been decided by any one Labour Court, so that there would be no occasion for any inconsistent findings on the issue of legality and fairness. However, since remand at this point of time is not a pragmatic option, the issue of legality and fairness of the enquiry shall have to be examined, though within the restrictive parameters of judicial review as applicable to proceedings under Article 226 and 227 of the Constitution of India.

29. The 1st Labour Court has ruled that the domestic enquiries were neither fair nor proper and the 10th Labour Court has ruled that enquiries were fair and proper. Mr. Vaidya is right in his submission that the manner and appreciation as reflected in Part-I award made by the 10th Labour Court is a shade better than Part-I award made by the 1st Labour Court.

30. The 1st Labour Court has obviously failed to appreciate that the burden of establishing that enquiry was not fair and proper is upon the workmen/union who alleged the same. For this purpose, it is necessary that the workmen or the authorised representative of the Union demonstrate by way of oral/documentary evidence that the enquiry proceedings were in breach of the prescribed procedures, in breach of principles of natural justice and fair play and finally that substantial prejudice has occasioned the workmen on account of such breaches.

31. In the present case, the 1st Labour Court in its Part-I award listed out certain breaches like conduct of joint enquiries without consent of the workmen; recording of proceedings in English language, which was not known by the workmen; and denial of opportunity for defence evidence. However, the 1st Labour Court has not adverted to the circumstance that the workmen participated in the enquiries without any serious protest as to aforesaid aspects. More importantly, the 1st Labour Court has not at all adverted to the position as to whether any prejudice was at all occasioned to the workmen on the alleged grounds of breach of procedures and breach in compliance with principles of natural justice and fair play. In the case of State Bank of Patiala (supra) and Om Prakash Mann (supra) on which reliance was placed by Mr. Vaidya, it is held that non observance of principles of natural justice must be shown to have caused prejudice to the person concerned. In absence of any such prejudice being demonstrated, a plea to void an action, technically in breach of prescribed procedures or in breach of principles of natural justice, ought not to be entertained.

32. Therefore, even if the findings with regard to breaches in procedure or breaches in compliance with principles of natural justice and fair play, as recorded by the 1st Labour Court are upheld, it was incumbent upon the workmen/union to demonstrate prejudice. For instance, there is admission on the part of Enquiry Officer in the deposition before the Labour Court that he was the junior advocate attached to the office of the Legal Advisor to the employer company. However, there is no material on record to establish that the workmen/union were unaware of this position in the course of domestic enquiry or that they did protest in the matter.

33. The 10th Labour Court, in its Part-I award has however, held that the domestic enquiries were fair and proper. The 10th Labour Court, in Part II Award, nevertheless examined the findings in the enquiry report and has recorded a conclusion that the workmen concerned may have participated in the strike, but there is no clear material to establish that the strike was illegal. Further, the workmen cannot be said to have indulged in any violence or acts subversive of discipline. On this basis, the 10th Labour Court recorded conclusion that the penalty of dismissal from service was grossly disproportionate.

34. In view of setting aside enquiry proceedings by the 1st Labour Court, the employer was offered and has led the evidence before the 1st Labour Court to independently establish the charges against the workmen. Such evidence also to a substantial extent admits the position that the workmen concerned had not indulged into any violent or subversive activities. There is no clear evidence as to the legality of the strike. On the contrary, there is material on record which suggests that the workmen who furnish bond/undertaking of good conduct were permitted to report for the duties. There is material on record, which suggests that even the workmen involved in the present dispute from time to time offered to resume duties but were not permitted to do so until they furnish bond/undertaking assuring good conduct.

35. Even in a case where enquiry is held as fair and proper, there is further requirement to advert to the issue of correctness of finding in the enquiry report. No doubt, scope of interference with findings of fact is limited. But the Labour Courts cannot shirk from adverting to this aspect, particularly in the light of provisions contained in Section 11-A of the said Act.

36. In the case of MavjiC. Lakum vs. Central Bank of India,(2008) 12 SCC 726) the Supreme Court of India has re-visited the scope of Section 11A of the said Act and ruled that the approach of the Industrial Tribunal that if the enquiry is held to be fair and proper, the Tribunal cannot go into the question of evidence or quantum of punishment was not correct. Even if , the enquiry is found to be fair, that would only be a finding certifying that all possible opportunities were given to delinquent workmen and principles of natural justice and fair play were observed. However, that would not mean that the findings arrived at were essentially correct findings. The Tribunal is therefore, duty bound to advert to the findings recorded and in case the Tribunal finds that the findings could not be supported on the basis of evidence given or that the penalty is shockingly disproportionate, then the Tribunal would be well within its jurisdiction under Section 11-A of the said Act to interfere in the matter. The relevant observations are contained in paragraph 23 which reads thus:

23. ...................................................The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Tribunal cannot go into the question of evidence or the quantum of punishment. We are afraid that that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in reappreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons.

37. In the aforesaid authority of MavjiC.Lakum (supra), the Supreme Court quoted the observations from the celebrated decision in the case of Workmen vs. Firestone Tyre and Rubber Co. of India (P) Ltd.( AIR 1973 SC 1227), by observing following:

Though the learned Judge had discussed all the principles regarding the exercise of powers under Section 11-A of the Industrial Disputes Act as also the doctrine of proportionality and the Wednesbury's principles, we are afraid the learned Judge has not applied all these principles properly to the present case. The learned Judge has quoted extensively from the celebrated decision of Workmen vs. Firestone Tyre and Rubber Co. of India (P) Ltd. (supra), however, the learned Judge seems to have ignored the observations made in para 32 of that decision where it is observed that:"

œ36. .....The words 'in the course of adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified' clearly indicate that the Tribunal is now clothed with the power of re-appraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct...... The Tribunal is at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out".

38. The scope of judicial review to interfere with findings of fact is quite limited. Unless findings are based upon no evidence, or are perverse or are such as no reasonable person instructed in law, in the circumstance of the case would have arrived at or where findings are based upon misconception of law, they would not be interfered with. Conversely, where findings are based on no evidence, are perverse, are based on misconception of law or are patently unreasonable, the same can be interfered with in exercise of powers of judicial review.

39. The Enquiry Officer, in the present case, appears to have placed undue reliance upon the order dated 23.6.1986 passed by the Industrial Court under the provisions of MRTU for the purposes of concluding that the strike indulged into by the workmen/union was indeed œan illegal strike?. From the material on record in the enquiry proceedings, both in the form of documentary as well as oral evidence, there is no warrant to return any finding as to illegality of the strike. The employer has lead evidence before the 1st Labour Court and from such evidence also, there is no warrant to record any finding with regard to illegality of the strike. Perhaps it is for this reason that Mr. Vaidya laid considerable emphasis upon the order dated 23.6.1986 passed by the Industrial Court under the provisions of MRTU and submitted that the findings/declaration recorded therein ought to be accepted as finding/declaration for the purposes of these proceedings as well. Mr. Vaidya submitted that the order dated 23.6.1986 passed by the Industrial Court under the provisions of MRTU was not appealed against or otherwise challenged by the Union/Workmen. In the circumstances, the same has attained the finality. Therefore, in the light of provisions contained in Section 59 of the MRTU, the findings/declaration in the order dated 23.6.1986 need to be relied upon for the purposes of the present proceedings.

40. The Enquiry Officer has almost entirely gone by the order dated 23.6.1986 under the MRTU, which is evident from the enquiry report placed on record by Mr. Vaidya. There is hardly any independent evidence or material on record on the aspect of illegality of the strike. There is hardly any independent application of mind by the Enquiry Officer on the aspect of illegality of the strike. The Enquiry Officer, has in fact presumed that the strike in question was illegal and on the said basis returned the finding that the workmen have participated in an illegal strike. There is no material to establish any abetment, incitment or instigation. There is absolutely no material, which would indicate that the workmen had indulged into any acts of violence or prevented any other workmen from reporting to duties. In fact, it is the case of the employer that the most of the workmen reported for duties by furnishing undertaking/bond assuring good conduct, but it is only handful of workmen involved in the present proceedings, who declined to furnish such undertaking/bond.

41. In the light of the aforesaid, two issues arise for determination:

(a) Whether the order dated 23.6.1986 passed by the Industrial Court in proceedings under the MRTU could have formed the sole basis for concluding that the strike in question was illegal and unjustified ?

(b) Whether the insistence on the part of the employer that the workmen furnish bond/undertaking of good conduct as a pre-condition for resuming duties is legal and valid ?

42. On the pain of repetition, this Court must record that normally these are the matters best left for the Labour Courts to revisit and therefore a remand might have been a preferred option. However, as observed earlier, since remand at this juncture is hardly a pragmatic option, the aforesaid issues are being adverted to on the basis of material on record and the established legal position in such matters.

43. In the first place, the order dated 23.6.1986, does not in terms and in the manner prescribed under MRTU declare that the strike in question was indeed an illegal strike. Even the 10th Labour Court has adverted to this aspect and observed that there is no declaration of illegality of the strike contained in the order dated 23.6.1986 passed by the Industrial Court under the MRTU. Section 25 of the MRTU provides that no declaration as to illegality of the strike shall be made, save in open Court. Further, where such declaration is made and strike is withdrawn within 48 hours of such declaration, then such strike cannot for the purposes of MRTU be deemed to be illegal strike.

44. There is evidence on record, both in the enquiry proceedings as also before the 1st Labour Court that the workmen involved in these proceedings made attempts to report for duties, but were not permitted to report until they furnish undertaking/bond of good conduct. It is the case of the workmen that there was insistence on the part of the employer that they leave the membership of the Union. It is quite evident from the deposition of the employers' witnesses themselves that the workmen were not permitted to rejoin duties unless they submit undertaking/bond of good conduct. There is material on record which suggest that no sooner the order dated 23.6.1986 was passed, the workmen reported for duties, but were placed under suspension. All these aspects are relevant in the context of the provisions contained in Section 25 of the MRTU.

45. Assuming however, that the order dated 23.6.1986 indeed contains a declaration that a strike in question was illegal, the provisions of Section 25 off MRTU itself make it clear that such declaration shall be recognized as binding and shall be followed in proceedings under the MRTU. Interpreting, the provisions contained in Section 59 of MRTU, a Division Bench of this Court in the case of KanakIndustries (supra) has ruled that illegality of a lock out or a strike under MRTU was not the same as illegality of a lock out under the Industrial Disputes Act, 1947 and therefore any decision under the MRTU on the said aspect would not preclude an Industrial Tribunal from deciding the issue of illegality or otherwise of a lock out or a strike under the provisions of the said Act.

46. In the case of KanakIndustries (supra), the Division Bench upon a detailed consideration of the provisions contained in MRTU and Industrial Disputes Act, 1947 observed as under:

œ27. This comparison would show that the requirements, in order that a strike or, as the case may be, a lockout should not be illegal have different connotations in the Industrial Disputes Act, 1947 on the one hand, and the MRTU and PULP Act, 1971, on the other. Moreover, even when a strike or a lockout is illegal both under the Industrial Disputes Act, 1947 and the MRTU and PULP Act, 1971, the effect of the illegality under the latter Act can be obliterated upon the withdrawal of the action within forty eight hours of the declaration. However, Section 25(5) of the MRTU and PULP Act, 1971, makes it clear that the strike would then be deemed not to be illegal for the purposes of that act. The effect of an illegality under the Central Act is not obliterated by the provision for withdrawal under the State Act. Both the initial declaration under the State Act and the deeming fiction by which the illegality ceases to subsist are only for the purposes of the State Act.

28. ......

29. Now, it is a settled principle of law that in a complaint under the MRTU and PULP Act, 1971, the justification for a strike or lockout cannot be considered by the Industrial Court. The issue of justification is not a matter which falls within the purview of the State Act and necessitates an adjudication in a substantive reference under Section 10 of the Industrial Disputes Act, 1947. In Modistone Ltd. v. Modistone Employees' Union (2001-I-LLJ-1598 (Bom)) a Division Bench of this Court, upon considering the judgments of the Supreme Court as well as of this Court held that the justifiability of the reasons underlying a strike or lockout has to be considered in the course of industrial adjudication on a reference under Section 10 of the Industrial Disputes Act, 1947. The Industrial Adjudicator can while adjudicating upon the reference consider the adequacy or sufficiency of reasons among various other factors, including the conduct of the parties. The question as to the apportionment of blame may also arise in determining whether the workmen are entitled to wages during the period in question. The judgment of the Division Bench in Modistone is hence an authority for the proposition that in a complaint of unfair labour practices under the MRTU and PULP Act, 1971, the Industrial Court can decide whether the lockout is legal -in accordance with the provisions of the Act - or whether the reasons in the notice of lockout are completely sham. The Court, however, cannot investigate into the sufficiency of the reasons or the justifiability of the lockout in a complaint of unfair labour practices. The propositions that have been enunciated by the Division Bench are thus:

In the result, we hold that while deciding a complaint under the provisions of the MRTU and PULP Act, the Industrial Court:

(a) Can decide whether the lock-out is legal or illegal i.e. whether it is in accordance with the provisions of the MRTU and PULP Act, 1971:

(b) can decide whether the reasons stated in the notice or lockout are non existent or sham or irrelevant i.e. not germane to the employer-employee relationship or not relating to the industrial relationship;

(d) the Industrial Court cannot go into the question whether the lockout is justified. This question can only be agitated before the appropriate Court under the provisions of the Industrial Disputes Act, 1947.

The settled position in law, therefore, is that the question as to the justifiability of a strike or, as the case may be, a lockout lies outside the jurisdiction of the Industrial Court in a complaint of unfair labour practices under the MRTU and PULP Act, 1971.

Harmonious Construction.

30. ....................The legislature while enacting the provisions of the State Act specifically mandated that the declaration of illegality under the MRTU and PULP Act, 1971 shall be for the purposes of that Act. The State Legislature was cognisant of the prevalence of other industrial legislation on the subject and did not intend to derogate from legislation, both the Central and State, which holds the field. The limited extent to which the Industrial Disputes Act, 1947 has been modified is specified in Schedule I of the Act. It has to be emphasized by the provisions for strike or, as the case may be, a lockout in the Central Act have not been modified. Both having regard to the object of the MRTU and PULP Act, 1971 and its legislative provisions, it cannot be held that a finding on the question of illegality under that Act will conclude, before the Industrial Adjudicator in a reference under Section 10 of the Industrial Disputes Act, 1947, the question whether a strike or a lockout, as the case may be, is illegal under the Central Act. Moreover, inasmuch as the Industrial Court in a complaint of unfair labour practices under the MRTU and PULP Act, 1971 has no jurisdiction to consider the question of justification, clearly the Industrial Adjudicator in a reference under Section 10 of the Industrial Disputes Act, 1947, would not be barred in considering the issue as to whether a strike or a lockout is justified.?

47. In the backdrop of aforesaid legal position, neither the Enquiry Officer nor the Labour Courts could have placed unrestricted reliance upon the order dated 23.6.1986 passed by the Labour Court in the proceedings under MRTU. If the order dated 23.6.1986 and the so called finding/declaration contained therein are excluded from consideration, then there is no independent evidence before the Enquiry Officer or the Labour Court on the aspect of legality or justifiability of the strike in question. The findings in this regard are therefore, perverse and made under a misconception of law. The contention of Mr. Vaidya based on order dated 23.6.1986 and Section 59 of MRTU also stand answered accordingly.

48. On the issue whether the employer was justified in insisting upon bond/undertaking of good conduct as a pre-condition for resumption of duties, it needs to be noted that the material on record establishes that the workmen from time to time offered to resume duties but were prevented from doing so on account of their refusal to give bond/undertaking of good conduct. It is precise case of the employer that out of 600 workmen, only handful of workmen like those involved in the present proceedings had declined to furnish bond/undertaking and were therefore not permitted to resume duties.

49. On the aforesaid aspect, the reference is required to be made to the decision of a Division Bench of this Court in the case of VamenMaruty Gharat vs. M.S. Apte and others (Writ Petition No.1353 of 1980 decided on October 1, 1987 (1988 Bom. H.C.30) where the issue arose as to whether the insistence on the part of the employer that the workmen submit an undertaking of good conduct as a precondition for resuming duties amounts to an illegal lock out or not. Justice P.B. Sawant (as he then was ) ruled that the question whether the employer was justified in demanding the undertaking and of the consequences of refusing to comply with the same, the undertaking when analysed falls in two parts. The first part which turned upon the wordings of the undertaking which required the workmen to admit that the strike which they have resorted to was illegal and that they would call it off and the second part was that the workmen in question would properly discharge their duties without damage to the property, the machinery and material of the factory. The learned Judge, then proceeded to hold that the demand of such undertaking (on both aspects) constituted an undoubtedly high handed and illegal act on the part of the employer. On the first aspect, it was held that even though the Labour Court had ruled and declared that the strike was illegal, the workmen had right to challenge the decision of the Labour Court and by insisting upon an admission in the form of undertaking that the strike had been illegal, the workmen were being deprived the right to appeal. On the second aspect, it was held that there was absolutely no finding that the workmen in question had indulged in any acts of damage to the property, machinery and material of the factory or that there was any failure on their part to properly discharge their duties when not on strike. In such circumstances, to insist upon an undertaking virtually amounted to change in service conditions of the workmen. It was further held that even if acts of violence, indiscipline and damage to the property had been established, insistence upon such an undertaking would be neither legal nor proper. In this regard, the Justice P.B. Sawant made the following observations:

œ15. As pointed out above there is no evidence of violence and indiscipline in the present case Hence the second part of the undertaking is not justified.

Assuming however that the employer has succeeded in proving that there were acts of violence, indiscipline and damage to the property, the question that still falls for consideration is whether insistence on such an undertaking from all workmen, whether they were parties to the said acts or not, is justified. Surely in the last quarter of this century it is not necessary to emphasise that the contract of employment is always bilateral. The employer and employees are equal partners in the enterprise of production. The employees are no longer to be looked upon as bonded slaves. The terms of their relationship with the employer are governed by the contract of employment and/or the relevant statutes. The employees therefore cannot be treated as a tribe of delinquents much less can they be humiliated by asking them to sign undertakings which imply that they had indulged in misdeeds which they had not and that they attune for the same. One can understand and the employer will be justified, if such undertaking is taken from those workmen who are guilty of the misdeeds. But to insist on such undertaking from one and all is to subtract from the terms of their employment. It is not suggested that it is one of the terms of employment that whenever there are misdeeds on the part of some workmen, all workmen should enter, so to say the penitentiary, and give such undertaking. To contend that to act in a disciplined manner is an implied condition of service and hence there is nothing wrong in insisting upon such undertaking is to beg the question. If it is an implied condition of service, there is no need of such undertaking. If the undertaking is innocuous, it serves no purpose except satisfying the ego of the employer which is nothing but a display of a feudalistic attitude towards the employees. Such attitude has to be discouraged in any egalitarian society and much more so in a society like ours which has pledged itself to establish a Socilalist Republic. Article 43-A of the Constitution, specifically directs the State to take steps to secure participation of workers in the management of the industry. It cannot be argued that the case of these constitutional objectives will be furthered by acquiescing in or conniving at the action of the employers in insisting on such undertakings even from the innocent workmen which has the inevitable effect of demeaning the workmen. I am therefore of the view that to insist upon such undertakings from all workmen, irrespective of their conduct, is to subject them to indignity. The indignity of an individual is the bed rock of all human rights. It is and should be the basis of all human relationships including his contract of employment. To insist upon such undertaking therefore is to affect the terms of his employment.?

50. There was, however, a difference of opinion between the Justice Mr. P.B. Sawant and Justice Mr. V.V. Vaze, who comprised the Division Bench in the case of VamenGharat (supra) on the aforesaid aspect. Accordingly, in terms of Rule 15 and Chapter 17 of the Bombay High Court Appellate Side Rules 1960, the issue was referred for determination to Justice Mr. R.A. Jahagridar, who unhesitatingly agreed with the view of Justice Mr. P.B. Sawant. Accordingly, the view taken by the Justice Mr.P.B. Sawant constitutes the majority view upon the subject.

51. In the present case, there is absolutely no material on record which even suggests that the workmen had involved themselves in any violent or subversive activity. There is no material on record, which suggests that the workmen had not discharged their duties in a proper manner prior to resorting to the strike. In these circumstances, the insistence on the part of the employer that the workmen sign an undertaking/bond of good conduct as a pre- condition for reporting the duties shall have to be held to be an unlawful and high handed act, to borrow the words from the case of VamenGharat (supra). The evidence on record very clearly establishes and it is the case of the employer that such of the workmen who signed the undertaking of the goods conduct were permitted to report for duties and only handful of workmen (those involved in the present case) declined to give an undertaking were proceed with but the employer in disciplinary jurisdiction. Neither in the proceedings before the Enquiry Officer, nor in the proceedings before the Labour Court has any material been placed on record that the workmen indulged in violence or subversive activities. In fact, the entire case of the employer is that they were not permitted to resume duties because they declined to give an undertaking. In these circumstances, the finding of the Enquiry Officer that the employer was justified in declining work to the workers because the workers failed to submit undertaking of good conduct is unsustainable being perverse.

52. As observed earlier, there is absolutely no evidence on record either before the Enquiry Officer or the Labour Courts in the matter of commission of any acts by the workmen subversive of discipline. The Enquiry Officer, however, appears to have proceeded on the basis that the workmen involved themselves in an illegal strike and the very participation in an illegal strike constitute an act subversive of discipline. Once it is held that there is no material on record to establish that the strike in question was indeed an illegal strike, it obviously cannot be held that the workmen committed an act subversive of discipline. It bears repetition to state that there are no allegations of violence or any other subversive activities against the workman. It again bears repetition to state that the Enquiry Officer has not assessed the role of individual workmen in the episode of strike. In these circumstances, the finding of the Enquiry Officer that the workman had indulged in any acts subversive of discipline is clearly perverse and therefore unsustainable.

53. In so far as absence without leave for more than 10 consecutive days is concerned, factually the absence stands established. However, the question is whether such absence was without sufficient grounds or proper and satisfactory explanation. In this case, the material on record indicates that the workmen were on strike. There is no finding that this strike was an illegal strike. In the case of G.T. Lad Vs. Chemical and Fibres of India Ltd.( 1979 LIC Page 70 = (1979) 1 SCC 590), the Supreme Court has ruled that absence by employees because of strike for enforcement of their demand does not amount to abandonment of service or any un-authorised absence. This decision has been later on explained by the Supreme Court itself to mean and imply that absence on account of participation in an illegal strike may amount to an un-authorised absence. In the present case, as observed earlier, there is no material to hold that the strike in question was an illegal strike. In these circumstances, the ruling in the case of G.T. Lad (supra) will apply and on basis of the same the enquiry officer could not have concluded that the workmen were absent un-authorisedly or without any sufficient explanation. Further the explanation of the workmen that they did make attempts to report for duties but were declined such opportunity for failure to submit undertaking of good conduct has been completely ignored by the Enquiry Officer. In fact, this is also the case set out by the employer that they did not permit the workmen to resume duties, because such workmen refused to submit undertaking of good conduct. This aspect also affords an good explanation for the absence. The witnesses for the employer have themselves deposed that the workmen were never marked as absent, but against their names in the muster, the letters 'ST' implying strike were indicated. In these circumstances, even if the finding that the workmen in question were absent may be sustainable, the charge that absence was without valid and reasonable explanation cannot be said to have been proved. The finding in this regard is also tainted by the vice of perversity and consequently the same is unsustainable.

54. Accordingly, in the aforesaid circumstances, though for reasons other than those recorded by the Labour Courts, this Court is of opinion, that the findings in the enquiry report are perverse and therefore unsustainable at least on the aspect of illegality and unjustifiably of the strike and commission of acts of subversive of discipline. On the aspect of absence, there may be material which justifies a finding that the workmen were absent for more than ten consecutive days. However, on the aspect whether such absence was without sufficient grounds or proper and satisfactory explanation, in my opinion, the employer has failed to establish the same. This is not a case where an employer commenced proceedings soon after the absence of more than ten consecutive days. This is a case where the employer accepted that the workmen are on strike, but contended that such strike is not legal. Once the employer fails to establish that the strike was not illegal, then the absence cannot be regarded as per se illegal as held in the case of G.T. Lad (supra). Again, there is material on record which suggests that from time to time the workmen did make attempts to resume duties, but were prevented from doing so on account of insistence of bond/undertaking of good conduct.

55. Both the 1st and 10th Labour Courts have come to the conclusion that the penalty of dismissal from services was grossly disproportionate. The 1st Labour Court, on basis of the evidence lead before it has recorded a finding of fact that the employer was unable to establish any misconduct on the part of the workmen. The 10th Labour Court, on basis of the evidence before the Enquiry Officer has arrived at a finding of fact that what was established was only a minor misconduct, i.e., participation in strike and consequent absence. Both the Courts are unanimous in that the workmen have not indulged in any violence or acts subversive of discipline. In terms of Section 11-A of the said Act, the Labour Courts not only have the jurisdiction but also the duty to go into the aspect of quantum of punishment.

56. There is yet another important circumstance which was pointed out by Mr. Ganguli. He submitted that the penalty of dismissal from service ought not to be imposed, without the precise role of individual workmen in the strike being established. Mere participation in a strike, is by no means sufficient to impose the maximum penalty of dismissal in service. The Enquiry Officer, in the present case, has not attempted to establish or determine the role of individual workmen in so far as the strike is concerned. In absence of such determination, there is no warrant to interfere with the finding in so far as quantum of punishment is concerned.

57. In the case of Crompton Greaves Ltd. vs. The Workmen (AIR 1978 Supreme Court 1489), the Supreme Court at paragraphs 6 and 8 made the following observations, which are relevant in the present case.

œ6. No specific provision of Law has been brought to our notice on behalf of the appellant which rendered the strike illegal during the period under consideration. The strike cannot also be said to be unjustified as before the conclusion of the talks for conciliation which were going on through the instrumentality of Assistant Labour Commissioner, the Company retrenched as many as 93 of its workmen without even intimating to the Labour Commissioner that it was carrying out its proposed plan of effecting retrenchment of the workmen. Point No. 1, therefore, is answered in the negative.

7. ...............

8. The Tribunal has held that it has not been proved that the workmen resorted to force and violence during the period in question. We have ourselves gone through the entire evidence adduced in the case but have not been able to discern anything therein which may impel us to take a view different from the one taken by the Tribunal. May be that force and violence was resorted to by the striking workmen by the vital question that confronts us is whether the Company has been able to establish it. No clear, cogent and dis-interested evidence has been adduced to substantiate the charge that the striking workmen gharoed the managerial staff or assaulted and intimated the loyal employees or cut off electric lines or prevented any dealer from entering the business premises of the Company and transacts business with it. No prosecution also appears to have been launched in regard to any of these alleged incidents excepting the one by C.G. Biswanathan which was also later on withdrawn. The Company has failed to produce either Mr. Bose or any other employee mentioned in its various letters to the Police. The material on the record thus falls for short of the standard of proof required in cases of this nature. The Tribunal was, therefore, justified in holding that the Management has failed to prove that the workmen resorted to force and violence during the period with which we are concerned. Accordingly, we cannot interfere with the decision of the Tribunal in this appeal under Articles 136 of the Constitution.?

58. In the case of Gujarat Steel Tube Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha (1980 LAB I.C. 1004) Vs. 1980 ILC 1004, the Supreme Court made the following observation, which are relevant in the context of the present case.

œ65. In our opinion, the facts of the case before us speak for themselves. Here are workmen, on strike. The strike is illegal. The Management is hurt because production is paralyzed. The strikers allegedly indulge in objectionable. activities. The exasperated Management hits back by ordering their discharge for reasons set out in several pages in the appropriate contemporaneous proceeding. Misconduct after misconduct is flung on the workers to justify the drastic action. In all conscience and common sense, the discharge is the punishment for the misconduct. The Management minces no words. What is explicitly stated is not a colourless farewell to make way for fresh hands to work the factory until the strike is settled but a hard hitting order with grounds of guilt and penalty of removal.

74. What are the primary facts which have entered the Tribunal's verdict in holding the strikers guilty of misconduct meriting dismissal We must pause to remove a confusion and emphasise that the dismissal order is not against the Union but the individual workers. What did each one do Did his conduct, when shifted and scrutinised, have any exculpation or extenuation Not strikers in the mass, but each worker separately, must be regarded as the unit of disciplinary action. Each one's role and the degree of turpitude, his defence on guilt and punishment, must be adjudged before economic death sentence is inflicted. A typical trial process instance will illumine the point. Suppose there is case of arson and murder in a village because of communal factions and a hundred men from the aggressive community are charged in court with serious offences. Suppose further that convincing testimony of the provocation and aggression by that community is produced. Can any single member of the violent community be convicted on 'mass' evidence, without specific charges of participation or clear proof of constructive involvement Judicial perspicacity clears this common fallacy. It is dangerous to mass-convict on the theory of community built. Anger sometimes brings in this error.

111. The cardinal distinction in our punitive jurisprudence between a commission of enquiry and a Court of Adjudication, between the cumulative causes of a calamity and the specific guilt of a particular person, is that speaking generally, we have rejected, as a nation, the theory of community guilt and collective punishment and instead that no man shall be punished except for his own guilt. Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency. Blanket attainder of a bulk of citizens on any vicarious theory for the gross sins of some only, is easy to apply but obnoxious in principle. Here, the arbitrator has found the Sabha Leadership perverse, held that the strikers should have reasonably reported for work and concluded that the Management had for survival, to make-do with new recruits. Therefore, what ?

112. What, at long last, is the answer to the only pertinent question in a disciplinary proceeding viz. what is the specific misconduct against the particular workmen who is to lose his job and what is his punitive desert? Here you can't generalise any more than a sessions judge can, by holding a faction responsible for a massacre, sentence every denizen of that factions village to death penalty. The legal error is fundamental, although lay instinct may not be outraged. What did worker A do Did he join the strike or remain at home for fear of vengeance against blacklegs in a para- violent situation Life and limb are dearer than loyalty, to the common run of men, and discretion is the 'better part of valour. Surely, the Sabha complained of Management's goondas and the latter sought police aid against the unruly core of strikers. In between, the ordinary rustic workmen might not have desired to be branded blacklegs or become martyrs and would not have reported for work. If not being heroic in daring to break through the strike cordon-illegal though the strike be-were misconduct, the conclusion would have been different. Not reporting for work does not lead to an irrebuttable presumption of active participation in the strike. More is needed to bring home the mens rea and that burden is on the prosecutor, to with the Management. Huddling together the eventful history of deteriorating industrial relations and perverse leadership of the Sabha is no charge against a single worker whose job is at stake on dismissal. What did he do Even when lawyers did go on strike in the higher Courts or organize a boycott, legally or illegally, even top law officers of the Central Govt. did not attend court, argued Shri Tarkunde, and if they did not boycott but merely did not attend, could workers beneath the bread line be made of sterner stuff. There is force in this pragmatic approach. The strike being illegal is a non-issue at this level. The focus is on active participation. Mere absence, without more, may not compel the conclusion of involvement.

113. Likewise, the further blot on the strike, of being unjustified, even if true, cuts no ice. Unjustified, let us assume; so what? The real question is, did the individual worker, who was to pay the penalty, actively involve himself in this unjustified misadventure Or did he merely remain a quiescent non-worker during that explosive period Even if he was a passive striker, that did not visit him with the vice of activism in running an unjustified strike. In the absence of proof of being militant participant the punishment may differ. To dismiss a worker, in an economy cursed by massive unemployment, is a draconian measure as a last resort. Rulings of this Court have held that the degree of culpability and the quantum of punishment turn on the level of participation in the unjustified strike. Regrettably, no individualised enquiry has been made by the Arbitrator into this significant component of delinquency. Did any dismissed worker instigate, sabotage or indulge in vandalism or violence ?

114. The Management's necessity to move the mill into production for fear of being branded a 'sick unit' is understandable. Of course, collective strike is economic pressure by cessation of work and not exchange of pleasantries. It means embarrassing business. Such a quandary cannot alter the law. Here the legal confusion is obvious. No inquest into the Management's recruitment of fresh hands is being made at this stage. The inquiry is into the personal turpitudes of particular workmen in propelling an illegal and unjustified strike and the proof of their separate part therein meriting dismissal. The despair of the Management cannot, by specious transformation of logic, be converted into the despair of each of the 853 workmen. Sympathies shall not push one into fallacies.

126. We observe here also an unfortunate failure to separate and scan the evidence with specific reference to charges against individual workman. On the contrary, all that we find in the award is an autopsy of the strike by the Sabha and a study of its allegedly perverse postures. A disciplinary inquiry resulting in punishment of particular delinquents cannot but be illegal if the evidence is of mass misconduct by unspecified strikers led by leaders who are perhaps not even workmen. We are constrained to state that pointed consideration of facts which make any of the 400 workmen guilty, is a search in vain. The award being ex facie blank from this vital angle, the verdict must prima facie rank as void since vicarious guilt must be brought home against the actively participating members of a collectivity by positive testimony, not by hunch, suspicion or occult intuition. The short position is this. Is there a punishment of any workman If yes, has it been preceded by an enquiry If not, does not the Management desire to prove the charge before the tribunal If yes, what is the evidence, against whom, of what misconduct If individuated proof be forthcoming and relates to an illegal strike, the further probe is this was the strike unjustified If yes, was the accused worker an active participant therein If yes, what role did he play and of what acts was he author Then alone the stage is set for a just punishment. These exercises, as an assembly line process are fundamental. Generalisationof a violent strike of a vicious Union leadership, of strikers fanatically or foolishly or out of fear, failing to report for work, are good background material. Beyond that, these must be identified by a rational process, the workmen, their individual delinquency and the sentence according to their sin. Sans that, the dismissal is bad. Viewed from this perspective, the Award fails.

131. The benign attitude towards strike being what we have outlined, the further question arises whether in the light of the accepted finding that the strike as such was illegal and, further, was unjustified, all the strikers should face the penalty of dismissal or whether individual cases with special reference to active participation in the strike, should be considered. A rapid but relevant glance at the decided cases may yield dividends. In India General Navigation and Railway Co. Ltd. v. Their Workmen AIR 1960 SC 219, this Court did observe that if a strike is illegal, it cannot be called 'perfectly justified'. But, between 'perfectly justified' and 'unjustified' the neighbourhood is distant. Mere illegality of the strike does not per se spell un-justifiability. For, in Crompton Greaves Ltd. v. Workmen (AIR 1978 SC 1489) this Court held that even if a strike be illegal, it cannot be castigated as unjustified, unless the reasons for it are entirely perverse or unreasonable-an aspect which has to be decided on the facts and circumstances of each case. In that decision, this Court awarded wages during the strike period because the Management failed to prove that the workmen resorted to force and violence. Even in India General Navigation and Railway Co. Ltd. (supra) where the strike was illegal and affected a public utility service, this Court observed that "the only question of practical importance which may arise in the case of an illegal strike, would be the kind or quantum of punishment, and that, of course, has to be modulated in accordance with the facts and circumstances of each case.... There may be reasons for distinguishing the case of those who may have acted as mere dumb-driven cattle from those who have taken an active part in fomenting the trouble and instigating workmen to join such a strike or have taken recourse to violence."

The court after holding that the strike was illegal "and that it was not even justified" made a pregnant observation :

"To determine the question of punishment, a clear distinction has to be made between those workmen who are only joined in such a strike, but also took part in obstructing the loyal workmen from carrying on their work, or took part in violent demonstrations, or acted in defiance of law and order, on the one hand, and those workmen who were more or less silent participators in such a strike, on the other hand. It is not in the interest of the industry that there should be a wholesale dismissal of all the workmen who merely participated in such a strike. It is certainly not in the interest of the workmen themselves. An Industrial Tribunal, therefore, has to consider the question of punishment, keeping in view the overriding consideration of the full and efficient working of the Industry as a whole. The punishment of dismissal or termination of services, has, therefore, to be imposed on such workmen as had not only participated in the illegal strike, but had fomented it, and had been guilty of violence or doing acts detrimental to the maintenance of law and order in the locality where work had to be carried on?. After noticing the distinction between peaceful strikers and violent strikers, Sinha, J., in that case, observed :

"it must be clearly understood by those who take part in an illegal strike that thereby they make themselves liable to be dealt with by their employers. There may be reasons for distinguishing the case of those who may have acted as mere dumb driven cattle from those who have taken an active part in fomenting the trouble and instigating workmen to join such a strike, or have taken recourse to violence." The same line of dichotomy is kept up :

"Both the types of workmen may have been equally guilty of participation in the illegal strike, but it is manifest that both are not liable to the same kind of punishment."

Significantly, the Court stressed the need for individual charge-sheet being delivered to individual workmen so that the degree of misconduct of each and the punitive deserts of each may be separately considered. We may as well refer to a few more rulings since considerable argument was expended on this point.

137. Another aspect of this case emphasised that it could not be dogmatised as a matter of law that an overt act such as intimidation or instigation or violence was necessary in order to justify termination of service for participating in an illegal strike. On the facts of that case, even though it was found that no domestic enquiry was held, reinstatement was refused on the ground that misconduct was made out.

139. We cannot agree that mere failure to report for duty, when a strike is on, necessarily means misconduct. Many a workman, as a matter of prudence, may not take the risk of facing the militant workmen or the Management's hirelings for fear, especially when there is evidence in the case from the Sabha that the Management had hired goondas and from the Management that the striking vanguard was violent. It is also possible, in the absence of evidence to the contrary, that several workmen might not be posted with the Management's notice of recall or the terms on which they were being recalled. In this view, we are not able to uphold the conclusion of the arbitrator that the punishment of dismissal was appropriate for the entire mass of workmen whose only guilt, as proved was nothing more than passive participation in the illegal and unjustified strike by not reporting for duty. The verdict is inevitable that the discharge is wrongful.

140. The only comment we reluctantly make about the otherwise thorough award of the Arbitrator is that omnibus rhetoric about the obnoxious behaviour of a class may not make-do for hard proof of specific acts of particular persons where a punitive jurisdiction is exercised.?

59. In the case of ChangunabaiChanoo Palkar Vs. Khatau Makanji Mills Ltd and Anr.(1992 (I) CLR 680), a Division Bench of this Court, made the following observations which are relevant.

œ8. It is apparent, therefore, that before inflicting penalty in disciplinary jurisdiction upon a workman who remained away from work during an illegal strike, an individualised inquiry would be necessary at which it will have to be determined whether there was active or passive participation on his part in the said misadventure. Active participation in the context means that he propelled the illegal strike or indulged in sabotage or vandalism or violence or intimidation or the like. The despair of the Management at facing an illegal strike in which a large number of workmen participate-some of them actively, some of them passively-resulting in a crisis is no justification to invoke the plea of community guilt and to resort to common condemnation. In disciplinary jurisdiction, save on proof of individual delinquency, neither finding of guilt nor infliction of penalty could be justified. Nor is it defensible excuse, much less a valid vindication, for failure to hold an individualised inquiry that in the prevailing circumstances in which a large number of employees had participated in the illegal strike, it was not possible to give a charge-sheet to each individual in respect of the misconduct. Penalty sans inquiry is non est. True, if a dispute arises, the Management may still ask for an opportunity to separately make out a case against each workman before the industrial adjudicator. However, in that forum also, the role of the individual workmen and the degree of his turpitude shall have to be proved and the whole case would be open before the adjudicator to decide whether the charge is proved and what punishment should be awarded. And, if the adjudicator's award is challenged before the High Court in writ jurisdiction, it can be quashed "if it is vitiated by the fundamental flaws of gross miscarriage of justice, absence of legal evidence, perverse misreading of facts, serious errors of law on the face of the order, jurisdictional failure and the like". The High Court has "to be cautious both in not overstepping as if Article 226 were as large as an appeal and not failing to intervene where a grave error has crept in." In the ultimate analysis "Article 226, however restrictive in practice, is a power wide enough, in all conscience to be a friend in need when the summons comes in a crisis from a victim of injustice : and, more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary resource to a remand. What the Tribunal may, in its discretion, High Court too, under Art. 226, can, if facts compel, do." (See Gujarat Steel Tubes Ltd.'s case (supra) (pp. 172-173)

9. Prior coming to grips with the precise question of the kind or quantum of punishment for participation in an illegal strike, a few principles which are well-established need to be recapitulated. Although the right to unionise, the right to strike as a part of collective bargaining, are processes recognised by the industrial jurisprudence, the exercise of such rights must be within the recognised parameters. Adventurist, extremist, extraneously inspired and puerile strikes, absurdly insane persistence and violent or scorched earth policies boomerang and are anathema for the law. If these limits are not transgressed, the right to strike is integral to collective bargaining. (See Gujarat Steel Tubes Ltd's case supra). A factor of relevance, even if a strike is illegal, is that mere illegality does not per se spell un-justifiability. Unless the reasons for an illegal strike are entirely perverse or unreasonable-an aspect which must be decided on the facts and circumstances of each case - an illegal strike would not be castigated as unjustified. See Crompton Greaves Ltd. v. The Workman. (AIR 1978 SC 1489)

10. It is clear that those who take part in an illegal strike make themselves liable thereby to be dealt with their employers, whether such participation is passive or active. This is not to be understood, however, to mean that no distinction has to be maintained in dealing with both the types of workmen who may have been equally guilty of participation in the illegal strike. It is manifest that both are not liable to the same kind of punishment. Passive participation in a strike which is illegal and, may be, also unjustified, does not ipso facto invite dismissal or punitive discharge. To justify the ultimate penalty, there must be active individual excess, such as masterminding the unjustified aspects of the strike, for example violence, sabotage or other reprehensible role. In the absence of such gravamen in the accusation and proof thereof by cogent individualised proof, the extreme economical penalty termination is wrong, specially in an economic structure where large scale of unemployment stares in the face (See Gujarat Steel Tubes Ltd.'s case (supra).

11. Yet another factor which cannot be overlooked in cases where there is mere participation without anything further is that suspension or dismissal would not be justified if no clear distinction can be made between those persons and the very large number of workmen who had been taken back into service although they had participated in the strike. If an employer makes an unreasonable discrimination in the matter of taking back employees, there would be a valid reason for the industrial adjudicator to interfere on the basis of the examination of circumstances of each case. (See Burn and Co. Ltd. v. Their Workmen (AIR 1959 Supreme Court 529 and Bata Shoe Co. (P) Ltd. v. D. N. Ganguly, (AIR 1961 Supreme Court 1158)?

60. In the light of the aforesaid authorities, which deal almost directly with the issue of quantum of punishment for participation in strikes, no useful purpose will be served by adverting to the authorities relied upon by Mr. Vaidya in the context of quantum of punishment generally. It is settled position in law that the issue of quantum of punishment is generally within the managerial domain. Therefore, even though the Labour Courts by virtue of Section 11 A of the said Act have the power and jurisdiction to interfere with the quantum of punishment, they should normally not to do so unless the punishment imposed is grossly disproportionate to the offences proved. In the case of North-Eastern Karnatka RT Corporation (supra), the workmen concerned was a Conductor and he remained un-authorisedly absent for more than three years. The leave record indicated that the workmen was absent on several occasions in the past as well. In these circumstances, the Supreme Court ruled that penalty of dismissal was not disproportionate. In the case of LIC of India (supra), the employee committed an act of gross disobedience and further compounded the offences by adamant attitude in remaining absent for period of 233 days. In these circumstances, the Supreme Court ruled that imposition of penalty of dismissal was not disproportionate. In the case of State of Rajasthan vs. Mohd.Ayub Naz (2006 (1) SCC 589), the employee remained absent unatuhorisedly for a period in excess of three years. In such circumstances, it was held that penalty of dismissal from service was not disproportionate. The same is the position in the case of Delhi Transport Corporation vs. Sardar Singh (2004) 7 SCC 574), where the Conductor in the Delhi Transport Corporation remained absent for long periods without any cogent explanation and the penalty of dismissal from service was found to be proportionate. All these cases are clearly distinguishable. In none of the said cases was there any issue of participation in strike or the circumstance that workmen were not permitted to resume duties until they they furnish bond/undertaking. Rather, the rulings in the specific context of participation in strike are relevant in the context of determination of quantum of punishment.

61. Besides, in the present case, this Court is not for the first time determining quantum of punishment. The Labour Courts have come to the conclusion that the penalty of dismissal from service was grossly disproportionate. The Labour Courts were entitled to come to such finding in exercise of powers conferred upon them under Section 11A of the said Act. In arriving at such a finding, the two Labour Courts have not acted perversely or unreasonably. Further considering the aspect that the findings recorded in the enquiry report particularly on the aspect of illegality of strike, being vitiated by perversity, the findings on the aspect of quantum of punishment already recorded by the two Labour Courts cannot be said to be either unreasoned or whimsical.

62. Mr. Ganguli, forcibly contended that the workmen have been kept away from work and wages for considerable length of periods. The penalty of dismissal was not at all warranted. The finding with regard to closure of industry is perverse and based upon conjectures and surmises. Therefore, reinstatement with all consequential benefits needs to be awarded.

63. Both the Labour Courts have recorded findings that the Industry is closed down since the year 2006. This is a finding of fact. Mr. Ganguli, however submitted that closure is not in accordance with the provisions of said Act and further the industry has relocated itself in Gujarat. The issue of legality of closure was not before the Labour Courts and consequently there is no warrant for this Court to go into the said issue either. The dispute as to whether the closure was proper or not or the issue as to whether the Industry has relocated itself in Gujarat or not are not the issues which can be gone into in the present proceedings. From the record, it can be said that the finding recorded by the two Labour Courts with regard to the de-facto closure cannot be said to be vitiated by any perversity. In the circumstances, this Court is unable to accept Mr.Ganguli's submission with regard to relief of reinstatement.

64. Mr. Vaidya placed on record some documents purportedly signed by the some of the workmen involved in this dispute that they received payment from the employee and therefore they are not interested in the dispute. Mr. Ganguli objected to such production and also question the veracity of the documents. This Court is of the opinion that such documents, unverifiable as they are, cannot be introduced at this stage of the litigation and in this manner. Obviously, such documents do not spell out any settlement under Section 2(p) or Section 18 of the said Act. In these circumstances, this Court is of the opinion that no cognizance can be taken of such documents at this stage of the proceedings.

65. This then takes the Court to the question as to what should be the appropriate relief to be granted in these matters. As stated earlier, the 1st Labour Court, upon concluding that misconduct by the workmen is not proved proceeded to award compensation ranging between Rs.2 Lacs to Rs.6 Lacs to most of the workmen. One of the workmen, i.e., Uttam Tukaram in Writ Petition No.1095 of 2008 has been granted relief of 'continuity of service from 24.6.1986 to 21.6.2006'. The other workman involved in the same dispute has been granted compensation of Rs.5 Lacs upon the same terms. Therefore, there appears to be an inadvertent error or omission in not specifically awarding a sum of Rs.5 Lacs to the said workman Uttam Tukaram. There is no appreciable difference in the two cases. The award in Reference No.800 of 1988, which is subject matter of proceeding in Writ Petition No.1095 of 2008 shall be read and construed accordingly. The 10th Labour Court, upon concluding that only a minor misconduct on the part of the workmen has been established, and that the penalty of dismissal from service is grossly disproportionate has proceeded to award a compensation of Rs.2 Lacs to most of the workmen. One of the workmen, i.e., Dilip Tukaram has been awarded compensation of Rs.4 Lacs.

66. Mr. Ganguli submitted that the compensation of even Rs.6 Lacs is on the lower side. Further, failure to specify compensation in respect of some of the workmen is inadvertent or in any case an error apparent on face of record. There is no appreciable difference between those awarded compensation and those left out. The Labour Courts ought to have awarded higher compensation, particularly in lieu of reinstatement. Further aspects like career advancement, statutory benefits etc. also ought to have been taken into consideration in deciding the quantum of compensation. Mr. Ganguli submitted that award of compensation at the rate of Rs.2 Lacs per workman is virtually a pittance and therefore not justifiable either in law or in the facts and circumstances of the cases.

67. On the aspect of grant of reinstatement and back-wages, there does appears to be a shift in the legal position from what obtained earlier. In the case of P.G.I. Of Medical Education and Research v. Raj Kumar(2001) 2 SCC 54), the Supreme Court has held that the payment of back wages having a discretionary element involved in it has to be dealt with in the facts and circumstances of each case and no straitjacket formula can be evolved in such matters. In the case of Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya(2002) 6 SCC 41), the Supreme Court has held that though Section 11-A of the said Act is couched in wide and comprehensive terms and confers considerable jurisdiction in the Tribunal, nevertheless, the Tribunal is duty bound to consider whether in the facts and circumstances of the case the back wages have to be awarded and if so the extent thereof. Upon consideration of the entire matter in the context of facts including the vicissitudes of long drawn litigation, the Supreme Court observed that ends of justice would be meet if the workmen are awarded 50% of the back-wages until reinstatement. In the case of U.P. State Brassware Corpn. Ltd v. Uday Narain Pandey (2006) 1 SCC 479), the Supreme Court observed that the a workman is not entitled to get something merely because it would be lawful to do so. If such principle is applied, the functions of an Industrial Court shall loose much of their significance. In the case of MadurantakamCoop. Sugar Mills Ltd. v. S. Viswanathan (2005) 3 SCC 193), the Supreme Court while confining the quantum of backwages to only 50% observed that the workmen must have attained the age of superannuation and the circumstance that Mills are undergoing a financial crisis is not an irrelevant factor. In the case of PVK Distilery Limited vs. Mahendra Ram (2009) 5 SCC 705), the Supreme Court observed that although services of the workmen may have been terminated unjustifiably and illegally, that by itself does not create a right for reinstatement with full employment benefit and full back-wages. The Courts are required to adopt a realistic approach to the matter and therefore award of 50% of the total back-wages would be appropriate.

68. In the case of Allahabad Jal Sansthan vs. Daya Shankar Rai and anr.(2005) 5 SCC 124), the Supreme Court after reference to the shift in trend made the following observations, which are apposite in the context of the present matters. The observations in para 16 read thus:

œ16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.?

69. In the context of award of compensation, Mr. Vaidya contended that only a few workmen have deposed as to their status after dismissal. Such of the workmen, who have not deposed before the Labour Courts as to their status, ought not to be awarded any compensation at all, since the burden of establishing that they were not gainfully employed was squarely upon them. Mr. Ganguli, countered this submission by submitting that there is no hard and fast rule in this regard. Besides, it is possible for the Labour Courts to go by the deposition of the other workmen on record and also to take judicial notice of the fate of the workmen who may not have themselves deposed in the proceedings.

70. The extreme proposition advanced by Mr. Vaidya does not commend to this Court. There is no doubt that there has been a shift in the approach of the Courts in regard to payment of back wages. Back wages now, cannot be granted almost automatically upon setting aside an order of termination inter alia upon premise that the burden of establishing that a workmen was gainfully employed in the interregnum was on the employer. Now the position is that the burden is upon the workmen keeping in view of the provisions contained in Section 106 of the Evidence Act 1872. However, this burden stands discharged by applying the test of preponderance of probabilities. Besides, Mr. Ganguli is right there can be no hard and fast rules in this regard.

71. In the case of Hindustan Motors Ltd. v. Tapan (supra), the Supreme Court noticed that there was no pleadings or evidence as to whether the workmen therein was employed elsewhere in the interregnum between dismissal and reinstatement. Considering the totality of the situation, a direction was made to pay 50% of the back wages till date of reinstatement. In the case of Chief Conservator of Forests vs. Rahmat Ullah (2003) 10 SCC 92), the Supreme Court held that the workman was out of service since 1990 and as an ordinary worker, he must have been working elsewhere to earn his livelihood and there was no material to show that he was not gainfully employed. In such circumstances, the Supreme Court directed payment of 50% of back wages.

72. A Division Bench of this Court in the case of TaranjitsinghI. Bagga Vs. Maharashtra State Road Transport Corporation, Amravati (2008 (3) Mh.L.J. 743), did not accept the employer's submission that back wages ought to be denied in their entirety, where the workmen has not deposed on the aspect of gainful employment. The observations in paragraph 8 reads thus.

8. Learned Advocate Shri Mehadia for the respondent submitted that the law has undergone change and unless the employee pleads and proves that he was not gainfully employed, he would not be entitled to back wages automatically upon reinstatement. As the Apex Court has observed time and again, the question of entitlement to back wages would depend on the facts and circumstances of each case, and there can be no straitjacket formula. The Court cannot be oblivious to the fact that an employee, whose services were terminated wrongly, has not only to fight for his survival by getting such odd jobs as he can, but has also to fight a battle for getting himself reinstated in service. The Courts cannot be oblivious to the fact that such legal adventure is costly and would eat up a large chunk of whatever meagre income that the employee may be able to make by getting any odd job. At the same time, no Court can be oblivious to the grim reality of unemployment pervading all stratas of the society. Therefore, we would not be in a position to conclude that the moment a person is sacked he can find alternate means of his wherewithal. In this situation, it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed.

73. From the analysis of the aforesaid precedents, it is clear that there is no straitjacket formula to determine issue relating to award of back wages or compensation. The emphasis now appears to be upon consideration of the totality of circumstances and a host of relevant considerations. Ultimately, in such matters, the Court has to adopt a pragmatic approach to the problems dogging industrial relations. The attempt should be to endeavour to arrive at some golden mean. Considerations like the conduct of the workmen, closure of the industry, financial position of the employer, the circumstance that the workmen has contributed little or nothing at all for the period of un-productivity, the circumstance that there is no clear evidence as to the status of the workmen after dismissal from services, the wages drawn by the workmen whilst in service, reasonable career advancement prospects, nature of duties discharged by the workmen and possibility of gainful employment are all factors that need to go into the decision making process.

74. Applying the aforesaid principles to the facts and circumstances of the present case, this Court is of the opinion that an award of Rs.2 Lacs per workman by way of compensation would meet the ends of justice and therefore, would be appropriate. In arriving at this amount, the Court takes into consideration the wages which the workmen drew whilst in service. There is some material in this regard on record produced by both the employer as well as the workmen. Besides, regard is had to circumstances like law's delays, lack of any contribution from the workmen in the long interval, closure of the industry, the circumstance that each of the workmen have not deposed before the Labour Courts, the circumstance that most of the workmen, except those involved in the present dispute were permitted to resume duties, the circumstance that the employer has been unable to establish misconduct or at least major misconduct. Upon consideration of all such circumstances in their totality, the attempt is to arrive at some sort of a golden mean by adopting a pragmatic approach commended by the Supreme Court of India in such matters. The impugned awards, therefore, deserve to be modified so as to make an award of Rs.2 Lacs to each of the workman involved in these disputes and as have been specified in the Chart at paragraph '4' of this judgment and order.

75. In the Chart at para '4' of this judgment and order, as against the names of some of the workmen involved in this dispute, it is stated that compensation/relief awarded to them is 'unclear'. This is because the impugned awards are unclear on this aspect. Higher compensation has been awarded to the workmen who actually examined themselves in the Labour Courts. This is indicated in the Chart. However, after assigning reasons, the Labour Courts have also awarded compensation in the range of Rs.2 to Rs.3 Lacs to some of the workmen who may not have examined themselves before the Labour Court. The reasons, are by no means perverse. Rather the view taken by the Labour Courts appears to be a plausible view. Applying the same principle, the Labour Courts ought to have awarded compensation of at least Rs.2 Lacs to each of the workmen against whom endorsement of 'unclear' has been made in the Chart at para '4' of this judgment and order. The failure to do so appears to be either inadvertent or in any case an error apparent on face of record. There is no discussion in the impugned awards as to why such workmen have been excluded from the benefit of even minimum compensation of Rs.2 Lacs. The impugned awards are, therefore, liable to be modified on this aspect as well. In the result, each of the workmen referred to in the Chart at para '4' of this judgment and order shall be entitled to compensation of Rs.2 Lacs each. Needless to add that this compensation, as has been clarified by the Labour Courts, shall be over and above the amounts that may have been paid by the employer to the workmen by way of subsistence allowance in the course of enquiry proceedings or upto the date of their dismissal from service.

76. The Writ Petitions are, accordingly, disposed of by the following order:

(A) The impugned awards in each of the Petitions are modified by directing the employer to pay compensation of Rs.2 Lacs each to each of the workmen specified in the Chart at para '4' of this judgment and order ;

B. In the event, the employer has deposited any amount in terms of interim oder dated 9.7.2008 made in each of the employer's Petition and the same is sufficient to meet the liabilities arising out of the impugned awards as modified by this judgment and order, Registry is directed to disburse amount of Rs.2 Lacs to each of the workmen as indicated in Chart at para '4' of this judgment and order upon due identification of the workmen and adoption of other usual precautions in this regard. In case, any interest has accrued upon the amount so deposited, the same may be disbursed to each of such workmen proportionately;

C. In case, no amount has been deposited by the employer in terms of the interim order dated 9.7.2008 or the amount deposited falls short of the liability arising out of the impugned awards as modified by this judgment and order, the employer is directed to deposit such amount or shortfall within a period of eight weeks from today alongwith interest at the rate of 9% per annum from 9.7.2008 till the date of deposit;

D. From out of the amount deposited in terms of the clause (C) above, Registry is directed to pay to each of the workmen as specified in the Chart at para '4' of this judgment and order, an amount of Rs.2 Lacs each along-with proportionate interest as aforesaid upon due identification of the workmen and adoption of other usual precautions in this regard;

E. It is clarified that the compensation of Rs.2 Lacs with limited and proportionate interest as aforesaid shall be over and above any amounts which may have been paid by the employer to such workmen by way of subsistence allowance in the course of enquiry proceedings and until their dismissal from service;

F. It is also clarified that the amount of compensation as awarded is to be deemed as payed from year to year, so that the workmen are given the benefit of Section 89 of the Income Tax Act, 1961 or other relevant and applicable provisions contained in Income Tax Act, 1961 in that regard;

G. The employer is directed to pay costs quantified at Rs.1,00,000/- (Rs. One Lac only) to the Union as and by way of consolidated cost in this entire batch of Petitions;

H. Rule is made partly absolute to the extent indicated in all the aforesaid Writ Petitions;

77. All the aforesaid Writ Petitions are disposed of accordingly.

78. At this stage, Mr. Vaidya appearing for the employer seeks stay on the implementation of this judgment and order for a period of six weeks. Mr. Ganguli, learned counsel appearing for the Union submits that the workmen have been waiting for their dues for the past 30 years and therefore the motion for stay ought to be declined. Considering the circumstance that the employer has deposited some amounts in this Court in pursuance of the interim order dated 9.7.2008, I am inclined to consider Mr. Vaidya's request. Accordingly, this judgment and order shall not be implemented for a period of six weeks from today.

Court	Mumbai High Court
Decided On	Feb-20-2014
Case Number	Writ Petition Nos. 972 of 2008, 973, 974, 975, 976, 977, 978, 979, 1083, 1084, 1085, 1095, 1096, 1097 of 2008 & 1892 of 2008
Judge	M.S. SONAK
Appellant	M/S. Haldyn Glass Limited and Another
Respondent	Maharashtra General Kamgar Union and Others

M/S. Haldyn Glass Limited and Another Vs. Maharashtra General Kamgar Union and Others - Court Judgment