ORDER
Somnath Ayyar, J.
1. The petitioner before us is the management of a tile factory known as the Commonwealth Tile Factory in Mangalore owned by a company called the Commonwealth Trust, Ltd. In one of the departments of that factory called the kiln department there was a team of workers consisting of 34 operatives. On 30 April 1959, 26 operatives in that gang, according to the management, stopped work at 1-30 p.m. and left the factory premises at 3 p.m. The work which was to be done by one set of these operatives was to load green tile into the chambers where the tiles had to be baked and the work to be done by another set of these operatives was to unload the burnt tiles at the other end of the chambers. On the day on which, according to the management, the workers left the premises at 3 p.m., they had loaded only six chambers and although green tiles were still available which could be loaded into the remaining three chambers, they struck work and left the factory at 3 p.m. There was an enquiry into this act of misconduct on the part of those 26 operatives by the management, and, the punishment imposed on them was that they should not be paid their wages for one day. This gave rise to an industrial dispute which was referred to the labour court by the Government, under S. 10(4) of the Industrial Disputes Act.
2. On behalf of the operatives, what was contended before the labour court was that according to the terms of their employment, the operatives in the kiln department were fee to leave the factory the moment they finished the baking of the tiles in at least six chambers, and that having been completed on 30 April, 1959 at about 1-30 p.m., they were at liberty to go away from the factory without being obliged to feed the remaining three chambers with green tiles. Another part of their case was that according to the practice or custom obtaining in the entire tile industry as a whole, it was permissible for the operatives in the kiln department to leave their post of duty and go home after they finished the baking of the tiles in six chambers. The other complaint made against the management was that the enquiry which culminated in the punishment against the 26 operatives was an unfair enquiry motivated by mala fides.
3. On each one of these submissions made on behalf of the operatives, the finding of the labour court was in their favour. The labour court recorded a finding that the operatives did not strike work on 30 April, 1959 and that they were at liberty to go home after they had completed the baking of the tiles in six chambers, which they had done. Although the case on behalf of the operatives was that according to a practice which was obtaining in the tile industry as a whole, it was permissible for the workers to leave the factory at 2 or 3 p.m. after completing their work, the finding of the labour court was, as we under stand it, that although no such custom in the tile industry as a whole was established, it could still be concluded that that custom was one which was prevalent in the tile factory of the petitioner. The labour court was also of the view that, according to the terms of employment between the petitioner and the operatives, the minimum quantity of work which had to be turned out by the operatives consisted of the baking of i green tiles in six chambers a day.
4. The award made by the labour court accordingly was that the management should pay back to the operatives the wages for one day which had been withheld from them. It is against this award that this writ petition is directed.
5. The principal argument advanced before us by Mr. Menon on behalf of the management of the tile factory is that the labour court entirely misunderstood the terms of the employment between the operatives and the management in the kiln department. He has pointed out to us that it was admitted before the labour court, as can be seen from Ex. M. 4 which is the evidence given by W.W. 1, that according to the notification made under standing order 5 of the standing orders of the tile factory, the working hours in respect of every operative of the factory were between 7-45 a.m. and 5-15 p.m. with a break amounting to an hour and a half each day. Those standing orders, according to Mr. Menon, were not varied at any time and no evidence was produced on behalf of the operatives that those working hours had been altered. If that was the position, it is submitted that it was incumbent upon the operatives to work all the eight hours during which they were bound to work according to the relevant standing order, and that it was not therefore possible for the labour court to come to the conclusion that the operatives were free to finish baking of the kilns in six chambers and then go home.
6. Mr. Menon, in my opinion, is right in contending before us that Ex. M. 4 which is the record of the evidence of W.W. 1 makes it clear that each operative had to work in the factory between 7-45 a.m. and 5-15 p.m. with a break of an hour and a half. Although the notification issued under standing order 5 was not produced before the labour court, that was the admission made by W.W. 1. That being so, the question which had to be considered by the labour court was how and on what material it was possible for the operatives to contend that it was enough for the operatives to load six chambers with green tiles or to unload them at the other end and to go home without being present during all the eight working hours prescribed under the standing order. The only material on the basis of which the labour court came to the conclusion that it was not necessary for the operatives to work during all the eight working hours was that afforded by Ex. M. 8 which was a notice issued under standing order 12(a) on 14 December, 1953 announcing a scheme for the payment of what may be described as production bonus. Exhibit M. 8 discloses that on 6 February, 1953 a scheme had been announced and that under the notice which was issued on 14 December, 1953 that scheme was subjected to some modifications. What the factory announced on that date was that the operatives would be paid what may be described as an incentive bonus depending upon production, on the basis of what has been described in that notice as contract rate at Rs. 3-8-0 for each chamber irrespective of the loading.
7. Now in Para. (3) of that notice it was stated that the standard daily task had been considered as six chambers. This is how that clause reads :
'The standard daily task has been considered as six chambers. The above division of males and females may require to be varied according to circumstances.'
8. It was this clause in Ex. M. 8 that influenced the conviction in the mind of the labour court that the work to be turned out by on operative in the factory in the kiln department was the baking of green tiles in at least six chambers a day. That was how the labour court understood the expression 'the standard daily task' occurring in Clause (3).
9. Mr. Menon, is, in my opinion, quite right in making the criticism that there was a misconception in the mind of the labour court as to the meaning of Clause (3) of this notice. The labour court appear to have thought that although the determination of working hours in the factory under standing order 5 had been made by notification made under the standing order prescribing the working hours to be 7-45 a.m. and 5-15 p.m., the notice issued under standing order 12(a) announcing the scheme for payment of production bonus had the effect of altering in some way the working hours in the factory making it possible for the operatives in the kiln department to leave the factory immediately the working of six chambers had been finished. In my opinion, the mistake committed by the labour court was in thinking that Ex. M. 8 prescribed the quantity of work to be done by an operative during one day in the factory. It has been explained to us by Mr. Menon and his submission is fully borne out by the elucidation of the law by their lordships of the Supreme Court in Titaghur Paper Mills, Ltd. v. Their workmen [1959 - II L.L.J. 9], that the standard daily task to which there is an allusion in Ex. M. 8 is no more than a mere base or data on the basis of which the production bonus which was proposed to be paid by the factory had to be calculated. It has been pointed out to us by Mr. Menon that the standard daily task in Clause (3) of Ex. M. 8 is the data for the calculation of the figure which has to be calculated on the basis of Rs. 3-8-0 being the contract rate for every week, from out of which the basic daily wages earned by the operatives have to be deducted for the purpose of arriving at the balance which has to be distributed among the operatives by way of bonus, in proportion to their basic wages. If that is the purpose for which the contract rate is specified in Ex. M. 8 and standard daily task is also similarly specified, it becomes obvious that the standard daily task referred to in Clause (3) is not specification of the quantity or amount of work to be done by an operative during the day but is only a part of the formula by the employment of which the production bonus paid to the operatives has to be computed. In my opinion, this submission made to us by Mr. Menon is unanswerable. It is clear from Clause (6) of Ex. M. 8 that what an operative is paid by way of daily wages which the operative has to be paid as usual according to Ex. M. 8 is for the work to be done by him during the factory hours notified under standing order 5 of the standing orders. It is only if he turns out that work by being present in the factory during all those working hours notified under standing order 5 that an operative would be entitled to his daily wages. Now in addition to this daily wage, an operative, it was announced, would be paid a production bonus provided he turned out additional work and, Ex. M. 8 enumerated the process by which that additional remuneration in the shape of production bonus should be computed, and one of the factors which had to be taken into consideration for the purpose of making that calculation was to treat eight chambers to be the daily task upon the completion of which work alone the contract rate could be treated as Rs. 3-8-0 a day, that rate otherwise being only Rs. 3. To say that, is not the same thing as saying that there was some variation of the working hours of the factory which were between 7-45 a.m. and 5-15 p.m. into a period which would be sufficient for the completion of the work in six chambers. The expression 'the standard daily task' occurring in Clause (3) and the expression 'the contract rate' occurring in Clause (5) have, it is clear, a special technical meaning which should have been clear to the labour court which is expected to be familiar with those expressions. It is surprising that those expressions were not correctly understood by the labour court notwithstanding the elucidation of the law in regard to production bonus by their lordships of the Supreme Court in Titaghur Paper Mills Company Ltd. v. Their workmen [1959 - II L.L.J. 9] (vide supra). According to that pronouncement although the standard of the base in that particular case was somewhat different from the standard which is referred to in Ex. M. 8, it is, nevertheless, manifest that that standard cannot have any reference or materiality to the question as to what is the work to be turned out by an operative in order to entitle him to daily wages or in order to entitle him to contend that his abstention from duty does not amount to a strike. In my opinion Ex. M. 8 could never have formed the foundation of a conclusion that the 26 operators in this case who were working in the kiln department were at liberty to leave the factory and go home the moment they finished the work in six chambers. The finding to the contrary recorded by the labour court based as it is upon an obvious misconstruction of Ex. M. 8, which undoubtedly related to the computation of production bonus, must therefore be quashed, and it is so ordered.
10. It was next found possible by the labour court to think that there was some kind of custom prevalent in the factory under which the workers were free to leave the factory after they completed their work in six chambers. That was the finding which the labour court recorded in Para. 5 of its award. This is what it said about it :
'On issue 2, I hold that at least as per practice in this factory which appears to be a modification of the practice in the tile industry to allow the kiln gang to go early after finishing their out-turn quickly that the gang is free to leave the factory (after finishing six chambers) between 2 and 3 p.m. if not earlier.'
11. In recording a finding to this effect, it is obvious that the labour court entirely misunderstood the case which was presented on behalf of the workers before it. Now the issue relating to this matter was the second issue which reads :
'Whether the custom or rule or practice set up in Para. 2 of claim statement is true to any and what extent ?'
12. Mr. Menon has read out to us Para. 2 of the claim statement which makes it clear that what the workers stated before the labour court was that there was some practice in the entire the industry as a whole entitling the workers in that industry to leave the factory and their post of duty immediately they finish their work in at least six chambers. On that question whether there was any such universal practice in the tile industry, the labour court, in my opinion, must be understood to have recorded a finding against the workers. That that is so is clear from the form in which the finding was recorded on the second issue in which the labour court made it clear that in its opinion the practice set up by the worker with reference to the entire tile industry was not established. If that part of the workers' case was not established as the labour court must be understood to have said, how it was possible for the labour court to come to the conclusion that such custom was prevalent in the petitioner's tile industry is what is not possible to understand. No such case was set up by the workers and no evidence on that question appears to have been produced before the labour court. Mr. Menon has explained to us that all that was conceded on behalf of the management was, that generally the management had no objection to allow the operatives in the kiln department to go away if they finished eight chambers. That indugence, it is explained, was attributable to the supply of green tiles for being backed in the chambers not exceeding what would be sufficient for eight chambers a day normally.
13. But Mr. Menon is right in contending that the fact that the management has no objection for the workers in the kiln department to go away if they did eight chambers a day, could not entitle the operatives in that department to claim the right to go home after their working in eight chambers is completed. If the management is not willing to allow the operatives to go home even after the work in eight chambers is completed, it is obvious that that right to be absent from the factory during all the eight hours prescribed by standing order 5 could not be claimed by the operatives. The finding on the custom in the factory, in my opinion besides relating to a case which is never set up by the operatives, is one which rests upon an entirely mistaken understanding of what was happening in the factory and cannot therefore be sustained.
14. The next submission made by Mr. Menon was that the labour court in coming to the conclusion that there was no proper enquiry and in coming to the further conclusion that in the absence of a proper enquiry made by the management the inevitable thing to do was to quash the punishment imposed by the management, entirely misdirected itself. He has pointed out to us that the only ground on which the labour court came to the conclusion that there was no proper enquiry was that although there were as many as 26 workers who had, according to the management, struck work, 26 different enquiries were not held and W.W. 1 and W.W. 2 were treated as the representatives of all those 26 workers, and that after the enquiry against those two operatives had been finished and completed the enquiries against the remaining 24 workers were proceeded and continued in their absence. Even if it can be said that the enquiry against those 24 workmen should have been conducted in their presence in spite of the management taking the view that W.W. 1 and W.W. 2 could be the representatives of those workmen, its omission to make the enquiries in the present of those 24 workmen would not be a sufficient ground for the labour court coming to the conclusion that the punishment imposed on those 24 workmen should be quashed and set aside only on that ground.
15. It is well-settled law that if a tribunal like the labour court which is entrusted with the investigation of an industrial dispute comes to the conclusion that an enquiry which is impeached before it was not made according to law or no enquiry was made at all, all that happens is that the neither matter would be at large before the tribunal entitling the tribunal to investigate into all the question arising between the workmen and the employer in regard to which an enquiry was made. That would be the only consequence of a defective enquiry or the omission to make an enquiry as pointed out by their lordships of the Supreme Court in Bharat Sugar Mills, Ltd. v. Jai Singh and others [1961 - II L.L.J. 644]. On p. 649 their lordships observed as follows :-
'Nor can we ignore the fact that for a long time now, it has been settled law that in the case of an adjudication of a dispute arising out of a dismissal of a workman by the management (as distinct from an application for permission to dismiss under S. 33), evidence can be adduced for the first time before the industrial tribunal. The important effect of the omission to hold an enquiry is merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out. This was recently pointed out again in the Punjab National Bank, Ltd. v. Its workmen [1959 - II L.L.J. 666 at 682] in these words : 'If no enquiry has in fact been held by the employer, the issue about the merits of the impugned order of dismissal is at large before the tribunal and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved ...''
16. Now in this case all the materials relevant to the question whether the operatives unlawfully stayed away from work on 30 April, 1959 were before the labour court. Indeed, it recorded a finding, although that finding was, as pointed out by me, entirely unsupportable, that it was open to the operatives in the kiln department to leave the factory premises after they had complete their work in six chambers. On the question whether they had that right, all the materials which were necessary to enable the labour court to come to a proper conclusion were placed by both sides. This was therefore a case in which it was unnecessary for the tribunal to investigate the question whether there was or there was not a proper enquiry by the management and even if it did make an investigation into that question and came to the conclusion that no proper enquiry was made, all that the labour court should have done was not to condemn the punishment imposed by the management on the ground that it was not preceded by a full or proper enquiry but to decide the question itself, as it indeed did.
17. If we should find - as in my opinion we should - that it was not permissible for the workers to abstain from duty before the eight working hours had expired and we should hold - as in my opinion we should - that the labour court was not right in coming to a contrary conclusion, it is obvious that what the operatives did on 30 April, 1959 when they left the factory premises at 3 p.m. two and a quarter of an hour before the period during which they had to work came to an end, amounts to clear misconduct in respect of which the management was at liberty to impose the punishment which it imposed on them. In that situation the question whether there was some imperfection or defect in the enquiry held by the management ceased to have any materiality.
18. The only question which remains to be considered in the complaint made by Mr. Menon before us that in Para. 9 of the award made by the labour court it made what Mr. Menon characterizes as an entirely unfair stricture upon the manager of the factory, M.W. 2. This is what the labour court observed :
'Apart from all these things, I have already found that the charges that the workers were on strike at about 1-15 p.m. is untenable for the reasons stated already. It is quite likely that the manager M.W. 2 had prearranged the short supply of green tiles on 30 April, 1959 in such a manner in order to force a situation so as to compel the workers of the kiln gang to continue to work beyond 3 p.m. to finish eight or more chambers or run the risk of being penalized and punished for stoppage of work on finishing six chambers output.'
19. The finding recorded by the labour court in Para. 6 of its award was that although no green tiles were available at 1-15 p.m. as many as 3,056 green tiles were available to be loaded into the chambers at 3 p.m. and that 10,590 green tiles were again available by 5-15 p.m. at the concluding part of the day. Although it is seen from the award, the labour court made somewhat contradictory statements in regard to the exact time when the operatives stopped their work on 30 April, 1959, it is clear from what it said towards the end of Para. 5 of its award that it appears to have been of the view that the stoppage of work by the 26 operatives was some time about 1-15 p.m. on that date. It was also the finding of the labour court that at 3 p.m. all these 26 operatives left the factory and went away. Now if as found by the labour court although green tiles were not available at 1-15 p.m., but there were at least as many as 3,056 green tiles at 3 p.m., far from there being any justification for the operatives for leaving the factory premises notwithstanding the availability of such a large number of green tiles it becomes abundantly clear that the charge against M.W. 2 that he resorted to a subterfuge for the purpose of making green tiles unavailable to the operatives so as to make their presence in the factory necessary even after 3 p.m. appears to me to rest on extremely slender foundation, particularly when W.W. 1 and W.W. 2 did not make any such accusation against M.W. 2. In my opinion, that part of the award of the labour court in which the labour court indulged in an extremely unfair observation against M.W. 2 must stand expunged, and it is ordered accordingly.
20. What remains now to be considered is the form of the order we should make in this case. Mr. Menon has explained to us that the management does not feel very much troubled about the direction made by the labour court that the 26 refractory operatives should be paid their wages for 30 April, 1959. We have been informed that the wages directed to be paid to them have been paid. Mr. Menon does not ask us to issue a direction to the operatives that they should pay back to the management those wages that have been paid to them. It has been explained to us that all that the management were constrained to complain in this writ petition against the award made by the labour court was, that the conclusion reached by it as to the quantity and the measure of work which an operative in the kiln department had to do under the terms of employment. Now that the finding of the labour court which was to the effect that six chambers a day was all that an operative was bound to complete in a day has been quashed, Mr. Menon tells us that the management does not desire any further direction to be issued by us and not even a direction that the operative should pay back to the management the wages for 30 April, 1959. In that view of the matter, there is nothing more for us to say in this writ petition or to issue any further direction in regard to the wages directed to be paid for 30 April 1959.
21. This writ petition is accordingly allowed and the findings recorded by the labour court on issues 1, 2, 3, 7 and 8 are quashed. As already stated, we abstain from making any direction for the repayment of the wages to the management. The labour court awarded Rs. 75 by way of costs to the workmen and it does not seem to me that we should do anything in that matter. That direction will stand undisturbed.
22. In this writ petition, there will be no order as to costs.
Kalagate, J.
23. I agree.