1970 PLP 530 (PLC)

On 8th May 1964, the, Acting Works Manager, of the appellant-company, passed orders, warning the concerned work men, for having misconduct themselves, as stated in the charge-sheet, dated 28th March 1964. It is further stated, in this order, that, after hearing the explanation, furnished by the workmen, the Management holds the workmen guilty of mis conduct, for which they could have been dismissed; but the Management has taken a lenient view and, hoping that the misconduct will, not be repeated, administers an earnest warning. In respect of the second strike, which took place on 10th April 1964, the Management charge-sheeted, on 16th April 1964, thirteen workmen. for going on illegal strike, which is a mis conduct, under sub-clause (2) of clause 21 of the Certified Standing Orders of the company, and as the strike was in on 17th April 1964, the thirteen workmen, jointly sent a reply saying that the strike, on 10th April 1964, was legal, and due notice 'had been given, under the provisions, of the Act. They also denied having intimidated, or restrained, any willing worker farm going work. They further stated that they had not committed any misconduct. The Management proceeded to conduct an inquiry against the thirteen workmen, and Sri -K. D. Gupta, an officer of the company, was entrusted with the conduct of the said inquiry. Shri Gupta accordingly conducted, an enquiry on 20th April 1964, and sent his report to the Acting Works Manager, on 24th April 1964. After refer ring to the conduct of the inquiry proceedings, Shri Gupta has stated that the thirteen workmen are guilty of participation in an illegal strike on 10th April 1964, and, as participation in an illegal strike is a misconduct under clause 2(2) of the Certified Standing Orders of the company, the workmen concerned are guilty of misconduct; but, regarding the charge of intimidation and incitement, the inquiry officer found that the said charge was not established. On 22nd May 1964, the Acting Works Manager of the appellant accepted the report of Shri Gupta sod passed orders, administering a warning, to seven, out of the thirteen, work men; but, regarding the remaining six workmen the Works Manager, after taking into account the warning that had been administered to them on 8th May 1964, for going on an illegal strike (referring to the first strike), passed orders dismissing them from service. The Union raised a dispute, regarding the dismissal of the six workmen and, accordingly, the said dispute was referred to the Labour Court, 'Allahabad, for adjudication. The case of the workmen was that the strike, on 10th April 1964, was legal, and that, the domestic inquiry, conducted by Shri Gupta, was neither bona fide, nor fair. They also contended that in view of the settlement arrived at on 29th March 1964, in respect of the first strike, the Management had no right to take any action; by way of warning the workmen, as it purported to do on 8th May 1964. Taking the said warning into account, for the purpose of imposing the punish ment of dismissal, amounted to a vindictive conduct, on the part of the Management, and, therefore, the order of dismissal was illegal. The Management on the other hand, contended that the strike, that took place on 10th April 1964, was illegal, as it was not in accordance, with the provisions of the Act and participation in such illegal strike was a misconduct under clause 11(2) of the, Standing Orders of the company and such misconduct could be punished by dismissal under clause

22. According to the Management, the inquiry proceedings, conducted by Gupta, were quite fair and bona fide, and-the work men were given full opportunity to participate in the inquiry proceedings. They- also pleaded that the Management was entitled to impose punishment for misconduct, by taking into account the previous conduct of the workmen concerned; and, in this case the zvarrin2, recorded against them on 8th May 1964, was legimately and property taken into account, inasmuch as the Management had not agreed to withdraw tire proceedings, against the workmen. The Labour Court has upheld the plea of the Management, that the second strike, on 10th April 1964, being contrary to sub section (4) of section 6-S, was -illegal under section 6-T of the Act; but it has further held that, notwithstanding the infirmity in the notice issued by the workmen regarding the second strike, all the Managements in the area, including the appellant; Were fully aware of the fact of the intended token strike on 10th April 1964. The Labour Court has further held that the inquiry proceedings, conducted, by Shri Gupta, were bona fide and fair, and they suffered from no infirmity whatsoever. The Labour Court further holds that, though normally imposing of a punishment, for misconduct, under the Standing Orders, is a managerial function, in this case; the appellant was not justified, in taking; into account the warning, recorded on 8th May 1664, in respect of the first strike. It is the further view of the Labour Court, that the continuance of disciplinary proceeding, and recording of warning, on 8th May 1964, by the appellant, against the six, concerned workmen, in respect of the first strike, was with a view to create a ground for punishment and dismissal, in the sub sequent proceedings, relating to the second strike, and, as such, the action of the Management not bona fide. The Labour Court, in this connection, refers to the Proceedings of the District Industrial Relations Advisory Committee, that took place on 29th March 1964, in the presence of the represen tatives of the appellant; and the Union, and the Labour Court is of the view that a settlement had been arrived at, by which the Management has agreed not to take any disciplinary action against the workers, in connection with the first strike. Ultimately, the Labour Court holds that the punishment of dis missal, inflicted on the six workmen, by the appellant, on 22nd May 1964, is unconscionable and unjustified, and not recorded in a bona fide manner. In consequence, the order of dismissal passed against the six concerned named in the annexure to the order of reference, was set aside and the workmen were directed to be re-instated with 50 per cent. fuck wages. We have fairly elaborately referred to the various circum stances leading to the passing of the order of dismissal, by the Management, in order to appreciate the contentions urged on behalf of the Management, that the Labour Court had committed a serious illegality in interfering with an order passed by the Management, for misconduct; as provided under the standing orders of the company. Mr. H. R. Gokhale, learned counsel for the appellant, raised two contentions" before us: (i) that the finding of the Labour Court than, at the meeting of the District Industrial Relations Committee: held on 29th March 1954, the appellant agreed not to take disciplinary action, against its workmen, in respect of the first strike, is erroneous; and (ii) that having, held that the second strike was illegal, as being contrary to subsection (4) of section 6-S of the Act, the- Labour Court has committed an error in interfering with the act of the Management, when it imposed a punishment, for misconduct, under the standing orders of the company. Mr. R. Vasudeva . Pillar, learned counsellor the Union, has supported, ire full, the, award of the Labour Court. We are not impressed with either of the contentions of the learned counsel for the appellant. We have already referred to the proceedings of the District Industrial Relations Committee, of 29th March 1964. No doubt, a day prior to that, the appellant had issued notices to the workmen, asking them to show cause as to why disciplinary action should not be taken against them, for going on strike from 18th March 1964. There was a joint reply, given by the workmen, on 9th April 1964, to the effect that, at the meeting held on 29th March 1964, the Management had agreed not to take any disciplinary action against the work men, and that, it was on that basis that the strike itself was called off, and the Workmen arrested were also released by the Government, There was no doubt an attempt by the Management, in their reply of 10th April 1964, to make it appear that they had not committed themselves, at the meeting of 29th March 1964, as mentioned by the workmen. But it-is rather surprising that, when the President of the Union, WWI, gave evidence to the effect that there was a settlement, on 29th March 1964, whereby the Management had agreed not to take any disciplinary action against the workmen, there was absolutely no cross-examination, by the appellant, of that witness. There is no dispute that Mr. Wright represented the Management at the said meeting, and no suggestion even has been made to WWI that the evidence, given by him, is not correct. No doubt, the appellant, in their letter of April 10, 1964, had taken the stand that the company had not committed itself not to take any action against the workmen, in respect of the first strike The inquiry report of Shri Gupta, in respect of the second strike, was already in .the hands of the Management, on 24th April 1964. It is really after the receipt of this report; that the Acting Works Manager of the appellant-company recorded warnings, as against the concerned workmen, on 8th May 1964, in respect of the first strike. The warning has' been taken into account by the Works Manager, when he passed the order of dismissal, in respect of the second strike; on 23rd May 1964. Having due regard to these circumstances, the finding of the Labour Court, that the continuance of the disciplinary proceedings, and recording of punishments of warnings, as against the six concerned workmen, on 8th May 1964, in respect of the first strike, by the Manage ment, was to create a ground for punishment and dismissal, in respect of the second strike, is perfectly' justified. The further finding of the Labour Court, that the action of the Management in recording warnings in respect of the first strike, is not only not bona fide, but also against the settlement arrived at on 29th March 1964, is also correct. The first contention, on behalf of the-Management, therefore fails. There is the finding of the Labour Court, that the second strike, on 10th April 1964, is illegal. Going on illegal strike, is certainly `misconduct' under sub-clause (2). of clause 21 of the Standing Orders of the company. Under clause 22 of the Standing Orders, the punishment for misconduct is dismissal, or in the alternative, suspension, for a period not exceeding four days. If the Management had, without any regard to what happened, in respect of the first strike, imposed punishment under clause 22, in respect of an- illegal strike, which is `mis conduct' under clause 2I(2) of the Standing Orders, after a fair inquiry, the punishment meted not being a managerial function, would not be normally interfered with. But, in this case, even the order of dismissal clearly shows that the Management had taken into accou4t the, previous conduct of the workmen, in having gone on the first strike, and the punishment of warning, administered on 8th May. 1964. It is because of this past conduct. It is further stated to the order, that the six workmen were being dismissed from service. The finding of the Labour Court is that the Management was not entitled to take into account the warning, given on 8th May 1964, in respect of the first strike, in view of the settlement, on 29th March 1964. In view of the fact that the warning has been taken into account) by the Management, which it is not entitled to, the punishment of dismissal has been rightly considered, by the Labour Court, to be bona fide, and vindictive. In fact, the Labour Court is also of the view that the punishment is unconscionable, anal unjustified. It is on these grounds, that the Labour Court has interfered with the order of dismissal passed by the Manage ment. The second contention of learned counsel for the appel lant also fails, as we are in agreement with the reasons given by the Labour Court, on this aspect of the matter. The result is that this appeal fails, sad is dismissed: There will be no order as to costs. .