P L (PLP)

CORNELIUS, J.‑This petition by .the River Steam Navigation Company Limited, seeks special leave to appeal against an order of an Industrial Tribunal made under section 33 of the Industrial Disputes Act, 1947, upon an application by the petitioner com pany., The appointment of the Industrial Tribunal had been made by the Government of East Pakistan on the 8th.November 1957. It was made in consequence of a strike‑notice served upon the petitioner company, by a union of employees known as the

1. G. R. S. Employee A, Union, delivered on the 25th October 19.57, whereby certain demands relative to the terms and conditions of service of certain employees were made, and a threat was added that if these demands were not met within a given time, there would be a strike as from the 10th November 1957. The appoint ment of the Industrial Tribunal was thus made two days before the threat was to become effective. It appears that the Industrial Tribunal is still proceeding with the main case. In the course of its proceedings, an application was made by the Company to the Industrial Tribunal for the grant of permission under section 33 of the Industrial Disputes Act; to, dismiss 227 named employees, being clerical and subordinate staff employed in the Dacca Head Office of the Company." The ground put forward was that these persons had been guilty of participating in an illegal strike. The petition was resisted on the part of the workers, and evidence was led on issues drawn by the Industrial Tribunal. It is a point worthy of note that the workmen had alleged that they had not struck work on the 11th November 1957, a Monday, but had found when they arrived at the office that they had been locked out. The Industrial Tribunal recorded the following conclusions: (1), That there was a strike, which was illegal, but it was impossible on the evidence to say which of the named personnel whose dismissal was sought had participated in the strike; (2) that participation in an illegal strike is not by itself suffi cient for ending the employer‑employee relationship vide the Punjab National Bank Case (1952)

2. Labour Law Journal, page 658; (3) that in order to obtain sanction to dismiss any of the named personnel, it would have been necessary for the Company to prove that these persons had been guilty of violent or sub versive acts, and to show that proper charges had been framed against these particular persons and a proper enquiry satisfying the rules of natural justice had been held vide the L. D. Sugar Mills Case, 1952 Labour Law Journal, page 17 ; (4) that in the present case, nothing was alleged in the petition beyond the fact of participation in an illegal strike, and the Company could not be permitted in the course of the proceed ings upon their application to plead and establish any further acts on the part of any of the specified personnel, which might justify the grant of permission to dismiss him or them vide the Punjab National Bank Case, cited above; (5) that the only such additional acts alleged were acts of obstruction and assault in the course of picketing, and the supporting evidence was unsatisfactory ; and (6) that dismissal for mere participation in an illegal strike could not be justified in the circumstances of the case. Accordingly, the permission sought for was refused and the Com pany now seeks special leave to appeal against that order. Section 33 of the Industrial Disputes Act reads as under :‑ "No employer shall during the pendency of any conciliation proceedings or proceedings before a Tribunal, in respect of any industrial dispute, alter to the prejudice of the workmen con cerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceed ings, nor, save with the express permissions in writing of the Conciliation Officer, Board or Tribunal, as the case may be, shall be during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute". The words of the statute place no qualification or restraint upon the power of the authority, which in the present case is the Industrial Tribunal, to give or refuse the relevant permission. Mr. Fazlur Rahman for the Company urges that the function is one which is subject to ' judicial control. It cannot be performed capriciously or according to the whim or fancy of the Industrial Tribunal, but its exercise is subject to well‑recognised judicial principles. There being no reported case of the relevant kind in Pakistan, Mr. Fazlur Rahman has been obliged to refer to a number of cases from the Indian Jurisdiction, where the relevant Acts are in terms similar to those in force in Pakistan. The first case cited is that of the L. D. Sugar Mills also published as (AIR1957SC26), where 76 workers had gone on what is described as a " tools‑down strike ", which was illegal, and in addition they had entered the factory violently, and adopted threatening attitudes, thus creating an explosive situation which was only saved by Police intervention. Later the workmen sent the employers a letter in which they indirectly threatened violence. Police precautions were continued, and the General Manager framed charges against the 76 workmen involved, giving them due notice of the date on which he would hold an enquiry. The workmen however refused to attend, declaring that they did not expect ‑justice at the hands of the Company. This attitude was characterized by the Com pany as amounting to insubordination, and thus constituted an additional ground for dismissal, supplementary to those, which were found as a result of the above‑mentioned enquiry. There after an application was made to the industrial Tribunal for permission to dismiss these employees, which was refused on the ground that the Company had not acted in strict compliance with the Standing Orders and therefore was not entitled to the permission sought. The Supreme Court of India held that the strike was illegal, and that there had been a fair enquiry into the allegations of misconduct and insubordination. which had been duly established and further that the Company had in good faith reached the conclusion that to continue these workmen in their employment would be detrimental to discipline and dangerous to the interests of the Company. Upon these findings, it was held that a prima facie case had been made out and therefore the Industrial Tribunal should have granted per mission as sought by the Company. This view was supported and applied in two subsequent cases namely the Caltex case (l; and the case of Martin Burn (AIR 1958SC79). In each of these cases a single employee was concerned. In the first case, the employee in question had been caught violating a most important rule which violation might have led to the most disastrous consequence He was caught smoking within 25 feet of an air‑craft which was being refuelled with gasoline, and had pleaded guilty. In the second case the employee had a record, extending over five years, of continuous inefficiency, negligence amounting to gross care lessness in the performance of his duties, failure to improve despite repeated warnings and opportunities for reform, and finally insubordination. In these two cases it does not appear whether: the question of an illegal strike arose, but it was clear before the Court in the first case of the L. D. Sugar Mills. We desire to acknowledge the assistance, which we have derived from perusal of the careful judgments delivered in the Supreme Court of India in the cases cited above. The question before an Industrial Tribunal dealing with an application under, section 33 of the Act for permission to dismiss a workman, ands thus to terminate the employer‑employee relationship, the exis tence and continuation of which is the foundation and purpose of A the Industrial Tribunal's jurisdiction to the matter, obviously cannot be dealt with by the Industrial Tribunal arbitrarily or without regard to principle. Consequently, there need be no diffi culty in holding that it is an act of a quasi judicial nature. It becomes clear that it was so considered in the present case, if regard be had to the ' careful manner in which the Industrial Tribunal extracted the issues of fact and law, recorded evidence, and heard the parties before giving a considered decision. The procedure, which the adopted was clearly judicial, and we are satisfied that he acted with complete propriety in following this procedure. Mr. Fazlur Rahman has not been able to satisfy us, on principle or precedent, that the mere fact of participating in an illegal strike is in all circumstances a sufficient ground, justifying the exercise of discretion in the employer's favour on an applica tion under section 33 of the Industrial Disputes Act in the circumstances of the present case. It is true that participation in an illegal strike is a criminal act, punishable under the Indus trial Disputes Act of which section 26 is relevant. Yet, if by such participation, a workman were to forfeit his right to continue in his employment, which thereupon becomes terminable, by way of punishment, at the will of the employer, subject only to the automatic grant of permission under section 33, the result would clearly be to frustrate the entire proceedings before an Industrial Tribunal, where, as in the present case, the Industrial Tribunal was appointed, and the dispute between the employee and the employees had been referred to it, in advance of the commencement of the strike. Despite the fact that the strike was illegal, the Industrial Tribunal is still continuing his enquiry into the dispute, and it is clearly impossible to hold that the continua tion of these proceedings is to be regarded as dependent upon a unilateral act on the part of the employer, namely, the formation'' of an intention to dismiss each of the employees who participated in the legal strike, for which, according to the submission of Mr. Fazlur Rahman, the Industrial Tribunal would be bound under section 33 to accord sanction. Other, and not less important considerations have also to be borne in mind. Where a strike is not illegal, failure of a work man to appear for work doe not entitle the employer to dismiss him. But the converse ~is not to be taken for granted. It does not necessarily follow that mere participation in an illegal strike is a sufficient ground for instant dismissal. On this point, we find ourselves in agreement with the observations in the Punjab National Bank case (cited above) reproduced below: "A strike may be illegal on account of contravention of section 22 or 23 of the (Industrial Disputes) Act, though it may be perfectly justified, or a strike though illegal by reason of these provisions may be the result of provocation on the part of the employer or such a strike may last for a very short time. Modern concepts of social justice would be outraged if in such cases the employer could dismiss a workman for his mere absence due to his participation. in such a strike". In the present case, we find that the demands of the workmen were set out in some 137 separate items, involving a large number of workmen who were named, and generally a number running into thousands. In such a case, it is proper that the important question whether a particular workman should be declared liable to dismissal should not be answered solely on the consideration t: that he struck work along with a great number of his fellow workers. It is to be remembered that a conclusion that a strike is illegal often turns upon considerations of a technical nature. In such a case mere participation cannot furnish a sufficient ground for destroying the basis, namely the employer‑employee relationship, of the proceeding for settlement of the dispute before the Industrial Tribunal. While acknowledging our debt to the examination given to the question in the Indian decisions cited above, we feel it our duty to say that we are not prepared to hold that the mere fact of parti cipation in an illegal strike can in no case be a sufficient ground for the grant of the relevant permission. It is in our opinion possible to conceive of such a strike being attended by circum stances of aggravation e.g. facts may appear showing a conscious intention to cause grave and irreparable injury to the employer. Such a case would bear no resemblance to those in which a strike is resorted to, by way of direct action to bring about amelioration of the conditions of a certain employment, with a view to its continuation on a more equitable basis in the light of modern conceptions of social justice. Where aggravation exist in they, sense suggested above, it will obviously be the duty of any` authority acting under section 33 to consider carefully whether, the act of an employee in participating in an illegal strike, does or does not give rise to a right in the employer to claim that the continuation of such a person in the employment is injurious or dangerous to the interests of the employer or of the employment itself. Since the question does not arise out of the facts of the present case, we need not further elaborate our opinion upon this aspect of the provisions of section

33. Mr. Fazlur Rahman has also referred us to section I1 of the East Bengal Shops and Establishments Act 1951,in support of his argument that an employee who participates in an illegal strike becomes for that reason alone liable to dismissal. This Act applies to any "commercial establishment", which expression by definition includes "a clerical department of any industrial undertaking". It is contended that the clerical and subordinate staff employed in the Dacca Head Office of the Company falls within the expression "persons employed in a commercial estab lishment ". By section 11 it is provided that no such person shall be dismiss,6d or discharged unless for such gross misconduct as may be prescribed without being given 30 days' notice in writing or wages in lieu thereof, by way of compensation, in case he has been in service for 6 months or more. The compensation is increased where the length of service is greater, by terms of a proviso to the section. Among the types of misconduct, which have been defined by rule to be "gross misconduct" for purposes of section 11, one is "striking work or inciting to strike in contravention of the provisions of any law for the time being in force". The argument based on these provisions is that dismissal is recognised by this particular law as a proper punish ment for participating in any illegal strike. In our opinion, these legal provisions are not to be cons trued in this manner. Section 11 of the East Bengal Shops an Establishments Act is intended to provide benefits and reliefs to employees, even in cases of dismissal. It cannot be construed as a source of power for employers to exercise their right of E dismissal of their employees. That power is inherent in the employer‑employee relationship, and its exercise in the present case is governed by the principles; of low relating to tile settlement of industrial disputes. We are clear in our opinion that under the law, as applicable in the circumstances of the present case, mere participation in an illegal strike is not a sufficient ground for permitting an employer by unilateral action to terminate the employer‑employee relationship with any workman during the pendency of proceedings before an Industrial Tribunal which is charged with the duty of settling the terms of that relationship, with a view to its harmonious continuation. Mr. Fazlur Rahman urged that the grant of permission under section 33 would not necessarily mean that all the workmen in question would be dismissed forthwith. The Company intended to hold enquiries, and to use the permission only in relation to those found guilty of misconduct. The answer to this contention is that the correct procedure is, by framing of charges, to ascertain the misconduct first, before approaching the Industrial Tribunal for permission to dismiss. Moreover, the grant of permission in the sense suggested is not within the contemplation of the section and would be a clear misuse of the power vested in the Industrial Tribunal. We were not pressed to consider the allegation that some of the employees in question had been guilty of certain positive acts, viz. obstruction and assault in the course of picketing. The Industrial Tribunal having considered the evidence on the point, found it insufficient to sustain any safe finding on the point. It is also open to question whether an employer is competent to adduce evidence of such acts in support of a prayer under section 33 of the Industrial Disputes Act, when in his petition, he has sought permission to dismiss upon a single and entirely general ground, namely that the personnel in question have indulged in an illegal strike. In our opinion the case for the Company gained no strength from the effect, which was made to establish these acts of obstruction etc. by way of afterthought when dismissal had been sought on a single ground of general application. For these reasons, we dismiss this petition. The opposite party is represented before us and we accordingly allow them their costs against the petitioner Company. K.B.A Petition dismissed.