TMI Blog1979 (11) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees, followed by fresh recruitment of workmen, de facto breakdown of the strikes and dispute over restoration of the removed workmen. This cataclysmic episode and its sequel formed the basis of Section 10-A arbitration and award, a writ petition and judgment, inevitably spiralling up to this Court in two appeals - one by the management and the other by the union - which have been heard together and are being disposed of by this common judgment. The arbitrator held the action of the Management warranted while the High Court reversed the award and substantially directed reinstatement. The Jural perspective 3. A few fundamental issues, factual and legal, on which bitter controversy rages at the bar, settled the decisional fate of this case. A plethora of precedents has been cited and volumes of evidence read for our consideration by both sides. But the jural resolution of labour disputes must be sought in the law-life complex, beyond the factual blinkers of decide cases, beneath the lexical littleness of statutory texts, in the economic basics of industrial justice which must enliven consciousness of the Court and the corpus juries. This Court has developed labour law on thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. Therefore, it lacks the power that true combination gives. (ibid) Hence, my advice to the employees would be that they should willingly regard workers as the real owners of the concerns which they fancy, they have created (ibid) . . . . 6. Tuned to those values are the policy directives in Articles 39, 41, 42, 43 and 43-A. They speak of the right to an adequate means of livelihood, the right to work, humane conditions of work, living wage ensuring a decent standard of life an enjoyment of leisure and participation of workers in management of industries. De hours these mandates, law will fail functionally. Such is the value-vision of Indian Industrial Jurisprudence. The matrix of facts - A Preview 7. The nidus of fact which enwomb the issues of law may be elaborated a little more at this stage. In the vicinity of Ahmedabad city, the appellant is a prosperous engineering enterprise which enjoys entrepreneurial excellence and employs over 800 workmen knit together into the respondent Union called the Gujarat Steel Tubes Mazdoor Sabha (the Sabha, for short). Fortunately, the industry has had an innings of escalating profits but the workmen have had a running complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he socialist thrust of the Constitution as a substantive submission and, as justificatory of the workmen's demands, relied on the glaring contrast between the soaring profits and the sagging wages, while Sri Bhandare has pressed the lachrymose case of the several hundreds of 'interregnal' employees whose removal from service, on reinstatement of the old, might spell iniquity. Olive Branch Approach 11. At this stage we must disclose an effort at settlement we made with the hearty participation of Sri Asoke Sen and Sri Tarkunde at the early stages of the hearing. 12. The golden rule for the judicial resolution of an industrial dispute is first to persuade fighting parties, by judicious suggestions, into the peace-making zone, disentangle the differences, narrow the mistrust gap and convert them, through consensual steps, into negotiated justice. Law is not the last word in justice, especially social justice. Moreover, in out hierarchical court system, the little man lives in the short run but most litigation lives in the long run. So it is that negotiation first and adjudication next, is a welcome formula for the Bench and the Bar, Management and Union. This ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into being and commanded the backing of all or most of the mill-hands. By March 1969, the Sabha presented a charter of demands, followed by resistance from the management and strike by the workers. By July 1969, a settlement with them Sabha was reached. Agreements relating to the various demands brought quite and respite to the industry although it proved temporary. 15. A vivid close-up of the sequences and consequences of the dramatic and traumatic events culminating in the reference to arbitration and the impugned award is essential as factual foundation for the decision of the issues. Even so, we must condense, since labyrinthine details are not needed in a third tier judgment. Broad line with the brush bring out the effect, not minute etches which encumber the picture. 16. An agreement of futuristic import with which we may begin the confrontational chronicle is that of April 1970. Clause 6 thereof runs thus Management of the company agrees to implement recommendations of the Central Wages Board for Engineering Industries as and when finally declared and all the increments granted to workmen from time to time under this agreement shall be adjusted with those recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning blame does not help now, but we refer to it here because Sri Asoke Sen with feeling fury, fell foul of the criticism by the High Court that the Management had acted improperly in insisting on arbitration, and argued that when parties disagreed, arbitral reference was the only answer and the workers' fanatical rejection of arbitration made no sense. We need not delve into the details of the correspondence relied on by either side to reach the truth. For, the union's case is that in the prior settlement between the two parties arbitral reference came only after negotiations failed. That was why they pressed the Management to reasons together, avoiding wresting with each other before a slow-moving umpire. 20. Sri Tarkunde, for the Sabha, urged that the workmen were not intransigent but impatient and pleaded for a negotiated settlement since the main point in dispute, namely, the implementation of the Central Engineering Wages Board's recommendations, was too plain to admit of difference, given good faith on both sides. We will examine the substance of this submission later but in needs to be emphasised that workmen, surviving on starving wages and with notoriously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s letter but the most money-loaded item was the grievance about the Wage board recommendations. The temper, by now, was tense. 23. The Management, on the same day, (January 25, 1973), set out its version on the notice board and the High Court's summary of it runs thus The notice stated that during the course of meeting with the representatives of the Sabha held on January 20, 1973 the company had expressed its willingness to implement the Wage Board recommendations according to its interpretation on and with effect from January 1, 1969 without prejudice to the rights and contentions of the workmen and leaving it open to the parties to take the matter to arbitration for resolution of the points of dispute. The Sabha, however, had turned down this suggestion and it came to the notice of the Company that workmen were being instigated by making false representations. The company clarified that on and with effect from January 1, 1972 every workman would be entitled to the benefits of Wage Board recommendations, irrespective of whether the concerned workmen had put in 240 days attendance. 24. The Sabha's answer was a strike two days later. This event of January 27 was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercises notwithstanding, the strike regard undaunted, the production was paralysed and the Management retaliated by an elaborate notice which dilated on its preparedness to negotiate or arbitrate and the Sabha's unreason in rejecting this gesture and persisting on the war path. The stern economic sanction was brought home in a critical paragraph By this final notice the workmen are informed that they should withdraw the strike and resume work before Thursday, February 15, 1973. If the workmen resume duty accordingly, the management would be still willing to pay salary according to the recommendations of the Wages Board on and with effect from January 1, 1969. Furthermore, the management is ready and willing to refer to the arbitration of the Industrial Tribunal and question as to whether the Management has implemented the settlement August 4, 1972 and all other labour problems. In spite of this, if the workmen do not resume duty before Thursday, February 15, 1973, then the company will terminate the services of all workmen who are on strike and thereafter it will run the factory by employing new workmen. All Workmen may take note of this fact. 27. The count-down thus be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the action taken, on February 20, 1973 and forwarded them to the Sabha and to the individual workmen on request. The anatomy of this proceeding is of critical importance in deciding the character of the action. Was it a harmless farewell to the workmen who were unwilling to rejoin or a condign punishment of delinquent workmen ? 31. The separate memorandum of reasons refers to the strike as illegal and unjustified and narrates the hostile history of assault by workmen of the officers, their go-slow tactics and sabotage activities, their contumacious conduct and a host of other perversities vindicating the drastic action of determining the services of all the employees. The concluding portion reads partly stern and partly non-committal In the interest of the Company it is decided to terminate the services of all the workmen who are on illegal and justified strike since January 27, 1973. Under the circumstances, it is decided that the service of all the workmen who are on illegal and unjustified strike should be terminated by way of discharge simpliciter. These workmen, however, may be given opportunity to apply for employment in the Company and in case applications are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scalating re-employment and the Management's restoration of continuity of service and other benefits for re-employed hands. The employer relief on this gesture as proof of his bona fides. Meanwhile, there were exchanges of letters between and 'trading' of charges against each other. The Management alleged that the strikers were violent and prevented loyalists' return while the Sabha was bitter that gonads were hired to break the strike and promote blacklegs. These imputations have a familiar ring and their impact on the legality of the discharge of workmen falls for consideration a little later. The stream of events flowed on. The Sabha protested that the Managements was terrorising workmen, exploiting their sagging spirit and illegally insisting on fresh applications for employment while they were in law continuing in services. With more 'old workers' trickling back for work and their discharge orders being cancelled, the strike became counter-productive. Many overtures on both sides were made through letters but his epistolary futility failed to end the imbroglio and brought no bread. The worker wanted bread, job, and no pyrrhic victory. 35. A crescent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the receipt of the Sabha's letter accepting the offer the Management back-tracked or had second thoughts on full re-employment. For, they replied with a long catalogue of the Sabha's sins, set out the story of compulsion to keep the production going and explained that since new hands had come on the scene full re-employment was beyond them. In its new mood of victorious righteousness, the Management modified the terms of intake of strikers and saddled choosy conditions on such absorption suggestive of breaking the Sabha's solidarity As on the present working of the Company, the Company may still need about 250 more workers including those to be on the casual list as per the employment position prior to the start of the strike. You may, therefore, send to us immediately per return of post the list of the workers who can and are willing to join duty immediately so as to enable us to select and employ the workmen as per the requirements of the Company. Further, it would also be necessary for you to state in your reply that you have called off the strike and have advised the workers to resume the work as otherwise it is not clear from your letter as to whether y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because it is over-judicialised and under professionalised, lacking in social orientation and shop-floor knowhow and, by its sheer slow motion and high price, defects effective and equitable solution leaving both Management and Unions unhappy. If Parliament would heed, we stress this need. Industrial Justice desiderates specialised processual expertise and agencies. 42. This factual panorama, omitting a welter of debatable details and wealth of exciting embellishments, being not germane to the essential issue, leads us to a formulation of the decisive questions which alone need engage out discussion. The Management might have been right in its version or the Sabha might have been wronged as it wails, but an objective assessment of the proven facts and unbiased application of the declared law will yield the broad basis for working out a just and legal solution. Here, it must be noticed that a new union now exists even though its numerical following is perhaps slender. We are not concerned whether it is the favoured child of the Management, although it has received soft treatment in several settlements which have somewhat benefited the whole work force and suggests a syndrome not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire community. As Julian Huxley remarks in his essay on Economics Man and Social Man Many of out old ideas must be retranslated, so to speak, into a new language. The democratic idea of freedom, for instance, must lose its nineteenth century meaning of individual liberty in the economics sphere, and become adjusted to new conception of social duties and responsibilities. When a big employer talks about his democratic rights to individual freedom, meaning thereby a claim to socially irresponsible control over a huge industrial concerns and over the lives of tens of thousands of human beings whom it happens to employ, he is talking in a dying language . (Cited in V. R. Krishna Iyer LAW AND THE PEOPLE - A COLLECTION OF ESSAYS, p. 36) 45. Homo economicus can no longer warp the social order. Even so the Constitution is ambitiously called socialist but realists will agree that a socialist transformation of the law of labour relations is a slow though steady judicial desideratum. Until specific legislative mandates emerge from Parliament the court may mould the old but not make the new law. 'Interstitially, from the molar to the molecular' is the limited legislative role of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or acting in furtherance thereof amounts to misconduct. Standing Order 25 provides for penalty imposable on a workman guilty of misconduct. Accordingly amongst other punishments, a workman could be visited with the penalty of discharge under Order 23 of dismissal without notice for a misconduct [see sub-clauses (f) and (g) of clause (1)]. Clause (3) provides that no order of dismissal under sub-clause (g) of clause (1) shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause (4). Clause (4) provides for giving to the concerned workman a charge-sheet and an opportunity to answer the charge and the right to be defended by a workman working in the same department as himself and production of witnesses and cross-examination of witnesses on whom the charge rests. Under clause (6), in awarding punishment the Manager has to take into account the gravity of the misconduct, the previous record, if any, of the workman, and any other extenuating or aggravating circumstance. 49. The finding of the arbitrator that the workmen went on a strike which was illegal and in which they had participated is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted de hors the full facts. In Samsher Singh case (Samsher Singh v. State of Punjab, (1975) 1 SCR 814, 880 (1974) 2 SCC 831, 889 1974 SCC (L S) 550) the unsatisfactory state of the law was commented upon by one of us, per Krishna Iyer, J., quoting Dr. Tripathi for support (SCC p. 889, paras 160, 161) In some cases, the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of the order. When does 'motive' trespass into 'foundation' ? When do we lift the veil of 'form' to touch the substance ? When the Court says so. These 'Freudian' frontiers obviously fail in the work-a-day world and Dr. Tripathi's observations in this context are not without force. He says As already explained, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing results of the departmental enquiry a search for the 'substance of the matter' will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Failure to appreciate this relationship between motive (the real, but unrevealed object) and form (the apparent, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. 54. On the contrary, even if these is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate not take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here. 55. What is decisive is the plain reason for the discharge, not the strategy of a non-enquiry or clever avoidance of stigmatising epithets. If the basis is not misconduct, the order is saved. In Murugan Mills (Murugan Mills v. Industrial-Tribunal. (1965) 2 SCR 148, 151-152 AIR 1965 SC 1496), this Court observed The right of the employer to terminate the services of his workman under a standing order, like Clause 17(a) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh case ((1975) 1 SCR 814, 841-842 (1974) SCC 831, 855) and Chief Justice Ray ruled (SCC p. 855, para 80) The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the services may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside. Simple termination or punitive discharge ? 58. We must scan the present order of discharge of 853 workmen and ask the right questions to decide whether they are punishments or innocent terminations. Neither judicial naivete not managerial ingenuity will put the Court off the track of truth. What, then are the diagnostic factors in the orders under study ? 59. An isolated reading of the formal notices terminating their services reveals no stigma, no penalty, no misconduct. They have just been told off. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 100 per month be raised in terms of the Central Wage Board recommendations, as long ago agreed to by the Management but put off by the tantalising but treacherous offer of arbitration when the point admitted of easy negotiated solution. Arbitration looks nice, but, since 1969, the hungry families have been yearning for a morsel more, he urged. Blood, toil, sweat and tears for the workers and all the profits and production for the Management, was the industrial irony ! Knowing that every arbitral or other adjudicatory agency in India, especially when weak Labour is pitted against strong Capital in the sophisticated processual system, consumes considerable time, the lowly working class is allergic to this dilatory offer of arbitration. They just don't survive to eat the fruits. Such was his case. 61. The story of violence was also refuted by Sri Tarkunde, since the boot was on the other leg. Goondas were hired by the Management to sabotage the fundamental right to strike and with broken hearts several of them surrendered. When, at last, the Sabha agreed to see that all workmen reported for work within the extended time, the Management took to the typical tactics of victim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike and the Management, bent on keeping the factory going, needed workmen who work. To recruit fresh hands into the lists and to keep the old hands on the roster was double burden, and, therefore, the strikers had to be eased out to yield place to new recruits. The object was not to punish the workmen but to keep the factory working. Accepting this plea, as it were, the award of the arbitrator has exonerated the Management of the charge of dismissal while the High Court has held the action to be dismissal for misconduct and therefore bad in law. 65. 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 paralysed. 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 farewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the realities perceived. In the initial stages the controversy raised was whether the court/tribunal had any jurisdiction to lift such a veil. Probe and penetrate so as to reveal the reality, but this controversy has been set at rest by the decision in Western India Automobile Association v. Industrial Tribunal, Bombay ((1949) FCR 321 (1949) 1 FJR 97 1949 LLJ 245 AIR 1949 FC 111). The wide scope of the jurisdiction of industrial tribunal/court in this behalf is now well established. If standing orders or the terms of contract permit the employer to terminate the services of his employee by discharge simpliciter without assigning reasons, it would be open to him to take recourse to the said term or condition and terminate the services of his employee but when the validity of such termination is challenged in industrial adjudication it would be competent to the industrial tribunal to enquire whether the impugned discharge has been effected in the bona fide exercise of the power conferred by the terms of employment. If the discharge has been ordered by the employer in bona fide exercise of his power, then the industrial tribunal may not interfere with it; but the words used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of the respondents' services could be sustained vide Management of Murugan Mills Ltd. v. Industrial Tribunal, Madras (Murugan Mills v. Industrial-Tribunal, (1965) 2 SCR 148, 151-152 AIR 1965 SC 1496)). This view was affirmed in Tata Engineering Locomotive Co. Ltd. v. S. C. Prasad ((1969) 3 SCC 372, 378). After approving the ratio in Murugan Mills case (Murugan Mills v. Industrial-Tribunal, (1965) 2 SCR 148, 151-152 AIR 1965 SC 1496), this Court in L. Michael v. M/s. Johnson Pumps India Ltd. ((1975) 3 SCR 489 (1975) 1 SCC 574 1975 SCC (L S) 169) observed that the manner of dressing up an order did not matter. The slightly different observation in Workmen of Sudder Office, Cinnamara v. Management ((1972) 4 SCC 746 (1971) 2 LLJ 620) was explained by the Court and it was further affirmed that since the decision of this Court in Chartered Bank v. Chartered Bank Employees' Union ((1960) 3 SCR 441 AIR 1960 SC 919 (1960) 2 LLJ 222) it has taken the consistent view that if the termination of service is a colourable exercise of power vested in the management of is a result of victimisation or unfair labour practice, the court/tribunal would have jurisdiction to interven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee constitutes the foundation for terminating his service, then even if the order of termination is purported to be made under Standing Order 26, it may be liable to be regarded as punitive in character attracting the procedure of clause (2) of Standing Order 21 read with Standing Order 23, though even in such a case it may be argued that the management has not punished the employee but has merely terminated his service under Standing Order 26. 69. It does not purport to run counter to the established ratio that the form of the order is not decisive and the Court can lift the veil. However, it may be noted that there was an alternative contention before the Court that even if the order of discharge was considered punitive in character, the employer corporation had led evidence before the Labour Court to substantiate the charge of misconduct and that funding was also affirmed. 70. We are satisfied that the Management, whatever its motives vis-a-vis keeping the stream of production flowing, did remove from service, on punitive grounds, all the 853 workmen. 71. The law is trite that the Management may still ask for an opportunity to make out a case for dismissal before the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 guilt. Anger sometimes brings in this error. 75. In our assessment, the arbitrator has been swayed by generalities where particularities alone would have sufficed. A long story may be made short by skipping the details and focussing on essentials. We must, in fairness, state that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide-bound British processes of yore. We are what we are because our Constitution-framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power. 80. We may dilate a little more on Article 226 vis-a-vis awards of arbitrators. The first limb of the argument is that when there is a voluntary joint submission of an industrial dispute to an arbitrator named by them under Section 10-A of the Industrial Disputes Act, he does not functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority (see Nagendra Nath Bora and another v. The Commissioner of Hills Division and Appeals ((1958) SCR 1240 AIR 1958 SC 398)). This led to a proposition that in exercising jurisdiction under Art. 226 the High Court is not constituted a Court of Appeal over the decision of authorities, administrative or quasi-judicial. Adequacy or sufficiency of evidence is not its meat. It is not the function of a High Court in a petition for writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. (See State of A. P. v. S. Sree Rama Rao ((1964) 3 SCR 25, 33 AIR 1963 SC 1723 (1964) 2 LLJ 150)). A constitution Bench of this Court in P. H. Kalyani v. M/s. Air France, Calcutta ((1964) 2 SCR 104 AIR 1963 SC 1756 (1963) SC 1756 (1963) 1 LLJ 879 [Editor But it would seem that the case intended to be relied upon is Syed Yakoob v. K. S. Radhakrishan. (1964) 5 SCR 64 AIR 1964 SC 4771) succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition. It was said that in order to justify a writ of certiorari it must be shown that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead the provision 11-A. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified it may, by its award set, aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal as the case may be, shall rely not the materials on record and shall not take any fresh evidence in relation to the matter. 84. Section 11-A was introduced in purported implementation of the I.L.O. recommendation which expressly referred, inter alia to arbitrators. The statement of objects and reasons which illumines the words of the legislative text when it is half-lit, even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category from arbitrators but all statutory definitions are subject to contextual changes. It is perfectly open to the Court to give the natural meaning to a word defined in the Act if the context in which it appears suggests a departure from the definition because then there is something repugnant in the subject or context. 86. Then what is the natural meaning of the expression Tribunal ? A 'tribunal' literally means a seat of justice. May be, justice is dispensed by a quasi-judicial body, an arbitrator, a commission, a court or other adjudicator organ created by the State. All these are tribunal and naturally the import of the word embraces an arbitration tribunal. Stroud's Judicial Dictionary (Vol. 4, p. 3093) speaks of 'tribunal' in the wider sense and quotes Fry, L.J. in Dawkins v. Rokeby (LR 8 Q B 255, affirmed LR 7 HL 744) I accept that, with this qualification that I do not like the word 'tribunal'. The word is, ambiguous, because it has not like 'court' any ascertainable meaning in English law. (Royal Acquarium v. parkinson, (1892) 1 QB 431) 87. There is a reference to the bishop's commission of enquiry as a judicial tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in several cases, a role in interpretative enlightenment and judicial value vision. 91. We may reinforce this liberal rule of statutory construction, being a matter of importance in the daily work of the Court, by reference even to Roman Law from Justinian's days down to the American Supreme Court. Not all special cases can be contained in the laws and resolutions of the Senate , said the Roman Jurist Jullianus, but where their meaning is manifest in some case, the one who exercises jurisdiction must apply the provision analogously and in this way administer justice. (Edgar Bodenheimer JURISPRUDENCE - THE PHILOSOPHY AND METHOD OF LAW, p. 474) Prof. Bodenheimer has explained that civil law does not regard words as the sole basis of law but allows it to be modified by purpose. Celsus added the following admonition to these general principles of interpretation The laws should be liberally interpreted, in order that their intent be preserved . (Ibid., p. 474) 92. Samuel Thorne has shown that, during certain periods of English medieval history, the position of the Common Law towards the construction of statutes was similar to the general attitude of the Roman and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; is not expressly mentioned in Section 11-A. Nevertheless, if the meaning of the word 'tribunal' is wider rather than narrower, it will embrace arbitrator as well. That is how the dynamics of interpretation are, in one sense, decisive of the fate of the present appeal. 97. Competing interpretative angles have contended for judicial acceptance. English preference apart, Indian socio-legal conditions must decide the choice in each situation. Sometimes Judges are prone to castigate creative interpretation in preference to petrified literality by stating that Judges declare the law and cannot make law. The reply to this frozen faith is best borne out by Lord Radcliffe's blunt words There was never a more sterile controversy than that upon the question whether a Judge makes law. Of course he does. How can he help it ? .... Judicial Law is always a reinterpretation of principles in the light of new combinations of facts .... Judges do not reverse principles. Once well established, but they do modify them, extend them, restrict them and even deny their application to the combination in hand ((Robert Stevens LAW AND POLITICS. THE HOUSE OF LORDS AS A JUDICIAL BODY, 1800- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slate, but they can do so only interstitially; they are confined from molar to molecular motions. 102. Arthur Selwyn Miller writes, Some have called it (the Supreme Court) the highest legislative chamber in the nation. Although there is no question that the Court can and does make law, and does so routinely, .... (Arthur Selwyn Miller THE SUPREME COURT, MYTH AND REALITY, p. 133) 103. Assuming the above approach to be too creatively novel for traditionalism, let us approach the same problem from a conventional angle authenticated by case law. The question of construction of Section 11-A was argued at length, as to whether an omission of any reference to arbitrator appointed under Section 10-A in Section 11-A would suggest that the arbitrator under Section 10-A, notwithstanding the terms of reference, would not enjoy the power conferred on all conceivable industrial adjudicators under Section 11-A. It was said, after referring to the objects and Reasons in respect of the bill which was moved to enact Section 11-A in the Industrial Disputes Act, that while the I.L.O. had indicated that an arbitrator selected by the parties for adjudication of industrial dispute must be invested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intent is in the language of the statute (see Crawford's Construction of Statues , 1940 Edn., p. 269 extracted in S. Narayanaswamy v. G. Pannerselvam ((1972) 3 SCC 717, 726, para 19 AIR 1972 SC 2284, 2290, para 20)). Undoubtedly, the Court cannot put into the Act words which are not expressed, and which cannot reasonably be implied on any recognised principles of construction. That would be a work of legislation, not of construction, and outside the province of the construction, and outside the province of the Court (see Kamalaranjan v. Secretary of State (AIR 1938 PC 281, 283)). Similarly, where the words of the statute are clear it would not be open to the Court in order to obtain a desired result either to omit or add to the words of the statute. This is not the function of the Court charged with a duty of construction. This approach has, however, undergone a see change a expressed by Denning, L.J. in Seaford Court Estates Ltd. v. Asher ((1949) 2 All ER 155, 164) wherein he observed as under When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ... and then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de punishment is bad in law and when the punishment is grotesquely condign or perversely harsh or glaringly discriminatory, an easy inference of bad faith, unfair labour practice or victimisation arises. The wider power to examine or prescribe the correct punishment belongs to the tribunal/arbitrator even under Section 11 if no enquiry (or a directive enquiry which is bad, and, therefore, can be equated with a 'no enquiry' situation) has been held by the management. For, then, there is no extent order of guilt of punishment and the Tribunal determines it afresh. In such a virgin situation, both culpability and qualification of punishment are within the jurisdiction of the tribunal/arbitrator. The present in such a case. 106. Volleys of rulings from both sides were fired during arguments, the target being the limited area so the tribunals' power to overturn the quantum of punishment awarded by the management. We do not think it necessary to regurgitate all that has been said by this Court upto now, since it is sufficient to bring out the correct law in the light of the leading citations. It is incontrovertible that where, as here, no enquiry has been held by the Manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23(a). We do not reopen the issue at this late stage and assume the illegality of the strike. The Fatal Flaw in the Award 109. The Achilles heel of the arbitrator's award is where he makes, as a substitute for specific and individuated findings of guilt and appropriate penalty vis-a-vis each workman, a wholesale survey of the march of events, from tension to breakdown from fair settlement to illegal and unjustified strike, from futility of negotiation to readiness for arbitration, from offer of full re-employment to partial taking back on application by workmen in sack cloth and ashes, by picking and choosing after a humble declaration that the strike has been formally buried, from episodes of violence and paralysis of production to backstage manoeuvres to get the factory taken over as a 'sick mill' and after a full glimpse of this scenario, holds that the Sabha was always in the wrong and inevitably, the management was surely reasonable AND, ergo, every employee must individually bear the cross of misconduct and suffer dismissed for the sins of the Sabha leadership - its secretary was not an employee of the mill - by some sub-conscious doctrine of guilt by associ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive participation in the strike. More is needed to bring home the mens rea and that burden is on the prosecutor, to wit the management. Huddling together the eventful history of deteriorating industrial relations and perverse leadership of the Sabha is so 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 Government 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. More 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vicissitudes, the hills and valleys, the lights and shadows, of industrial relations with mob fury and lock-outs and allied episodes of tending in settlements and pious pledges. Then the arbitrator stressed clause 6 of the Agreement of December, 1971 which bespoke a no-strike zone for five years. There was reference to the management's premise to implement the Wage Board recommendations. The arbitrator was upset that despite clause 6, a strike was launched but was not disturbed that despite the Wage Board proposals negotiations were being baulked and an interminable arbitral alternative was being offered by the management. He exclaimed If such a settlement arrived at was not respected and implemented the machinery provided by law would lose all meaning and so also the sanctity of the word of the Management or the word of the union. It is, therefore, essential to association who was responsible for the breach of the agreement so solemnly entered into. Serious breach by management is alleged and this is given as a reason or is made as an excuse for getting rid of the obligations arising out of the agreement which specifically could not be terminated for five years. 117. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea for wages for the period of the lock-out was also negatived with the observations I fail to see how the Sabha can allege breach of the agreement dated August 4, 1972 in view of the clear unequivocal terms contained in clause 4 of that agreement. 123. In this strain the award continued and the refrain was the sums that the Sabha was in the wrong. The award even went to the exaggerated extent of morbidly holding that the workers were wearing printed badges which, along with other circumstances, amounted to a breach of the agreement ! 124. The award then moved on to the strike of January 27, 1973 because it led to the dismissal of all the workmen. Until this stage, the arbitrator was merely painting the background and, at any rate, did not engage himself in isolating or identifying any worker or any misconduct. He merely denounced the Sabha, which is neither here not there, in the matter of disciplinary proceedings against each individual workman. He missed the meat of the matter. The relevant portion of the award based on generalisation proved this error I am concerned herein with the question whether the discharge or dismissal of the 400 workmen was legal and proper o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delinquents and delinquency. After referring to Order 23 of the Model Standing Orders he goes on to state the law correctly by extracting observations from the Assam Oil company case ((1960) 3 SCR 467, 462 AIR 1960 SC 1264 (1960) 1 LLJ 587). 128. Another vital facet of industrial law is that when no enquiry has been held by the management before imposing a punishment (or the enquiry held is defective and bad), the whole filed of delinquency and consequent penalty is at large for the Tribunal. Several rulings support this logic. We are constrained to hold that a certain observation made per incuriam by Mr. Justice Vaidyalingam, strongly relied on by Sri A. K. Sen, does not accurately represent the law, although the learned judge had earlier stated the law and case-law correctly, if we may say no with respect. 129. A selective study of the case law is proper at this place. Before we do this, few words on the basis of the right to strike and progressive legal thinking led by constitutional guidelines is necessitous. The right to union, the right to strike as part of collective bargaining and, subject to the legality and humanity of the situation, the right of the weaker group, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judges live. Our Constitution is clear in its mandate, what with Article 39-A superadded and we have to act in tune with the values enshrined therein. 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. v. Their Workmen (AIR 1960 SC 219 (1960) 2 SCR 1 (1960) 1 LLJ 13), 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. Here illegality of the strike does not per se spell unjustifiability. For, in Crompton Greaves Ltd. v. Workmen ((1978) 3 SCC 155 (1978) SCC (L S) 447) this Court held that even if a strike be illegal, it cannot be castigated as unjustified, unless the reasons for it are entirely perve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 132. This Court in M/s. Burn Co. Ltd. v. Their Workmen (AIR 1959 SC 529 (1959) 1 LLJ 450) clearly laid down that mere participation in the strike would not justify the suspension or dismissal of workmen particularly where no clear distinction can be made between those persons and the very large number of workmen who had been taken back into service a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ager. Model Mills v. Dharam Das, AIR 1958 SC 311 (1958) 1 LLJ 539) and India General Navigation Railway Co. Ltd. case (AIR 1960 SC 219 (1960) 2 SCR 1 (1960) 1 LLJ 13) and this Court in terms affirmed the ratio in India General Navigation Railway Co. Ltd. (AIR 1960 SC 219 (1960) 2 SCR 1 (1960) 1 LLJ 13) observing that mere taking part in an illegal strike without anything further would not justify the dismissal of all the workmen taking part in the strike. 135. In Indian Iron Steel Co. Ltd. v. Their Workmen (1958 SCR 667, 685 AIR 1958 SC 130 (1958) 1 LLJ 260), this Court observed that the management of a concern has power to direct its own internal administration and discipline but the power is not unlimited and when a dispute arises, Industrial tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. It may be noticed that the decision is prior to introduction of Section 11-A. It would thus appear that the important effect of omission to hold an enquiry was merely this that the tribunal would have to consider not only whether there was a prima facie case but would decide for itself on the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating the property of such dismissal to look into the sufficiency or otherwise of the evidence led before the enquiry officer or insist on the same degree of proof as was required in a Court of law, as it were sitting in appeal over the decision of the employer. 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 of 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. 138. Sri Sen, of course, relied on this judgment to show that where a strike was resorted to and the workers were called upon to join service within the stipulated time, on their failure it was open to the company to employ new hands. This is reading more into the ruling than is warranted. 139. We cannot agree that mere failure to report for duty, when a strike is on, necessarily means misconduct. Many a workmen as a matter of prudence, may not take the risk of facing the militant workmen or the Management&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protected litigation is itself such an awesome factor that he may not survive to see the day when law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be held that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly underserved. Ordinarily therefore, a workman whose service as has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz, to resist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng discussion. The basis assumption we make is that the strike was not only illegal but also unjustified. On the latter part, a contrary view cannot be ruled out in the circumstances present but we do not reinvestigate the issue since the High Court has proceeded on what both sides have taken for granted. The management, in our view, did punish its 853 workmen when it discharged them for reasons of misconduct set out in separate but integrated proceedings, even though with legal finesse, the formal order was phrased in harmless verbalism. But fine words butter no parsnips, and law, in its intelligent honesty, must be blunt and when in sees a spade, must call it a spade. The action taken under the general law or the Standing Orders, was illegal in the absence of individualised charge-sheets, proper hearing and personalised punishment. If found guilty. None of these steps having been taken, the discharge orders were still-born. But the Management could, as in this case it did, after to make out the delinquency of the employees and the arbitrator had in such cases, the full jurisdiction to adjured de novo both guilt and punishment. We held that Section 11-A does take in an arbitrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. We cannot ignore a few raw realities since law is not dogmatics but pragmatics, without temporising on principle. The Management's limitations in absorbing all the large number of discharged employees all at once when steel, the raw material, is scarce, is a problem. Likewise their inability to pay huge sums by way of back wages or otherwise, without crippling the progress of the industry, cannot be overlooked but cannot be overplayed after Hindustan Tin Works (AIR 1979 SC 75, 77-78 (1979) 2 SCC 80, 85). Another factor which cannot be wished away is the presence of over a couple of hundred workmen, with varying lengths of service who may have to be sacked if the old workmen are to be brought back. It is a problem of humanist justice. Lastly, the rugged fact of life must not be missed that some of the workmen during the long years of desperate litigation, might have sought jobs elsewhere and most of them perhaps have, for sheer survival, made at least a starving wages during the prolonged idle interval. This factor too is a weak consideration, tested by the reasoning in Hindustan Tin Works (AIR 1979 SC 75, 77-78 (1979) 2 SCC 80, 85). Moreover rationalisation of reabsorption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply to the individual notices served upon them requesting them to resume work and they appear to have made it a condition precedent to their joining duty that the suspended workman should also be taken back. Even under such circumstances, the management did not straightway terminate their services but gave individual notices requiring the concerned workmen to show cause why their names should not be struck off and asked them to submit their reply by a certain date. Even those notices were not replied. It is only thereafter that the service of the concerned workman came to be terminated. It is against this background that the Supreme Court held that there was a persistent and obdurate refusal by the workmen to join duty notwithstanding the fact that the management has done everything possible to persuade them and given them opportunity to come back to work and that they had without any sufficient cause refused to do so which constituted misconduct so as to justify the termination of their services. If the workmen had been approached individually, not only those amongst them who were unwilling to join strike but were prevented from joining work would have taken courage to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, M.P. Industrial Court, Indore ((1976) 3 SCR 801 (1976) 3 SCC 693 1976 SCC (L S) 484) taken the view that full wages must be paid until the date of the award. There cannot be any relation back of the date of dismissal to when the Management passed the void order. 152. Kalyani (1952 SCR 597, 607 AIR 1952 SC 126 1952 SCJ 253) was cited to support the view of relation back of the award to the date of the employer's termination orders. We do not agree that the ratio of Kalyani (1952 SCR 597, 607 AIR 1952 SC 126 1952 SCJ 253) corroborates the proposition propounded. Jurisprudentially, approval, is not creative but confirmatory and therefore relates back. A void dismissal is just void and does not exist. If the Tribunal, for the first time, passes an order recording a finding of misconduct and thus breathes life into the dead shall of the Management's order, pre-dating of the nativity does not arise. The reference to Sasa Musa (Sasa Musa Sugar Works (P) Ltd. v. Shabrati Khan, AIR 1959 SC 932 (1959) 2 LLJ 388) in Kalyani (1952 SCR 597, 607 AIR 1952 SC 126 1952 SCJ 253) enlightens this position. The latter case of D. C. Roy v. Presiding Officer, Madhya Pradesh Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 100 workmen, when shall they be deemed to have ceased to be in service for drawal of terminal benefits ? Their discharge orders having been quashed, they remain in service until today. We concluded the arguments on August 3, 1979 and on the eye of the closure of counsel's submissions certain inconclusive settlement proposals were discussed. We, therefor consider August 3, 1979 as a pivotal point in the calendar with reference to which the final relief may be moulded. We direct that the 100 workmen for whom reinstatement is being refused will be treated as in service until August 3, 1979 on which date they will be deemed to have been retrenched. We direct this step with a view to pragmatise the situation in working out the equities. These 100 will draw all terminal benefits plus 75 per cent of the back wages. This scaling down of back pay is consistent with the assumption that somewhere in the past they had secured alternative employment. The long years and the large sum payable also persuade us to make this minor cut. Of course, in addition, they will be entitled to retrenchment benefits under Section 25-F of the Act, and one month's notice pay. 156. The remaining 139 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n putting back the workers will be unfair. But the Management pleads that steel shortage cuts into the flesh of the factory's expansion, without which additional intake of workers is beyond their budget unless considerable time for reabsorption were given. But the lot of the workmen is unspeakable while the overall assets and outlook of the Company are commendable enough to bear an increased wage bill. Dives cannot complain when Lazarus asks for more cramps. Even if a slight slant be made in favour of the Management, the direction to them to take back in order of seniority the first 70 out of the 139 permanent workmen on or before December 31, 1979 and the rest on or before March 31, 1980 is the least that is just. Until those dates the workmen will be paid two-third of their wages as now due. Of course, if any workmen falls to report for work within 15 days of service of written notice to him, with simultaneous copy to the Sabha, he will not be eligible for any more reinstatement or wages. 160. The back wages run into a large sum but a good part has been paid under the stay order of this Court. We make it clear that the payments made will be given credit and the balance if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f casual workmen whose service was less than 9 months on the date of dismissal it would not be proper to grant reinstatement. They are 57 in number. The remaining casual workmen 74 in number shall be reinstated. In case of 57 casual workmen to whom reinstatement is refused, the direction of the High Court is confirmed with the further addition that each one will be paid ₹ 1,000 over and above the amount payable under the direction of the High Court and this would be in lieu of reinstatement. Causal workmen 74 in number and having service of more than 9 months on the date of dismissal will be treated as confirmed within six months of the date of their rejoining and they will be offered reinstatement by March 31, 1980, and the High Court's direction for back wages in their respect is confirmed. 163. With these modifications, we dismiss both the appeals. The Management-appellant will pay the costs of the Sabha-respondent advocates fee being fixed at ₹ 5,000. An After word 164. This litigation, involving many workmen living precariously on poor wages amidst agonising inflation and a management whose young budget, to what with steel scarcity, may well be shaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the High Court acted within the four corners of its jurisdiction under Article 227 of the Constitution of Indian while interfering with the finding of the arbitrator that the workmen were correctly punished with dismissal if the orders of discharge could be construed as such. 168. I am therefore appending this note this may be read in continuation of that judgment. 169. The parties are admittedly governed by the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the S.O. Act ) Section 15(2) of which empowers the appropriate government to make rules inter alia, setting out model standing orders for the purposes of that Act. The expression 'standing orders' is defined in Section 2(g) of the S.O. Act to mean rules relating to the matters set out in the schedule thereto, items 8 and 9 of which run thus 8. Termination of employment and the notice therefore to be given by the employer and workmen. 9. Suspension or dismissal for misconduct and acts or omissions which constitute misconduct. 170. The appropriate government (in this case the Government of Gujarat) has prescribed Model Standing Orders (M.S.O.s for short) under Section 15(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding, the inquiry the workman shall be permitted to produce witnesses in his defence and cross-examine any witness on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman's plea shall be recorded. (5) ........................................... 173. Clauses (3) and (4) of M.S.O. 25 speak of an inquiry only in the case of an order falling under sub-clause (g) of clause (1) of that M.S.O. It is thus quite clear (and this is not disputed) that the only sub-clause (1) of M.S.O. would be attracted is sub-clause (g) and that if an order of discharge falls under M.S.O. 23 an inquiry under clause (3) and (4) of M.S.O. 25 would not be a prerequisite thereto even though such an order is mentioned in sub-clause (f) of clause (1) of that M.S.O. And that is why it has been vehemently urged on behalf of the workmen who were discharged en masse and who were not take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, the order even though specified to be an order of discharge, would be deemed to be an order of dismissal covered by sub-clause (g) of clause (1) of M.S.O. 25. On the other hand if no such intention is made out, the order would remain one of discharge simpliciter even though it has been passed for the sole reason that a misconduct is imputed to the employee. That is how, in my opinion, M.S. O.s 23 and 25 have to be interpreted. The argument that once an alleged misconduct is shown to have been the motive for the passage of an order of discharge, the same would immediately and without more, amount to an order of dismissal is not warranted by the language used in M.S.O. 25 which specifically gives to the employer the power to get rid of a workman guilty of misconduct by passing an order of his discharge under M.S.O. 23. 177. Secondly, the reasons for the termination of service of a permanent workman under M.S.O. 23 have to be recorded in writing and communicated to him, if he so desires, under clause (4-A) thereof. Such reasons must obviously consist of an opinion derogatory to the workman in relation to the performance of his duties; and whether such reasons consists of negl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat - (a) the power to terminate the services by an order of discharge simpliciter is distinct from and independent of the power to punish for misconduct and the Standing Orders cannot be construed so as to render either of these powers ineffective; and (b) reasons for termination have to be communicated to the employee and those reasons cannot be arbitrary, capricious or irrelevant but that would not mean that the order of termination becomes punitive in character just because good reasons are its basis. The Court further remarked that if the misconduct of the employee constituted the foundation for terminating his service then if might be liable to be regarded as punitive but this proposition was doubted inasmuch as even in such case it may be argued that the Management has not punished the employee but has merely terminated his service under Standing Order 26 . 179. So all that remains to be determined in this connection is as took when would misconduct be the 'foundation' of an order of discharge. Merely because it is the reason which has weighed with the employer in effecting the termination of services would not make the order of such termination as one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, would not be decisive; industrial adjudication would be entitled to examine the substance of the matter and decide whether the termination is in fact discharge simpliciter or it amounts to dismissal which has put on the cloak of a discharge simpliciter. If the Industrial Court is satisfied that the order of discharge is punitive, that it is mala fide, or that it amounts to victimization or unfair labour practice, it is competent to the Industrial Court to set aside the order and in a proper case, direct the reinstatement of the employee. In some case, the termination of the employee's services may appear to the Industrial Court to be capricious or so unreasonably severe that an inference may legitimately and reasonably be drawn that in terminating the services, the employer was not acting bona fide. The test always has to be whether the act of the employer is bona fide or not. If the act is mala fide, or appears to be a colourable exercise of the powers conferred on the employer either by the terms of the contract or by the standing orders, then notwithstanding the form of the order, industrial adjudication would examine the substance and would direct reinstatement in a fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of intention of mala fides is really one of fact (of which the arbitrator was, in my opinion, the sole Judge, unless his finding on the point was vitiated by perversity in which case alone it was liable to be reviewed by the High Court). The discussion of the evidence by the arbitrator in his award is not only full and logical but, in my opinion, also eminently just. At all material time the Management was out to placate the Sabha (and therefore, the workmen) and gave to it a long rope throughout. The attitude of the Sabha on the other hand was one of intransigence and obduracy. According to the settlement of August 4, 1972, it was not open to the workmen to resort to a strike till the expiry of a period of five years; nor could the Management discharge a lock-out till then. Any disputes arising between the parties, according to the terms arrived at, were to be sorted out through negotiations or, failure that, by recourse to arbitration. A dispute was raised by the Sabha soon thereafter over the implementation of the recommendations of the Central Engineering Wage Board (hereinafter called the Board), the payment of bonus for the year 1971 and wages for an earlier lock-out. In pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious factories with reference to the areas which were either described by the names of the cities in which they were situated or by the names of certain industrial areas. Ahmedabad was mentioned as such as so was Calcutta while the other areas were mentioned as such and such industrial areas. It was thus a very reasonable plea put forward on behalf of the Management that only Ahmedabad city and not Ahmedabad industrial area was included in category 3 and that that industrial area fell within category 5. On the other hand, the Sabha interpreted the work 'Ahmedabad' occurring in category 3 to include Ahmedabad industrial area (in which lay the factory in question) and demanded area allowance for its workers on that score. The reasonableness of the plea of the Management is obvious and it was the attitude of the Sabha which lacked reason in that on the failure of the negotiations they spurned the offer of the Management for arbitration on the question of interpretation of the categorisation. It can also not be said that the objection regarding payment of bonus raised by the Management was not a reasonable one. The argument that the stand of the Management that the negotiatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout break in service. In passing the orders of discharge, therefore, the Management did nothing more than act under M.S.O. 23 and its action cannot be regarded as amounting to dismissal in the case of any of the workers. They had the right to choose between a discharge simpliciter and a dismissal and, in the interests of the factory and the members of the Sabha and perhaps on compassionate grounds also, they chose the former in unequivocal terms. The intention to punish being absent, the finding of the High Court that the order of discharge amounted to one of dismissal cannot be sustained. 185. I now turn to the interpretation of sub-section (2) of Section 11-A of the 1947 Act. It is a well settled cannot of interpretation of statutes that the language used by the legislature must be regarded as the any source of its intention unless such language is ambiguous, in which situation the preamble of the Act, the statement of objects of the reasons for bringing it on the statute book and the purpose underlying the legislation may be taken into consideration for ascertaining such intention. That the purpose of the legislation is to fulfill a socio-economic need, or the express obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the materials on record and shall not take any fresh evidence in relation to the matter. 187. Section 2 of the Act specifically lays down that unless there is anything repugnant in the subject or context, the expressions defined therein would have the meanings attributed to them. Throughout the Act therefore, while 'arbitrator' would include an umpire, a 'Tribunal' would not include an arbitrator but would mean only an Industrial Tribunal constituted under the Act, unless the context makes it necessary to give the word a different connotation. In sub-section. (1) of Section 11, it is conceded, the word 'Tribunal' has been used in accordance with the definition appearing in clause (r) of Section 2 because an arbitrator is separately mentioned in that sub-section. In sub-section (2) and (3) of that section a Board, a Labour Court, a Tribunal and a National Tribunal have been invested with certain powers. Would a Tribunal as contemplated by sub-sections (2) and (3) then include an arbitrator ? My reply to the question is an emphatic 'no'. It is well-settled that if a term or expression is used in a particular piece of legislation in one sense at on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the definition give in clause (r) of Section 2. It is thus not permissible for this Court to take the statement of objects and Reasons or the purpose underlying the enactment into consideration while interpreting Section 11-A. 190. I may mention here however that a perusal of the statement of objects and Reasons forming the background to the enactment of Section 11-A leads me to the same conclusion. In that statement a reference was specifically made to tribunals as well as arbitrators in terms of the recommendations of the International Labour Organisation. But in spite of that the word 'arbitrator' is conspicuous by its absence from the section. What is the reason for the omission ? was it conspicuous and deliberately made or was it due to carelessness on the part of the draftsmen and a consequent failure on the part of the Legislature ? In my opinion the Court would step beyond the field of interpretation and enter upon the area of legislation if it resort to guess-work (however intelligently the same may be carried out) and attributes the omission to the latter cause in the situation like this which postulates that the pointed attention of the legislature was dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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