TMI Blog1971 (8) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... d and he be reinstated as a Helper. As the management was not agreeable to reinstate the Helper workman, the workers went on a lightening strike. Since the workmen came on strike conciliation efforts were made but in spite of the persuasion of the Labour Officer, M.W. 2, the Labour Inspector MW 4 and by the management, Respondents 2 to 24 along with other did not report for duty although it is stated the Appellant was willing to employ them. Certain charge-sheets were served on the workmen towards the end of January to which replies were given. Thereafter notices were sent to the Respondents 2 to 15 and 17 to 24 asking them to resume work by certain specified dates and when they did not resume work other notices were sent requiring the said Respondents to show why their names should not be struck off and asked them to submit their reply by a certain date. In so far as Respondent 16 is concerned a notice was served on him on 4-3-59 in which it was mentioned that he was absent since 13-2-59 without any leave and that he should resume duty by 6-3-59. He was further asked to explain by 8-3-59 why his name should not be struck off. None of the Respondents Nos. 2 to 24 either acknowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the strike and to resume duty but the workers went on insisting that the suspension orders passed on their co-workmen should first be cancelled; (c) that the workmen were adamant and as such there was no alternative for the management except to terminate their services and take fresh hands who are still continuing in its service; and (d) that no evidence was produced by the workmen to prove that any of them ever requested the management to resume duty or that the management had turned down any such request. 3. Against this Award of the Labour Court a Writ Petition was filed by the Respondents in the High Court of Punjab. A Single Bench of that Court by its Judgment dated 6-12-64 held that in law the plea that the workers had abandoned the services of the Appellant could not be sustained, but on the other hand it was the management which had terminated their services. In this view the case was remanded to the Labour Court for a fresh decision. A Letters Patent Appeal was filed by the management against this decision but later it was dismissed as withdrawn. On remand the Labour Court by an Award dated 10-9-65 which was published in the Gazette on 1-10-65 held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkers to join duty and after the demand notice dated 19-3-59 conciliation efforts were made but they did not resume work and made it a condition of their joining duty that the suspended workmen also should be taken back; (4) that the management gave workers on strike notices on different dates asking them to join duty by a date specified therein and subsequently by another letter called upon them to justify their absence failing which they were informed that their names would be struck off from the muster roll; (5) that notwithstanding those notices and the willingness of the management to take them back the Respondent gave no reply and continued the strike till they were informed by letters dated 25-2-59, 4-3-59 and 17-3-59 that their names were removed from muster roll; and (6) that no domestic enquiry was held into the misconduct of the Respondents. 5. On these admitted facts it is sought to be contended on behalf of the Appellant that the Management took every possible step to get the workmen back into their factory but they were adamant in continuing the strike. In these circumstances they could do nothing else but to terminate their services and take in fresh hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. Factory cannot be closed in any event, thus your coming on duty was necessary. If you will not give any satisfactory reply then your name will be struck off from the muster roll of the factory. Your reply should reach upto 25-2-59. 7. Copies of this letter were also given to the Labour Officer referred to above. When no reply was received to this letter the management terminated the services by Ex. A7 dated 4-3-59 which is as follows: For your continued absence since the afternoon of 25-1-59 and in spite of repeated requests to come and join duty you have failed to resume work. You have also failed to show cause in pursuance to our letter dt. 21-2-59 as already intimated for your abandonment of service and/or illegal strike. In view of your these illegal activities the management has struck off your name from the muster roll of the Mills w.e.f. 4-3-59. 8. The Respondent's advocate while not denying these letters as above contends that the earlier letters had charged them with incitement and stay in strike and intimidation etc. but the management gave the go by to it and have terminated the service for merely going on a peaceful strike and by subsequent letters it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed. The workers moved the High Court under Article 226 and their Writ Petitions were allowed. This Court in Appeal held that the Standing Orders contemplated termination of employment by the employer and in those cases there could be no doubt that the Appellant had terminated the employment of the Respondents by removing their names from the muster roll without giving them any notice of such removal. It was also held that if employees absent themselves from work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them and that if the strike was in fact illegal, the Appellant could take disciplinary action against the employees under the Standing Order and dismiss them. 11. This case merely illustrates what has been stated by us that even where the strike is illegal a domestic enquiry must be held. In the case before us admittedly there were no Standing Orders applicable to the appellant. Nonetheless a domestic enquiry should have been held in order to entitle the management to dispense with the services of its workmen on the ground of misconduct. This view of ours is also supported by another case of this Court in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and it is in respect of those workmen that a dispute was referred under Section 10 of the Act for adjudication. One of the two issues that was referred to the Tribunal was whether 150 employees had been wrongly dismissed. The Tribunal did not hear any evidence and by its final award held that the strike was illegal, the Bank was, on that ground alone, justified in dismissing the employees. On Appeal the Labour Appellate Tribunal held that even though the strikes were illegal under Section 23(b) read with 24(1) of the Act, the Bank had by entering into the agreement with the Govt. of India, waived its right to take penal action against its employees for joining the illegal strikes and that therefore, an enquiry should be held on additional evidence to decide the disputes on merits. Against this interlocutory order the Bank appealed to this Court which held that while the strikes were no doubt illegal under Section 23(b) of the Act, the orders of dismissal passed by the Bank were no less so under Section 33 of the Act and it dismissed the Appeal. The Appellate Tribunal thereafter, heard the cases on merits, directed the reinstatement of 136 of the said employees, but refused to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in doing so the Tribunal tries the merits itself and that no distinction can be made between cases where the domestic enquiry is invalid and those where no enquiry has in fact been held. It was observed at page 603: Looking at the matter in this broad way-and that is all that we are prepared to do, for we are examining a finding of fact of the tribunal-we cannot say that its conclusion that there was go-slow between November 27 and December 15 is not justified.... But as we have already indicated, the charge in the notice of December 15 was that the workmen had been going slow from November 27 and they were asked to give an undertaking to improve and the respondent was apparently willing to overlook the earlier lapse. Even assuming that the demand of an undertaking was unjustified, it does appear that the attitude of the workmen was that they would do no better; and in those circumstances they were discharged on December 17, 1960, on the basis of misconduct consisting of go-slow between November 27 and December 16, 1960. That misconduct has been held proved by the Tribunal and in our opinion that decision of the Tribunal cannot be said to be wrong. In the circumstances the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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