TMI Blog1959 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... y on business of inland water transport in North East India and in Pakistan, in association with each other, and are commonly known as the Joint Steamer Companies. The appellants jointly maintain a large number of wharves, jetties, godowns, etc., at different river stations in India and in Pakistan, for the purposes of their business. One such station is at Dhubri in Assam. At that station, a large number of workmen are employed for the purpose of loading and unloading the appellant's vessels and for transhipping goods from railway wagons to the appellants' vessels and vice versa. Before May, 1954, such workmen were employed by a contractor called the Assam Labour Supply Syndicate which will hereinafter be referred to as 'the Syndicate'. Those workmen were organized under two labour unions, called (1) the Dhubri Transhipment Labour Union which was affiliated to the Indian National Trade Union Congress which is a Federation of Trade Unions, and (2) the Dhubri Local Ghat Transhipment Labour Union. There were differences between the Syndicate and its employees who made certain demands, and has threatened to go on strike to enforce their demands. Conciliation proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Dhubri Transhipment Workers' Union, in or about July, 1955. Meanwhile, between May 2, 1955, and July 31, 1955, the appellants, on five different occasions and on different charges, dismissed eight of their employees, after making such inquiries as they thought necessary against those workmen, and after giving them each an opportunity of explaining their conduct. 4. On July 21, 1955, one B. Chakravarty, Secretary, Dhubri Transhipment Labour Union, served a notice on the appellants under sub-s. (i) of s. 22 of the Act, that I propose to call a strike on the 11th August, 1955, from zero hours, if the following demands be not fulfilled within fourteen days on receipt of this notice . Then followed an annexure containing ten demands which need not be set out here. A similar notice was also served by the Secretary Dhubri Local Ghat Transhipment Labour Union on the same date, the annexure in this case containing eleven demands. On July 26, 1955, the Conciliation Officer of the Government of Assam, received the notice of the strike. He held conciliation proceedings on August 6, 1955, but those proceedings ended abruptly without arriving at any settlement. On August 8, 1955, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88 of the Indian Penal Code, for violation of the aforesaid order under s. 144 of the Criminal Procedure Code, with the result that on September 9, they were dismissed by the appellants. Another batch of 52 employees were convicted under s. 143/188 of the Indian Penal Code, on February 17, 1956. 5. Meanwhile, on September 13, 1955, the Government of Assam had constituted a Board of Conciliation, consisting of three persons, namely, (1) Labour Commissioner of Assam, as the Chairman, (2) D. N. Sharma of Gauhati, as representing the interest of the employees, and (3) P. J. Rayfield, as representing the interest of the employers, with a view to promoting settlement of the dispute between the appellants and their workmen at Dhubri. The appellants alleged that they had dismissed their workmen as a result of the inquiry held by their nominee into the conduct of the persons who had participated in the alleged illegal strike and/or caused obstruction, before they became aware of the constitution of the Board of Conciliation, as aforesaid. On coming to know of the constitution of the said Board of Conciliation, the appellants subsequently passed orders, holding the order of dismissal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh, Idrish, Tazmal Hussain (S/o S. K. Gaffur) Jahangir Sardar, Keayamat Hussain, Panchu Shah and Ram Ekbal Singh ? (b) If not, what relief, if any, are they entitled to ? (2) (a) Are the Management of R.S.N. I.G.N. Railway Company Limited justified in dismissing and/or suspending as the case may be 260 workers at Dhubri Ghat on or about the 29th August, 1955 ? (b) If not, to what relief, if any, are the workers entitled ? 7. The parties to the dispute filed their written statement before the Tribunal, and tendered both oral and documentary evidence before it. The Tribunal made its Award which was published in the Assam Gazette on December 19, 1956, as already stated. The Tribunal held that the strike, though illegal, was justified, but that in the absence of standing orders whereby participation in any illegal strike, could justify a punishment of dismissal, the appellants were not entitled to dismiss those workmen whose case was before the Tribunal. The Tribunal by its Award, directed reinstatement of 208 out of 260 workmen whom the appellants had dismissed, or had sought permission to dismiss. The remaining 52 workmen were ordered to be refused reinstatement on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected in view of the provisions of the Constitution. It is manifest that the provisions of the Act are subject to the paramount law as laid down in the Constitution. Article 136 of the Constitution, under which this Court grants special leave to appeal (in this case, from a determination of the Tribunal), cannot be read as subject to the provisions of the Act, as the argument on behalf of the respondents would postulate. The provisions of the Act must be read subject to the over-ridding provisions of the Constitution, in this case, Art. 136. Therefore, whatever finality may be claimed under the provisions of the Act, in respect of the Award, by virtue of Sections 17 and 17A of the Act, it must necessarily be subject to the result of the determination of the appeal by special leave. 10. It was further contended that the Award had merged in the orders of the Government, on publication in the Official Gazette, under s. 17 of the Act, but this is the same argument stated in another form, and any argument based on the provisions of the Act, making the Award final and enforceable, must always be read as being subject to the decision of this Court, in the event of special leave bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on its merits. 13. On the merits of controversy between the parties, it has been argued by the learned counsel for the appellants that the Tribunal, having held the strike to be illegal, has erred in holding that it was justified; that an illegal strike could never be justified and that the Tribunal was wholly in error in losing sight of the fact that the appellants were carrying on what had been notified as a public utility service. In this connection, it was further argued that in view of the proviso to s. 10(1) of the Act, the State Government was bound to make a Reference of the dispute to an Industrial Tribunal when notice of strike under s. 22 of the Act had already been given, and that, therefore, the failure of the employer to enter into direct negotiations with the employees, upon receipt of the strike notice, could not be used by the Tribunal for coming to the finding that the strike was justified. It was also urged that the Tribunal had clearly erred in holding that the lock-out declared by the appellants, was illegal, and that, in coming to that conclusion, it had over-looked the provisions of s. 24(3) of the Act. The Tribunal, it was further argued, had erred in ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their learned counsel, besides raising the preliminary objection already dealt with, urged that the Tribunal was fully justified in holding that the strike, though illegal, was perfectly justified and virtually provoked by the appellants. Though in the statement of the case, the argument had been raised that the strike could not be illegal, because the notification declaring the service at the ghats to be public utility service, was ultra vires, that argument was not persisted in before us, but it was vehemently argued that there were no standing orders either of the Syndicate or of the appellants, which could govern the service conditions of the workmen, and that in any event, mere participation in an illegal strike would not entitle the employers to dismiss those workmen who had joined the strike; that the dismissal orders in all cases, were sheer acts of victimization and unfair labour practice. It was also sought to be argued that the lock-out was entirely illegal, and that in any view of the matter, its continuance after the strike had been called of, was wholly unjustified and against the principles of social justice . Further, it was urged that the appellants had dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot guilty and acquitted them by his judgment given in April, 1956. The departmental inquiry by Rayfield was held on May 17, 1955, when a member witnesses were examined by him on behalf of the appellants. In their joint written statement, these four workmen stated that as the police case was pending against them in regard to these very charges, they were not in a position to make any further statement in their defence. The Tribunal came to the conclusion that, on the material before it, it had not been made not that Tewari had been actually assaulted, while on duty, and that the dismissal order was passed possibly with a view to frighten the other workmen and to satisfy the whims of Tewari . We have examined the record, and we do not find any justification for differing from the conclusions of the Tribunal. 16. With reference to the case against Panchu Shah and Ram Ekbal Singh, it appears that the Tribunal definitely came to the conclusion that their dismissal order was vitiated because it was an act of victimization and was mala fide. In the face of this clear finding, we do not think that we can interfere with the determination of the Tribunal in respect of these two workmen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsiderations, the dismissal order made by the appellants on a proper inquiry, after giving the workmen concerned sufficient opportunity of explaining their conduct, must be upheld. The appeal in respect of these two workmen, must, therefore, be allowed, and the order of the Tribunal in respect of them, accordingly, set aside. The order of the Tribunal in respect of the other six workmen, is confirmed. 18. Having dealt with the orders of dismissal in respect of the incidents before the strike of August 11, 1955, we now turn to the strike itself. The first question that arises in this connection, is whether the strike was illegal, as alleged by the appellants and as found by the Tribunal. The learned counsel for the respondents sought to reopen the finding about the illegality of the strike, basing his submissions mainly on the contention that there were no conciliation proceedings pending either in fact or in law on the date of the strike, and that, therefore, the finding of the Tribunal was not correct. It was not disputed on behalf of the respondents that the notices of the strike given by the workmen on July 21, 1955, had been duly received by the Conciliation Officer on July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not permissible to characterize an illegal strike as justifiable. The only question of practical importance which may arise in the case of an illegal strike, would be the kind or quantum of punishment, and that, of course, has to be modulated in accordance with the facts and circumstances of each case. Therefore, the tendency to condone what has been declared to be illegal by statue, must be deprecated, and it must be clearly understood by those who take part in an illegal strike that thereby they 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 drive 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. 20. Apart from the basic error of treating the illegal strike to be perfectly justified, the Tribunal has indulged in language which is not characteristic of a judicial approach. The following observations, by the Tribunal, in the course of its inordinately long Award, covering about 42 pages in print, are illustrative of the attitude of the Tribunal towards the appellants :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses to strengthen their strike. Those allegations of the Secretary, the Tribunal has taken as proof of those allegations and has observed : ...... it is clear that Mr. Milner hatched a plan to create a trouble and the secretary of the Union got scent of all the secret arrangements made by the Company to create disturbance at the Ghats just immediately after the strike is declared. This is the first reasons assigned by the Tribunal for coming to the conclusion that the strike was perfectly justified. the second reasons for coming to this conclusion, according to the Tribunal, is to be found in the Conciliation Officer's report that the appellants did not agree to grant leave to the labour representatives to sit in the conciliation proceedings which were held on August 6, 1955. The Tribunal has observed that it appeared also from the appellant's attitude in refusing to grant leave to the five representatives of the Union, that the appellants were not inclined to give facilities for the conciliation proceedings. Is this observation justified on the record as it stands ? As already indicated, the Conciliation Officer received a copy of the strike notice on July 26, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure for application for leave to particular workmen, becomes clear on a reference to the terms of the Agreement dated February 23, 1953, between the Syndicate and their workmen represented by the Dhubri Transhipment Labour Union, at p. 75, Part I of the record. The Demand 5(f) was agreed to in these terms :- All leave applications be submitted by a representative of the Union on Tuesday or Friday in a week before the Management, and the decision be communicated to the Union the next day of submission of the application. On the other hand, in respect of leave, the terms of the Agreement reached between the Syndicate and the Dhubri Local Ghat Transhipment Labour Union, on March 13, 1953, are as follows :- It is agreed that the workers will submit leave applications to the management who will communicate their decision to the workers direct within three days of receipt of the applications and a copy thereof will be sent to the Union for information. It is clear, therefore, that the conciliation proceedings stopped abruptly not because the Management was to blame for not granting leave to the five chosen representatives of the workmen, but because B. Chakravarty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, the fact that two rival Unions had come into existence, could not be laid at the door of the appellants as an act of unfair labour practice. The Tribunal was not, therefore, in our opinion, justified in holding that the Management had either meddled in the internal administration of the Unions, or dabbled in politics, and had, thus, been guilty of unfair labour practice. The Tribunal has been rather generous to the workmen without being just to the appellants. This is also shown by the fact that, after having held the strike to be illegal, the Tribunal considered the legality of the lock-out declared by the appellants on August 11, 1955, in respect of one Ghat, and on August, 13, 1955, in respect of the other Ghat. In this connection, the conclusion of the Tribunal may best be stated in its own words to demonstrate its attitude to the appellants :- In this case the company used the weapon of lock-out just to intimidate and put pressure on the employees to withdraw the demands. The lock-out is also prohibited under Section 22(2)(d) of the Act. Therefore, both lock-out and strike are illegal. The Company had no justification whatsoever to declare a lock-out. Apparentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving the details of the acts of violence or obstruction, against the strikers, were served upon the workmen against whom those inquiries had been instituted. As a result of each one of these inquiries, the Inquiry Officer, R. N. Biswas, reported that the charge against each one of the workmen, had been proved to his satisfaction. But before the inquiry was held, the Joint Agent on September 9, 1955, informed the thirty seven workmen who had been convicted as aforesaid, of the criminal charge under section 188 of the Indian Penal Code, that their services were terminated from that date, and that they were to call at his office by the 15th of the month to collect their dues and to vacate the quarters of the appellants. As regards the remaining two hundred and twenty three workmen orders were passed on September 16, to the effect that as the departmental inquiry made against them, had resulted in the charges against them being proved, they were dismissed from the service of the appellants with effect from August 29, 1955. They were called upon to call at the Labour Office on September 18, to collect their dues, and to vacate the quarters of the appellants. Realising that as the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing participated in an illegal strike, and of having forcibly prevented workmen, from attending work. He added that the grant of the permission would not debar the Union from raising an industrial dispute in that matter. It may be added that the Board unanimously agreed that the dismissal is an appropriate punishment for participation in an illegal and unjustified strike. The Tribunal also took the same view of the legal position when it observed, If the strike is not justified and at the same time it contravenes the provisions of Section 22 of the Act, ordinarily the workmen participating in it are not entitled to any relief. As a matter of fact, the Tribunal has closely followed the findings of the majority of the Board of conciliation. But as we have already pointed out, there can be no question of an illegal strike being justified. We have further held, in agreement with the Tribunal, that the strike was illegal, and that it was not even justified - in disagreement with the Tribunal - assuming that such a situation could be envisaged, in accordance with the provisions of the Act. We have, therefore, to determine the question what punishment, if any, should be meted out to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) peaceful strikers, and (2) violent strikers, we have to enquire into the part played by them. That can only be done if a regular inquiry has been held, after furnishing a charge-sheet to each one of the workmen sought to be dealt with for his participation in the strike. 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. We have therefore, to look into the nature of the inquire alleged to have been held by or on behalf of the appellants. On the one hand, the workmen took the extreme position that no inquiry had at all been held, and on the other hand, the employers tool up the position that the Inquiring Officer had held a regular inquiry, after furnishing a charge-sheet to each one of the workmen against whom the inquiry was held. That there was an inquiry held by Biswas, admits of no doubt. The proceedings before him and the evidence recorded by him, have been placed on record. But the most serious question that we have to determine is whether a charge-sheet, giving notice to each workman concerned, as to what the gravamen of the charge against him was, has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no question of those strikes being justified, and that, assuming that the strikers were liable to be punished, the degree and kind of punishment had to be modulated according to the gravity of their guilt. Hence, it is necessary to distinguish between the two categories of strikers. The Tribunal attempted to make a such a distinction by directing that the 52 workmen, who had been convicted under s. 143 read with s. 188 of the Indian Penal Code, were not entitled to reinstatement, and the remaining 208 workmen were so entitled. Delaying with the case of the thirty seven workmen, who had been convicted only under s. 188 of the Indian Penal Code, for transgression of the prohibitory orders under s. 144 of the Code of Criminal Procedure, the Tribunal put those workmen on the same footing as the rest of the workmen. But, in our opinion, those 37 workmen do not stand on the same footing as the others. Those 37 workmen, who were convicted under s. 188 of the Indian Penal Code, had been found to have violated the prohibitory orders passed the public authorities to keep the public peace. Those convictions were based upon evidence adduced before the Magistrate, showing that the workmen h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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