TMI Blog1959 (9) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through a long and protracted career and the final decision of the dispute would be reached after we dispose of the present appeals. In order to appreciate the points raised for our decision in these appeals it is necessary to indicate briefly at the outset the salient points of controversy between the parties, the findings made by the original tribunal, the conclusions reached by the Labour Appellate Tribunal in its interlocutory and final judgments and the decision of this Court in the appeal which had been brought before it by the Bank against the interlocutory judgment of the Labour Appellate Tribunal. 2. The 150 employees, whose dismissal has given rise to the present dispute are spread over several branches of the Bank. 52 of them work at its head office in Delhi, 15 in Bombay, 73 in East Punjab and 10 in U.P. 14 workmen in the first three areas are represented by the Federation while the last 10 in U.P. are represented by the Union. All of these employees took part in strike which, according to the Bank, were illegal. The strikes in which the two respective groups of workmen took part were, however, for different reasons. 3. The strike in which the Federation took p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the demands made by the strikers should be referred to the industrial tribunal for adjudication; in accordance with this request, on April 30, 1951, the strike committee decided to call off the strike and advised workmen to join duty from May 1, 1951. This advice, however, did not reach all the branches in time with the result that some of the employees of the Bank offered to resume work on May 3, 1951. The other banks in the U.P. region took back their employees who rejoined on May 3, but the Bank refused to take back its employees on the ground that they had not offered to rejoin on or before the date fixed; and so it proceeded to dismiss them. The dismissal of the said 10 employees is also the subject-matter of the present reference. That is how the reference is concerned with the dismissal of 150 employees of the Bank in all. 5. The strikes in question which affected the head office and the large number of branches of the Bank operating in more than one State and a very large number of its employees caused public concern, and so the Prime Minister and the Labour Department of the Central Government thought it necessary to intervene; and a conference was arranged at New D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to scare away its customers. The Bank further alleged that the said 150 employees were guilty of unpardonable acts of violence, intimidation, coercion and victimisation. 9. The tribunal gave two interim awards by which it directed the Bank to make some payments to the 150 employees by way of allowance pending the final disposal of the dispute. On February 2, 1952, the tribunal pronounced its final award. It held that the strikes were illegal and that the Bank was entitled to dismiss the employees solely on the ground that the said employees had participated in an illegal strike. On this view the tribunal did not think it necessary to allow evidence to be given on the question as to whether some of the strikers were guilty of specific subversive or violent acts. It also did not allow evidence to be led by workmen in support of their plea that their dismissal was the result of victimisation. It decided the dispute on the sole ground that the strikes were illegal and participation in illegal strikes justified the dismissal of the employees. Even so the tribunal made an order directing the Bank to pay certain amounts to the said employees on compassionate grounds. 10. The dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke. In other words, the effect of the findings of the appellate tribunal was that, though the strike was illegal, by its conduct the Bank had precluded itself from exercising its alleged right to dismiss its employees for their participation in such an illegal strike. 11. The appellate tribunal also considered the general question of law as to whether participation in an illegal strike can be said to deserve dismissal of the striking workmen. It took the view that an illegal strike absolves the liability of the employer to pay to its employees wages during the period of absence of the striking workmen, but that it cannot be stated as a general proposition that participation in an illegal strike would by itself necessarily involve the penalty of dismissal. The Bank attempted to justify the dismissal in the present case by urging that the 150 employees were guilty of violent or subversive acts but the appellate tribunal held that it was not open to the Bank at that stage to plead in justification of their dismissal any such acts of violence or subversive acts. There is abundant authority , observed the appellate tribunal, for the proposition that an employer can justify before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected the Bank to make interim payments to the employees as indicated in its order. 12. This interlocutory judgment was challenged by the Bank before this Court by its appeal under Art. 136 of the Constitution. On behalf of the Bank it was urged that the conclusion of the appellate tribunal that the Bank had condoned the illegal strike by its workmen was unjustified and that it was open to the Bank to rely upon the illegal strike as justifying the dismissal of the said workmen. The case of the Bank thus was that the order passed by the appellate tribunal setting down the dispute for further enquiry was illegal and should be set aside. The judgment of this Court delivered by Patanjali Sastri, C.J., shows that this Court thought it unnecessary to express any opinion on the question of condonation or waiver of the illegal strike because, in its opinion, even if there was no such condonation or waiver and even if it was open to the Bank to rely upon the illegal strike as a valid ground for dismissing its employees, there was no doubt that the order of dismissal was illegal having regard to the provisions of s. 33 of the Act. The said section furnished a short answer to the Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work but continued to occupy their seats. The appellate tribunal also found that the pen-down strikers were quiet and peaceful, that no slogans were shouted, no attempt at violence or coercion was made and that they simply occupied their seats without doing any work. 14. It was conceded before the appellate tribunal that pen-down strike falls within the definition of strike prescribed by s. 2(q) of the Act; but it was urged that the act of not vacating their seats when asked by the management to do so introduced an element of illegality and made the strikers liable in a civil court for trespass. The appellate tribunal was not impressed with this argument but it held that even if the striking workmen are assumed to have made themselves liable for civil trespass that itself would not be sufficient ground for refusing reinstatement. 15. It appears that the Bank relied upon several documents to show that the employees were guilty of subversive actions during the course of the strike. The appellate tribunal was not satisfied that these documents were genuine and could be effectively pressed into service by the Bank in support of its case. It was also urged by the Bank that duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared en masse and the deponents simply put their signatures on them. In most of the affidavits there were blank spaces for the name, parentage and age of the deponents and they have been subsequently filled up in ink. Some of them, though sworn at different places, used identical language; while in some others material additions and alterations have been made which do not bear the initials either of the deponents or of the oath commissioner. It appeared to the appellate tribunal that some of the statements made by the witnesses of the Bank showed that their affidavits had been prepared by the Bank's lawyers and they simply put their signatures thereon and affirmed them before the oath commissioner. Indeed the appellate tribunal apparently though that there was some force in the contention raised by the employees that some of the documents produced by the Bank had been manufactured or tampered with long after the strike was over. It as noticed the argument urged by the Bank that even if it was so the Bank cannot be condemned for the act or acts of its branch managers in that behalf. This argument did not appeal to the appellate tribunal. Thus the decision of the appellate tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se places had, therefore, to be replaced by fresh recruits are entitled to an order that those fresh recruits be dismissed and replaced by the strikers ? (g) Whether it is open to the employees of a concern to raise with their Employers a question as to whether the Employers should employ in their service employees of a concern other than their own and whether such a question constitutes an 'industrial dispute' within the meaning of the Industrial Disputes Act ? 18. It may be mentioned that the Bank's petitions and raised several other grounds in paragraph 162 but leave has not been granted to the Bank to raise any of them. 19. Almost a month and a half after limited leave was thus granted to the Bank the Federation filed its petition for special leave on April 4, 1955, and it applied for condonation of delay made in presenting the petition. On April 9, 1956, this Court granted the employees' application for condonation of delay and gave special leave to them to prefer their appeal. This leave has not been limited to any particular grounds. Broadly stated these are the relevant facts which give rise to the three present appeals. 20. Before dealing with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Privy Council in the case of The High Commissioner for India and High Commissioner for Pakistan and I. M. Lall 75 I.A. 225. This decision holds that the order of dismissal passed against a person who is a member of the Civil Service of the Crown in India without complying with the mandatory relevant provisions of s. 240 of the Government of India Act, 1935, is void and inoperative, and that the Civil Servant against whom such an order is passed is entitled to a declaration that he remained a member of the Indian Civil Service at the date of the institution of the suit in which he challenged the validity of the impugned order. Similarly in Khem Chand v. The Union of India (1959)ILLJ167SC , this Court has held that an order of dismissal passed against a public servant specified in Art. 311(a) without complying with the mandatory provisions of Art. 311(2) is void and that the public servant sought to be dismissed by such an invalid order continued to be a member of the service at the date of the institution of the suit. It is in the light of these decisions that the learned Attorney-General asks us to hold that the relationship between the Bank and its employees remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appeal that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer. 26. But it is significant that even if the requisite permission is granted to the employer under s. 33 that would not be the end of the matter. It is not as if the permission granted under s. 33 validates the order of dismissal. It merely removes the ban; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployer and to ensure the termination of the proceedings in connection with the industrial disputes in a peaceful atmosphere. That being so, all that the tribunal, exercising its jurisdiction under s. 33, is required to do is to grant or withhold the permission, that is to say, either to lift or to maintain the ban. This section does not confer any power on the tribunal to adjudicate upon any other dispute or to impose conditions as a prerequisite for granting the permission asked for by the employer. The same view has been expressed in Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup (1957)ILLJ17SC . 29. In cases where an industrial dispute is raised on the ground of dismissal and it is referred to the tribunal for adjudication, the tribunal naturally wants to know whether the impugned dismissal was preceded by a proper enquiry or not. Where such a proper enquiry has been held in accordance with the processions of the relevant standing orders and it does not appear that the employer was guilty of victimisation or any unfair labour practice, that tribunal is generally reluctant to interfere with the impugned order. The limits of the tribunal's jurisdiction in dealing with such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Iron Steel Co. Ltd. [1958] S.C.R. 667, would be applicable; and in applying the said principles the employer would be confined to the grounds set out by him in his charge-sheet against the employee. 31. This position is not disputed before us. Indeed the learned Attorney-General contends that the principles applicable to the decision of an industrial dispute arising from the dismissal of an employee to which we have just referred serve to emphasize the obligatory character of the limitation imposed on the employer by s. 33 of the Act and by the requirements of natural justice that every dismissal must be preceded by a proper enquiry. Where the ban imposed by s. 33 of the Act has been defied and/or where a proper enquiry has not been held at all the action of the employer in dismissing his employee must be treated as void and inoperative. Such a case stands outside the principles which we have discussed so far. That in brief is the main contention raised by the employees. 32. This contention is, however, untenable in view of the decisions of this Court where the provisions of s. 33A have been construed and considered, and so we must now turn to s. 33A. This section was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge, that the jurisdiction of the authority is not only to decide whether there has been a failure on the part of the employer to obtain the permission of the authority before taking action but also to go into the merits of the complaint and grant appropriate reliefs (p. 1253) . It was urged before this Court that in holding an enquiry under s. 33A the tribunal's duty was only to find out whether there had been a contravention of s. 33, and if it found that there was such a contravention to make a declaration to that effect. The argument was that no further question can or should be considered in such as enquiry. This contention was, however, rejected. 34. The same question was raised before this Court in Equitable Coal Co. Ltd. v. Algu Singh AIR1958SC761 , and following the previous decision of this Court in the case of the Automobile Products of India Ltd. (1955)ILLJ346SC , it was held that in an enquiry under s. 23 two questions fall to be considered : Is the fact of contravention of the provisions of s. 22 proved ? If yes, is the order passed by the employer against the employee justified on the merits ? Thus there can be no doubt that in an enquiry under s. 33A the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Tribunal, Bombay [1949] F.C.R. 321. In this case the Federal Court considered the larger question about the powers of industrial tribunals in all its aspects and rejected the argument of the employer that to invest the tribunal with jurisdiction to order re-employment amounts to giving it authority to make a contract between two persons when one of them is unwilling to enter into a contract of employment at all. This argument , observed Mahajan, J., as he then was, overlooks the fact that when a dispute arises about the employment of a person at the instance of a trade union or a trade union objects to the employment of a certain person, the definition of industrial dispute would cover both those cases. In each of those cases, although the employer may be unwilling to do so, there will be jurisdiction in the tribunal to direct the employment or non-employment of the person by the employer . The learned Judge also added that the disputes of this character being covered by the definition of the expression 'industrial disputes,' there appears no logical ground to exclude an award of reinstatement from the jurisdiction of the industrial tribunal. Since this judgment w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slow to interfere with the said orders. It is true as we have already pointed out that if the employer holds a proper enquiry, makes a finding in respect of the alleged misconduct of the employee and then passes an order of dismissal the tribunal would be slow to interfere with such an order and would exercise its jurisdiction within the limits prescribed by this Court in The case of Indian Iron Steel Co. Ltd. [1958] S.C.R. 667. 39. But it follows that if no enquiry has in fact been held by the employer; the issue about the merits of the impugned order of dismissal is at large before the tribunal and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved, and if yes, what would be proper order to make. In such a case the point about the exercise of managerial functions does not arise at all. This answers the argument which Mr. Sanyal has raised before us in his appeal. 40. Mr. Sanyal, however, seeks to derive support to his argument from the decision of the Labour Appellate Tribunal In The Madras Electric Tramways (1904) Ltd., Madras And Their Workers (1951) 2 L.L.J. 204. In that case the order of reinstatement pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties are concluded by the other findings which have become final. Considered in the light of these limitations the grounds on which leave has been granted to the Bank must first be examined. A bare perusal of the said grounds would show that some of them are vague and they are urged on assumptions of fact which run counter to the findings recorded by the appellate tribunal. That is why when those appeals were urged before us, Mr. Anand and Mr. Sanyal have recast their contentions within the frame-work of the grounds in respect of which leave has been granted and have urged the following points before us : (1) that participation in a pen-down strike is itself an activity of such a subversive character that it disqualifies the employees who took part in it from claiming the relief of reinstatement, (2) that the publication and circulation of subversive documents was the result of a concerted plan and represent a collective activity of all the strikers and as such all the employees before us should be held responsible for it and on this ground reinstatement should be refused to them, (3) that the finding recorded by the appellate tribunal that only 14 persons were directly and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any event, according to him, at least 52 persons took part in it. He has filed in this Court a list of these 52 employees. On the other hand, the learned Attorney-General has contended that on the findings recorded by the appellate tribunal not more than 10 persons can be said to have take part in it. In dealing with the present contention of the Bank we are prepared to assume that most of the strikers participated in the pen-down or sit-down strike as generally found by the tribunal. 45. Is this pen-down strike a strike within s. 2(q) of the Act or not ? S. 2(q) defines a strike as meaning a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment. It was conceded before the appellate tribunal that a pen-down strike falls within this definition, and this position is not seriously disputed before us either. On a plain and grammatical construction of this definition it would be difficult to exclude a strike where workmen enter the premises of their employment and refuse to take th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sor's title, he commits a trespass [Salmond on Torts, 12th Ed., p. 158]. But this proposition is subject to the exception that if a person enters for a lawful purpose he is not a trespasser unless the case is one to which the doctrine of trespass ab initio applies [Salmond on Torts, 12th Ed., p. 159]. So the decision of this technical point would depend on whether or not the employees are given a limited or conditional licence to enter the premises and that if they have decided to go on strike the said conditional or limited licence is no longer available to them. We do not think it necessary to consider this academic question in the present proceedings because, in our opinion, the appellate tribunal was obviously right in holding that even if civil trespass was involved in the conduct of the employees that by itself cannot justify the rejection of their claim for reinstatement. Incidentally we may add that even in America the simple act of trespassing upon the employer's property is no bar to reinstatement nor is the act which at most a civil tort [Ludwig Teller's Labor Disputes and Collective Bargaining Vol. II, p. 855]. 48. Does the conduct of the strikers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal amounted to criminal trespass under s. 441 of the Code. 49. In resisting the employees' claim for reinstatement on the ground that participation in a pendown strike creates a bar against such a claim the Bank has strongly relied on the decision of the Supreme Court of America in National Labour Relations Board v. Fansteel Metallurgical Corporation 306 U.S. 238; 83 Law. Ed. 627. Both Mr. Anand and Mr. Sanyal have contended that this decision is an authority for the proposition that participation in pen-down strikes necessarily disqualifies the strikers from claiming reinstatement. It is, therefore, necessary to examine this case carefully. In this case, the National Labor Relations Board had directed the reinstatement of participants in a sit-down strike whom, upon their refusal to leave the employer's plant, the employer declared to be discharged. The Board had held that despite the illegal strike and the consequent order of discharge the status of the employees continued by virtue of the definition of the term employee in s. 2, sub-s. (3) of the National Labor Relations Act. It had also taken the view that it had jurisdiction to direct reinstatement of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute and the facts on which the said decisions are based. Let us then consider the facts on which the majority decision was based. It appears that an acrimonious dispute had been going on between the Corporation and its employees for some time before February 17, 1937 when the pen-down strike commenced. The Corporation was not prepared to recognise the outside union and had employed a labor spy to engage in espionage within the union and continued the employment of the said spy. It also appears that the superintendent of the Corporation when requested to meet the deputation of the union required that the deputation should consist only of employees of five years' standing. Subsequently the superintendent refused to confer with the committee in which the outside organisation had been included; and as a punitive measure he required the president of the union to work in a room adjoining his office with the purpose of keeping him away from the other workers. It was in this background of bitter relationship that the strike commenced. 51. In the afternoon of February 17 the union committee decided upon a sit-down strike by taking over and holding two of the respondent's key bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the illegal strike in the present case can by itself defeat the claim of the employees for reinstatement. 52. In this connection we may point out that, according to Teller the Fansteel decision marks what is hoped to be an end of an unfortunate chapter in the history of American labor activity ; he has added that there is danger, however, in viewing the sit-down strike solely as the reflection of lawless labour leadership. The causes of its emergence are deeper. Indeed labour has contended that capital and labor share equal responsibility for its rise and development. No analysis of a sit-down strike can claim a broad view of the subject, says labor, without a full measure of consideration of the infamous Mohawk Valley methods used by Remington-Rand to break strikes, nor to the facts elicited in the recent Rand-Bergoff trial under the Byrnes Act. . . . . . The anarchy of law which resulted from unlawful employer utilisation of instruments of violence and chicanery in disregard of law needed the sit-down strike as an effective counterpoise ; and so the author significantly concludes that it is no coincidence that statistics show a precipitate drop in the prevalence of si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brandeis, JJ., however, dissented. The main decision in that case is not of direct assistance in the present appeals. No doubt Mr. Anand has attempted to contend that the acts of which the strikers were held guilty in that case are similar to the acts alleged against the employees in the present appeals; but this argument would be relevant only if it is shown by the Bank that the specific subversive acts alleged have been committed by the specific individual employees. To that point we will refer later on. Incidentally the present decision is of some importance because the dissenting opinion delivered by Mr. Justice Brandeis has been subsequently treated as an authoritative exposition of the problem of trade unionism and the history of its growth and development. 54. Fortunately, as the Indian Trade Unions Act 1926, (16 of 1926), the Industrial Employment (Standing Orders) Act 1946 (20 of 1946), and the Industrial Disputes Act 1947 (14 of 1947) show, our Legislature has very wisely benefited by the experiences of other countries in the matter of the development of trade union movement, and has made progressive, just and fair provisions governing the important problem of industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d them from employment, proceed to hold proper enquiries according to the standing orders, and pass proper orders against them subject to the relevant provisions of the Act. If the Bank had been properly advised to adopt such a course, many of the difficulties which it had to face in the present proceedings would not probably have arisen. Therefore, we do not think that the general hypothetical consideration that pen-down strikes may in some cases lead to rowdy demonstrations or result in disturbances or violence or shake the credit of the Bank would justify the conclusion that even if the strikers are peaceful and non-violent and have done nothing more than occupying their seats during office hours, their participation in the strike would by itself disqualify them from claiming reinstatement. 56. Let us then consider the second contention raised by the Bank. It is urged on behalf of the Bank that it is really unnecessary to examine which particular employees was directly associated with the preparation and circulation of the subversive circular or posters. The offensive posters and circulars had been drafted, printed and circulated in pursuance of the common object of the strik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged by the bank is in regard to the finding of the tribunal that only 14 employees named by it are responsible for the subversive posters and hand bills. It is urged that this finding is perverse. We are not impressed by this argument. There is no doubt that the three posters Exs. 255(a), 255(c) and 302, to which strong exception has been taken by the Bank are subversive of the credit of the Bank. They make imputations about the honesty of the management of the Bank and in terms suggest improper use of the funds of the Bank for personal purposes. It is also true that a large number of other documents issued by the Union before and during the strike have used exaggerated, and unduly militant intemperate, language, and in our opinion the appellate tribunal was justified in expressing its disapproval of the use of such language; but the appellate tribunal thought that none of these documents could really be taken to be subversive of the credit of the Bank and with that conclusion we are in full agreement. Therefore the only question which we have to consider is whether the view taken by the appellate tribunal that 14 persons were actively concerned with these offensive documents can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence bearing on the case of each individual employees. We are satisfied that the Bank is not justified in contending that in excluding 136 employees from the responsibility of direct participation in the drafting and publication of the subversive circulars and hand-bills the appellate tribunal has ignored any important evidence. The argument that the said finding is opposed to the weight of evidence and as such perverse must therefore be rejected. 62. Then Mr. Anand has invited us to consider some individual cases. According to him the case against Joshi had not been properly considered by the appellate tribunal. It does appear that Joshi admitted that he had taken part in the drafting of documents P. 272, 274, 279, 280 and 286; but none of these documents has been found to be subversive and so it is idle to contend that Joshi's connection with any of the three subversive documents is established. So there is no substance in the argument that Joshi's case should be reconsidered. 63. Then our attention has been drawn to the cases of five other employees Narain Das, Chuni Lal, Som Datt, Trilok Chand and Charan Singh. In regard to these persons the appellate tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in regard to these five cases suffers from any infirmity on which it can be successful challenged before us; besides the Bank apparently relied upon other evidence against these five persons, and not the report of Dina Nath, and that evidence has been disbelieved. 64. Mr. Anand has then urged that in directing reinstatement of 136 employees the appellate tribunal failed to consider the fact that in the meanwhile the Bank has employed additional hands and it would be unfair to the Bank to direct that these dismissed employees should be taken back. The reinstatement order would lead to complications and the Bank may have to face the claims of those who have been employed in the meanwhile. Mr. Anand wanted to prove that the Bank had employed a large number of hands in the meanwhile by referring to the statement made by the Union in the bulletin and posters issued during the strike. These statements seem to indicate that the Union complained that pending the strike the Bank was employing new hands. But if the Bank wanted to urge this plea seriously it should have proved the relevant facts, e.g., how many employees have been appointed and on what terms. These are matters within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed before us by Mr. Anand and Mr. Sanyal on behalf of the Bank. Mr. Anand no doubt raised three additional subsidiary points in Civil Appeal No. 519 of 1958, in which he appeared, but as we have pointed out there is no substance in any one of them. In Civil Appeal No. 520 of 1958, in which Mr. Sanyal appeared for the Bank he did not challenge the findings recorded by the appellate tribunal in respect of the 10 employees concerned in the said appeal. In the result both the appeals preferred by the Bank fail and are dismissed with costs. 66. That takes us to Civil Appeal No. 521 of 1958, filed by the employees. In this appeal we are concerned with the order refusing reinstatement to 14 employees. In addition to the two preliminary objections which we have already considered the learned Attorney-General raised two general points for the appellant. The first is that the appellate tribunal has erred in law in virtually penalising the 14 employees for the activities of the Union, and in that connection he raised the question that the activities of the Union were outside the scope of the present enquiry. In dealing with the Bank's appeals we have dealt with this question, and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lesson to all the office bearers and active workers of the Union. This plea was denied by the Bank, which in turn alleged positive grounds against each one of the 150 employees. 68. The appellate tribunal was thus called upon to consider whether it would be justified in holding all the strikers responsible for each one of the acts of the office bearers or leaders of the Union; and, after considering the evidence, it decided to limit the liability for the said subversive acts only to 14 persons who, in its opinion, could be regarded as directly and actively responsible for them. In other words, the appellate tribunal did not proceed to deal with the question on any theoretical or academic basis and took a practical and common-sense view of the matter. It considered Puri's evidence and took into account the probabilities of the case. None of these workmen ever said anything contrary to the case which was made out by the Union and none of them made an attempt to deny the statements made by Puri on oath. It is certainly relevant to remember that Puri is undoubtedly one of the leaders of the Union and he gave testimony to the effect that these persons had been consulted and were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument Ex. 255(c) and that would be enough to justify the order of the appellate tribunal refusing him reinstatement. Then as to Kakar, apart from Ex. 255(a) and Ex. 255(c), there is no doubt that he was actively concerned with the document Ex. 302, and if the said document is subversive that alone would be enough to disentitle him from claiming reinstatement. In this connection our attention was drawn to the fact that in dealing with the individual case of Kakar the appellate tribunal has considered several documents including Ex. 302 and has observed that it did not find anything substantial therein which can be classed as subversive, whereas in an earlier part of the judgment this document has been treated as subversive. Having regard to the fact that these apparently inconsistent observations have been made in respect of this document we have considered the said document (Ex. 302) ourselves. It purports to be an open letter to Yodh Raj, the General Manager of the Bank; after making several controversial statements which though couched in intemperate language may not amount to a subversive activity, it ends by saying that the Bank's interests are more dear to us than to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has referred to one Manohar Lal Gupta in connection with the subversive documents : and no attempt has been made by the Bank to show either that Manohar Lal Gupta has been wrongly taken down as Munna Lal or that the two names represent the same individual. Munna Lal does not appear to be a member of the working committee either. It is true that in the first part of its judgment the appellate tribunal has mentioned Munna Lal at Sr. No. 9 in setting forth the relevant evidence of Puri, which means that instead of Manohar Lal Gupta the appellate tribunal put down the name of Munna Lal in summarising the evidence of Puri; and this would naturally suggest that according to it Munna Lal was concerned with the said subversive documents along with the other persons mentioned by Puri. Curiously enough, in dealing with the individual case of Munna Lal Gupta the appellate tribunal has considered the other evidence produced by the Bank against him and ordered that Munna Lal Gupta should be reinstated with continuity of service and with compensation. Having made this finding in terms in favour of Munna Lal, in the last portion of its judgment it has again put Munna Lal's name in the list o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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