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Judgment
K.S. Palaniswamy, J.—The management of Navamani and Company, Pappanaickenpalayam, Coimbatore, has filed this Writ Petition
praying for the issue of a writ of certiorari to quash the award of the Labour Court, Coimbatore, first respondent, in I.D. No. 8 of 1965. The
Secretary, Coimbatore District General Engineering and Mechanical Workers'' Union, Coimbatore, respresents the workmen (the second
respondent) of the petitioner-management. With regard to a dispute over the quantum of bonus payable for 1962-63 and 1963-64, an agreement
between the management and the workers was arrived 2X in November, 1963. Under that agreement, it was provided that for 1962-63 bonus of
two months'' wages should be paid and that for the year 1963-64 one month''s wages as bonus would be paid. The agreement provided other
conditions which need not be adverted to. In spite of the settlement, the workers went on strike in September, 1964 claiming four months'', wages
as bonus for 1963-64, which Was followed by a stay-in-strike by the workers. The management followed it up by lock-out. The workers-
belonged to two unions. On the intervention of the Labour Officer, the management agreed to lift the lock-out and permit the workers to join if
they were prepared to express regret in Writing for their participation in the strike. The management also agreed not to take any disciplinary action
against any of the workers if they expressed regret in writing for participating in the strike. The second respondent-union did not accept the above
condition, namely, their resuming duty on expressing regret. The workers belonging to the other union accepted the suggestion and expressed
regret and they were taken back to employment. Even as regards the second respondent-union,, the management came forward with a modified
proposal to the effect that they Would take back the workers belonging! to the union even if they did not express regret, provided they agreed to
take employment without continuity of service,, that is, treating the strike period as-involving a break in service. This-second offer made by the
management Was also not accepted by the workers, belonging to the second respondent-union. The union moved the State-Government, who
made the reference on the question whether the non-employment of 57 workers belonging to the second respondent-union Was justified, and if so,
to what relief they were entitled,
Before the Labour Court, both parties adduced evidence. On a consideration of the evidence, the Labour Court found that the strike Was illegal
on account of the pendency of the conciliation proceedings, that the management was justified in its demand of expression of regret and that since
the workers refused to comply with this condition the workers forfeited their right of employment and were not entitled to resume work with,
continuity of service and back wages. In terms thereof, an award was passed. Challenging the validity of that award, the second respondent-union
filed W.P, No. 4845 of; 1965. Ramakrishnan, J., before whom that writ petition came up for consideration, found, in agreement with the Labour
Court, that the strike was illegal. But the learned Judge found-that the Labour Court had failed to consider what penalty should be levied on the
workers. The learned Judeg referred to the decision of the Supreme Court in India General Navigation and Railway Co. Ltd. and Another Vs.
Their Workmen, , in which the Supreme Court has laid down certain principles in determining the quantum of punishment to be given to striking
workers. After giving an extract of the judgment of the Supreme Court, the learned Judge passed this Order:
Therefore, I allow the writ petition in part and while maintaining the finding of the Labour Court that the strike should be held to be illegal, I direct
the Labour Court, to restore the case to its file and deal with the question of penalty to be imposed on the workers for participation in the illegal
strike in the light of the Supreme Court decision above mentioned. It will be open to the parties to adduce such further evidence as they consider
necessary.
After the case was remanded, 11 Workmen tendered their resignation. The Labour Court found that on account of the resignation those
workmen were not entitled to any relief. With regard to the other workmen, the Labour Court found that they were only peaceful strikers. The
moulding Section in the petitioner-company Was closed. On that account the Labour Court found that the concerned workmen were entitled to
half wages and a month''s notice pay and closure compensation. As regards the others, the Labour Court found that they were entitled to be
reinstated with half back wages from the date of the strike up to the date on which they would be reinstated. It is to quash this award that the
management has filed this writ petition.
After remand, the management filed a copy of the certified Standing Orders, which was marked as Exhibit M-96. Clause 16 of the Standing
Order enumerates acts or omissions which could be treated as acts of misconduct. Sub-clause (c) of Clause 16 inter alia provides that ""striking
work or inciting others to strike work with another or others in contravention of the provisions of the Industrial Disputes Act, 1947 or any other
enactment or rule in force for the time being would be an act of misconduct"". Clause 17(1) of the Standing Orders provides inter alia:
No order of dismissal shall be made unless the Workman concerned is informed in writing of the alleged misconduct and is given an opportunity to
explain the circumstances alleged! against him.
In awarding punishment under this; Standing Order, the Manager shall take into account the gravity of the misconduct, the previous record, if any,,
of the workmen and any other extra-, neous circumstances that may exist.
Mr. Narayanaswami, appearing for the petitioner, contended that the impugned, award is vitiated in that the Labour Court-totally failed to take into
consideration the Standing Orders and that the Labour Court failed to keep in view the distinction between cases where there are Standing Orders
making participation in illegal strike as a misconduct punishable with, dismissal and cases where there are no,~ Standing Orders. His submission
Was that. on account of the Standing Order,, which., entitles the management to take action, by way of dismissal for misconduct, the management
was justified in refusing to take back the concerned workers and that the Labour Court, overlooking this aspect, considered the case as if the
management was to blame for the stated circumstances for the purpose of making it liable for paying half Wages awarded by the Labour Court.
His further submission Was that the management was. entitled to impose the condition of tendering apology, as admittedly the strike was illegal,
that the management was further reasonable in making a modified offer of taking back the workers provided they agreed that there was break in
continuity of service, that the workers were. unreasonable and that, therefore, the management had no other go except to refuse to take back the
workmen into service. His submission was that these. aspects were totally lost sight of by the... Labour Court in considering the question whether
the workers were entitled to be reinstated and were entitled to any back wages.
On behalf of the workmen, a counter-affidavit has been filed alleging inter alia that the Labour Court had jurisdiction to go into the quantum of
punishment and that the Labour Court has correctly applied the principles laid down by the Supreme Court cited in the order of remand and that,
therefore, there is no ground to interfere.
A perusal of the impugned award shows that the Labour Court totally failed to consider the Standing Orders under which participation in an
illegal strike is an act of misconduct. On the evidence, the Labour Court has no doubt found that the workers in question were only peaceful
strikers. On that sole ground the Labour Court came to the conclusion that the workers were entitled to be reinstated. Mr. Narayanaswami,
Counsel for the petitioner, contended that in view of the Standing Orders,the Labour Court had no jurisdiction to go into the question of quantum
of punishment imposed by the management, and in support of this argument cited the decision of the Supreme Court in Mill Manager, Model Mills
Nagpur Ltd. Vs. Dharam Das, Etc., . In that case, the Standing Orders inter alia provided for dismissal for misconduct. The dismissal of the
workmen, who took part in an illegal strike, was upheld. But a perusal of the facts of that case shows that on the refusal of the workmen to work,
the management held an enquiry after framing a charge and after enquiry passed orders of dismissal. In the instant case, no enquiry was held,
though the Standing Orders make it obligatory on the management to hold an enquiry and give an opportunity to the workmen concerned to
explain the circumstances alleged against him. Mr. Prasad, appearing for the second respondent-union, went to the extent of contending that, as a
matter of fact, there has been no order of termination of service of the concerned workmen. I am unable to accept this contention. Exhibit M-26,
the notice issued by the management on 23rd November, 1964, after referring to the conciliation proposal of the Labour Officer, stated that if the
workers did not express regret within a particular date, they should be deemed to forfeit their rights as employees and would not be allowed to
enter into the premises of the management and that the management would be at liberty to appoint such men as they thought fit. It is not in dispute
that such a notice was served individually on all the workmen. In my view this communication is sufficient order of termination of service, though it
was conditional upon the workmen tendering apology. But that does not affect the question at issue. Admittedly, no enquiry was held by the
management before issuing the said notice. In that view, the decision of the Supreme Court in Mill Manager, Model Mills Nagpur Ltd. Vs. Dharam
Das, Etc., , is not applicable to the facts of the instant case.
In I.M. H. Press v. J.T. and Ors. (1961) I L.L.J. 499 : AIR 1961 S.C. 1168, there was no Standing Order holding the strike illegal. It was held
that mere participation in an illegal strike would not be a ground to dismiss the workmen from service. This decision was rendered following the
decision in India General Navigation and Railway Co. Ltd. and Another Vs. Their Workmen, , in which also there was no proper managerial
enquiry. It was, therefore, held that the quantum of punishment was also within the jurisdiction of the Industrial Tribunal. On that basis that case
was distinguished by the Supreme Court in The Bata Shoe Co. (P) Ltd. Vs. D.N. Ganguly and Others, : . In that case, the finding of the Tribunal
was that there was misconduct which merited dismissal under the Standing Orders and that the managerial enquiry was also proper. The Tribunal
took the view that as certain workmen had not taken part in violence, the management was not justified in dismissing them. The Supreme Court
reversed this finding and held that as there was a Standing Order and as there was proper managerial enquiry, the direction given by the Tribunal
for reinstatement of those workmen was unsustainable. This decision, on which Mr. Narayanaswami relied is also not of help to the petitioner-
management, as admittedly no managerial enquiry was held even though the Standing Orders provide that participation in an illegal strike is an act
of misconduct.
In this case, the strike was doubly illegal. The strike was effected in contravention of a settlement which had been already arrived at in regard to
the bonus '' for 1963-64. The strike was also illegal for the reason that it Was staged after the commencement of conciliation proceedings. In spite
of these two circumstances, the management Was prepared to take back the workers provided they tendered apology. The management was
further prepared to modify that condition and take back the workers provided they agreed to treat the striking period as involving break in service.
To none of these courses, the workers were willing. It was in those circumstances that the management issued the notice stating that the workmen
shall not enter the premises of the management thereby implying that their services are terminated. The Labour Court has held that the workers are
entitled to back wages at half rate from the date on which the strike Was started. In coming to this conclusion, the Labour Court relied upon an
observation of the Supreme Court in India General Navigation and Railway Co. Ltd. and Another Vs. Their Workmen, , in which it is pointed out
that regarding the question of back wages, the workmen would be entitled, on their reinstatement, only to half wages and should bear the loss as
regards the other half and that where the blame alleged is on both the parties, they should divide the loss equally. Purporting to apply this principle,
the Labour Court passed the award that the workers, who were ordered to be reinstated would be entitled to half back wages from the date of the
strike. But the Labour Court has not given any reason as to why the management should bear half Wages which have been ordered ''to be paid to
the workmen. Admittedly, the strike was illegal. For ordering that the management should bear half back Wages from the date of the strike, the
Labour Court has not only not given any reason but has overlooked the conditions subject to which the management was prepared to take back
the striking workers. The Labour Court has not expressed any opinion on the question whether the conditions imposed by the management were
reasonable or not. Nor has the Labour Court considered the question whether ''the refusal of the workmen to agree to the terms was'' justifiable or
not. If the workman were unreasonable in their refusal, there should be adequate reasons for holding the management liable for half back wages
from the date of the strike, even though the strike was'' illegal. The Standing Orders provide that in imposing the punishment, the previous record of
the workmen and all other extraneous circumstances that may exist should also be taken into consideration. This aspect was totally lost sight of by
the Labour Court in directing reinstatement of the workers. The only reason given by the Labour Court was that the strikers were peaceful, as the
time of the strike. Having regard to all these circumstances, the award, which is vitiated by errors apparent on the fact of the record is
unsustainable and is liable to be quashed.
In the result, the award is quashed and the matter is remitted to the Labour Court for fresh disposal in the light of the foregoing observations. As
the case is old, the Labour Court will take all steps to dispose of the same as expeditiously as possible. No order as to costs.