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This notice was in the following terms: "At the instigation of Shri J. Krishna, the General Secretary of your Union, you since the very beginning of this season, have been failing in your duty to ensure adequate and regular loading of the cane carrier, and with effect from the 27th November, 1960, you, in combination w... |
You have deliberately reduced the average daily crushing to more or less 26,000 maunds out of which more than 2,000 maunds is due to the newly introduced device of direct feeding of the cane carrier by cane carts weighed during nights and not attributable to any effort on your part. FAC |
Thus the actual crushing given by you is practically something between 23,000 and 24,000 maunds only which is highly uneconomical and technically unsafe for this factory with the installed crushing capacity of more than 1,200 tons a day." FAC |
About 14,000 bales of extra bagasse kept in stock as reserve have already been consumed in the past 12 days or so and now the factory is faced with a situation when at any moment its boilers may go out of steam for want of bagasse fuel leading to an abrupt stoppage of the mills and finally resulting into a major breakd... |
"It is therefore hereby notified that unless you voluntarily record your willingness individually to discharge your duties faithfully and diligently by feeding the cane carrier so as to give a minimum average daily crush of 32,000 maunds, excluding stoppages other than those 591 due to overloading or under loading of t... |
You must record your willingness in the office of the Factory Manager on or before 4 P.M. of Saturday the 17th December, 1960, failing which you shall stand discharged from the service of the company without any further notice with effect from 18 12 1960 and your place will be filled by recruiting other labour to man t... |
This notice was put on the notice board along with translations in Hindi and Urdu and it was also sent individually to the workmen in cane carrier department. FAC |
A copy was also sent to the Secretary of the union with the workmen concerned to submit their willingness as desired by the respondent in the notice in question either individually or even collectively through the union. FAC |
The secretary of the union replied to this notice on the same day and said that it was "full of maliciously false and mischievous statements". FAC |
The secretary also denied that the workmen had adopted go slow tactics or that he had advised the workmen to adopt such tactics. FAC |
Finally the secretary said that it was simply fantastic to ask a worker to give an undertaking to crush at least 32,000 maunds per day and if the service of any workman was terminated on his not giving the undertaking, the responsibility would be that of the respondent itself. FAC |
The respondent 's case was that three workmen gave undertakings as required in the notice while the rest did not. FAC |
Thereafter the situation in the factory deteriorated and the workmen grew more and more unruly and even started entering the factory without taking their attendance token. FAC |
In consequence of this attitude of the workmen, the respondent issued a notice at 5 p.m. on December 17, 1960 which was in the following terms: "The following workers of the cane carrier station who failed to record their willingness in factory manager 's office by 4 p.m. this day the 17th December, 1960, to work faith... |
From now on, the workers concerned have forfeited their right to go to and occupy their former place of work and any action contrary to this on their part will make them liable to prosecution for criminal trespass. FAC |
"Their final account will be ready for payment by 4 p.m. on the 19th December 1960, when, or whereafter, they may present themselves at the company 's Office for receiving payment of their wages and other dues, if any, during working hours", and then mentions the names of 119 workmen of the cane carriers department. FA... |
592 Thus the services of the workmen concerned stood discharged from December 18, 1960 under this notice. FAC |
This was followed by a general strike in pursuance of the notice served on the respondent by the union on December 17, 1960. FAC |
The strike continued upto December 22, 1960 when as a result of an agreement it was decided that the case of the discharged workmen and the question of wages for the strike period be referred to adjudication. FAC |
Consequently a joint application by both parties was made to Government on December 21, 1960. FAC |
The Government then made a reference of the following two questions to the tribunal on January 25, 1961: FAC |
1. Whether the discharge of workmen mentioned in the Appendix was justified. FAC |
If not, whether they should be re instated and/or they are entitled to any other relief? FAC |
2. Whether the workmen be paid wages for the period 16 00 hrs on December 18, 1960 to 8 00 hours on December 22, 1960? FAC |
It may be mentioned that the respondent had held no enquiry as required by the standing Orders before dispensing with the services of the workmen concerned. Ratio |
Therefore, when the matter went before the tribunal, the question that was tried was whether there was go slow between November 27, 1960 and December. 15, 1960. Ratio |
The respondent led evidence, which was mainly documentary and based on the past performance of the factory to show that there was in fact go slow by the workmen concerned during this period. Ratio |
The appellants on the other hand also relying on the record of the respondent tried to prove that the cane carrier department had been giving normal work in accordance with what had happened in the past in connection with cane crushing. Ratio |
That is how the tribunal considered the question on the basis of the relevant statistics supplied by both parties and also oral evidence whether there was go slow during this period or not. Ratio |
After considering all the evidence it came to the conclusion that there was go slow during this period. RLC |
Consequently it held that the discharge of the workmen was fully justified. RLC |
It therefore answered the first question referred to it in favour of the respondent. FAC |
The second question with respect to wages for the strike period was not pressed 9n behalf of the appellants and was therefore decided against them. FAC |
Thereafter the appellants came to this Court and obtained special leave; and that is how the matter has come up before us. FAC |
We are concerned in the present appeal only with the first question which was referred to the tribunal. Ratio |
Learned counsel for the appellants has raised three main contentions before us in support of the appeal. ARG |
In the first place it is contended that the tribunal misdirected itself as to the Scope of the reference and that all that the tribunal was concerned with was to decide whether the discharge of the workmen for not giving an undertaking was justified 593 or not, and that it was no part of the duty of the tribunal to dec... |
Secondly, it is urged that the respondent had given no charge sheets to the workmen concerned and had held no enquiry as required by the Standing Orders. ARG |
Therefore, it was not ' open to the respondent to justify the discharge before the tribunal, and the tribunal had no jurisdiction to go into the merits of the question relating to go slow. Ratio |
Lastly it is urged that the finding of the tribunal that go slow had been proved was perverse and the tribunal had ignored relevant evidence in coming to that conclusion. ARG |
We shall deal with these contentions seriatim. ARG |
We have already set out the relevant term of reference and it will be seen that 'it is wide and general in terms and asks the tribunal to decide whether the discharge of the workmen concerned was justified or not. Ratio |
It does not mention the grounds on which the discharge was based and it is for the tribunal to investigate the grounds and decide whether those grounds justify discharge or not. Ratio |
So if the tribunal finds that the discharge was due to the use of go slow tactics by the workmen concerned it will be entitled to investigate the question whether the use of go slow tactics by the workmen had been proved or not. Ratio |
But the argument on behalf of the appellants is that the notice of December 17 gives the reason for the discharge and the tribunal confined only to that notice and has to consider whether the reason given in that notice for discharge is justified. Ratio |
We have already set out that,notice and it certainly says that the workmen mentioned at the foot of the notice had failed to record their willingness to work faithfully and diligently in accordance with the respondent 's notice of December 15, 1960, and therefore they stood discharged from the respondent 's services an... |
So it is argued that the reason for the discharge of the workmen concerned was not go slow but their failure to record their willingness to work faithfully and diligently. ARG |
The tribunal had therefore to see whether this reason for the discharge of the workmen was justifiable, and that it had no jurisdiction to go beyond this and to investigate the question of go slow. Ratio |
We are of opinion that there is no force in this argument. Ratio |
Apart from the question that both parties before the tribunal went into the question of go slow and voluminous evidence was led from both sides either to prove that there was go slow or to disprove the same, it appears to us that it would be taking much too technical a view to hold that the discharge was due merely to ... |
We are of opinion that the two notices of December 15 and December 17 have to be read together and it may be pointed out that the notice of December 17th does refer to the earlier notice of December 15th. Ratio |
If we read the two notices together, there can be in our opinion be no doubt that though the discharge is worded as if it was due to the failure to record their willingness to work faithfully and diligently, it was really due to the workmen concerned using go slow tactics. Ratio |
Notice of December 15, is in two parts. Ratio |
The first part sets out the facts and states what the workmen had been doing from the very beginning of the season and particularly from November 27, 1960. Ratio |
It states that on the instigation of the secretary of the union, the workmen had been failing in their duty to ensure adequate and regular loading of the cane carrier from the very beginning of the season. Ratio |
It further charges that with effect from November 27 they had in combination with one another deliberately and wilfully resorted to a clear go slow, a fact said to have been openly admitted by the secretary in the presence of the Labour Superintendent and Labour Officer, Muzaffarpur, in course of discussions held in th... |
The notice then says that the average daily crushing is 26,000 maunds out of which more than 2,000 was due to the newly introduced device of direct feeding of the cane carrier by cane carts weighed during nights and not attributable to any effort on the workmen 's parts; thus the actual crushing had been practically re... |
The notice also says that about 14,000 bales of extra bagasse kept in stock as reserve and already been consumed in the last twelve days and the factory was faced with a situation when at any moment its boilers might go out of steam for want of bagasse fuel leading to an abrupt stoppage of the mill and finally resultin... |
These facts which were given in the first part of the notice dated December 15, 1960 really show the charge which the respondent was making against the workmen concerned. Ratio |
Having made this charge of go slow in the manner indicated in the first part of the notice (and it may be mentioned that this notice was not only put on the notice board but was given to each workmen individually), the respondent then indicated in the second part what action it intended to take. Ratio |
In this part the respondent told the workmen concerned that unless they voluntarily recorded their willingness individually to discharge their duties faithfully and diligently by feeding the cane carrier so as to give a minimum average daily crush of 32,000 maunds, excluding stoppages other than those due to over loadi... |
They were given time up to 4 p.m. on December 17, 1960 to record their willingness failing which they would stand discharged from the respondent 's service without any further notice with effect from December 18, 1960. Ratio |
The second part of the notice thus indicated to the workmen concerned how much they had to crush every 595 day to avoid the charge of go slow. Ratio |
It further indicated that the respondent was prepared to let bygones be bygones if the workmen concerned were prepared to give an undertaking in the manner desired. Ratio |
Assuming that this course adopted by the respondent was unjust and even improper, reading of the two parts of the notice of December 15, 1960 shows that in the opinion of the respondent was the normal cane crushing per day and what was the charge of the respondent against the workmen concerned in the matter of go slow ... |
It is clear therefore from the notice which was given on December 15, 1960 that the respondent thought that 32,000 maunds should be the normal crush every day excluding stoppages other than those due to over loading or under loading of the cane carrier. Ratio |
It also charged the workmen with producing much less than this for the period from November 27, 1960 to December 15, 1960, though it was prepared to 1st bygones be bygones, provided the workmen in future undertook to give normal production. Ratio |
It is in the background of this charge contained in the notice of December 15, 1960 that we have to read the notice of December 17, 1960. Ratio |
That notice says that the workmen had failed to record their willingness to work faithfully and diligently in accordance with the notice of December 15, 1960 and therefore they stood discharged, meaning thereby that the respondent was charging the workmen with go slow as indicated in the notice of December 15, 1960 and... |
Therefore, though in form the notice of December 17, 1960 reads as if the workmen were being discharged for not giving the undertaking as desired, the real basis of the notice of discharge of December 17, 1960 is the use of goslow which had already been indicated in the notice of December 15 given to each workman indiv... |
The reference was made on the joint application of both parties. Ratio |
If all that the workmen desired in their joint application for reference was that it should only be considered whether the discharge of the workmen for refusing to give an undertaking was justified, there was nothing to prevent the workmen to insist that in the joint application this matter should be specifically menti... |
In the joint application the first matter which was specified was in these terms: "Whether the discharge of workmen mentioned in the appendix was justified? If not, whether they should be reinstated and/or they are entitled to any other relief?" Now if all that was desired was that the tribunal should go into the quest... |
The very fact that the matter specified as in dispute was put in the wide words already quoted above shows that the parties did not wish to confine their dispute only to the question whether the discharge on the ground of failure to give an undertaking was justified. Ratio |
Further we have already indicated that both parties understood the dispute to be whether go slow was justified or not and that is why voluminous evidence was led before the tribunal. FAC |
The wide terms in which the reference was made along with the notice of December 17th read with the notice of December 15th leave no doubt in our mind that the reference included investigation of any cause which might have led to the discharge of the workmen. Ratio |
There is no doubt in this case that even though notice of discharge was pharsed as if the discharge was being made on account of the failure to give an undertaking the real reason for the discharge was that the workmen had been guilty of go slow between November 27 and December 15 and were not prepared in spite of the ... |
Therefore taking into account the wide terms of reference, the manner in which it was understood before the tribunal, and the fact that it must be read along with the two notices of December 15 and 17, 1960, particularly because it was made soon thereafter at the joint application of the parties, we have no doubt that ... |
Then we come to the question whether it was open to the tribunal when there was no enquiry whatsoever by the respondent to hold an enquiry itself into the question of go slow. Ratio |
It was urged on behalf of the appellants that not only there was no enquiry in the present case but there was no charge either. Ratio |
We do not agree that there was no charge by the respondent against the workmen concerned. Ratio |
The first part of the notice of December 15, 1960 which was served on each individual workmen was certainly a charge by the respondent telling the workmen concerned that they were guilty of go slow for the period between November 27 and December 15, 1960. Ratio |
It is true that the notice was not headed as a charge and it did not specify that an enquiry would follow, which is the usual procedure when a formal charge is given. Ratio |
Even so, there can be no doubt that the workmen concerned knew what was the charge against them which was really responsible for their discharge from December 18, 1960. Ratio |
It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it, 597 In such a case the employer would not have the benefit... |
The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held (see Indian Iron & Steel Co. vs Their workmen(1) but also to satisfy itself on the facts adduced before it by the employer whether t... |
It is true that three of these cases, except Phulbari Tea Estate 's case(3), were on applications under section 33 of the . Ratio |
But in principle we see no difference whether the matter comes before the tribunal for approval under section 33 or on a reference under section 10 of the . Ratio |
In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Ratio |
Phulbari Tea Estate 's(9) was on: a reference under section 10, and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. Ratio |
A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper. Ratio |
If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. ... |
In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the mean time. Ratio |
This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. Ratio |
On the other hand, if in such cases the employer is given an opportunity to justify the (1) ; (2) [1959] Supp.S.C.R. 836.(3) [1960] IS.C.R. 32.(4) [1960] I.S.C.R.806.(5) [1962] 3 S.C.R.684.(6) [1954] L.A.C.697.598 impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly ... |
That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself. Ratio |
This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. Ratio |
Therefore, we are satisfied that no distinction can be made between cases where the domestic enquiry is invalid and those where no enquiry has in fact been held. Ratio |
We must therefore reject the contention that as there was no enquiry in this case it was not open to the respondent to justify the discharge before the tribunal. Ratio |
(iii) The question whether there was go slow during the period from November 27 to December 15, 1960 is a question of fact and the tribunal has come to the conclusion that there was go slow during this period. Ratio |
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