Bombay High Court
Ahmedmiya Ahmedji vs The Indian Hume Pipe Co. Ltd. & Another on 6 March, 1997
Equivalent citations: 1998(1)BOMCR81
Author: S.H. Kapadia
Bench: S.H. Kapadia
ORDER S.H. Kapadia, J.
1. By this writ petition, petitioner seeks to challenge the Judgment and Order passed by the 5th Labour Court in Reference IDA No. 94 of 1990 being Part-II Award dated 12-12-1989 by which the Labour Court came to the conclusion that the alleged misconduct against the workman has been found to have been proved and looking to the nature of misconduct the Labour Court rejected the said Reference.
2. The facts giving rise to this petition, briefly, are as follows :-
3. On 6-5-1968, the petitioner was appointed as a Welder by the Indian Hume Pipe Co. Ltd. (1st respondent herein). Prior to 1968, the workers working in the Welding Department were agitating because they were asked to do the work of x-ray testing which was risky and hazardous and which was not the work of a Welder. The said workers were also asking for a special grade/special allowance because, according to the worker in the Welding Department, the work of x-ray testing was not the normal work of a Welder. The workers were also demanding an upgradation for the post of Assistant Welder. On 26-7-1968, workers in the Welding Department gave to the Management a Demand letter by which the said workers stated that they had formed a Committee to represent their grievances to the Management and to handle their problems pertaining to Welders and Assistant Welders. By the said letter, the Management was informed that the Committee was to consists of four persons including the petitioner. Accordingly, on 26-7-1978, another letter was addressed to the Management under the caption 'Demands'. By the said letter, the Management was informed that the Assistant Welders employed continuously for more than one year should be given the grade of a Welder. Secondly, the workers pointed out to the Management that the work of x-ray testing was being given to the Welders although the said work was required to be done by a Special Department and if the said work is required to be done by the Welders then their grade should be revised. The said letter indicates that the Demand was pending even prior to 1978 but no steps were taken by the Management to redress the grievances of the Welders. By the said Demand dated 26-7-1978, the workers informed the Management that if their grievances and demands are not redressed by 31-07-1978, they will be forced not to carry out such work of x-ray testing. At this stage, it needs to be highlighted that the work of Welding of Pipes is done by the Welders. After the work of welding is done the welded pipes are tested by two methods. One is by pushing through the pipes sent at the appropriate speed/velocity so that if there is any leakage the same could be detected. The second method was by way of x-ray testing by which any defect in the welded pipe could be detected. According to the workers, although x-ray testing work was being given to a Specialised Contractor, from time to time the said workers were also called upon to do the work of x-ray testing for which they raised a Demand for a special grade particularly because it was a risky work which involved radiation. On 22-8-1978, the. Management issued a show cause notice to the petitioner alleging that on 28-7-1978, the Management had received the above Demand letter regarding special grade for Welders working on x-ray testing and promotion of Assistant Welders to the Welder's grade and stating that if the demands are not conceded by the Management by 31st July 1978, the Welders/Assistant Welders would resort to direct action. On 1-8-1978, it was alleged that a meeting of representatives was called and the petitioner was explained about the existing skilled category of Welders being asked to do the x-ray testing work for the last 20 years. According to the said show cause notice; whenever orders stipulating specification of x-ray quality testing were received by the Company the same were executed by the skilled workers and according to the said notice the petitioner was explained that since x-ray testing was a better mode of testing the pipes, there was no substance in their Demand. Similarly, the show cause notices states that the petitioner was also explained that the promotion of Assistant Welders to the Welder's category depended on the skill of welding and. therefore, they were not entitled to higher grade. According to the show cause notice, these issues were covered by the Awards and Settlements and, therefore, there was no question of direct action being resorted to by the workers. By the said letter, the Company denied that the Welders were doing the work of x-ray quality testing. By the said show cause notice, the Company further alleged that on 4-8-1978, Welders in x-ray testing jobs, namely, Rajaram and Ramesh stopped the work stating that unless a special grade for x-ray Welders is conceded they will not do the work of x-ray testing. According to the show cause notice, Rajaram and Ramesh were told by the Manager Shri Ramaswamy that of they had any grievance, the same could be discussed and they should not stop the work abruptly. They were asked to give normal production. According to the show cause notice, the workers were requested to discuss the matter on 7-8-1978 and on that assurance the workers once again started their work on 4-8-1978 from 9.30 A.M. onwards on that day. According to the show cause notice on 7-8-1978, petitioner did not come for discussion but all of a sudden on 14th August 1978, the petitioner along with three other representatives of the Committee stopped the work, they instigated the other Welders and the Assistant Welders not to do the work and accordingly, it is alleged that the workers resorted to sit down strike on and from 14th August 1978. According to the show cause notice, this direct action was illegal, improper and unjustified and on account of the direct action the work of the factory stood paralysed and 140 workers remained completely idle in the factory and the factory also suffered loss of production to the extent of Rs. 50,000/-. According to the show cause notice given by the Manager referred to above, the petitioner had instigated and also threatened the violence and abused officers. He had also abused the co-workers who refused to join the strike and every day, after 14-8-1978, processions were taken out at about 12.00 noon and at about 3.30 P.M. from the factory to the Office using filthy language against the Manager and the supervisory staff. According to the show cause notice, apart from participation in Morcha, the petitioner and the other workmen also stopped loading and unloading operations and the workers also resorted to gherao and physical assault on supervisory staff. According to the show cause notice, petitioner along with other Welders and some outsiders went in procession to the residence of the Manager at Adinath Co-operative Housing Society on 24-8-1978 and manhandled the watchmen in the Society and forcefully entered and knocked at the door of the residence of the Manager in order to break open the same and the petitioner also shouted slogans in abusive and filthy language and burnt their effigies in the premises creating ugly scenes and sense of terror to the inhabitants. According to the show cause notice, the same misconduct was repeated at the residence of N.R. Shetty the Office in charge of H.S. Department. According to the show cause notice the above direct action resulted in paralysing the work of the factory and the morale of loyal workers and in the circumstances the Company had no other option but to issue a show cause memo as to why disciplinary action should not be taken against the petitioner and why he should not be suspended pending further inquiries. By the show cause notice given by the Manager on 27-8-1978, the Management offered to the petitioner to refer the points of difference to Arbitration or adjudication under section 10(2) so that the entire dispute can be resolved quickly and necessary amendments in the Award may be made with regard to classification of grades. However, this was subject to the workers withdrawing their agitations and restoring the normalcy and provided they agreed to work diligently and faithfully and give normal output. On 12-9-1978, a second show cause notice was given to the petitioner by the Manager Shri Ramaswamy. This was further to the first show cause notice. By the said second show cause notice it was alleged that on 5-9-1978, petitioner had requested a meeting with the Manager and accordingly meeting was held and during the discussion the petitioner asked for full payment of wages to the striking Welders. However, the Management told the petitioner that no wages can be paid for the days when the Welders have resorted to sit down strike and therefore, request made by the workers cannot be considered because, according to the Management, the workers had resorted to an illegal strike. According to the said second show cause notice, on 5-9-1978, at 3.00 P.M., when the petitioner was informed that payment for the days for which the workers had worked during August 1978 would also be made in the Labour Office the petitioner refused to enter the premises for receiving payment but insisted that the payment should be made at the North gate. However, the Management told the petitioner that there was no adequate arrangement at the North gate for payment and as the cash involved was substantial, the payment cannot be made at the North gate. Ultimately, according to the Management, the petitioner agreed to collect the payment from the Labour Office at 3.00 P.M. When one Kisan Jayaram, on receiving the payment of wages went out of the North gate, the petitioner objected and forcefully rushed into the factory along with the Welders who were on strike and started arguing and instigating as to why separate paysheets were prepared instead of computer paysheets which was the nor-
mal practice followed by the Management and at this stage the petitioner asked Shri Patil a Time Keeper to cancel the signature of Kisan Jayaram who had received the payment and upon this, argument took place and the petitioner instigated the other Welders not to accept the payment. According to the said second show cause notice, the Time Keeper Shri Patil explained to the petitioner that handmade paysheets were prepared to expedite the payment of wages to the striking workmen and as the striking Welders are working in various Departments, it was not possible to make payment against the computer paysheets. According to the said show cause notice, even after the above clarification was given, the petitioner argued in derogatory language and he forcefully took the copy of the paysheet containing signature of Kisan Jayaram and insisted that he be allowed to take it out of the Office which was objected to by the Management. The petitioner became aggressive. He was asked to see the Manager Shri Ramaswamy. For the above alleged misconduct, the second show cause notice was given. Ultimately, on 17-2-1979, the petitioner herein came to be charge-sheeted on the ground that his explanation to the above two show cause notices were not satisfactory and he was charge-sheeted for participating in an illegal strike or instigating, abetting or acting in furtherance thereof. He has also charge-sheeted for riotous disorderly or indecent behaviour including the use of abuses, use of intimidating tactics, assault within the establishment and also commission of act subversive of good behaviour within the establishment and acts of indiscipline within the establishment. By the said chargesheet, the worker has been informed that a Domestic inquiry would be held into the matter on 26-2-1979. On 15-3-1979, the petitioner was informed by the Management that with regard to the inquiry held on 26-2-1979, 8-3-1979 and 9-3-1979, he has been found guilty of the above charges excepting the charge as per No. WDL/X.9/1093 dated 12/13-9-1978. According to the said letter dated 13-03-1979, the Management had gone through the inquiry proceedings and the report of the Inquiry Officer and on the basis of the findings given by the Inquiry Officer, the Management had, vide letter dated 13-3-1979, after considering the past record of service informed the petitioner that his services stand terminated forthwith. Being aggrieved by the said dismissal dated 13-3-1979, Reference IDA No. 94 of 1980 came to be made to the Labour Court. A Statement of Claim was filed by the worker on 5-6-1980. By the said Statement of Claim the petitioner alleged that the Officer in charge of the Welding Department Shri N.R. Shetty forced the Welders to attend to highly skilled job of x-ray testing for which the workers made a genuine representation that they should be compensated for undertaking the risky type of job of x-ray testing which request was not to the liking of the Management although the amount involved was a very small amount by way of special allowance which the workers were claiming. According to the said Statement of Claim, the action taken by the Management was unjustified and the orders of dismissal were illegal and highly objectionable. According to the Statement of Claim, the petitioner was working as a Welder since 6-5-1968 and when he became representative of the workmen or Welders, he was chargesheeted with others. According to the Statement of Claim, the other co-worker Shri Francis was forced to work as x-ray Welder and when he expressed his difficulties, he was dismissed on 15-3-1979 without inquiry. Similarly, grievances were made with regard to other Welders. According to the Statement of Claim, the Company had also resorted to above unlawful action in order to take revenge against those workers who gave up Sarva Shramik Sangh and joined Bharatiya Kamgar Sena and according to the workers the above action constituted victimization of the workers. By way of Written Statement, the Company pointed out that the dispute was by the eight workers whose names are given in para 2 including the petitioner.
According to the Company, on 28-7-1978, the worker had raised the above two demands According to the Company, on 4-8-1978 the Welders working on x-ray testing job illegally stopped the work stating that unless and until their Demand for special grade was conceded they would not work. This averment in the Written Statement indicates that, even according to the Company, the said Welders were required to do the work of x-ray testing. According to the Written Statement, a meeting was arranged on 7-8-1978. The workers did not turn up for discussion but on and from 14-8-1978, the workers numbering 80 illegally stopped the work from 9.30 A.M. and they refused to work because of the instigation of the petitioner and other three representatives, namely, Bandekar, Ratnam and Raman and in the circumstances, the Management had to issue notice to the concerned workmen pointing out that their direct action amounted to an illegal strike which had paralysed their Special Department and Workshop. According to the Written Statement, the illegal stoppage of work amounted to an illegal sit down strike and, therefore, no wages were payable for the said period commencing from 17-8-1978 onwards because 15th and 16th were holidays. According to the Written Statement, on 18-8-1978, during the lunch hours, petitioner, Bandekar, Raman and Ratnam along with the other striking workers went in procession shouting slogans and using abusive language which continued even thereafter day-to-day during the lunch hour and even at the time o) closing of the shift at 3-30 P.M. According to the Written Statement, on 20-8-1978, during lunch hour, at about 12.00 noon, the striking Welders along with others went in procession to the Main Office carrying effigies representing the Manager and Shetty and shouted the slogans in abusive and filthy language in front of the Main Office. Similarly on 22-8-1978, at 3.30 P.M., the workmen entered the Production Department, namely, Workshop, Hume Steel Department. H.S. Special Department and they again started shouting slogans in the most abusive language. On 22-8-1978, at 2.30 P.M. the striking workmen surrounded the Manager Ramaswamy and Shetty and they even slapped them from behind for about 10 to 15 minutes and they obstructed the despatch of certain goods to Calcutta, Hyderabad etc. According to the Written Statement, on 24-8-1978, the striking workmen continued with the illegal strike and at the instigation of the petitioner and other Welders Bandekar, Ratnam and Raman carried an effigy of Ramaswamy in procession to his residence and even burnt the effigy in front of the residence. According to the Written Statement, the striking workmen along with others attempted to forcefully enter into the residence by assaulting the watchmen on duty at the gate of the Society and they even tried to break open the door of the residential Apartment of Shri Ramaswamy and in the procession they also shouted slogans in highly abusive language and they threatened that if their demands were not conceded, they would also burn the Manager inside the factory itself. According to the Written Statement- similar action was resorted to at the residence of Shri Shetty and accordingly the workers created terror and fear in the minds of the family of Shri Ramaswamy and Shri Shetty. According to the Written Statement, on August 25, 1978 the striking workmen led by the petitioner and at the instigation of the petitioner took out a procession during the lunch hour and at the end of shift they also shouted slogans against Ramaswamy and Shetty and obstructed the movement of the material to Bombay Municipal Corporation and they also tried to threaten the Supervisors and the Municipal Staff with gheraos, Dharna and other intimidatory tactics. On 22-8-1978, the striking Welders along with the other workers resorted to the same tactics allegedly at the instigation of the petitioner. According to the Written Statement, they also sabotaged the manufacturing work of pipes and they made it impossible for the Company to effect delivery. According to the Written Statement, on 27-08-1978, the petitioner and the other Welders were issued show cause notice under the above circumstances and this show cause notice was followed by a chargesheet and the domestic inquiry as narrated hereinabove. All other allegations made by the petitioner in the Statement of claim have been denied. In the Written Statement, the Company has pleaded that classification dispute raised by the workers is squarely covered by the Awards of the Industrial Tribunal which were still in force and. therefore, the workers' Demand was not justified. According to the Written Statement, the workers were adamant and they pressed their unlawful demands and although the Company offered to refer the dispute to Arbitration or adjudication, they insisted on proceeding on an illegal strike. By the Written Statement, the Company pleaded that the dismissal orders were issued after following due procedure of law and principles of natural justice. According to the Written Statement, the Company was forced to impose a lockout from 3-11 -1978 on account of an illegal, violent and agitational activities resorted to by the Union and its supporters. In the circumstances, the Company alleged, vide Written Statement, that the strike resorted to by the workers on 14-8-1978 was illegal and bad in law and it was also unjustified. To complete the narration of events, it may be stated that some time in August 1978, the Company moved the Industrial Court under section 28 of the U.L.P. Act, 1971 inter alia seeking an injunction against the workers from resorting to the alleged unlawful activities like staging demonstrations at the residence of the Manager and the Officers, shouting abusive slogans etc. This complaint was withdrawn subsequently by the Company on the ground that the strike had ended. This was sometime in September, 1978.
4. On 8-04-1982, the Labour Court gave Award Part-I by which the Labour Court found that the Domestic inquiry was not legal and fair and in the circumstances, the Labour Court gave an opportunity to the Company to lead evidence and prove the charges and directed the Reference to proceed on merits. Accordingly, evidence came to be recorded before the Labour Court. In his examination-in-chief, before the Labour Court, the petitioner deposed that Bharatiya Kamgar Sena came on the scene in April 1978: that the petitioner was the unit secretary in the Sena which the Company did not like; that the Union addressed a letter on 28-6-1978 to the Manager referring to the harassment being caused to the petitioner and other workers; that there were 85 Welders in the Company and on their behalf demands were raised by the Welders themselves vide letter dated 26-7-1978 referred to above; that the petitioner along with other workers namely. Mr. Stephen, Mr. Achyutan and Bandekar were authorised to represent the cause of the Welders and reminders were also sent to the Company. According to the evidence of the petitioner, his services were terminated on 13-3-1979 and me Company lilted a lockout sometime in March 1979 and that the services of the petitioner were terminated by way of victimization. The evidence of Shrikant Wadekar (Exhibit U-14) states that on 14th August 1978, a Supervisor of the Company told him to stop the work at around 9 00 A.M. and on 17th August 1978, no work was given to the Welders and in the circumstances from 17th August 1978 to 28th August 1978, no work was given to any of the Welders. The said evidence further indicates that the employees were shouting slogans after 12.00 noon. On 24th August 1978, Wadekar states that he was on duly but the Company did not provide him work. He conceded that the Welders were raising the above two demands but the Management had told the Welders that their demands will not be accepted. Wadekar has deposed that the petitioner had never told the employees on 4th August. 1978 to stop the work and to start the strike. Wadekar has stated that it was not true that the workers were on strike from 14th August 1978 On the contrary, Wadekar deposed that except Welding Department all Departments were working in August 1978 and that he had never told the workers on 14th August 1978 to stop the work. He denied Gherao of the Manager. Wadekar has further denied that on 24th August 1978, he along with the petitioner and other workers went to the Office of Shetty and the Manager with an effigy. He has also denied that they visited the premises of Shetty and Manager with effigies after 4.30. However, Shri Wadekar has admitted that the petitioner was the leader of all the Welders. Wadekar was also dismissed from service by the Company. The next witness on behalf of the worker was Ram Gangadhar Ranade who has deposed in his evidence at Exhibit U-15 that he was in the employment of the Company from 1957 to 1978 as a Turner; that he was Vice President of Bharatiya Kamgar Sena; that he was on duty from 14-08-1978 to 28-08-1978 and there was no stoppage of work nor any procession was taken to the house of the Officers nor were the officers gheraoedor assaulted. In his cross-examination, however, Shri Ranade has deposed that the petitioner was a secretary of the Union; that there was a lockout from October, 1978 but he has also deposed that he was not allowed to work by the Company and that the lockout was imposed because of the strike resorted to by the workers. Ranade has further deposed that he resigned in April 1979 when lockout was raised. On behalf of the Company, the evidence of Nabi Saheb Patil at Exhibit C-37 is of some importance. In his evidence he has deposed that he as a Security Officer, knew the petitioner; that Shri Patil has submitted 18 reports to the Manager of the factory regarding the incidents which took place from 12-8-1988 to 7-9-1978 and the contents of the said reports were true and correct. In his evidence, Shri Patil has deposed that in July/ August, 1978, there was an agitation by the workers; that the petitioner was working as a Welder and as a leader of workers. According to Shri Patil, the petitioner used to shout slogans and he used to give threats to the Officer's of the Company stating that their lives will be severed and cut off and that they would be killed. According to the evidence of Shri Patil, effigies of the Officers in the factory premises and the procession of the Manager were taken out from the factory to his residence. According to Shri Patil, the petitioner attempted to break open the doors of the house of the Manager and assaulted the watchman of the Society and in the process welding work came to a standing-hault. According to Shri Patil the petitioner obstructed the despatch of goods. According to the evidence of Shri Patil, even the drivers were threatended by the petitioner not to drive the vehicle and he also obstructed the Car of the Manager who was gheraoed and the followers of the petitioner assaulted the Labour Officer and the Engineer when they were going out from the factory to their residence. A sit down strike also continued from 15-8-1978 to 30-8-1978 and during this period the workers obstructed the work of other workers. According to Shri Patil, the petitioner has also threatened him which made him lodge a complaint with the Police. The next witness for the Company is Raghunath Nadu Shetty. The evidence of Raghunath Shetty which is at Exhibit C-41 is more or less on the same lines as Shri Patil. However, Shri Shetty has deposed that he was in charge of the Welding Department and he had submitted a complaint to the Management that the workers had stopped their work. However, Shri Shetty has admitted that no written complaint was placed before the Inquiry Officer and that he has not produced Production Registers in the said Domestic inquiry. In his evidence, he has further deposed that the Company has not taken a declaration from the Labour Court that the strike was illegal but he has deposed that the above agitation was resorted to by the worker which amounted to an illegal strike. He has also denied the allegations of the workmen that they were not provided with the work. Ashok Kumar Jain was the next witness who was examined on behalf of the Company who has stated in his deposition at Exhibit C-42 that he was in the employment as Workshop Incharge in 1979. In his cross-examination Shri Jain has deposed that not a single worker has submitted a report to him that the petitioner has instigated a strike. Shri Jain, in his evidence, has deposed that he has received written complaints from the Supervisors but he had not been able to produce the same before the Inquiry Officer. He has also conceded that even the Production Register could not be produced before the Inquiry Officer. Similarly, the evidence of Ramaswamy at Exhibit C-
44 on behalf of the Company indicates that from 14th August 1978, the Welders including the petitioner stopped their work and have done the work upto September 1978 and the Company was forced to declare lockout. Shri Ramaswarny in his evidence, as a direct witness, has deposed that he was gheraoed by workers on 3/4 occasions and that the workers compelled him to travel from his house to the factory and had also gheraoed him inside the factory and they went on shouting slogans against him which also indicated abusive language. According to Shri Ramaswarny. the petitioner and his colleagues earned the effigies which were burnt on 24th August 1978 when the workers came to his house and tried to break open his door and they even started riots and they event abused his children, Shri Ramaswamy had clearly identified the petitioner on the said procession. He has further deposed that even on 5th September 1978, when he entered into the factory at 1.30 P.M., the petitioner and the other Welders had stopped his car and had, in fact, gheraoed him and in the process he sustained injury to his left leg. In his cross-examination, however, Shri Ramaswamy conceded that the reports received by him from his subordinates were not produced in the Inquiry or in the Court and that he did not have personal knowledge about the incident which he has mentioned in his examination-in-chief upto 27th August 1978. On the basis of the above evidence on record, the Labour Court came to the conclusion, as a finding of fact, that the workers in the Welding Department have not worked from 14th August 1978 to 4th September 1978. On the above evidence, the Labour Court found that the charges levelled against the petitioner have been proved beyond the shadow of doubt. The Labour Court came to the conclusion that the reports before the Inquiry Officer were treated, by consent, as part of the record before the Labour Court and which reports clearly indicate the misconduct committed by the petitioner as alleged by the Company. The Labour Court did not accept the contention advanced on behalf of the petitioner that the Security Officer had made false reports. The Labour Court also found that the petitioner had instigated the above unlawful strike and in the circumstances, the Labour Court came to the conclusion that the charges of misconduct levelled against the workman have been duly proved. One of the points which arose before the Labour Court in the above Reference was: whether the action amounted to an illegal strike. The Labour Court found that there was no notice given as required under the provisions of U.L.P. Act. The Labour Court also found that when the above direct action was resorted to, it amounted to a strike and since no notice of strike was given, it was a case of an illegal strike. Even with regard to the order of dismissal, the Labour Court found that, in the present matter, the petitioner demanded wages which were not in consonance with the Settlement(s). According to the Labour Court, the Demand raised by the petitioner and other Welders was the subject matter of the Settlement between the Union and the Company and in the circumstances, during the pendency of the said Settlement, the workers were not entitled to resort to an illegal strike. According to the Labour Court, in the present matter, the strike was resorted to without any cause and as a result the Company has suffered loss of production to the tune of Rs. 50,000/-. The Labour Court found that the Officers were insulted and threatened and looking to the nature of the gross and serious misconduct, the Labour Court rejected the contentions advanced on behalf of the workman and came to the conclusion that the Reference deserves to be rejected. Being aggrieved by the impugned order, the present writ petition has been filed.
5. Before considering the rival contentions advanced by the advocates on both sides, I may mention that this Court has meticulously gone through the reports submitted by the Security Officer. This Court has also gone through the papers produced before the Labour Court including the Inquiry Proceedings. At the very outset, it may be mentioned that, in the present matter, the report produced before the Labour Court and particularly the contents of the reports were not effectively cross-examined and, in the present matter the contents of the report stand, therefore, proved. With this prelude, I would like to examine the rival contentions.
6. The principal contention raised by Mr. Singh, the learned Counsel on behalf of the workman is : that in the present matter the Company was not entitled to chargesheet the worker on the basis of the worker resorting to an illegal strike unless the Company succeeded in obtaining a declaration that the strike was illegal. According to Mr. Singh, the learned Counsel appearing for the workman/petitioner, the Labour Court in the present Reference had no jurisdiction to hold that the workman guilty of resorting to an illegal strike particularly when there was no declaration in favour of the Company that the strike resorted to was an illegal strike. In this connection Mr. Singh contended that under the provisions of Industrial Employment (Standing Orders) Act, 1946 there was no provision defining an illegal strike. He contended that, in law, a strike ipso facto is not illegal. He contended that strike is not a fundamental right and it is a right given by the Statute. Mr. Singh contended that the Industrial Disputes Act, Unfair Labour Practices Act, Standing Orders Act, 1946 etc. only provide for the circumstances under which a strike becomes illegal. Mr. Singh further contends that in a given case a strike may be legal under industrial Disputes Act and yet it may be illegal under U.L.P. Act and vice versa. Mr. Singh, therefore, contends that in every matter delinquent is required to be put to notice by every employer that the Company proposes to take action against the workman for resorting to an illegal strike because under section 25(5) of the U.L.P. Act, the worker is given an opportunity to withdraw the strike if found to be illegal within a period of 48 hours but if the worker is not put to notice by the Company then, in that event, the rights of a chargesheeted workman to withdraw a strike within 48 hours would be lost. Mr. Singh contended that instigation or abetment or incitement of strike is not ipso facto illegal and the said action becomes illegal only when the strike is declared by the Competent Court to be illegal and when the Competent Court declares such a strike to be illegal the worker is given a right under section 25(5). 'of the U.L.P. Act to withdraw the strike and in which event the findings of misconduct, being part of an illegal strike would also be required to be set aside. In this connection, Mr. Singh placed reliance on the Judgment of the Division Bench of this Court in the case of Hariganga Security Services Ltd. v. Member Industrial Court, Maharashtra & ors, reported in (1990) ll C.L.R., page 67.
6A. I do not find any merit in the above contention of Mr. Singh the learned Counsel appearing for the petitioner. The scope of the Industrial Disputes: Act, 1947 is different from the ambit of the U.L.P. Act, 1971. The Preamble to the Industrial Disputes Act, 1947 inter alia states that the Act is enacted to provide for investigation and settlement of industrial disputes. On the other hand, the Preamble to the said Act, 1971 inter alia states that the Act is enacted to define and provide for prevention of unfair labour practices. The Scheme of the said Act, 1971 in the context of preventing unfair labour practices is different from the Scheme of the Industrial Disputes Act, 1947. On facts, in the present matter, the Company has chargesheeted the workman under Standing Orders for serious misconducts amounting to instigating on illegal strike and behaving in disorderly manner on the premises of the establishment. The workman is also chargesheeted for committing acts subversive of discipline inside the establishment. When the matter came before the Labour Court, the Labour Court was required to consider whether the domestic inquiry was fair and proper under the Standing Orders. By Part-I Award, the Labour Court came to the conclusion that the inquiry was not fair and proper. Accordingly, the Labour Court gave an opportunity to the Company to prove the charges and under the above circumstances, Part-ll Award came to be delivered. Under section 7 of the Industrial Disputes Act, 1947 read with the Second Schedule to the Industrial Disputes Act, 1947 the matters within the jurisdiction of the Labour Court are laid down.
Item 1 of the said Schedule deals with propriety/legality of an order passed by an employer under the standing orders whereas Item 5 of the said Schedule deals with illegality of a strike/lock-out. In the present matter, on facts, the Labour Court was also concerned with Item 3 of the Second Schedule to the said Act, 1947. Item 3 deals with discharge or dismissal of workmen. In the circumstances, on facts, the Labour Court was concerned with propriety/legality of the order of dismissal passed by the Company and it was also concerned with discharge/dismissal of the workman (see Item 1 and Hem 3 of the Second Schedule to the said Act. 1947). The cases under section 25(5) of the U.L.P. Act which deals with withdrawing the strike declared to be illegal stand on a different footing As stated above, the U.L.P. Act 1971 has been enacted inter alia to define and to provide for prevention of unfair labour practices. If a Union commits an unfair labour practice by resorting to an illegal strike by deeming fiction the effect of the said strike can at set as naught if the Union withdraws the strike within 14 days. Such a deeming provision can only be confined to the provisions of U.L.P. Act, 1971. It cannot be extended ipso facto and it cannot be embodied even by incorporation into the provisions of the Industrial Disputes Act, 1947. A bare reading of section 25(5) indicates that where any strike is declared to be illegal under section 25 of the U.L.P. Act and if such a strike is withdrawn within forty-eight hours then it shall not be deemed to be illegal under the said Act, 1971. The words of section 25(5) clearly indicate that deeming fiction is applicable only to the said Act, 1971 and not to the provisions of the Industrial Disputes Act, 1947. In the above circumstances, the ratio of the Judgment of the Division Bench in the case of Hariganga Security Services Ltd. (supra) has no application to the facts of the present case. In the case of Labour Commissioner v. Burhanpur, 1964, Vol. II. L.L.J. Pg. 426, the Supreme Court has laid down that it is not necessary for the Company to seek a declaration on the illegality of strike before taking disciplinary action. This judgment applies to the facts of our case. Further, in the present matter, the Company has proved that the agitation or direct action resorted to by the petitioner amounted to an illegal strike. Therefore, on facts, the Labour Court was entitled to come to the conclusion on the basis of evidence on record that the agitation amounted to a strike and since no prior notice of 14 days was given by the employees, although they had an opportunity to do so, it amounted to an illegal strike.
6B. Mr. Singh the learned Counsel for the workman next contended that, in the present case, the Labour Court erred in coming to the conclusion that the strike resorted to by the workman was illegal for want of notice. Mr. Singh contended that the notice dated 26-7-1978, though it being not in the prescribed form, be considered as a notice of strike. Mr. Ramaswamy, the learned Counsel appearing on behalf of the Company contended that no such plea was taken before the Labour Court and in the circumstances the said notice cannot be treated as a notice of strike. Mr. Ramaswamy further contended that even if the said notice is treated as a notice of strike dated 26-7-1978, the workman had resorted to agitation even before expiry of 14 days. In the circumstances, he contended that the Labour Court was right in coming to the conclusion that the workman had resorted to a serious misconduct. In the present matter, the workman never contended before the Labour Court that the notice dated 26-7-1978 though not in a prescribed form may be considered as a notice of strike. In the above circumstances, I am not inclined to examine the contentions advanced on behalf of the workman. Ultimately, it is a matter of intention which is required to be ascertained from totality of the facts and in the circumstances since the workman never pleaded that the notice be treated as a notice of strike, I am not inclined to accept the contention advanced by Mr. Singh for the workman.
7. Mr. Singh the learned Counsel appearing for the petitioner, however, submitted vehemently that, in the present matter, the show cause notices given by the Company were vague. He pointed out that if one goes through the show cause notices along with the reports submitted by the Security Officer as also the evidence before the Labour Court, there is no consistency with regard to misconduct which the Labour Court has found against the petitioner. Mr. Singh has given large number of such details to show that not only the show cause notices were vague but even there were serious discrepancies with regard to the alleged cases of assault, breaking open the door of the Manager's residence, abusing the Manager in front of his children etc. Mr. Singh pointed out that on the other hand, the petitioner - workman had shown utmost patience and did not disrupt the work of the factory during the working hours. The workers took out the processions during the lunch interval or at the end of the shift. It was contended by Mr. Singh the learned Counsel for the petitioner that, in the present matter, the Court has failed to consider the scope of section 11-A of the Industrial Disputes Act particularly when the Labour Court held that the demands of the workmen were unjustified. Mr. Singh contends that the workers were asked to do a risky job of x-ray testing. He relied upon the contents of the show cause notice, the evidence on record and even the Written Statement which admits that the workers were given the work of x-ray testing apart from the welding work. Naturally, they demanded paultry amount by way of special allowance. Mr. Singh contended that, in a matter of this type, even if the Court comes to the conclusion that charges are duly proved, the Court is required to consider genesis of the dispute. Mr. Singh contends that almost for last twenty years the service conditions of the workmen were very poor. That even if one goes through the Settlement and Award the classifications given do not indicate that the workers were required also to do the work of x-ray testing. Mr. Singh contends that in any event there is no finding given by the Labour Court as to how and in what manner it can be said that the workers have raised demands which were unjustified and without any basis particularly when according to the Labour Court the subject matter of the said demands was the subject matter of the Settlement between the Company and the Union. Mr. Singh contends that even the Settlement was not produced by the Company and yet the Labour Court has come to the conclusion that the demands were not justified because they were the subject matter of the pending Settlement. Mr. Singh took me through the entire record and pointed out that even with regard to the evidence on record there are large number of discrepancies. For example, the fact which the manager has deposed before the Labour Court that a procession came 10 his residence and he was abused in the presence of his children, is not borne out by the report which is a contemporaneous document submitted by the Security Officer 10 the Management at the relevant time. Mr. Singh further contends that, in the present matter with the passage of time, the evidence is sought to be improved upon by the witnesses of the Company. Mr. Singh further pointed out that, in the present matter the inquiry was field to be unfair and opportunity was given to the Company to prove the charges by leading evidence Mr. Singh contents that in view of the discrepancies between the reports, evidence before the Labour Court and even the averments in the Written Statement, an extreme punishment of dismissal was not warranted. Mr. Singh further contends that, in the present matter, demonstrations, carrying of effigies and even obstructing loading of goods or unloading of goods was a part of reaction which the petitioner resorted to out of sheer frustration. Mr. Singh has pointed out that under the circumstances the Labour Court has not carried out its duties with regard to the provisions of section 11-A of the Industrial Disputes Act. Mr. Singh further pointed out that, in the present matter, it is proved beyond shadow of doubt that the workers were asked to do the work of x-ray testing which was not the part of welding for which they demanded special allowance Mr. Singh pointed out that the record also indicates that over the last several years the demands were there but they were not attended to and it is for this reason that, ultimately, by way of backlash the agitation was the only resort left in the hands of the worker for redressing their grievances with regard to their demands Mr. Singh contends that it is true that at !he fag end when the matter had precipitated beyond the particular stage, the Company requested the workers to go for Arbitration or adjudication but, by that time, situation had worsen and further the workers knew that it would take several years and they left that the entire game of the Company was to delay and protract the matter. In the meantime, according to Mr. Singh, the facts clearly indicate that there was bitterness against the workers who had joined the Bharatiya Kamgar Sena which was not to the liking of the Company and all these facts have not at all been appreciated: by the Labour Court and a finding to the effect that the Demand was unjustified or that it was the subject matter of the Settlement is totally perverse and it is not based on any evidence on record. Mr. Singh further contends that even with regard to upgradation of the post or even with regard to higher grade being given to Assistant Welders after one year, it cannot be stated that the Demand was the subject matter of the Settlement. In any event, Mr. Singh contends that looking to the date of the Settlement, it is clear that for 20 years the workers' Demand remained unredressed and in the circumstances, the Labour Court should not have confirmed the order of dismissal because, in any event, the said punishment was highly disproportionate to the misconduct alleged. Mr. Singh further pointed out that under the provisions of the Standing Orders, a Disciplinary or Punishing Authority is required to consider the past record of the workman. According to Mr. Singh this is a statutory duty which the Disciplinary Authority is required to comply with. In the present matter, Mr. Singh contends that the worker who has worked from 1968 had an unblemished record and even this factor has not been taken into account by the Labour Court.
8. Mr. Ramaswamy, the learned Counsel appearing on behalf of the Company, however, contends that, in the present matter, there is ample evidence on record which proved that the petitioner was the leader of his group of workers. That he instigated the other workers who resorted to unlawful direct action as stated above. That there is documentary evidence as well as oral evidence on record which indicates slogan shouting In the most abusive language, taking Morchas to the residence of the Officers, abusing the Officers, taking out effigies, threatening the Officers, obstructing their loyal workers, obstructing the workers in other Departments and even, in the process, Senior Officers of the Company were gheraoed and even they had to face injury. Mr. Ramaswamy pointed out that it is not necessary that in every matter the delinquent must have physically assaulted or gheraoed an Officer. Mr. Ramaswamy contends that here is a case where the petitioner had instigated the co-workers to resort to direct action. Mr. Ramaswamy contends that even on the contents of the Reports, there was no cross-examination and no case was put to the witnesses of the Company denying the incidents which are narrated in the Reports before the Inquiry Officer. Mr. Ramaswamy contends that the evidence on record has been correctly appreciated by the Labour Court, Mr. Ramaswamy contends that under Article 226 of the Constitution, it is not open to this Court to sit in Appeal and even ii two views are possible, on the evidence on record, this Court should not interfere under Article 226 of the Constitution. Mr. Ramaswamy further contends that, in the present matter, the Labour Court has correctly found that the Demand was the subject matter of the Settlement between the Union and the Company. Mr. Ramaswamy drew my attention to the question to the Settlement. Mr. Ramaswamy, therefore, contends that when the Officers of the Company told the petitioner and the other workers to await adjudication or to agree to an Arbitrator being appointed, the matter could have been easily resolved within a period of three to four months but the petitioner insisted on instigating the other workmen and he himself took part in an illegal strike. Mr. Ramaswarny, therefore, contends that once a strike is found to be an illegal strike then the misconduct which has been duly proved in the present matter, which happens to be of a very serious and grave nature, is required to be visited by serious consequences. Mr. Ramaswamy contends that if this attitude is condoned then it would be impossible for the employer to run its factory. Mr. Ramaswamy contends that various Judgments of the Supreme Court have held that an illegal strike has a deteriorating effect not only with regard to the economy of the country but it has a serious consequences including the loss in production and as a result when serious acts of misconduct are duly found proved the Court should take a strict view of the matter and in any event if the Labour Court has taken a strict view of the matter in the absence of there being any perversity in the findings of the Labour Court which findings are findings of fact, this Court should not interfere under Article 226 of the Constitution.
9. The above rival contentions have two distinct stages of the matter. I find merit in the contention of the Company that the charges have been duly proved and the evidence on record before the Labour Court conclusively proved that the worker had resorted to acts subversive of discipline: that he instigated the other workers to resort to direct action: that the officers were threaterned: that an approach was made to their houses that they were abused in the presence of their own children and in the above circumstances the charges of misconduct of a very serious nature, no doubt, are proved. However, when the matter comes into second stage of imposing the punishment, I find, to a certain extent, that there is a merit in what Mr. Singh the teamed Counsel for the workman had contended. Firstly, in the present matter, Domestic inquiry was held which was found to be defective and the Labour Court, thereafter, gave an opportunity to the Company to prove its case. In the process about ten years elapsed. In the process the Officers in their oral evidence have gone beyond the Reports which were placed earlier before the Inquiry Officer. Once again I repeat that this discussion is only on the question of punishment being imposed on the petitioner and not with regard to the findings of misconduct against him which I have discussed elaborately in the previous paragraphs. The most important fact which the Labour Court has not considered in the present matter is that prior to 1978, there was an agitation and the grievance on the pan of the Welders that they were being asked to do the work regarding x-ray testing. As described hereinabove. they were appointed as Welders but after the work of welding is done, the welded pipes were required to be tested. At one stage, there was a controversy before me as to whether the petitioner has proved that the workers were doing the work of x-ray testing. But in the present matter the contents of the show causes notices and the Written Statement clearly indicate that the petitioner and the workers were also asked to do the work of x-ray testing from time to time, if not as a continuous process, for which they were asking for special allowance. The evidence on record shows that if the Company would have agreed to that Demand, possibly the said situation would not have occurred. The Company is certainly entitled to refuse to accede to the Demand but this aspect has not been considered by the Labour Court particularly when the Labour Court holds that the Demand of the workers is totally unjustified. I do not subscribe to that finding because, first of all, in the present matter the so-called Settlement was never produced by the Company before the Labour Court and, therefore, the Labour Court was not even aware regarding the subject matter of the Settlement. I have gone through the classifications/grades contemplated by the said Settlement. Mr. Ramaswamy very fairly submitted a copy thereof to this Court and also to the petitioner which indicates grades of Welders, Assistant Welders as skilled, high-skilled etc. but that is not the question. While considering the provisions of section 11-A, the Labour Court ought to have considered the facts which led to present precipitated situation. In the present matter, if the workers are required to do the risky job of x-ray testing then certainly they were not entitled to ask for small special allowance which, in any event, and by no stretch of imagination can be said to be the subject matter of the Settlement between the Union and the Company. In the present matter, I also find merit in the contention of Mr. Singh that if the Awards, Settlements etc. are to remain in force for 20 years and if Assistant Welders seeks a Demand for being placed in higher grade after carrying out stipulated period of duty of one year, it can never be said that the Demand is unjustified or it is covered by the pending Settlement. Ultimately, life is not logic. We have to see the reality of life. I do not say that the acts of misconduct ought to be condoned but they are certainly required to be understood particularly when the Labour Court is bound to consider the justification for imposing the extreme punishment of dismissal. The cases relied upon by the learned Counsel with regard to the consequences of a strike being illegal which are certainly grave in nature, stand on slightly different footing. As earlier stated by me, the cause of action in the present industrial dispute is termination and in such cases the Labour Court is required to see two points, namely, whether the misconduct is duly proved. Secondly, if proved, whether the punishment is proportionate to the charges levelled and proved, whether punishment is proportionate to the charges levelled and proved. It is this second stage which has not been correctly appreciated by the Labour Court particularly when the inquiry is held to be unfair. When the Company is given an opportunity to prove its case alter leading evidence, the onus is on Company to prove the charges independent of the evidence before the Domestic Tribunal except in cases where the Company leads evidence to prove that witnesses are not available. Similarly under section 11-A weightage is required to be given to the genesis of the dispute particularly when the grievances of the workers are not redressed for large number of years. In the present case it is not in dispute that the past service record of the worker for over a period of ten years was unblemished. In the case of Borosil, the Division Bench of this Court has observed way back in 1974 that in every matter of this type past record is required to be considered. However, Mr. Ramaswamy contended that if charges are proved and if the misconduct is of a very serious nature then even if the service record of a workman is unblemished, the misconduct per se empowers the employer to dismiss the workman because the gravity of the misconduct is so severe that notwithstanding the past record being good, the Company is entitled to dismiss the employee. This position in law is well settled. However, in the present matter, the Labour Court erred in holding that the Demands of the workers were unjustified. In this matter the proved misconduct is required to be seen in the context of justified Demands under section 11-A by the Labour Court. In the case of Rohtas Industries v. Union, reported in 1976, Vol. I, L.L.J. Pg. 274, the Supreme Court had laid down that while deciding the question as to whether the action of the employer was justified, the Court will keep in mind the genesis of the dispute which led to the agitation of the workers. In the present case, the Labour Court erred in coming to the conclusion that the worker resorted to direct action without any cause.
10. In the present matter, the last drawn salary of the petitioner was Rs. 600/- per month on March 13, 1979 when his services were terminated. In view of my above findings, I am not inclined to grant reinstatement to the petitioner. In the facts and circumstances of the case, however, the petitioner would be entitled to receive wages at the rate of Rs. 600/- per month on and from 13-3-1979 (i.e. the date of termination) up to 12-12-1989 (when Part-II Award was given by the Labour Court). The said amount of back wages shall be calculated by the Company and paid to the workman within four (4) weeks from the date of receipt of this Judgment.
11. Accordingly, writ petition is partly allowed. However, there will be no order as to costs.
12. Petition partly allowed.