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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-

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.