1. The petitioners - Jaslok Hospital & Research Centre are registered as a Public Charitable Trust under the provisions of the Bombay Public Trust Act, 1950. The petitioners are running a well equipped and reputed hospital in Bombay and are also running a Research Centre in the hospital premises.
2. The petitioners had employed about 900 workers in the Hospital and the Research Centre in the year 1979. The workers were members of a Trade Union by name 'Maharashtra Shramik Sabha' in the year 1978 and the Union had entered into a settlement dated January 18, 1978 with the employer under S. 18(1) read with S. 2(P) of the Industrial Disputes Act, 1947 and the said settlement was to remain effective up to January 18, 1981. The name of the Union was changed to Maharashtra Kamgar Sabha and the Union signed a fresh settlement on October 5, 1979 in Conciliation under S. 18(1) read with S. 2(P) of the Industrial Disputes Act with the employer. By this settlement the wage scales and other conditions of the employees were fixed and it was agreed that during the subsistence of the settlement, the employees will not resort to strike without giving one month's notice to the employer. Immediately on the next day i.e. on October 6, 1979, Maharashtra General Kamgar Union - respondent No. 2 - gave a notice to the employer claiming to represent 90% of the workmen and seeking recognition as the sole bargaining agent of the employees. The respondent No. 2 - Union addressed a letter through its President Dr. Datta Samant and made a demand on October 8, 1979 for bonus of 20% for the years 1977-78 and 1978-79. The demand notice was received by the petitioners on October 9, 1979 and was replied within three days thereafter pointing out that it is not for the petitioners to give recognition to respondent No. 2-Union and, if so advised, they should get the recognition from an appropriate Court. On October 16, 1979, the respondent No. 2 Union addressed a letter to the petitioners charging the employer of partiality and calling upon the employer to ascertain the membership of respondent No. 2. The respondent No. 2 also claimed that the settlement reached on October 5, 1979 by the employer with Maharashtra Kamgar Sabha was not acceptable to its members.
3. The respondent No. 2-Union gave a lightning call for strike on the morning of October 17, 1979 paralysing the entire hospital and the Research Centre. The petitioners immediately addressed a letter to respondent No. 2 pointing out that it is not possible to enter into negotiations with an unrecognised Union and the strike commenced by the employees was illegal. After the commencement of the strike, some employees engaged in violent acts preventing the willing employees from entering the Hospital and caused serious damage to the vehicles which entered the hospital. The striking employees tampered with the gas connection of the hospital and Research Centre and not only threatened the staff of the petitioners but manhandled the nurses and the security guards and several other staff members including the senior Radiographers. The chronicle of violent incidents indulged in by the striking employees has been set out by the employer in Paragraph 49 onwards in the Written statement filed before the Industrial Court and it is not necessary to set that out in extenso in this judgment. It is not in dispute that these violent incidents continued in spite of the police protection afforded to the hospital authorities from time to time. The petitioners thereupon field a complaint (ULP) 240 of 1979 in the Industrial Court on October 20, 1979 alleging unfair labour practices under Items 1, 2, 5 and 6, Schedule III of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'M.R.T.U. & P.U.L.P. Act'). The Industrial Court passed an ad-interim order on the same day restraining the workmen from indulging into unfair labour practices. In pursuance of the order, the petitioners put up a notice on the Hospital gate informing the workmen about the order and requesting them to refrain from committing unfair labour practices. In spite of this notice, the strike continued. The commencement of the lightning strike and the continuation thereof put the hospital authorities into a dilemma and the patients suffering from serious ailments, and even those waiting for immediate operations were required to be removed to other hospitals.
4. The petitioners inserted a public appeal in the local newspapers on November 1, 1979 calling upon the striking employees to report for duty immediately. Thereafter, on November 6, 1979, the respondent No. 2 Union gave a strike notice under S. 24(1)(a) of the M.R.T.U. & P.U.L.P. Act informing the petitioners that they are calling an indefinite strike with effect from November 21, 1979 in support of their bonus demand. The petitioners sent a reply pointing of that the petitioners are a Charitable institution and are exempted from payment of bonus under S. 32(V)(c) of the Payment of Bonus Act. The petitioners thereafter on November 14, 1979 field Reference (ULP) No. 69 of 1979 in the Labour Court at Bombay for a declaration of the strike resorted to by respondent No. 2 Union and workmen as illegal. The Labour Court declared the strike as illegal by order dated January 23, 1980 under the provisions of S. 24(1)(a), (h) and (i) of the M.R.T.U. & P.U.L.P. Act. In spite of this order, the Union refused to with draw the strike. The petitioner made fresh appeal to the employees to report for duty by inserting advertisements in the local newspapers on December 12, 1979. The petitioners also published on January 26, 1980 in Free Pre Journal and other newspapers and the import of the order passed by the Labour Court declaring the strike as illegal and informed the employees that as they have not reported for duty within 48 hours of the declaration by the Labour Court, their services stand terminated with immediate effect and they should collect their legal dues including wages of one month in lieu of notice. It is required to be stated as this juncture that 52 employees reported for work within the requisite period of 48 hours from the time of the declaration by the Labour Court. At the expiry of the stipulated period, in all 330 employees failed to report for duty and even out of them 227 employees approached the employer till March 20, 1980 and they were permitted to resume their services without any break in service. That leaves out only 103 workers who failed to report for duty at any time.
5. The respondent No. 2 Union challenged the decision of the Labour Court declaring the strike as illegal by filing Revision Application (ULP) No. 1 of 1980 before the Industrial Court. The Industrial Court refused the interim relief of stay of operation of the order and immediately thereafter the respondent No. 2 filed Complaint (ULP) No. 10 of 1980 in the Labour Court against the employer under S. 28 of the M.R.T.U. & P.U.L.P. Act alleging that the petitioners were indulging in unfair labour practices under Item 1 of Schedule IV of the M.R.T.U. & P.U.L.P. Act by publishing a public notice dated January 20, 1980 in the local newspapers purporting to terminate the services of the employees who were on strike. Prior to this date, the petitioners had issued individual notices of termination between January 27 and January 30, 1980 to the striking employees. The Labour Court passed ad-interim order restraining the petitioners from giving individual notices but ultimately, the complaint filed by respondent No. 2 against the employer was dismissed on February 8, 1980. The revision preferred by respondent No. 2 against the order of the Labour Court was also dismissed by the Industrial Court by order dated October 21, 1980. The respondent No. 2 Union filed Writ Petition No. 690 of 1981 before this Court but the Division Bench of this Court dismissed the same by judgment dated August 18, 1981, with the result that the declaration of the Labour Court that the strike was illegal stands confirmed. It would not be out of place if it is re-stated that inspite of all these proceedings, 103 employees failed to report back to duty till March 20, 1980. Out of 330 striking employees, some of whom were served with individual notices of termination on January 25, 1980 and the remaining on February 12, 1980, 227 employees reported back for duty and were taken back in the employment, but 103 employees persisted in refusing to return back to the hospital.
6. The respondent No. 2 Union served demand notice dated June 28, 1980 on the petitioners seeking reinstatement of 103 employees who had not reported back for duty and whose services were the petitioners by notices of termination on January 25, 1980 or February 12, 1980. The petitioners declined to take them back in employment. A fresh demand was made mentioning the names of 92 workmen by letter dated August 6, 1980, but that request was also turned down. It seems that the Government of Maharashtra had taken cognizance of the dispute in this hospital and the Personnel Management Advisory Services of the Labour Commissioner's Office held some meetings between July and October 1980, but there were no regular conciliation proceedings. Ultimately the Government of Maharashtra made a reference on September 24, 1980 regarding the demand relating to 76 workers mentioned in the Schedule followed by another reference dated December 23, 1980 relating to demand of reinstatement of another set of 29 workmen. The respondent No. 2 Union had espoused the case of the dismissed employees before the Government. The two reference were numbered as Reference (IT) No. 170 of 1980 and Reference (IT) No. 7 of 1981 respectively and were tried by the Industrial Tribunal, Bombay. By consent of the parties, it was agreed before the Tribunal that whatever evidence is recorded either oral or documentary should be read in both the references and in fact the Tribunal had disposed of both the references by passing a common Award dated May 10, 1982. By the said Award the Tribunal directed reinstatement of 60 employees in the first reference and 10 employees in the second reference, with 50% back wages with effect from July 1, 1980 till the date of reinstatement and that Award is under challenge in the present petition.
7. Before adverting to the submissions urged in support of the petition, it would be convenient to briefly deal with the respective claims of the petitioners and respondent No. 2 before the Industrial Tribunal. The respondent No. 2 claimed that the striking employees were not served with any show cause notice or order individually regarding the termination of the service which was punitive in nature. According to respondent No. 2, the termination of the services was by way of victimisation for participation in bona fide strike and for supporting the Union which the Management of the Hospital refused to recognise. The respondent No. 2 claimed that the conduct of the management clearly proves that the intention was to force the workmen to go on strike and thereafter dismiss the employees and crush the union as well as the collective bargaining strength of the workmen. It was urged that the dismissal of the employees being punitive in nature and the order having been passed without any show cause notice or enquiry was bad in law. In the alternative, it was claimed that if it is found that the removal was a discharge simpliciter, then such termination amounts to retrenchment under S. 2(00) of the Industrial Disputes Act and as the condition precedent prescribed by S. 25F of the Industrial Disputes Act are not followed, the termination orders are void ab-initio. The respondent No. 2 also claimed that the strike was not illegal and, in any event, it was justified.
8. The petitioners, by their written statement, claimed that the reference was not maintainable, under the provisions of the Act as it was not legally espoused by the workmen in the hospital. The legality of the reference was also challenged on the ground that the dispute is being raised by the Union without establishing that any employees were its legal members. It was further claimed that the reference was made by the Government without ascertaining about the existence of the dispute and without complying with the mandatory provisions regarding conciliation. The petitioners also claimed that the claim made by the Union about the wrongful dismissal of the striking employees was barred by principles of res-judicata or principles analogous thereto. The petitioners asserted that the dismissal of the employees was a discharge simpliciter and was not a punitive action and, therefore, it was not necessary to hold any enquiry or issue a show cause notice on any of the striking employees. The petitioners claimed that the strike was declared illegal by the Labour Court and in spite of such declaration, the employees not only declined to return back to the duty but indulged in violent acts all along. The strike according to the petitioners was not only illegal but was totally unjustified and it caused serious prejudice to the running of the hospital and Research Center. On these pleadings, the Tribunal raised several issues and the petitioners led oral evidence, but respondent No. 2 Union did not think it necessary to lead any evidence. The Tribunal come to the conclusion that the reference made by the Government of Maharashtra was perfectly valid and legal and was not barred by principles of res judicata. The Industrial Court further held that take strike was not only illegal but was entirely unjustified. The Tribunal recorded a finding that the termination of the services of the employee was punitive in nature and was not termination simpliciter in accordance with the conditions of service and standing orders and claimed by the petitioners. The Tribunal held that the order of dismissal was bad in law as no show cause notice was given, nor any enquiry was held. On the strength of these findings, the Tribunal directed reinstatement of 70 employee out of 105 employee on whose behalf the reference was made, as it was found that the remaining workers are no longer entitled to reinstatement for various reasons, the Tribunal held that the workmen had participated in an illegal strike but in view of the decision of the Supreme Court in the case of Gujarat Tubes Ltd., etc. v. Gujarat Steel Tubes Mazdoor Sabha and Others : (1980)ILLJ137SC , he proper order would be to grant 50% back wages to these persons who have been reinstated. The award passed by the Tribunal is under challenge.
9. It would be convenient first to dispose of the preliminary objection urged on behalf of the petitioners to claim that the two references made to the Industrial Court were not maintainable. Shri Khambatta, learned counsel, appearing on behalf of the petitioners, submitted that the Government was not justified in making the two references without ascertaining about the existence of the dispute. The submission is without any merit. The existence of the dispute was obvious and the Tribunal was right in concluding that it is not permissible for the Industrial Court to go behind the order of reference to ascertain whether the dispute was in existence and in regard to which a reference was made. Shri Khambatta then submits that the termination of the services of 105 workmen covered by the two references were at the most individual disputes within the meaning of S. 2(k) of the Act as their cause was not espoused by the existing workmen or Union having membership among the workmen of the employer. The submission was turned down by the Tribunal and in my judgment, rightly. The Tribunal relied upon the decision of the Supreme Court in the case of Wimco v. Wimco workmen : (1970)IILLJ256SC , and pointed out that the only condition for an individual dispute turning into an Industrial Dispute is a necessity of community of interest and not whether the concerned workmen was not a member of the Union at the time of the dismissal. The real test is whether the dispute referred to adjudication is one in which the workmen have a substantial interest. It would be also appropriate to make a reference to the judgment of the Supreme Court in the case of Workmen of Dharampal Premchand v. Dharampal Premchand : (1965)ILLJ668SC , where it was held that even the dismissed workmen could by themselves raises in industrial disputes within the meaning of S. 32(k) of the Act. Apart from these long line of decisions of the Supreme Court negativing the submission of Shri Khambatta, there is one fact on record which conclusively knocks out the submission. The petitioners filed Complaint (ULP) No. 240 of 1979 before the Industrial Court Bombay against respondent No. 2 and 14 workmen and in the interim relief application it was stated that respondent No. 2 its Office Bearers, servants, agents and employee being members of the respondents be directed to desist from unfair labour practices. It is obvious that the petitioners themselves have stated in this complaints that the employee are the members of respondent No. 2-Union and this complaints was filed before employees covered by these two reference were dismissed. In the face of this stand taken by the petitioners on an earlier occasion, it is futile for Shri Khambatta to urge that the cause of the employees covered by the references was not espoused by the Union and therefore the dispute was not an industrial dispute but was can individual dispute.
10. The second submission urged by Shri Khambata is that the reference is not valid, legal and maintainable as it was not preceded by any conciliation proceedings and contemplated under S. 12(1) of the Act. Section 12(1) of the Industrial Disputes Act provides that where an industrial dispute exists or apprehended the conciliation officer may, or where the dispute relates to a public utility service and a notice under S. 22 has been given shall, hold conciliation proceedings in the prescribed manner. Sub-S. (2) to (4) S. 12 of the Act provides for the procedure to be followed by the conciliation officer and Sub-S. (5) enables the Government to make a reference on consideration of the report of the conciliation officer. The submission of Shri Khambata is that as the two references were not preceded by the conciliation proceedings, the Government of Maharashtra was not competent to make the reference. The Tribunal came to the conclusion that Sub-S. (1) of S. 12 of the Act is not attracted because the conciliation proceedings are mandatory only when the dispute relates to a public utility service and the notice under S. 22 of the Act has been given. The Tribunal held that take hospital was declared as a public utility service by Government Notification dated 29th January, 1980 and this notification can remain in operation only for a period of six months as provided under S. 2(n)(vi) of the Act. This declaration was continued under subsequent notifications and, therefore, it could not be debated that join the date of the demand of reinstatement, the hospital was public utility service. The Tribunal proceeded to negative the submissions urged on behalf of the petitioners about the compliance with Sub-S (1) of S. 12 of the Act of the ground that the conclusion proceedings are mandatory provided to two conditions are satisfied and those conditions are (1) dispute relates to a public utility service, and (2) notice under S. 22 of the Act has been given. Section 22 of the Act provides that no person employed in a public utility service shall go on strike in breach of the contract without giving prior notice to the employer, nor any employer carrying on public utility service shall lock out any of his workmen without prior notice. The Tribunal felt that reading Sub-S (1) of S. 12 of the Act requires satisfaction of both the conditions before holding of the conciliation proceedings is must. It is not possible to accept his conclusion of the Tribunal. Though the expression 'and is used' after the words 'where the dispute relates to a public utility service', the said expression must be read as 'or'.
11. Dr. Kulkarni, learned counsel appearing on behalf of respondent No. 2 - Union - very fairly stated that the dispute relating to a public utility service are not only those referred in S. 22 of the Act. A notice under S. 22 of the Act is required when an employee in a public utility service desires to go on strike or the employer of such public utility services desires to lock out the workmen. Only in these two kinds of cases, the notice under S. 22 of the Act is required. The disputes between the employer and the employees in respect of the public utility service are not limited only to cases of strike and lock our, but would cover various other areas. What Sub-S (1) of S. 12 of the Act provides is that the conciliation officer shall hold conciliation proceedings when the dispute relate to a public utility service and also when a notice under S. 22 of the Act has been given. The Sub-section provides for two categories of cases where a fiat is issued to conciliation officer to hold the proceedings. The Tribunal, in my judgment, was clearly in error in holding that it was not necessary to hold any conciliation proceedings prior to making of reference by the State Government. Sub-section (5) of S. 12 requires the Government or consider the report made by the conciliation officer before making a reference, but this interpretation of Sub-S. (1) would not lead to the conclusion that the two references made by the Sate Government were not maintainable. The references are made by the State Government in exercise of the powers under S. 10(1) and S. 12(5) of the Act. Section 10(1) of the Act provides that where the appropriate Government is of the opinion that any industrial dispute exists if is apprehended. It may at any time, by order in writing refer the dispute to the appropriate authority for adjudication. The second proviso lays down that where the dispute relates to a public utility services and notice under S. 22 is given. The appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient to do so, make a reference under this sub-section not withstanding that any other proceedings under the Act in respect of the dispute has commenced. Dr. Kulkarni is right in his submission that under the powers conferred under this proviso to Sub-S. (1) of S. 10 of the Act, it is open for the Government to make a reference to the appropriate authority for adjudication even though the conciliation proceedings had not commenced or had commenced but are not still disposed of. The Tribunal relied upon the provisions of Sub-s. (1) of S. 10 of the Act and held that the references were clearly maintainable and I do not find any infirmity in the said conclusion.
12. There is one more aspect in this connection which cannot be overlooked. After the two reference were made, the parties have led evidence and argued the reference at length before the Tribunal and the Tribunal has passed an Award and all these proceedings cannot be declared null and void merely because the conciliation proceedings did not precede making of the reference. Even assuming that holding of conciliation proceedings prior to making of order of reference was necessary, still, in my judgment, the provisions must be construed as merely directory and not mandatory and, therefore, failure to hold conciliation proceedings would not result into the Award being null and void. The submission of Shri Khambata, therefore, deserves to be repelled.
13. Shri Khambata then submitted that the disputes involved in the present two references cannot be entertained because it is barred by the principles of res judicata or principle analogous. The submission proceeds on the facts which are not in dispute. As stated here in above, the respondent No. 2-Union filed Complaint (ULP) No. 10 of 1980 against the petitioners under S. 28 read with item I(a), (b)(d), (f) and (g) of Schedule IV of the M.R.T.U. & P.U.L.P. Act for the direction to restrain the petitioners from indulging in unfair labour practices which were commenced as a result of the public termination notice given in the Newspaper dated January 28, 1980. The Complainant, inter alia alleged that the employer had resorted to the discharge of the principles of natural justice victimisation for participation in strike and for misconduct of minor and technical character. The Labour Court dismissed the complaint by order dated February 8, 1980. The complaint was resisted by the petitioners on the ground that the complaint was not maintainable under the provisions of M.R.T.U. & P.U.L.P. Act. The Labour Court, after considering the claims of the rival parties held that the complaint was not maintainable under the of the Act; the termination how so ever, it was point or illegal under the Bombay Industrial Relation Act, 1946 or under the Industrial Disputes Act is not unfair labour practice under the M.R.T.U. & P.U.L.P. Act unless it falls under any of the clauses in Item I of Schedule IV of the Act, Shri Khambata submits that although the labour Court, held that the Complaint was not maintainable, still the finding recorded by the Court that it was open to the employer to terminate the service either under the provisions of standing orders or under the Bombay Shops and Establishments Act clearly goes against the employees and the same cannot be re-agitated in the present two references. The submission cannot be accepted. The mere perusal of the order passed by the Labour Court makes it clear that the complaint was dismissed on the ground that that it was not maintainable because the requirements of clauses in Item I of Schedule IV of the M.R.T.U. & P.U.L.P. Act were not fulfilled. Once the Labour Court came to the conclusion that the complaint was not maintainable, then any observation made on incidental issues cannot operate as res judicata in the present proceedings. By the Tribunal repelling the submission of the petitioners on this issue is in accordance with law and requires to be upheld.
14. The main contention urged by Shri Khambata is that the order of discharge of the striking employees was merely a termination simpliciter and was not punitive in nature. The learned counsel urged that the facts of the case leave no manner of doubt that the notices of terminations were not punitive nature. Strong reliance was placed on the undisputed facts that the strike was declared as illegal on January 23, 1980 and in spite of several appeals made to the striking employees, they declined to report back to the duty. It was further urged that though the period of 48 hours from the date of the declaration of the strike as illegal was over, still several employees were permitted to resume till several employees were permitted to resume till March 1980 and these employees were those who were served with notice of termination. Shri Khambata submits that the conduct of the employer all along suggests that the action was not punitive and in spots of the fact of termination, several employees were taken back in employment till March 20, 1980. The Tribunal concluded against the claim of the petitioners on two grounds. The first ground was that no steps were taken by the petitioners after January 23, 1980 to call back the striking employees to the duty and secondly, the notice of termination itself indicates that the action was punitive in nature. Shri Khambata did not dispute that after the strike was declared as illegal by the Labour Court on January 23, 1980 the petitioners did not servant notice on the striking employees or issue any appeal for reporting back to the duty and urged that it was not necessary to do so because the provisions of M.R.T.U. & P.U.L.P. Act demand that the striking employees shall resume the work within 48 hours of the declaration of the strike as illegal.
15. Shri Khambata urged that the second ground furnished by the Tribunal that the notice of termination itself indicates that the order was punitive in nature was not correct. It is not possible to accept the submission of Shri Khambata that the order was not punitive in nature but amounted to a termination simpliciter. The notice of termination served on the striking employees on January 25, 1980 and February 12, 1980 reads as under :
'You are hereby informed that on view of the ad-interim injunction (restraining order) passed by Shri S. A. Patil, Presiding Officer, 8th Labour Court at Bombay of 30th January, 1980, in complaint (ULP) No. 10 of 1980, a letter of termination of your service could not be sent and was withheld.
The said Honorable Judge of 8th Labour Court by his order dated 8th February, 1980, has dismissed the above complaint and vacated the ad-interim injunction (restraining order) of 30th January, 1980.
We are now giving you this notice letter of termination of services, thereby informing you that your services stand terminated with immediate effect in view of the fact that in spite of the order dad 23rd January, 1980, passed and declared by the Judge, 8th Labour Court, Bombay, at 2.00 p.m. on the above date, you did not report for duty thereafter and that under S. 25(5) of the M.R.T.U. & P.U.L.P. Act 1971, you did not withdraw the said strike within 48 hours of the declaration of the said order and have failed to report for duty till this date.
You are further informed that you will paid you legal dues including one month's wage/salary in lieu of notice.
A copy of this letter of termination of your services is being sent to you under Certificates of Posting also.
For JASLOK HOSPITAL AND
S. Y. WAGLE
The plain reading of this notice makes it clear that the services were terminated because the employees failed to report for duty after the strike was declared illegal. No other misconduct is mentioned in this notice of termination. The statement in the notice that the termination is because of the failure to report for duty clearly amounts to a stigma and it is difficult to accept the submission of Shri Khambata that in spite of it the termination was a discharge simpliciter. It is undoubtedly true that the model standing orders enable the employer to terminate the service simpliciter by as held by the Supreme Court in the case of Gujarat Steel Tubes Ltd. (supra), the form of the order of termination of the language in which it is couched is not conclusive and the Court should lift the veil to see the true nature of order. If two factors co-exist, an inference of punishment is reasonable though not inevitable. If the severance of service is effected, the first condition is fulfilled and if the foundation or cause causans of such severances the servant's misconduct the second is fulfilled. As both the conditions exist, by reading of the notice of termination, it is obvious that to finding of the Tribunal that the termination of the service of the employees was punitive in nature is correct and requires to be upheld.
16. The Tribunal further held that as the order of termination was punitive in nature, the petitioners could not have terminated the services without service of show cause notice on the employees and giving them an opportunity to explain their failure to report back to the duty. Shri Khambata very seriously quarrels with this proposition by submitting that as the strike was declared illegal by the competent authority and the employees failed to report back to the duty within the stipulated period, the service of show cause notice was an empty formality and no faulty can be found with the employer on that ground and the order of termination cannot be set aside. The learned counsel urged that the misconduct on the part of the employees was clearly established by their action and service of show cause notice would not have enabled them to point something contrary. The submission cannot be entertained in view of the clear dictum laid down by the Supreme Court in the case of Gujarat Steel Tubes Limited (supra). It would be advantageous to quote the observation of Mr. Justice V. R. Krishna Iyer who spoke for the majority :
'Speaking generally, we have rejected, as a nation, the theory of community guilt and collective punishment, and instead that no man shall be punished except for his own guilt. Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency. Not reporting for work by a workmen does not lead to an irrebuttable presumption of active participation in the strike. More is needed to bring home the mens rea and that burden is on the Management. Huddling together the eventful history of deteriorating industrial relations and perverse leadership of the Union of workers is no charge against a single worker whose job is at stake on dismissal. Mere absence from duty without more may not compel the conclusion of involvement of the worker in the strike. In the absence off proof of being militant participant in the strike the punishment may differ. To dismiss a worker, in an economy cursed by massive unemployment, is a draconian measure as a last resort. The degree of culpability and the quantum of punishment turn on the level of participation in the unjustified strike. A disciplinary inquiry resulting in punishment of particular delinquents cannot but be illegal if the evidence is of mass misconduct by unspecified strikers led by leaders who are perhaps not even workmen.
The workmen were on strike. The strike was illegal. The Management was hurt because production was paralysed. The strikers allegedly indulged in objectionable activities. The exasperated Management hit back by ordering their discharge for reasons set out in several pages in the appropriate contemporaneous proceedings. Misconduct after misconduct was flung on the workers to justify the drastic action.
In all conscience and common-sense, the discharges was the punishment for the misconduct. What was explicitly stated was not a colourless farewell to make way for fresh hands to work the factory until the strike was settled but a hard hitting order with grounds of guilt and penalty of removal. May be, the Management had no other way of working the factory but that did not change the character of the action taken. Once the discharge was held to be punitive the necessary consequence was that enquiry before punishment was admittedly obligatory and confusedly not undertaken. The orders of discharge were bad of this score alone'.
The Supreme Court has conclusively held that here participation in a illegal strike is not sufficient to dismiss an employee unless it is established that he has actively participated in a strike and the mens rea is brought home. From the observation of the Supreme Court, it is clear that the findings of the Tribunal that the order of the termination was punitive in nature and was passed without serving individual notices on the striking employee and therefore, is vitiated is correct and requires to be upheld. Shri Khambata made a faint submission that service of notice as required by the decision of the Supreme Court was an empty formality because all the facts were apparent on the face of record and the employees could not have shown any case in answer to the notice. The submission warrants no detailed consideration.
17. Shri Khambata then submits that even assuming that service of notice on individual workmen prior to order of termination was necessary still the order of termination should not have been set aside by the Tribunal because the petitioners led evidence before the Tribunal to establish the misconduct of the a part of the employees. The learned counsel urged that on the facts and circumstances that were brought on record, the Tribunal ought to have held that the removal of the employees was justified. It is well established that it is open to the employer in a reference to adduce evidence and substantiate the action of termination when it is found that the action was taken without following the due process of law. Shri Khambata relied upon the evidence led by the petitioners in support of their claim that the employees were involved in misconduct and violence. The Tribunal came to the conclusion that the petitioners failed to lead sufficient evidence to establish that the action of termination was justified. The Tribunal found that the evidence about the involvement of violence by certain employees was general in nature and even it was not take claims of the petitioners that all the employees whose claim was under consideration under the reference were involved in violence. Shri Khambata submitted that the employees failed to return to the duty in spite of the declaration of the strike as being illegal and in spot of the fact that the employer did not take punitive action against those employees who reported for duty unto March 20, 1980. It was urged that taking into consideration the facts on record, the Tribunal ought to have held that the petitioners were justified in terminating the services of the employees. It is not possible to accept this submission. In the first instance, the finding recorded by the Tribunal is based on the appreciation of evidence and this finding of fact cannot be disturbed in exercise of jurisdiction under Art. 226 of the Constitution of India. Secondly, the finding based on the appreciation of evidence seems to been order because the material produced before the Tribunal does not disclose that all the 70 employees were involved in violence. It was urged that the employees did not step into the witness-box deny the allegation of violence and misconduct against them and in respect of which evidence was led by the petitioners before the Tribunal and, therefore, the evidence of the petitioners should have been accepted. It is not possible to accept this line of argument. The mere fact that the employees did not step into the witness-box is not sufficient to conclude that the evidence of the petitioners should have been accepted as gospel truth. The reliance by Shri Khambata on certain kind of minor misconduct by the employees prior to the date of strike is of no assistance because the petitioner shave taken no action whatsoever against the employees on that ground. In my judgment, the Tribunal was justified in coming to the conclusion that the material brought on record by the petitioners was not sufficient to justify the action of termination. As I have upheld the finding recorded by the Tribunal that the termination of the employees was punitive in nature, it is not necessary to consider the alternative submission urged on behalf of the employees before the Tribunal that even if the termination is simpliciter, it amounts to retrenchment and conditions under S. 25F of the Act were not complied with.
18. The lasts submission of Mr. Khambata requires closer scrutiny. It was urged that even accepting all the findings recorded by the Tribunal, ultimate conclusion directing reinstatement of seventy striking employees was not justified in the facts and circumstances of the case. The Tribunal directed reinstatement by observing that when termination is invalid, the normal rule is to award reinstatement and the party objecting to such course must establish the circumstances necessitating the departure. Mr. Khambata submits that the Supreme Court sounded a warning in the case of Gujarat Steel Tubes Ltd. (supra) to application of the rule blindly to all cases. The Supreme Court in that case while declining reinstatement to 100 employees, after recording finding that their termination of services was invalid, observed that the relief must be fashioned with an eye on be ignored, since law is not dogmatic but pragmatic. Some of the considerations which weighed with the Supreme Court were Management's limitation in absorbing large number of discharged employees, inability to pay huge amount by way of back-wages, need to sack employee's who were appointed in place of discharged employees and the likelihood that some of the workmen might have obtained jobs elsewhere. In the backdrop of the law laid down by the Supreme Court it is necessary to examine the circumstances in the present case to ascertain whether relief of reinstatement was called for. At the outset, it is necessary to note that though the hospital has to be considered an industry as laid down by the Supreme Court in the case of Bangalore Water Supply & Sewerage Board v. A. Rajappa and others : (1978)ILLJ349SC , it cannot be equated with industrial unit engaged in manufacturing process. The hospital and medical research centre are sensitive institutions and are engaged in saving human lives and the success institutions depend much upon the confidence generated by the staff working there. It is well said that cure of patient depends more on care and attention lavished than on take medicines administered. The concept that employers and employed are equal partners is now well-entrenched and success of an institution depends not only on the attitude of the employer but equally in the manner in which the employees approach their work. In the present case, on the findings recorded by the Tribunal, the employees resorted to an illegal strike, which was wholly unjustified. Not only that, but in spite of competent forum declaring the strike as illegal, the striking employees obdurately refused to report back for duty. The Tribunal also found that striking employees resorted to violence and not only gave threats to staff members but assaulted even the nurses. The property of the hospital and Research Center was damaged and the lightning strike resorted to caused untold hardship patients The employees covered in two references decline to report back for duty even though the managements permitted other striking employees to rejoin till March 20, 1980. It is obvious that employees involved in the reference belong to that category who refuse to see any reason or care for orders passed by forums constituted under law and firmly believe that their every wish could be fulfilled by resort to violent methods. In my judgment, it would be inappropriate to direct reinstatement of such employees in the hospital and Research Centre.
19. Dr. Kulkarni submitted that the Tribunal has exercised discretion by ordering reinstatement and that order should not be disturbed in exercise of powers under Art. 226 of the Constitution. The submission cannot be accepted as the Tribunal has clearly overlooked several salient features of the case as enumerated above and has passed the order in a mechanical fashion. The evidence led by management to establish that 19 employees are gainfully employed in some other industry was brushed aside by observing that management failed to establish whether the employment was permanent or casual. The Tribunal overlooked that the fact was exclusively within the knowledge of workmen, and they chose to remain away from the witness-stand. The Supreme Court in Gujarat Steel Tubes Ltd. case (supra) observed that Art. 226 of the Constitution of India is a sparing surgery by the lenity operates where injustice suppurates. Further says Supreme Court, 'viewed from this jurisdictional perspective, we have to be cautious both in not overstepping as if Art. 226 of the Constitutions of India were as large as on appeal and not failing to intervene where a grave error has crept in.' In my judgment, it is necessary to exercise jurisdiction to disturb the order of reinstatement in the present case.
20. As I purpose to set aside the order of the Tribunal directing reinstatement of 70 employees, the question arises as to what relief should be granted and I purpose to adopt the same course as was done by the Supreme Court in the case of Gujarat Steel Tubes Ltd. (supra) and set out in paragraph 154 of the judgment. In my judgment, the 70 employees to whom reinstatement has been granted shall be deemed to have been retrenched on may 12, 1982, i.e. the date on which the Award was passed by the Industrial Tribunal and each of the 70 employees would be entitled to the retrenchment benefit under S. 25F of the Industrial Disputes Act and one month's notice pay in addition to 50% back wages as directed by the Tribunal with effect from July 1, 1980 till May 12, 1982.
21. Accordingly, the petition partially, succeeds and though the findings of the Tribunal are upheld the final order of reinstatement of 70 employees is set aside and instead of it, it is directed that all these 70 employees shall be treated as retrenched with effect from May 12, 1982 and they would be entitled to retrenchment benefits under S. 25F of the Industrial Disputes Act and one month's notice pay. These 70 employees would also be entitled to 50% back wages with effect from July 1, 1980 till May 12, 1982. The order of the Tribunal in respect of the remaining employees involved in two references is confirmed. In the circumstances of the case, there will be no order as to costs.