Industrial Disputes Act, 1947 - Section 10(1)
1. This Industrial dispute between the workmen and employers of the Osmanshahi Mills, Ltd., Nanded, was referred to the Industrial tribunal constituted under the Labour Department notification No. I/37/55/30, dated 23 May, 1955, under S. 10(1)(c) of the Industrial Disputes Act, 1947 (XIV of 1947), by the Rajpramukh (Hyderabad) by their order No. I/137/54/(S)/94, dated 30 September 1955.
The dispute is regarding the matters specified in Sch. I in respect of workmen mentioned in Sch. II annexed thereto. Schedules I and II are as follows :-
(1) Whether the suspension and subsequent dismissal of the said workmen is justified
(2) If not to what relief are they entitled
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2. After the statement of claim and written statements were filed, the Industrial Tribunal, Hyderabad, consisting of Sri B. A. Patel, heard the matter at length and recorded considerable evidence. After the evidence of both workmen and the employers was closed the matter was posted finally on 1 December, 1956 for arguments. In the meanwhile, however, due to reorganization of States, Nanded, where the mill is situated, came to be transferred to the State of Bombay. Sri N. S. Raghavan for the respondent mills at the hearing contended that S. 125(1) of the States Reorganization Act, 1956, does not cover this case and suggested that the matter be referred to the High Court as provided in Sub-section (2). The question therefore was referred to the High Court under S. 125(2) of Central Act XXXVII of 1956, by the Industrial Tribunal, Hyderabad, for its decision.
3. Thereafter under S. 125 of the States Reorganization Act, the proceedings in this dispute stood transferred to me at Bombay as industrial tribunal specified as the corresponding authority under the Government of Bombay notification, Legal Department, No. 25398-B, dated 1 November, 1956, issued under S. 122 of the States Reorganization Act. The papers were, however, received on 17 October, 1957, and admitted on 31 October, 1957. The first hearing thereof was fixed on 28 November, 1957. At the first hearing both the parties filed a purshis that the evidence recorded before the Industrial Tribunal. Hyderabad, may be treated as evidence before this tribunal and that the matter may be proceeded with from the State where it was left undecided. The matter was thereafter fixed from time to time, and was heard on a large number of occasions and had to be adjourned to suit the convenience of the parties. There has been some delay in the disposal of this matter as I had to go on numerous occasions to Nagpur and was also subsequently busy with certain major engineering disputes.
4. There is only one reference which covers the dismissal of about 50 workers. These dismissals have not been in connexion with one single incident or a series of connected incidents. The workmen have been charge-sheeted at different times from 3 January, 1954 to 5 may, 1955, a period extending over 16 months. The 50 dismissed workers have been charged under different counts according to the written statement of the company as follows :- 6 charged for theft; 2 for habitual negligence in work; 2 for disorderly behaviour and for acting in a manner subversive of discipline in the mill premises;
27 for acting in a manner subversive of discipline, using force, threats, intimidation and abuses and striking work during pendency of adjudication proceedings; 5 for sabotage to mill machinery and materials and acting in a manner subversive of discipline; and 8 for striking work and inciting other workers to strike work during the pendency of adjudication proceedings.
It appears that certain proceedings were during the whole of this period pending before the Labour Appellate Tribunal of India at Bombay in respect of some other dispute. The management could not therefore dismiss these workers without the permission of the said tribunal. It, therefore, after the inquiry was completed and the workers found guilty, suspended some of them as a precautionary measure, either immediately or after such time when by reason of their subsequent conduct they thought it necessary pending the decision of the Labour Appellate Tribunal. Before, however, the applications filed before the said tribunal were disposed of, the main proceedings before the Labour-Appellate Tribunal was disposed of and the said tribunal therefore passed orders of lapse in respect of the applications made by the management. After receipt of the said orders of lapse from the Labour Appellate Tribunal, the management issued dismissal orders to these workers.
5. It will be seen from the above analysis that about 40 of the above disputes are connected with either participation in strike, incitement to strike or sabotaging the machinery and materials of the mills. Sri Madhav Bhatt, the manager of the mills, has stated about the conditions prevailing in the mills that from the records in 1952 there were in all 28 strikes and loss of 5,842 man-hours. In 1953 there were 19 strikes and loss of 4,571 man-hours. In 1954 there were about 18 strikes and loss of 4,571 man-hours. In 1955 there were about 31 strikes and loss of 4,406 man-hours. From this there can hardly be any doubt that there was something very seriously wrong somewhere. The management have submitted that the strikes were always resorted to on very flimsy grounds and were not justified; that they took place in spite of their repeated appeals to the workers; that meetings were held out frequently and abuses were hurled up against the management as well as the loyal workers and threats were given to the management in the speeches and in the meetings. The union, on the other hand, has submitted that the strikes were the direct result of the efforts made by the management to suppress the activities of trade union workers. It has pointed out that out of these 50 workers dismissed during this period, 40 are active workers of the union and of these 40 active workers 11 are working committee members. About 13 are shift committee members and others were volunteers; that their union was functioning since 1943; that in the earlier stages no recognition was given thereto although other unions were encouraged; that after the police action when their union tried for a recognition, the management supported the Rashtriya Labour Union; that in May, 1952 Sri V. D. Deshpande, the president of the union, had a long discussion with Mr. Tyabji, the managing agent of the mills; that he promised that the union would be recognized and allowed the union to collect subscription inside the premises, The Rashtriya Labour Union was also allowed to collect subscription, that they therefore wrote to Sri Tyabji for recognition and so also. The workers with 3,268 signatures wrote a separate letter; that the managing director thereupon wrote back saying that secret ballot may be held under the auspices of the Labour Department and the mill management after obtaining the consent of the Rashtriya Labour Union; that in case the Rashtriya Labour Union does not agree thereto this union would be recognized. An agreement thereafter, dated 5 November, 1952, between the Osmanshahi Mill Workers' Union, Rashtriya Labour Union and the company was arrived at to determine the representative character of the union by a secret ballot. The ballot, however, had to be cancelled as the Rashtriya Labour Union withdrew its consent before the date fixed for election. In spite of their agreement, the company did not recognize this union but in the year 1954 without any adequate intimation prohibited the Osmanshahi Mill Workers' Union from collecting subscription within the mill premises. The management also refused to discuss the reasons with the vice-president of the union. According to the union, one of the major reasons resulting in this large number of disturbances has been the unilateral action of the company in refusing to negotiate with the union the common grievances of the workers. It has pointed out that not only the right of collective bargaining was denied but a large number of letters written to the company by the union in respect of a large number of crying grievances remained unanswered. The union has further submitted that the cause of friction between the company and the workers during this period was the change in working conditions introduced in the mills. A large number of them have been mentioned by the union which are stated in various exhibits produced W. 8, W. 9 and others, and in particular the union has stated that these changes consisted of increase in a large number of 4 looms working in place of 2 looms, 2 sides in place of 1 side, resulting in coercion of persons to work 2 sides and 4 looms and in some of the permanent workmen losing their permanent assigned jobs and a large number of badli workers not getting any badli work at all. The union has submitted that these radical changes were introduced during the pendency of proceedings before the Labour Appellate Tribunal of India without obtaining the permission of the Labour Appellate Tribunal and therefore constituted an illegal change; that they were also introduced without discussing the same and arriving at some agreement in respect thereof with the representative union of the workmen, that this constituted both an illegal change and unfair labour practice; that any action therefore taken by the workers to resist such illegal changes must be treated as justified.
6. It does appear to me that during the period in question, the Osmanshahi Mill Workers' Union had a large membership. It was unfortunate therefore that the management could not see its way to give recognition to this union particularly when it had promised to do so and when the Rashtriya Labour Union refused to fight the ballot. However, the full picture as to why the Rashtriya Labour Union refused to fight the ballot is not before me and I cannot therefore express any opinion on the justification or otherwise of the refusal. The management has stated that it refused to recognize this union because of its attitude and conduct over a long period of creating disturbances and that it did not therefore recognize the same. No final opinion can be expressed by me as to the reasons for the large number of strikes that preceded the strike on 3 February, 1954, which is the first incident before me, as these are not the subject-matter of this reference and I have no satisfactory material to investigate their reasons. Unfortunate though the situation was, I cannot on the evidence before me either blame the union or the company at the stage the disputes before me arose. It has again been urged that there was not even a works committee constituted where some of the grievances could have been ventilated. This too was unfortunate. But although constitution of the works committee was a statutory obligation of the management, at the same time the management has put in a note explaining why they could not constitute a works committee in the absence of any agreement in certain respects between the rival unions. In the circumstances prevailing it is difficult to blame the management alone for the non-constitution of the works committee. There are very serious allegations made against the management for changing the working conditions of the workers. A large number of letters have been addressed to the management and to a large number of other authorities regarding the same. It is, however, surprising why no application under S. 23 of the Industrial Disputes (Appellate Tribunal) Act was made when according to the union the company had committed an illegal change. Whether such a change was committed or not would be a matter of evidence. To the allegation of the union that the company had introduced double sides and 4 looms the answer of the mills' witnesses has been that the working of double sides was prevalent in the mills since 1937 and the system of working 4 looms was in existence since 1950. According to Sri Anieneyulu, the assistant spinning master, the working of the double sides was started in the ring department somewhere about 1938-39. At that time only 17 double sides were working but at that time there were only 69 old ring frames. However, later extension of the ring department was completed about 1953 by which 30 new ringframes were added to the old ones. As they were started working the doubles were put in over on those rings. The manager, Sri Bhatt, has also stated that the double sides were gradually increased as the management was able to give the necessary conditions for working the same. A mere change from singles to double side would not constitute a change in the conditions of service in the case of a concern where doubles have been working for a long time, but there would be a change in the conditions of service only if the conditions for doubles in existence were not complied with. Although there have been numerous allegations, it is difficult to say that reasonable proof has been adduced either at the inquiry or otherwise of this, and that is equally true of 4-loom system. There are several representations made by badli workers as to their not getting sufficient badlis. There does appear to be some truth that there was some reduction in the work they got, for otherwise such an uproar would not have been possible. At the same time, however unfortunate it may be, if a badli worker did not get sufficient badli work as a result of creation of certain conditions which the management had a right to create, it is difficult to find any fault with the management for the same. For example, if the management had a right to work two sides on higher counts if as a result of shifting to higher counts more double sides were worked and employment of badlis' therefore fell, it would be difficult to place the fault on the management. A badli has a right to get work if available. What were exactly the rights of the badli workers in this mill These are matters which require proof. I have been taken through a good part of the record but I have failed to see positive evidence or such evidence which can reasonably be called proof of a large number of allegations made. In dealing with the various individuals and the charges framed against them, I have therefore only to rely upon the evidence against that particular individual and his defence though I have kept the broad background in mind. In the absence of more positive proof, I cannot exonerate a large majority of theses workers for what they did only on the basis of the broad allegations made by the union.
7. A number of allegations have been made regarding the inquiry. There is a standing order 21(a)(iii) which provides that no order of dismissal can be made unless the operative concerned is informed in writing of the alleged misconduct and is given opportunity to explain the circumstances alleged-against him. Apart from the standing order this is a requirement which an employer can only ignore at his own peril. However, so far as all these workers are concerned, formal charges have been given to every one of them without exception. A good deal of details are given in the case of almost all of them. It is true, however, that in a few exceptional cases the exact date or time is not mentioned. However, the inquiry before the domestic tribunal is not a judicial inquiry and all the formalities required before a judicial inquiry are not required to be observed. Broad principles of natural justice have got to be observed. I am not prepared to hold that the inquiry is bad in the case of any single operative before me on the ground that the chargesheet did not mention all the specific particulars, for from the defence in every case it has been obvious that the workmen had understood fully at the time of inquiry the gravamen of the charge against them and there has been no miscarriage of justice by reason of the omission of any particulars.
8. Some witnesses before the tribunal have alleged that the statements made by them have not been properly recorded. These are the common allegations. Formal notes of inquiry have been produced before me and I have therefore only to state this objection to reject it.
9. Again it has been urged that some witnesses were not examined in the presence of the persons chargesheeted. If so, this would be a serious lacuna in the inquiry. There is, however, intrinsic evidence from the records of the inquiry that this allegation is not generally true. It does however appear to me that in some cases the complaint reports filed by some of the officers have been relied upon at the inquiry by the manager in arriving at his conclusion, without giving the worker concerned an opportunity to cross-examine the officers or in some cases the statements of some of the officers were taken without giving the worker concerned an opportunity to cross-examine that officer. This is certainly a very serious lacuna but in my opinion it does not completely vitiate the inquiry; only such evidence must be completely ignored. If after completely ignoring such evidence there is still sufficient evidence to uphold the finding, the action of the management may be confirmed but not otherwise.
10. A large number of witnesses some of whom who were already examined before the domestic tribunal have again been examined before the industrial tribunal, both by the union and the company. It has however been urged by the union that what I am concerned with is to find out whether the management had sufficient evidence before it to dismiss the workers concerned on the inquiry or not and that evidence before the tribunal should be completely ignored for the purpose. It is true that the standing orders require and so also the principle of natural justice that a worker shall not be dismissed unless he was found guilty of misconduct. At the same time the relief of reinstatement and/or compensation which this industrial tribunal is called upon to give is an equitable relief. It is a relief in the discretion of this tribunal to grant or out. In granting or refusing the same therefore this tribunal is entitled to look at all the circumstances. In the absence of inquiry by the management, industrial tribunals have in numerous cases themselves held the inquiry and come to their own conclusions as to whether it was a fit case for the grant of relief asked for or not. This is the consistent view taken by almost all the tribunals and I have therefore taken into consideration in every case also the evidence led before the tribunal and not confined myself to the evidence before the domestic tribunal only. If the contention urged by the union was correct, where was at all the necessity on its part to lead any evidence except the evidence as to the nature of the inquiry
11. As already observed by me during the whole of this period, that is, January 1954 to May 1955, there were certain proceedings pending before the Labour Appellate Tribunal of India. It has been urged therefore that the strike was illegal under Ss. 24 and 25 of the Industrial Disputes (Appellate Tribunal) Act as it was resorted to during the pendency of an appeal before the Labour Appellate Tribunal. It has further been urged that the strike was illegal as this undertaking had been declared to be an essential undertaking also by the Hyderabad Government. The management have sought to justify the dismissal of a large number of these workers on the ground of their having in any event participated in a strike which was illegal. The question has been considered at some considerable length by the Labour Appellate Tribunal in the dispute between the Caltex (India). Ltd., Madras, and their workmen 1955 II L.L.J. 683 wherein their lordships have observed at p. 698 : '. . . Of course, no industrial tribunal can show its approval of any such illegal action of the workers who must bear the serious consequences which are expressly prescribed by law for such action, but that cannot prevent such a tribunal to look into the surrounding circumstances to see if the action of the workers was unprovoked and frivolous or whether the workers had a substantial cause for grievance, for the redress or ventilation of which they have chosen the illegal course they have adopted, and in this respect, whether the strike, though illegal, was justified.' When a strike, legal or otherwise, is found to be justified, in the sense in which this term is; used by industrial tribunals, what is normally meant by that finding is not that there is complete justification for the strike, or that the authority in judging the nature of the strike, approbates the action of the workers in going on strike under the circumstances; and in a case like the present, the strike being illegal and against the express prohibition imposed by law, a finding of complete justification of the strike or approbation of the conduct of the workers participating therein is impossible for any tribunal. Apart from any drastic step that the employer might be entitled to take in law in consequence of the strike, not only does the law positively disapprove and prohibit such action, but it imposes penalties for the same and also from time to time serious disabilities in many respects have been provided by the legislature for workers who participate in such an illegal strike. The justification, if any, which can therefore be looked for in such cases, can only be a relative justification, such as can be found when the workers have reason to entertain a bona fide unredressed grievance, which under the circumstances in which they happen to be placed, is found to be such as to make them feel that the course left to them to redress the grievance effectively and without undue delay is some stoppage of work.
Thus, in the Punjab National Bank case 1952 II L.L.J. 648, the cause of the first strike, which was a pen-down strike, was an order of suspension passed on a typist who was also the secretary of the union, for having absented himself from work in spite of the fact that the leave for seven days as asked for by him, had been refused by the bank. On this, the bank suspended 60 other employees and this followed by another strike which was general. As both these strikes were found to be against the provisions of the law, they were held to be illegal and one of the questions raised before the Appellate Tribunal was as to whether the employer had the right to dismiss his workmen for their absence from duty by reason of their mere participation in an illegal strike. In answering that question, this tribunal has observed at pp. 658-659 of the report as follows :- 'An illegal strike absolves the liability of the employer to pay wages during the period of a absence of the striking workmen [Mahalaxmi Cotton Mills v. Its workmen : 1952 II L.L.J. 635] but the question before us is whether his absence entitles the employers to put an end to his service. It does not when the strike is not illegal whether justifiable or not [Smith Stanistreet & Co. v. its workmen : Appeal (Cal.) No. 37 of 1951. decided on 22 August 1951 : 1953 I L.L.J. 67], but the converse proposition does not necessarily follow when the strike is illegal. A strike may be illegal, on account of contravention of S. 22 or 23 of the Act, though it may be perfectly justified or a strike though illegal by reason of those provisions may be the result of provocation on the part of the employer or such a strike may last for a very short time. Modern concepts of social justice would be outraged if in such cases the employer could dismiss a workman for his mere absence due to his participation in such a strike. Such concepts also require that a workman should be protected from capricious or vindictive action on the part of the employer, whatever be the nature of his lapse. Moreover, having regard to conditions of the labouring class and of labour relations, as is generally prevalent in India now, it would not, in our opinion, be conducive to industrial peace if an employer is given a right and a fortiori an unfettered right, to dismiss a workman for the absence due to his mere participation in such a strike as is contended for by Mr. Sanyal on behalf of the bank. If, however, the particular workman who joined the strike is guilty of violent acts or subversive activities, such as, destruction or attempted destruction of employer's property. intimidation of or coercion on loyal employees, etc., the position would be different, but, in such cases, the workmen should be individually dealt with and the particular workman should be apprised of the precise charge against him and should be given a chance to have his say in the matter before he can be dismissed.' It is evident from the circumstances attending the two strikes In the Punjab National Bank case, that it was open to the workers without going on any such illegal strike to move the proper authorities for the redress of any grievance which they felt required redress or ventilation and that without resorting to such methods allowed by law, they went on illegal strikes. In spite of such conduct, mere participation in the pen-down strike or other illegal strike was held not to be sufficient to entitle the employer to dismiss the workers, although under the common law of master and servant, in the absence of any provision in the terms of employment to the contrary, a master is entitled to dismiss his servant summarily for wilful absence from duty without permission or for wilful refusal to carry out any lawful order of the master. If in the circumstances of that case the illegal strikes were hold to be justified in this respect, a fortiori, that strike, in the present case, ninst also be held to be justified in the same sense, as held by the lower tribunal.
12. This appears to be still the law on the subject. The management also has as a rule not proceeded against any worker for merely participating in the strikes which were illegal, but for having done some other acts of misconduct in addition. I have also gone into the question of justification or otherwise of the strike and taken the view that the management was not entitled to dismiss a worker for participation in the strikes which were illegal and were resorted to by a large number of workers against whom no action has been taken but only if he was also guilty in addition to participation, of either inciting others to strike or of some other violent act or acts subversive of discipline or of intimidation or coercion of loyal employees. All the cases regarding strike cannot therefore be disposed of as urged on any one of these broad grounds but each has to be decided on the facts of that particular case.
13. I may state a few words also about the relief to be granted. When the dismissal was unjustified, the normal relief must be reinstatement unless there are circumstances present why it should be refused. I have however awarded only six months' compensation as the maximum in these cases as there is no separate evidence of the period of unemployment of each worker and every worker even after his suspension has been paid full wages and dearness allowance till he was dismissed after the lapse of application before the Labour Appellate Tribunal. This Period has been considerable in many cases.
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