1. This is an application under Article 226 of the Constitution of India challenging ex facie the legality of the order of the Labour Appellate Tribunal, Calcutta, dated 11 July 1955. The facts material for this application are:
The petitioner company, having its head office at Rayagada in the district of Koraput, started work in or about the year 1936. In January 1951 a union of the workers of the aforesaid company was started under the name ' Shramik Congress.' A number of demands thereafter were formulated by this Congress regarding the pay and prospects of the workers and the company accepted the same on the advice of the Assistant Commissioner of Labour. In September 1951 the petitioner company dismissed and retrenched some workmen as a result of which the union served a notice on 15 October 1951 demanding their reinstatement, and threatened a strike in the event of non-compliance.
The company eventually did not accept this demand and there was a strike on 19 October 1951. The Assistant Labour Commissioner intervened in the matter and effected a settlement on 24 October 1951, as a result of which the strike was called off the following morning. The workers in general, however, were not satisfied with this settlement. The petitioner company being conscious of it was apprehending a strike in the next crushing season. Ultimately on 22 January 1952 the said apprehended strike came up, it is alleged, as a result of some altercation and assault between the secretary of the union and the chief engineer of the petitioner-company. The general manager, thereafter sent words about it to the Special Assistant Agent (Subdivisional Officer) and the latter immediately came upon the scene and advised the workmen to get back to work. They, however, did not listen. The workers, on the contrary, passed a resolution demanding suspension or removal of the chief engineer as a condition to their resumption of work. The general manager neither removed nor suspended the chief engineer, but on the other hand, put up a notice the following morning calling upon the strikers to resume work on pain of suitable action against them under their own standing orders. This notice, however, produced no effect and the general manager dismissed eight of the strikers Including the secretary and five members of the executive committee of the union. The situation naturally was worsened and some of the workmen even resorted to hunger-strike in front of the Special Assistant Agent's Bungalow. Meanwhile, the Assistant Labour Commissioner arrived at Rayagada and attempted a conciliation wherein he failed. Finally, the District Magistrate of Koraput intervened and on his promising that a tribunal would soon be constituted to enquire into the alleged assault by the chief engineer, the strike was called off from the morning of 10 February 1952.
2. The State Government, accordingly, by their notification dated 18 April 1952, constituted an industrial tribunal under Section 7 of the Industrial Disputes Act (Central Act XIV of 1947) and referred certain disputes under Sections 10 and 12(5). The disputes referred to were:
(1) Whether Sri P. Rathayya, chief engineer of the Jeypore Sugar Company, Ltd., manhandled Sri P. Padhi, turner and secretary of the union. If so, what amends he should make for same.
(2) Whether the dismissal order against eight workers given by the company on 23 January 1952 is justified. If not, whether the eight dismissed persons should be reinstated from that date.
(3) Whether the strikers should be paid wages for the period of strike from 22 January 1952 to 9 February 1952.
(4) Whether the retrenchment of the following eight persons on 5 November 1951 was a matter of victimization. If so, whether they should be reinstated from that date:
(2) Revella, Narayana
(3) Senapati, Lakshmu
(4) Revella, Satyam
(5) Senapati, Apayya
(6) Senapati, Goviramma
(7) Seera, Apamma
(8) Paturu, Mugathamma.
(5) Whether the labour at present in employment in the Jeypore Sugar Company, Ltd., is in excess of their requirement and if so how should the required retrenchment be effected.
The tribunal, after due adjudication, submitted its award holding issues 1 and 2 against the petitioner-company. Thus, it found that the alleged assault of the union secretary by the chief engineer was true and directed the chief engineer to make certain amends; and held that the dismissal of the eight workers was unjustified and they should be reinstated. The other issues were decided against the workers.
3. Under the law, as it then stood, an appeal was permitted against this decision of the tribunal to the Labour Appellate Tribunal of India. The petitioner-company, in due course, preferred an appeal before the above tribunal, against the decision on issues (1) and (2). The workmen also filed an appeal against the decision on the other issues which was dismissed by the Appellate Tribunal with which we are not concerned in the present application. Two points were raised before the Labour Appellate Tribunal by the petitioner-company:
(1) The reference regarding the alleged assault of the union secretary by the chief engineer is not an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act and accordingly, the findings of the tribunal cannot be upheld.
(2) The eight workers were involved in the illegal strike and were therefore summarily dismissed from service under the company's standing orders (sic) should not have been sat aside, since the strike, if illegal could not be a foundation of the legal claim for reinstatement of the workmen.
The Labour Appellate Tribunal by their order dated 11 July 1955, accepted the first contention and held that the assault of the union secretary by the chief engineer is not an ' industrial dispute ' within the meaning of Section 2(k) of the Act, and accordingly, the decision of the industrial tribunal was held illegal and hence they set aside the order in respect of issue (1). As regards the second point, the learned Labour Appellate Tribunal came to the conclusion that the management had no powers to dismiss these workmen for participation in the strike under the standing orders. They further held that in any view of the matter the dismissal of these workmen on the charges mentioned in the dismissal order appears to be arbitrary, illegal and vindictive. The Appellate Tribunal thus upheld the order as passed by the industrial tribunal. It is against this order that the present petition was filed.
4. Mr. Mohapatra on behalf of the petitioner-company raised two contentions before us:
(i) The order passed by the petitioner-company dismissing these workmen for participating in the illegal strike was valid under the standing orders of the company.
(ii) Assuming that the strike was illegal, neither the industrial tribunal nor the Labour Appellate Tribunal had jurisdiction to order the reinstatement of the dismissed workmen, and as such, any award passed in that behalf was ultra vires and the company is entitled to an order of certiorari to bring up the matter before this Court and quash the said award.
5. Regarding the validity of the dismissal order under the standing orders of the company, the Appellate Tribunal came to the finding that the management did not follow the procedure as laid therein. The order of dismissal shows that the action was taken for grave misconduct falling under standing order MI. (a), (b), (j) and (w), read with Section 23 of the Industrial Disputes Act. The petitioner-company, however, before the Appellate Tribunal did not rely upon MI. (a), since no case of wilful insubordination or disobedience to any lawful and reasonable order of a superior was occasioned. MI (b) provides that if the workmen strike work or incite others to strike in contravention of the provisions of the Trade Disputes Act, 1929, or Rule 81(a) of the Defence of India Rules or any other enactment of the rule in force for the time being (sic) is liable to dismissal.
MI (j) relates to riotous or disorderly behaviour in the mill premises or any act subversive and M (w) relates to threatening or intimidating any operative or other employee of the mill within the mill premises.
The industrial tribunal found against the management on all these charges except the charge of misconduct falling under MI (b) The whole case of the petitioner was that these workmen participated in an illegal strike, which commenced in contravention of the terms of settlement made before the conciliation officer while the said settlement was in operation. Accordingly, the management was perfectly justified in proceeding under the standing orders for summarily dismissing these workmen. As a matter of fact, the standing orders do not authorize the management to dismiss an employee for his misconduct unless he is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The relevant order is M (4) which reads as follows :
No order of dismissal shall be made unless the operative concerned is informed of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him.
Doubtless, this procedure was not followed, When Mr. Mohapatra was confronted with this order, he frankly conceded that M(4) cannot be got over by reference to the other provisions of the standing order. Hence, according to his submissions, the orders of dismissal cannot be held to be valid. Mr. Mohapatra, however, argued somewhat vehemently that even assuming the strike to be illegal and the order of dismissal invalid, neither the industrial tribunal nor the Labour Appellate Tribunal had jurisdiction to order reinstatement of the dismissed workmen and as such any award passed in that behalf was ultra vires and ought to be set aside. He contended that the question of reinstatement was not a dispute under Section 2(k) of the Industrial Disputes Act at the time when the reference was made. Therefore, it could not come within the scope of the reference. Section 2(k) reads as follows :
'Industrial dispute' means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person.
The question of reinstatement would, according to this section, certainly come within the meaning of non-employment. Hence there is no doubt that it was included within the scope of the dispute referred to the tribunal. Mr. Mohapatra then contended that neither the industrial tribunal nor the Labour Appellate Tribunal can compel the petitioner-company to reinstate the dismissed workmen. For that purpose, he strongly relied upon a decision in Rex v. National Arbitration Tribunal (1918) 1 K.B. 424. The facts of that case were that on 28 March 1947 the company gave the workmen on the manufacturing side of their business, including those in the union, a notice terminating their employment as from 4 April. On 14 April the matter was reported to the Minister of Labour and National Services who referred it to the National Arbitration Tribunal. The claim of the workmen included inter alia the reinstatement from the date of dismissal of the workers dismissed. The award of the tribunal stated:
They found in favour of the claim set out in item (1) and awarded accordingly.
On these facts, it was held, on an application for a writ of certiorari by Lord Goddard, C.J., and Humphreys, J. (Croom-Johnson, J. dissenting), that a direction to reinstate the workmen would be ultra vires the tribunal and as the finding on item 1 of the claim was equivalent to such a direction, the award in so far as it related to that finding must be quashed. This decision came up for consideration by the Federal Court of India in the well-known case between the Western India Automobile Association v. Industrial Tribunal, Bombay, and Ors. 1949 L.L.J. 245. Their lordships while explaining and distinguishing this decision do not seem to follow it mainly on the ground that the provisions of the English Act are not the same as in the Indian Act and that the learned Lord Chief Justice treated the matter of reinstatement on the footing of a relief of specific performance in law or equity.
6. Thus, their lordships of the Federal Court, while dealing with the question of industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act with reference to reinstatement of dismissed employees, held:
The words 'employment and non-employment ' in the definition of industrial dispute in Section 2(k) are of widest amplitude and have been put in juxtaposition to make the definition thoroughly comprehensive. The words ' in connexion with' widen the scope of the dispute and do not restrict it by any means-any dispute connected with employment or non-employment would ordinarily cover all matters that require settlement between workmen and employers, whether those matters concern the causes of their being out of service or any other question and it would also include within its scope the reliefs necessary for bringing about harmonious relations between the employers and the workers.
The failure to employ or the refusal to employ are actions on the part of the employer which would be covered by the term 'employment or non-employment.' Reinstatement is connected with non-employment and is therefore within the words of the definition. If there arises non-employment by reason of the termination of employment by the employer, it will be within the jurisdiction of the tribunal to determine whether the termination was justifiable. For this proposition, their lordships relied on the following decisions : (1943) A.C. 166; (1920) 2 Ch. D. 70 and (1921) 1 Ch. D. L. Thereafter, while dealing with the question of reinstatement, their lordships held that:
Although the employer may be unwilling to do so, there will be jurisdiction in the tribunal to direct the employment or non-employment of the person by the employer. This is the same thing as making a contract of employment when the employer is unwilling to enter into such a contract with a particular person. Conversely, if a workman is unwilling to work under a particular employer a trade union may insist on his doing so and the dispute will be about the employment of the workman by the employer and thus become an industrial dispute subject to the award of the tribunal. Therefore, if the bringing about 5f such relationship is within the jurisdiction of the industrial tribunal because such disputes are covered by the definition of the expression 'industrial dispute,' there is no logical ground to exclude an award of reinstatement from its jurisdiction. It can equally direct in the case of dismissal that an employee shall have the relation of employment with the other party, although one of them is unwilling to have such relation. The Court is not concerned with the effects of an order unless, of course, it is, wholly incapable of enforcement. An order for reinstatement contained in an award can certainly be enforced by the coercive machinery provided by the statute. The relief of reinstatement is on the same footing as a relief of restitution. Restitution can be granted in integrum in certain cases. All that is required is that the ex-employee should be restored to his previous posting so far as capacity, status and emoluments are concerned, and there is nothing extraordinary in such restoration being ordered when considered necessary in the interest of peaceful settlement of industrial disputes. Adjudication does not mean adjudication according to strict law of master and servant. The award of the tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law, taut the tribunal is not fettered in any way by these limitations.
This decision applies on all fours to the facts of the present case. I have carefully examined the order of the industrial tribunal under the second issue, wherein it was held that
I, therefore, hold that the dismissal of these eight persons is not justified, and as such they are to be reinstated with effect from 23 January 1952, with pay and dearness allowance, etc., as admissible to them for the period beginning from the date of dismissal till the day they are allowed to rejoin, subject, however, to the decision on issue (3) regarding payment of wages for the period of strike.
Under issue (3) the tribunal held that:
No wages shall, therefore, be paid to them for the period of the continuance of the strike from 23 January 1952 although there shall be no cutting down in their wages for stoppage of work in the closing hour of 22 January 1952.
7. Reading the award as a whole, I have no doubt that all that the tribunal meant was that the dismissed workmen are entitled to be reinstated. Further when the reinstatement was necessary in the interest of peaceful settlement of an industrial dispute the tribunal was justified in ordering such a reinstatement. In this connexion, I may refer to a decision of the Supreme Court, the State of Madras v. C.P. Sarathy and South Indian Cinema Employees' Association 1953-I L.L.J. 174, wherein it has been held that Courts should not be astute to discover formal defects and technical flaws to overthrow settlements. Accordingly both the points raised by Mr. Mohapatra fail, and we see no reason to hold that there has been any grave miscarriage of justice or flagrant violation of law by the Labour Appellate Tribunal.
8. The application is therefore dismissed with costs. Hearing fee is assessed at Rs. 100.
9. I agree.