1. This Is an appeal under Clause 10 of the Letters Patent against the judgment of Gosain, J., dismissing a petition under Article 226 of the Constitution by which an award of the industrial tribunal, Delhi, made on 26 February 1960 was sought to be quashed.
2. The appellant, which is a company, carried on business inter alia of manufacturing electrical fans and had a factory in Subzi Mandi, Delhi. On 1 August 1959 when the Ministry in the State of Kerala was dismissed the workmen working in the factory of the appellant went on strike like other numerous workmen working in different industries in Delhi. Although all the other workers were permitted by the appellant to resume work, Sat Pal Sharma and other respondents were suspended from service. A charge sheet was later on served on them on 27 August 1959. The material part of the letter containing the charges is as follows:.you were guilty of misoonduot in so far as you were a party to a well-planned strike of the workers of the establishment on 1 August 1959 inasmuch as you yourself abstained from work and incited others to similarly abstain from work which was connected with your political activities and no connexion whatever with the dispute with the management or the conditions of service. The said conduct on your part amounts to a major misdemeanor within the meaning of Clause K of standing Order 13 of the standing orders inasmuch as the abstention from work was a breach of contract to carry on work regularly and resorted to during the pendency of conciliation proceedings before the conciliation officer, Delhi.
These workers were required to appear before a three-man enquiry committee to answer the charges preferred against them. It appears that before the enquiry committee before whom the proceedings lasted from 31 August 1959 to 19 September 1959, 33 witnesses were examined on behalf of the management and 27 on behalf of the workers. On 19 October 1959 a report was made by the secretary saying that according to him the aforesaid respondents had incited other workers not to work on 1 August 1959 and this in his opinion amounted to a serious misconduct, particularly when the strike had nothing to do with any legitimate or other demands of the workers as such. He suggested their dismissal from 1 August 1959. On 12 October 1959 the orders of dismissal were conveyed by the management in the following words:
In continuation of chargesheet dated 1 August 1959 you are informed that after considering your explanation dated 4 August 1959 and subsequent enquiry held by Sri R.P. Mehrotra, Sri M.L. Chawla and Sri D.R. Dhir, who were appointed by the management to enquire into the allegations made against you in the above chargesheet, the management have come to the conclusion that you were guilty of major misdemeanor inasmuch as on 1 August 1959, you along with others stopped work in the factory and incited other workmen to stay out from work and stopped them from entering the factory in a predetermined manner which was wholly un-connected with the conditions of service of the workmen or with any dispute between the workmen and the management.
You are, therefore, hereby dismissed from service with effect from 1 August 1959. You are further advised to hand over the charge to your supervisor and report to accounts section to receive your dues, if any.
An industrial dispute was, however, raised between the appellant and the workmen and this was referred to the industrial tribunal by the Government under Section 10 of the Industrial Disputes Act, 1947. The tribunal gave an award on 26 February 1960 finding inter alia-
(1) The strike on 1 August 1959 was not an Illegal strike and was not covered by the prohibition contained in standing Order 13(ii)(k) of the standing orders or of Section 34 of the Industrial Disputes Act.
(2) The strike was in connexion with political activities and it was unjustified.
(3) Punishment of dismissal imposed on the six workmen concerned for mere participation in a strike which was unjustified but which had not been proved to be illegal could not be upheld.
(4) These workmen were not guilty of fomenting a strike, nor were they guilty of violent behaviour and acts which were subversive of discipline.
(5) All the six workmen concerned were connected with the executive of the union or were active members of the union and they were for that reason singled out by the management for punishment on account of their trade union activities.
According to the learned single Judge, the counsel for the management had limited his arguments to three points only, which were:
(1) that there was no evidence before the tribunal on the basis of which it could be held that the action of the petitioner-company was actuated by motives of victimization;
(2) that the strike in question was not of the nature of an Industrial strike but was in effect a political strike which should, in the circumstances of the case, have been held illegal, and
(3) that there are patent errors on the face of the award and the same is, therefore, liable to be quashed.
The learned Judge was unable to accede to any of the contentions. He was influenced by the finding of the enquiry committee itself that the six workers in question were guilty of having incited other workers not to work but that finding was limited only to incitement to strike and not to commit any acts of violence including those of forcibly preventing other workmen from entering the factory. The industrial tribunal, according to the learned Judge, had gone into the evidence carefully and had come to the conclusion that the order of dismissal was actuated by motives of victimization. He considered that there was no error apparent in the award to justify interference under Article 226.
3. The learned Counsel for the appellant has firstly raised the contention which is mentioned as point 2 in the judgment of the learned single Judge. Our attention has been invited to the definition of 'strike' given in Section 2(q) of the Industrial Disputes Act as also to the provisions in Chap. V dealing with strikes and lookouts. It is sought to be Shown that a strike of a political nature must be regarded to be per se illegal as it could never be contemplated that the strike with which the aforesaid provisions of the Industrial Disputes Act deal could be wholly unrelated to an Industrial dispute. Now, Section 23 of the Act provides for a general prohibition of strikes as defined in the Act but that prohibition is confined to Clauses (a), (b) and (c) of that section but admittedly the strike for which the respondents in question were dismissed was not held during that pendency of the conciliation proceedings of other proceedings before a labour court or tribunal or daring the period of any such settlement or of the award. The strike is to be illegal by virtue of the provisions contained in Section 24 if it is confined to or declared in contravention of Sections 22 or 23 or if it is continued in contravention of an order made under Sub-section (3) of Section 10. Neither Section 22 nor Section 23 being applicable and there being no order under Sub-section (3) of Section 10 capable of being contravened, it could not be held that the strike for which the respondents were dismissed was an illegal strike. The learned Counsel for the appellant agrees that it could not be held to be illegal within the meaning of the provisions contained in the Industrial Disputes Act but it is contended that it should be regarded to be illegal under what he calls general principles or rules of law inasmuch as a political strike is wholly outside the ambit and scope of the Industrial Disputes Act. All this attempt has been made by the learned Counsel for the purpose of bringing the case of the respondents concerned within the mischief of standing Order 13(ii)(k) of the standing orders regulating the conditions of service in the appellant-company. According to the provisions contained therein, striking work or inciting others to strike work in contravention of the provisions of any law or rules having the force of law shall be considered as a major misdemeanour. The submission of the counsel for the appellant is that when the respondents concerned struck work for political reasons or incited others to strike work, they did so in contravention of the rules having the force of law.
4. Now, a strike prompted by political considerations may be wholly outside the contemplation of the Industrial Disputes Act but it is not possible to see how it can be Bald to be a strike in contravention of the provisions of any law or rules having the force of tow. Standing Order 13(ii)(k) appears to have reference to statutory provisions, e.g., bf the Industrial Disputes Act or rules which would have the force of law. No such rules have been shown having the force of law that a political strike would become illegal thereby. The tribunal found that such a strike was wholly unjustified and that seems to be the correct view. Indeed, the learned Single Judge has observed quite clearly that unless a case would be expressly brought within the purview of Sections 22 to 25 of the Industrial Disputes Act it could not be held that the strike was illegal and at the most the strike in question could be held as unjustified. In that view of the matter the tribunal was right in holding that the matter was not covered by standing Order 13(ii)(k).
5. The learned Counsel for the appellant then pressed an argument which does not appear to have been raised before the learned single Judge. Normally a new point cannot be allowed to be raised in an appeal under Clause 10 of the Letters Patent but it is submitted that it is a pure question of law, and therefore, it can be urged. Our attention has been invited to standing Order 13(ii)(h) of the standing orders which makes riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline a major misdemeanour. It is pointed out that on the finding of the inquiry committee as also of the tribunal itself the act of inciting other workmen to go on strike on the material date was an act which was subversive of discipline and, therefore, the respondents were guilty of a major misdemeanour for which the punishment of dismissal could be justifiably inflicted. In this connexion it is necessary to advert to the chargesheet which the respondents concerned were called upon to answer. It was specified therein that the conduct of these respondents amounted to a major misdemeanour within the meaning of Clause (ii)(k) of standing Order 13 of the standing orders. This charge was further elaborated by adding that abstention from work was a breach of contract, to carry on work regularly and had been resorted to during the pendency of the conciliation proceedings before the conciliation officer. Obviously this position was taken because of the language of Sections 23(a) and 24 to make out a case that there had been incitement to others to strike work in contravention of the aforesaid provisions. All this had been done to confine the charge to the express language of standing Order 13(ii)(k). Thus no charge was preferred whatsoever tinder Clause (ii)(h) of standing Order 13. In Punjab National Bank, Ltd. v. All India Punjab National Bank Employees' Federation and Anr. 1959-II L.LJ. 666 it has been observed at p. 679:
There is another principle which has to be borne in mind when the tribunal deals with an Industrial dispute arising from the dismissal of an employee. We have already pointed out that before an employer can dismiss his employee he has to hold a proper enquiry into the alleged misconduct of the employee and that such an enquiry must always begin with the supply of specific chargesheet to the employee. In Lakshmi Devi Sugar Mills, Ltd. v. Ram Sarup 1957-I L.L.J. 17 it has been held by this court that in dealing with the merits of the dismissal of an employee the employer would be confined to the chargesheet given by him to his employee when an enquiry was held into his conduct. It would not be open to the employer to add any further charges against the employee and the case would have to be considered on the original chargesheet as it was framed.
6. As the chargesheet in the present case was quite specific and was confined to an alleged major misdemeanour within the meaning Of standing Order 13(ii)(k), it is not possible to allow the appellant to invoke Clause (ii)(h) of Standing Order 13 and the contention raised must be repelled.
7. The only other question which has been reiterated before us is that the tribunal's flew that the workmen concerned were singled out by the management for punishment on account of their trade union activities or in other words, that their dismissal was the result of victimization, was perverse and was not based on evidence. The learned single Judge examined this argument and came to the conclusion that the finding of the tribunal on the point was based on good circumstantial evidence and there was no force in the contention that there was no evidence before the tribunal on the basis of which it could record that finding. The learned Counsel for the appellant has urged that the mere fact that all the other workers who had taken part in the strike were reinstated and only the respondents concerned were dismissed could not justify a finding of their having been singled out and subjected to victimization because it is well settled that the management could make a distention between those who also took part in obstructing the loyal workmen from carrying on their work or took part in violent demonstrations or acted in defiance of law, etc. It is true that such a distinction is well recognized but that does not mean that a tribunal cannot come to the conclusion on all the facts and circumstances established in a case that certain workmen who were leaders in the union activities bad been subjected to victimization. At any rate, the question of victimization loses all importance once it has been held that the respondent concerned bad not been guilty of a major misdemeanour within the meaning of standing Order 13(ii)(k), The only finding against them was that they had Incited other workers to go on strike which was of a political nature. No other act of obstruction or violence had been found against them. In these circumstances it was certainly open to the tribunal to hold that the punishment which had been awarded by the management of dismissal was harsh or severe and that a lesser punishment should have been imposed. It cannot thus be said that there was any error apparent in the order of the tribunal which would have justified interference under Article 226 of the Constitution. The appeal is consequently dismissed with costs.