1. This is an appeal by special leave against the award of the IndustrialTribunal, Bihar. It relates to the discharge of 119 workmen of the respondentwho were employed as cane carrier mazdoors or as cane carrier supervisors orjamadars. All these were seasonal workmen. It is necessary to set out in somedetail the circumstances leading to the discharge. The respondent is a sugarfactory and the crushing season starts usually in the first half of Novembereach year. We are concerned in the present appeal with November and December1960. It appears that from the season 1956-57, the respondent introduced anincentive bonus scheme in the factory. The scheme continued thereafter fromseason to season with certain changes. It also appears that in the beginning ofeach season, the respondent used to put forward the incentive bonus scheme andconsult the workmen. The same thing was done when the season 1960-61 was aboutto start in November 1960. But the scheme for this season proposed by therespondent contained certain changes which were apparently not acceptable tothe workmen. One of the features in the scheme was that the crushing of sugarcane per day should be 32,000 maunds. The general secretary of the union of theworkmen suggested certain alterations for the consideration of the respondenton November 7, 1960, and one of the main alterations suggested was that thenorm for per day's crushing should be 125,000 maunds of cane and thereafterincentive bonus should be given at a certain rate. No agreement seems to havereached on the incentive bonus scheme, and the complaint of the respondent wasthat the secretary incited the workmen to go slow in consequence of the changein the scheme. Consequently mild go-slow in the cane carrier department whichis the basic department in a sugar mill began from the very start of the seasonon November 10, 1960. The respondent's case further was that on November 27,1960, the workmen in the cane carrier department started in combination withone another to go-slow deliberately and wilfully and in a planned manner andthus reduced the average daily crushing to 26,000 maunds cane which was muchless than the average crushing in previous seasons. This conduct of the workmenwas said to be highly prejudicial to the respondent and besides beingtechnically unsafe, had brought into existence an acute shortage in the fuelposition which might have resulted in the complete stoppage of the mill and amajor breakdown of the machinery. When the position became serious therespondent issued a general notice on December 15, 1960 inviting the attentionof the workmen concerned to this state of affairs which had been continuing ofany rate since November 27, 1960. This notice was in the following terms :-
'At the instigation of Shri J. Krishna, the GeneralSecretary of your Union, you, since the very beginning of this season, havebeen failing in your duty to ensure adequate and regular loading of the canecarrier, and with effect from the 27th November, 1960, you, in combination witheach other, have deliberately and wilfully resorted to a clear 'go-slow'tactics, a fact openly admitted by the above-named General Secretary of yourUnion in presence of the labour Superintendent and Labour Officer Muzzffarpur,in the course of discussions held on the subject in the office of the AssistantLabour Commissioner on the 6th December, 1960. You have deliberately reducedthe average daily crushing to more or less 26,000 maunds out of which more than2,000 maunds is due to the newly introduced device of direct feeding of thecane carrier by cane carts weighed during nights and not attributable to anyeffort on your part. Thus the actual crushing given by you is practicallysomething between 23,000 and 24,000 maunds only which is highly uneconomicaland technically unsafe for this factory with the installed crushing capacity ofmore than 1,200 tons a day.
2. 'About 14,000 bales of extra bagasse kept in stock as reserve havealready been consumed in the past 12 days or so and now the factory is facedwith a situation when at any moment its boilers may go out of steam for want ofbagasse-fuel leading to an abrupt stoppage of the mills and finally resultinginto a major breakdown of machineries.
'It is therefore hereby notified that unless youvoluntarily record you willingness individually to discharge you dutiesfaithfully and diligently by feeding the cane carrier so as to give a minimumaverage daily crush of 32,000 maunds, excluding stoppages other than those dueto overloading or underloading of the cane carrier, you will be considered tobe no longer employed by the company. You must record your willingness in theoffice of the Factory Manager on or before 4 P.M. of Saturday the 17thDecember, 1960, failing which you shall stand discharged from the service ofthe company without any further notice with effect from 18-12-1960 and yourplace will be filled by recruiting other labour to man the cane carrierstation.'
3.This notice was put on the notice-board along with translations in Hindiand Urdu and it was also sent individually to the workmen in cane carrierdepartment. A copy was also sent to the Secretary of the union with the workmenconcerned to submit their willingness as desired by the respondent in thenotice in question either individually or even collectively through the union.The secretary of the union replied to this notice on the same day and said thatit was 'full of maliciously false and mischievous statements'. Thesecretary also denied that the workmen had adopted go-slow tactics or that hehad advised the workmen to adopt such tactics. Finally the secretary said thatit was simply fantastic to ask a worker to give an undertaking to crush atleast 32,000 maunds per day and if the service of any workman was terminated onhis not giving the undertaking, the responsibility would be that of therespondent itself. The respondent's case was that three workmen gaveundertaking as required in the notice while the rest did not. Thereafter thesituation in the factory deteriorated and the workmen grew more and more unrulyand even started entering the factory without taking their attendance token. Inconsequence of this attitude of the workmen, the respondent issued a notice at5 p.m. on December 17, 1960 which was in the following terms :
'The following workers ofthe cane carrier station who failed to record their willingness in factorymanager's office by 4 p.m. this day the 17th December, 1960, to work faithfullyand diligently in accordance with the management's notice dated 15-12-1960,stand discharged from the company's service and their names have been struckoff the rolls with effect from 18th December 1960. From now on, the workersconcerned have forfeited their right to go to and occupy their former place ofwork and any action contrary to this on their part will make them liable toprosecution for criminal trespass.
'Their final account will beready for payment by 4 p.m. on the 19th December 1960, when, or whereafter,they may present themselves at the company's Office for receiving payment oftheir wages and other dues, if any, during working hours'. and thenmentions the names of 119 workmen of the cane carriers department.
4. Thus the services of the workmen concerned stood discharged from December18, 1960 under this notice. This was followed by a general strike in pursuanceof the notice served on the respondent by the union on December 17, 1960. Thestrike continued upto December 22, 1960 when as a result of an agreement it wasdecided that the case of the discharged workmen and the question of wages forthe strike period be referred to adjudication. Consequently a joint applicationby both parties was made to Government on December 21, 1960. The Governmentthen made a reference of the following two questions to the tribunal on January25, 1961 :-
1. Whether the discharge ofworkmen mentioned in the Appendix was justified. If not, whether they should bere-instated and/or they are entitled to any other relief
2. Whether the workmen be paidwages for the period 16-00 hrs. on December 18, 1960 to 8-00 hours on December22, 1960
5. It may be mentioned that the respondent had held no enquiry as requiredby the standing Orders before dispensing with the services of the workmenconcerned. Therefore, when the matter went before the tribunal, the questionthat was tried was whether there was go-slow between November 27, 1960 andDecember 15, 1960. The respondent led evidence, which was mainly documentaryand based on the past performance of the factory to show that there was in factgo-slow by the workmen concerned during this period. The appellants on theother hand also relying on the record of the respondent tried to prove that thecane carrier department had been giving normal work in accordance with what hadhappened in the past in connection with cane crushing. That is how the tribunalconsidered the question on the basis of the relevant statistics supplied byboth parties and also oral evidence whether there was go-slow during thisperiod or not. After considering all the evidence it came to the conclusionthat there was go-slow during this period. Consequently it held that thedischarge of the workmen was fully justified. It therefore answered the firstquestion referred to it in favour of the respondent. The second question withrespect to wages for the strike period was not pressed on behalf of theappellants and was therefore decided against them. Thereafter the appellantscame to this Court and obtained special leave; and that is how the matter hascome up before us.
6. We are concerned in the present appeal only with the first question whichwas referred to the tribunal. Learned counsel for the appellants has raisedthree main contentions before us in support of the appeal. In the first place itis contended that the tribunal misdirected itself as to the scope of thereference and that all that the tribunal was concerned with was to decidewhether the discharge of the workmen for not giving an undertaking wasjustified or not, and that it was no part of the duty of the tribunal to decidewhether there was go-slow between the relevant dates which would justify theorder of discharge. Secondly, it is urged that the respondent had given nocharge-sheets to the workmen concerned and had held no enquiry as required bythe Standing Orders. Therefore, it was not open to the respondent to justifythe discharge before the tribunal, and the tribunal had no jurisdiction to gointo the merits of the question relating to go-slow. Lastly it is urged thatthe finding of the tribunal that go-slow had been proved was perverse and thetribunal had ignored relevant evidence in coming to that conclusion. We shalldeal with these contentions seriatim.
7. We have already set out the relevant term of reference and it will beseen that it is wide and general in terms and asks the tribunal to decidewhether the discharge of the workmen concerned was justified or not. It doesnot mention the grounds on which the discharge was based and it is for thetribunal to investigate the grounds and decide whether those grounds justifydischarge or not. So if the tribunal finds that the discharge was due to theuse of go-slow tactics by the workmen concerned it will be entitled toinvestigate the question whether the use of go-slow tactics by the workmen hadbeen proved or not.
8. But the argument on behalf of the appellants is that the notice ofDecember 17 gives the reason for the discharge and the tribunal is confinedonly to that notice and has to consider whether the reason given in that noticefor discharge is justified. We have already set out that notice and itcertainly says that the workmen mentioned at the foot of the notice had failedto record their willingness to work faithfully and diligently in accordance withthe respondent's notice of December 15, 1960, and therefore they stooddischarged from the respondent's services and their names had been struck offthe rolls from December 18, 1960. So it is argued that the reason for thedischarge of the workmen concerned was not go-slow but their failure to recordtheir willingness to work faithfully and diligently. The tribunal had thereforeto see whether this reason for the discharge of the workmen was justifiable,and that it had no jurisdiction to go beyond this and to investigate thequestion of go-slow.
9. We are of opinion that there is no force in this argument. Apart from thequestion that both parties before the tribunal went into the question ofgo-slow and voluminous evidence was led from both sides either to prove thatthere was go-slow or to disprove the same, it appears to us that it would betaking much too technical a view to hold that the discharge was due merely tothe failure of the workmen to give the undertaking and that the go-slow hadnothing to do with the discharge. We are of opinion that the two notices ofDecember 15 and December 17 have to be read together and it may be pointed outthat the notice of December 17th does refer to the earlier notice of December15th. If we read the two notices together, there can be in our opinion be no doubtthat though the discharge is worded as if it was due to the failure to recordtheir willingness to work faithfully and diligently, it was really due to theworkmen concerned using go-slow tactics. Notice of December 15, is in twoparts. The first part sets out the facts and states what the workmen had beendoing from the very beginning of the season and particularly from November 27,1960. It states that on the instigation of the secretary of the union, theworkmen had been failing in their duty to ensure adequate and regular loadingof the cane carrier from the very beginning of the season. It further chargesthat with effect from November 27 they had in combination with one anotherdeliberately and wilfully, resorted to a clear go-slow, a fact said to havebeen openly admitted by the secretary in the presence of the LabourSuperintendent and Labour Officer, Muzaffarpur, in course of discussions heldin the office of the Assistant Labour Commissioner on December 6, 1960. Thenotice then says that the average daily crushing is 26,000 maunds out of whichmore than 2,000 was due to the newly introduced device of direct feeding of thecane carrier by cane carts weighed during nights and not attributable to anyeffort on the workmen's part; thus the actual crushing had been practicallyreduced to something between 23,000 to 24,000 maunds per day, which was highlyuneconomical and technically unsafe for the factory which had an installedcrushing capacity of more than 1,200 tons a day i.e. over 32,000 maunds a day.The notice also says that about 14,000 bales of extra bagasse kept in stock asreserve had already been consumed in the last twelve days and the factory wasfaced with a situation when at any moment its boilers might go out of steam forwant of bagasse-fuel leading to an abrupt stoppage of the mill and finallyresulting in a major break-down of machinery.
10. These facts which were given in the first part of the notice datedDecember 15, 1960 really show the charge which the respondent was making againstthe workmen concerned. Having made this charge of go-slow in the mannerindicated in the first part of the notice (and it may be mentioned that thisnotice was not only put on the notice-board but was given to each workmenindividually), the respondent then indicated in the second part what action itintended to take. In this part the respondent told the workmen concerned thatunless they voluntarily recorded their willingness individually to dischargetheir duties faithfully and diligently by feeding the cane carrier so as togive a minimum average daily crush of 32,000 maunds, excluding stoppages otherthan those due to over-loading or under-loading of the cane carrier, they wouldbe considered to be no longer employed by the respondent. They were given timeup to 4 p.m. on December 17, 1960 to record their willingness failing whichthey would stand discharged from the respondent's service without any furthernotice with effect from December 18, 1960. The second part of the notice thusindicated to the workmen concerned how much they had to crush every day toavoid the charge of go-slow. It further indicated that the respondent wasprepared to let bygones be bygones if the workmen concerned were prepared togive an undertaking in the manner desired. Assuming that this course adopted bythe respondent was unjust and even improper, reading of the two parts of thenotice of December 15, 1960 shows that in the opinion of the respondent was thenormal cane crushing per day and what was the charge of the respondent againstthe workmen concerned in the matter of go-slow and what the respondent wasprepared to accept if the workmen were agreeable to the claim of therespondent. It is clear therefore from the notice which was given on December15, 1960 that the respondent thought that 32,000 maunds should be the normalcrush every day excluding stoppages other than those due to over-loading orunder-loading of the cane carrier. It also charged the workmen with producingmuch less than this for the period from November 27, 1960 to December 15, 1960,though it was prepared to 1st bygones be bygones, provided the workmen infuture undertook to give normal production. It is in the background of thischarge contained in the notice of December 15, 1960 that we have to read thenotice of December 17, 1960. That notice says that the workmen had failed torecord their willingness to work faithfully and diligently in accordance withthe notice of December 15, 1960 and therefore they stood discharged, meaningthereby that the respondent was charging the workmen with go-slow as indicatedin the notice of December 15, 1960 and that as they were not prepared to givenormal production even in future they were being discharged. Therefore, thoughin form the notice of December 17, 1960 reads as if the workmen were beingdischarged for not giving the undertaking as desired, the real basis of thenotice of discharge of December 17, 1960 is the use of go-slow which hadalready been indicated in the notice of December 15 given to each workmenindividually also.
11. The reference was made on the joint application of both parties. If allthat the workmen desired in their joint application for reference was that itshould only be considered whether the discharge of the workmen for refusing togive an undertaking was justified, there was nothing to prevent the workmen toinsist that in the joint application this matter should be specificallymentioned. In the joint application the first matter which was specified was inthese terms :
'Whether the discharge of workmen mentioned in theappendix was justified If not, whether they should be reinstated and/or theyare entitled to any other relief ?'
12. Now if all that was desired was that the tribunal should go into thequestion whether the discharge of the workmen on the ground that they hadfailed to give the undertaking should be investigated, it would have been easyto put this term only in the reference in the joint application thus;'Whether the discharge of the workmen mentioned in the appendix on theground of their failure to give an undertaking was justified ?' The veryfact that the matter specified as in dispute was put in the wide words alreadyquoted above shows that the parties did not wish to confine their dispute onlyto the question whether the discharge on the ground of failure to give anundertaking was justified. Further we have already indicated that both partiesunderstood the dispute to be whether go-slow was justified or not and that iswhy voluminous evidence was led before the tribunal. The wide terms in whichthe reference was made along with the notice of December 17th read with thenotice of December 15th leave no doubt in our mind that the reference includedinvestigation of any cause which might have led to the discharge of theworkmen. There is no doubt in this case that even though notice of dischargewas pharsed as if the discharge was being made on account of the failure togive an undertaking the real reason for the discharge was that the workmen hadbeen guilty of go-slow between November 27 and December 15 and were notprepared in spite of the respondent's giving them a chance to improve to showbetter results. Therefore taking into account the wide terms of reference, themanner in which it was understood before the tribunal, and the fact that itmust be read along with the two notices of December 15 and 17, 1960,particularly because it was made soon thereafter at the joint application ofthe parties, we have no doubt that the tribunal was entitled to go into thereal dispute between the parties, namely whether the discharge was justified onthe ground that there was misconduct in the form of go-slow by the workmenconcerned between November 27, 1960 workmen therefore on this head must berejected.
13. Then we come to the question whether it was open to the tribunal whenthere was no enquiry whatsoever by the respondent to hold an enquiry itselfinto the question of go-slow. It was urged on behalf of the appellants that notonly there was no enquiry in the present case but there was no charge either.We do not agree that there was no charge by the respondent against the workmenconcerned. The first part of the notice of December 15, 1960 which was servedon each individual workmen was certainly a charge by the respondent telling theworkmen concerned that they were guilty of go-slow for the period betweenNovember 27 and December 15, 1960. It is true that the notice was not headed asa charge and it did not specify that an enquiry would follow, which is theusual procedure when a formal charge is given. Even so, there can be no doubtthat the workmen concerned knew what was the charge against them which wasreally responsible for their discharge from December 18, 1960.
14. It is now well-settled by a number of decisions of this Court that wherean employer has failed to make an enquiry before dismissing or discharging aworkman it is open to him to justify the action before the tribunal by leadingall relevant evidence before it. In such a case the employer would not have thebenefit which he had in cases where domestic inquiries have been held. Theentire matter would be open before the tribunal which will have jurisdictionnot only to go into the limited questions open to a tribunal where domesticinquiry has been properly held (see Indian Iron & Steel Co. v. Theirworkmen  S.C.R. 667 but also to satisfy itself on the facts adducedbefore it by the employer whether the dismissal or discharge was justified. Wemay in this connection refer to M/s Sasa Musa Sugar Works (P) Limited v.Shobrati Khan  .S.C.R. 836 Phulbari Tea Estate v. Its Workmen : (1959)IILLJ663SC and Punjab National Bank Limited v. Its Workmen : (1959)IILLJ666SC . There three cases were further considered by this court in BharatSugar Mills Limited. v. Shri Jai Singh : (1961)IILLJ644SC , and reference wasalso made to the decision of the Labour Appellate Tribunal in Shri Ram SwarathSinha v. Belaund Sugar Co  L.A.C. 697 It was pointed out that'the import effect of commission to hold an enquiry was merely this : thatthe tribunal would not have to consider only whether there was a prima faciecase but would decide for itself on the evidence adduced whether the chargeshave really been made out'. It is true that three of these cases, exceptPhulbari Tea Estate's case : (1959)IILLJ663SC , were on applications under s.33 of the Industrial Disputes Act, 1947. But in principle we see no differencewhether the matter comes before the tribunal for approval under s. 33 or on areference under s. 10 of the Industrial Disputes Act, 1947. In either case ifthe enquiry is defective or if no enquiry has been held as required by StandingOrders, the entire case would be open before the tribunal and the employerwould have to justify on facts as well that its order of dismissal or dischargewas proper. Phulbari Tea Estate's : (1959)IILLJ663SC was on a reference unders. 10, and the same principle was applied there also, the only difference beingthat in that case, there was an enquiry though it was defective. A defectiveenquiry in our opinion stands on the same footing as no enquiry and in eithercase the tribunal would have jurisdiction to go into the facts and the employerwould have to satisfy the tribunal that on facts the order of dismissal ordischarge was proper.
15. If it is held that in cases where the employer dismisses his employeewithout holding an enquiry, the dismissal must be set aside by the industrialtribunal only on that ground, it would inevitably mean that the employer willimmediately proceed to hold the enquiry and pass an order dismissing theemployee once again. In that case, another industrial dispute would arise andthe employer would be entitled to rely upon the enquiry which he had held in themean-time. This course would mean delay and on the second occasion it willentitle the employer to claim the benefit of the domestic enquiry given. On theother hand, if in such cases the employer is given an opportunity to justifythe impugned dismissal on the merits of his case being considered by thetribunal for itself and that clearly would be to the benefit of the employee.That is why this Court has consistently held that if the domestic enquiry isirregular, invalid or improper, the tribunal may give an opportunity to theemployer to prove his case and in doing so the tribunal tries the meritsitself. This view is consistent with the approach which industrial adjudicationgenerally adopts with a view to do justice between the parties without relyingtoo much on technical considerations and with the object of avoiding delay inthe disposal of industrial disputes. Therefore, we are satisfied that nodistinction can be made between cases where the domestic enquiry is invalid andthose where no enquiry has in fact been held. We must therefore reject thecontention that as there was no enquiry in this case it was not open to therespondent to justify the discharge before the tribunal.
16. The question whether there was go-slow during the period from November27 to December 15, 1960 is a question of fact and the tribunal has come to theconclusion that there was go-slow during this period. Ordinarily this Courtdoes not go into findings of fact recorded by a tribunal unless there arespecial reasons, as, for example, where the finding is based on no evidence, -which of course is not the case here. Learned counsel for the appellantshowever urges that the finding of the tribunal that the workmen concerned wereguilty of go-slow is perverse and that evidence which was relevant and materialhas been ignored. As the case involves the discharge of as many as 119 workmenwe have decided to go broadly into the evidence to see whether the finding ofthe tribunal is patently wrong.
17. For this purpose we may first refer to the past history of the workingof the respondent factory. It appears that till this court condemned thepractice of go-slow in the case of Bharat Sugar Mills : (1961)IILLJ644SC . Itwas not unusual in the State of Bihar for the workmen to give notice of go-slowto employers as if it was a legitimate weapon to be used in matters of disputebetween the employers and the workmen. In the present case the respondent hadcomplained as far back at 1950 that go-slow was being resorted to. In 1950 acourt of enquiry was constituted to enquiry into this question and it made areport that there was a slow-down on the part of the workman for several daysin February-March 1950. It also came to the conclusion that the slow-down wasinstigated and sponsored by union leaders. In 1951, the workmen gave notice ofgo-slow in case their demands were not fulfilled (vide Ex. A-1). Similarnotices were given in 1952 (vide Ex. A-2), In 1954 (vide Ex. A-3 and A-4) andin 1955 (vide Exs. A-5, A-6 and A-7 and on some occasions threats of go-slowdid actually materialise. Besides these notices the management had occasion tocomplain in 1955, 1957, and 1958 more than once that go-slow was being resortedto at the cane carrier. Thus it appears that resorting to go-slow was a commonpractice in this factory.
18. It is in the background of this persistent attitude of the workmen thatwe have to see what happened in November 1960. We have already referred to thefact that the workmen were dissatisfied with the new incentive bonus schemeproposed by the respondent. It is not necessary to go into the merits of thisnew scheme which was proposed in September 1960. But it appears that when therewas dispute in the 1959-60 season on the question of how much cane should be crushed,the secretary of the union had accepted in a conference with the AssistantLabour Commissioner that there had been a drop in the amount of cane crushed,though he maintained that it was still the average crush. He had also statedthen that the workmen were dissatisfied with the incentive bonus scheme in thatseason and had withdrawn the extra efforts they were putting in after theintroduction of the incentive scheme for the first time in 1956-57. Further itwas admitted by the secretary in his evidence that when the bonus scheme wasproposed in 1960-61, it was considered by the workmen in a meeting and it wasdecided that if the new system was introduced without the consent of theworkmen they would not put in any extra effort for giving more than what wasthe normal crush in the mill. The evidence also shows that there wereconferences about the new scheme and at one stage the respondent suggested thatthe norm should be 30,000 maunds crush per day while the union was agreeable to29,500 maunds per day. But there was no agreement in this behalf and so thatworkmen carried out their resolve not to put in extra efforts to give more thanthe average normal crushing per day. Thus the season which began in November1960 started with the withdrawal of extra efforts by the workmen which in plainterms means that the workman were not prepared to do what they had been doingin this previous season 1959-60 and were slowing down production as compared towhat it was in 1959-60. It is in the background of this history and thisadmission that we have to look broadly into the evidence to see whether thetribunal's conclusion that there was go-slow is justified.
19. The main contention on behalf of the respondent in this connection isthat that one has to see is that is called crushing speed for a day of 24 hoursand it is this crushing speed which would determine whether there was go-slowduring the period in dispute. It has been urged that crushing speed per 24hours is different from the actual crushing per day or the average crushing fora period, for the actual crushing per day from which the crushing speed isarrived at depends on a number of factors, particularly it depends on theamount of stoppages that take place during the day and if there are more stoppagesthe actual crushing on a particular day would necessarily go down. Crushingspeed per twentyfour hours, on the other hand is arrived at by excluding thestoppages and then working out what would be the amount of cane crushed in 24hours if there had been no stoppages. The case of the respondent further isthat when it gave the notice on December 15, 1960 asking for a crush of 32,000maunds per day it really meant that the workmen should work in such a way as togive a crushing speed of 32,000 maunds per day, though the words 'crushingspeed' were not actually used in the notice. It is however pointed outthat the notice when it mentions 32,000 maunds as the normal crush expected perday excluded stoppages other than those due to over-loading or under-loading ofthe cane carrier. Therefore, the respondent wanted the workmen to give acrushing speed of 32,000 maunds per day which would exclude stoppages, the onlyexception being stoppages due to over-loading or under-loading, which,according to the respondent, is due to the deliberate action of the canecarrier workmen to cause stoppages, We think that this explanation of what therespondent meant when it gave the notice of average daily crush of 32,000maunds is reasonable, for it is impossible to accept that 32,000 maunds wererequired to be crushed irrespective of stoppages, beyond the control of theworkmen. Further it is not in dispute that the labour force was more or lessthe same throughout these years, and therefore we have to see whether duringthe period from November 27 to December 15, 1960 there was any significant dropin the crushing speed. If there was such a significant drop that could only bedue to go-slow tactics which have been euphemistically called withdrawal ofextra efforts.
18. It is necessary therefore to look at the charts produced in this case todetermine this question. The appellants mainly relay on chart Ex. W-3. That ishowever a chart of actual crushing per day during the period from 1954-55 to1960-61 and has nothing to do with crushing speed which in our opinion would bethe determining factor in finding out whether there was go-slow. The actualcrush may vary as we have already said due to so many factors, particularly dueto stoppages for one reason or the other. The respondent produced another chartEx. W-4 which shows the crushing speed for the entire season from 1954-55 to1959-60. We consider that it would not be proper to take the figures for theyears 1956-57 to 1959-60 in which years incentive bonus schemes were in forceand which according to the workmen resulted in extra efforts on their part. Butthe figures of 1954-55 and 1955-56 would be relevant because in these yearsthere was no incentive bonus scheme and no night weighment of carts. Theworkmen have also produced a chart showing cane crushed, actual crushing daysand crushing per day; but this chart does not show the crushing speed and doesnot take into account the stoppages. It merely shows the actual number ofworking days and the average per day. That however would not be an accurate wayof finding out whether in fact there was go-slow during the period with whichwe are concerned. The respondent's chart Ex. W-4 while showing the same amountof actual crushing also shows what would be the crushing speed per 24 hoursafter excluding stoppages. This chart in our opinion is the proper chart fordetermining whether there was go-slow during the relevant period. Now accordingto this chart (Ex. W-4) the daily average crushing speed in 1954-55 was 29,784maunds and in 1955-56, 30,520 maunds without incentive bonus and without nightweighment of carts. It appears that from the middle of 1959-60 season nightweighment of carts started and it is not in dispute that that resulted in anincrease in the daily crushing and this increase is put at over 2,000 maundsper day by the respondent; the secretary of the union admitted that this wouldresult in an increase of about 2,500 maunds per day. We have already said thatin the years 1954 and 1955 there was no incentive bonus and if these figuresare accepted as giving the average crushing speed per day (when there was noincentive bonus and no weighment of carts at night) it would in our opinion benot improper to accept that the crushing speed with night weighment of carts wouldbe in the neighbourhood of 32,000 maunds per day in view of the admission thatnight weighment of carts resulted in an increase of crushing by about 2,000maunds to 2,500 maunds per day. Therefore, when the respondent gave notice onDecember 15, 1960 that the average crushing per day should be 32,000 maundsexcluding stoppages (except those due to over-loading or under-loading of thecane carrier, for which the workmen would be responsible) it cannot be saidthat the respondent had fixed something which was abnormal. It is true thatwhen negotiations were taking place in connection with the incentive bonusscheme for the year 1960-61, the respondent was prepared to accept a crushingspeed of 30,000 maunds per day above which the incentive bonus scheme wouldapply. That is however easily understood for a proper incentive bonus schemealways fixes a norm which is slightly lower than the average in order thatthere may be greater incentive to labour to produce more than the average. Evenso, when the incentive bonus scheme for 1960-61, was not acceptable to theworkmen and they had already decided to withdraw what they called extra effort,the respondent would not be unjustified in asking for the full average crushingspeed based on the production of the years 1954-55 and 1955-56, when there wasno incentive bonus scheme and no night weighment of carts.
19.It has been urged on behalf of the appellants that the crushing speed of32,000 maunds per 24 hours is not correctly arrived at for it does not takeinto account half hour's rest per shift which is permissible under S. 55(1) ofthe Factories Act, No. 63 of 1948. Thus, according to the appellants, crushingspeed should be worked out on 22 1/2 hours per day and the crushing will thenbe less by 1/16th and will only come to 30,000 maunds per day. Reliance in thisconnection is placed on s. 55(2) of the Factories Act, which lays down that'the State Government...... may by written order and for the reasonsspecified therein, exempt any factory from the provisions of sub-section (1) sohowever that the total number of hours worked by a worker without an intervaldoes not exceed six. It is therefore urged that the workmen were entitled tohalf an hour's rest per shift in any case because the shift was for eight hours.The respondent on the other hand relies on s. 64(2)(d) for the Factories Actand its case is that the State Government had made rules under that provisionin connection with sugar factories, which apply to it. Section 64(2)(d) is inthese terms :-
'The State Government maymake rules in respect of adult workers in factories providing for theexemption, to such extent and subject to such conditions as may be prescribed -
. . . .
(d) of workers engaged in anywork which for technical reasons must be carried on continuously from theprovisions of sections 51, 52, 54, 55, and 56;
. . . . .
20. We are of opinion that this provision in s. 64(2)(d) being a specialprovision will over-ride both sub-ss. (1) and (2) of s. 55, for it gives powerto the State Government by making rules to exempt certain types of factoriesfrom the application of the whole of s. 55, subject to such conditions and tosuch extent as the rules may provide. It appears that rules were framed in thisbehalf by the Government of Bihar in 1950 by which sugar factories wereexempted from the application of s. 55 for purposes of handling and crushing ofcane, among others, subject to the condition that the workers concerned shallbe allowed to take light refreshment or meals at the place of their employment,or in a room specially reserved for the purposes or in a canteen provided inthe factory, once during any period exceeding four hours. Thus cane crushingoperations are exempt from s. 55(1) and s. 55(2) subject to the conditionmentioned above. We may also refer to s. 64(5) which lays down that the rulesmade under this section shall remain in force for not more than three years.The rules to which reference has been made are of 1950; but there is nothing toshow that these rules were not continued after every interval of three yearsand the position that the exemption applies to sugar factories even now asprovided in these rules was not disputed. We shall therefore proceed on thebasis that the exemption applied to sugar factories in Bihar. In view of this,the workmen cannot claim half an hour's rest per shift as urged on theirbehalf, though sometime must be allowed for refreshment or light meals asprovided in the provision granting exemption. This means that a few minuteswould be allowed to each individual in turn in each shift for light refreshmentor meals in such a way that the work does not stop. If we make a totalallowance of half an hour or so in this connection the average crushing speedwould be reduced to slightly over 31,000 maunds per day and that is all theadjustment that the appellants can claim in view of the exemption under s.64(2)(d).
21. Let us now turn to the actual position between November 27 and December15, 1960. This will appear from chart Ex. W-7. That chart shows a crushingspeed of 29,859 maunds per day from November 10 to 26, when according to therespondent, there was only mild go-slow. We are however concerned with theperiod from November 27 to December 15, 1960 and the crushing speed for 24hours during that period was 27,830. Now if we take the average crushing speedas 32,000 maunds per 24 hours without any adjustment or even a little over31,000 maunds with adjustment following upon the rule relating to exemptionfrom s. 55, there is certainly a significant drop in average crushing speedduring this period. Further we find that there is a significant drop even ascompared to the period between November 10 to 26, 1960, inasmuch as the dropwas over 2,000 maunds per day. Therefore it cannot be said that the tribunalwas incorrect in its conclusion that there had been go-slow during the periodfrom November 27 to December 15. It may be added that when comparisons are madeon the basis of crushing speed and labour force is more or less constant, as isthe case here, other minor factors to which our attention was drawn on behalfof the appellants during argument do not matter at all. Even if we take thefigure of 30,000 maunds as the crushing speed which the respondent had putforward at the time of the discussion on the incentive bonus scheme, we findthat though there was not much difference during the period from November 10 toNovember 26, there was a significant drop of over 2,000 maunds per day fromNovember 27 to December 15. Looking at the matter in this broad way - and thatis all that we are prepared to do, for we are examining a finding of fact ofthe tribunal - we cannot say that its conclusion that there was go-slow between27 November and December 15 is not justified.
22. Finally, it is urged that notice was given to the workmen on December 15and they were discharged on December 17, 1960 without giving them a change togive the necessary production as desired in the notice. But as we have alreadyindicated, the charge in the notice of December 15 was that the workmen hadbeen going slow from November 27 and they were asked to give an undertaking toimprove and the respondent was apparently willing to overlook the earlierlapse. Even assuming that the demand of an undertaking was unjustified, it doesappear that the attitude of the workmen was that they would do no better; andin those circumstances they were discharged on December 17, 1960 on the basisof misconduct consisting of go-slow between November 27 and December 16, 1960.That misconduct has been held proved by the tribunal and in our opinion thatdecision of the tribunal cannot be said to be wrong. In the circumstances thetribunal was justified in coming to the conclusion that the discharge was fullyjustified.
23. In this view of the matter, the appeal falls and is hereby dismissed. Inthe circumstances we order parties to bear their own costs.
24. Appeal dismissed.