1. In these two petitions under Arts. 226 and 227 of the Constitution which, in substance, are under Art. 227 thereof, the concerned petitioners whose services have been terminated by the respondent-employer, have sought intervention of this Court and have submitted that the order of the Labour Court, Ahmedabad rejecting their reference raising an industrial dispute regarding termination of employment of these petitioners is patently illegal and hence required to be quashed.
2. x x x x x x
3. The facts leading to these petitions deserve to be noted in brief at the outset. Petitioner Vasantiben Shah in special civil application No. 569 of 1981 and Bhadraben Dave in special civil application No. 576 of 1981 were, at the relevant time, working as sales assistants in the handloom house run by the respondent-society in the city. Both were employed as permanent sales assistants. The case of petitioner Vasantiben was that she was served with an order of termination from service dated the 17th March, 1975 and thereafter her services were terminated with effect from 29th March, 1975. In the said order, it was stated by the respondent-employer that she was preventing the customers from entering into the handloom house from 21st February, 1975 to 10th March, 1975 and that it was told by her to the customers that the handloom house was charging more prices from the customers than others for the goods sold there and, therefore, the customers should not purchase articles sold therein. It was alleged that therefore, the management had lost confidence in the worker and hence the order of termination.
4. Similarly, the case of petitioner Bhadraben Dave is that at the relevant time, she was appointed as a senior sales assistant in the respondent-society. That her past record of service was clean and blotless. She was served with termination order dated 17th March, 1975 raising similar grounds as in the case of Vasantiben. It appears that one employee Bhatia who was working in the handloom house was transferred somewhere in February, 1975 from Ahmedabad to Madras. Transfer of this employee brought about a common agitation on behalf of 21 employees working in the handloom house who struck work between 21st February, 1975 and 10th March, 1975. The present two petitioners also joined the strike. It is alleged against them that during that period, not only they were sitting outside the handloom house and preventing customers from entering the handloom house but they were indulging into anti-canvassing in connection with articles sold in the handloom house and it is because of these activities on the part of the petitioners that the impugned termination orders were served on these two petitioners. It also appears that similarly, three more employees namely Sharadbhai, Pankajbhai and Robinson were also given termination orders. It may be stated at this stage that the strike in the handloom house ended on 10th March, 1975. But as 11th and 12th March, 1975 were holidays, all the striking workers resumed their duties on 13th March 1975. The petitioners along with other striking workers resumed their duties on 13th March, 1975. But so far as they were concerned, they were served with termination orders dated 17th March, 1975. So far as other workers who had resumed were concerned, no disciplinary action was taken by the management against them and their services were not terminated. The petitioners, under the aforesaid circumstances, raised an industrial dispute contending that though their termination orders were styled merely as discharge orders in the purported exercise of management's power under Regulation 14 they were punitive in nature. That contents of the orders cast stigma on both the petitioners and that they were sought to be dismissed under the guise of discharge simpliciter. That no inquiry whatsoever was conducted against them and in breach of all the principles of natural justice, they were sought to be thrown out. It was further urged by the petitioners that the action of the respondent in picking out the petitioners for such a hostile treatment was patently discriminatory and amounted to victimization and unfair labour practice. That all the 21 employees of the handloom house had struck work from 21st February, 1975 to 10th March, 1975. The petitioners had similarly struck work along with them. All of them resumed their duties on 13th March, 1975. Rest of the employees were permitted to serve while only the petitioners were picked up for such hostile treatment and were sought to be thrown out of employment by being served with the so called discharge orders dated 17th March, 1975. It was further submitted that the petitioners and other workers had gone on strike being agitated about the illegal transfer of their union leader Bhatia from Ahmedabad to Madras. That Bhatia was an active union leader and, therefore, he was sought to be sent out of Ahmedabad to such a long distance as Madras only with a view to seeing that union activities might get stifled down at Ahmedabad. Bhatia's wife who was also serving in the handloom house was retained at Ahmedabad. That the transfer was intended to harass the active union leader Bhatia and to disturb his family life. That brought about mass agitation by all the employees of the handloom house against the management and brought forth strike from 21st February, 1975 which lingered on up to 10th March, 1975. That the Satyagrah offered was against vindictive transfer of Bhatia. In the meantime, Bhatia filed a civil suit challenging his transfer order on various grounds. That he obtained an injunction from the City Civil Court on 12th March, 1975 and thereby the Court restrained the employer from enforcing the aforesaid order. In these circumstances, the strike was withdrawn and all the employees offering Satyagrah resumed their work on 13th March, 1975. However, the management with a view to victimising the concerned petitioners passed orders discharging them from service, but in fact sought to punish the petitioners for their alleged anti-management and trade union activities by having joined the strike for the aforesaid period and by having picketed outside the handloom house along with other workers.
5. to 8. x x x x x x
9. We may at this stage note the exact submissions made by the learned counsel for the petitioners. Mr. N. J. Mehta raised the following contentions in special civil application No. 569 of 1981 :
1. The finding reached by the labour court that these two employees indulged in preventing the customers' entry and in anti-canvassing about the articles sold at the handloom house by alleging about their low quality and higher prices during the entire period between 21st February, 1975 and 10th March, 1975 is not based on any legal evidence and hence, that finding is liable to be set aside as involving a patent error of law.
2. The Labour Court equally erred in law in holding that the management had not discriminated against the petitioners as compared to other workers who were permitted to resume duties even after going on strike during the same period from 21st February, 1975 to 10th March, 1975 along with the petitioners. Mr. Mehta submitted that cases of the petitioners were almost parallel to the cases of other striking workers all of whom had made a common cause on the occasion of transfer of Mr. Bhatia from Ahmedabad to Madras. That when the management could continue all other striking workers who resumed work along with these workers on 13th March, 1975, there was no reason why after four days, the petitioners alone should have been picked up for up hostile treatment and should have been thrown out of job along with three more workers. It was, therefore, submitted that the action of the management was absolutely arbitrary, capricious and mala fide one.
3. It was next submitted that even assuming that it was established on evidence against the petitioners that they had anti-canvassed in connection with the goods sold at the handloom house during the relevant time such anti-canvassing by itself was not any misconduct under the relevant regulations and hence also, no penal action can be taken against the petitioners only on that ground. Once this aspect of the matter is clear, the entire proceedings against the petitioners would fall through.
4. It was next contended that in any case, the Labour Court ought to have exercised its jurisdiction under S. 11A of the I.D. Act inasmuch as, even in the light of the alleged misconduct proved against the petitioners, namely that they had anti-canvassed about the goods sold at the emporium during the relevant period of strike, the punishment of termination of service was too harsh and quite disproportionate to the nature of misconduct alleged and even proved against them. The Labour Court had totally lost sight of this aspect of the matter and failed to exercise its jurisdiction under S. 11A, with consequent failure of justice. It was, therefore, submitted that this Court may in any case exercise its powers under S. 11A and do justice to the suffering workmen viz. the present petitioners who are by now out of job for a period of more than nine years and couple of months since 20th March, 1975 till today.
5. The Labour Court had no jurisdiction to look at the past record of the concerned workers while considering the question whether powers under S. 11A of the I. D. Act should be exercised or not. Such past record of the petitioners was not shown to them prior to the date on which discharge orders were passed against them by the management.
10. & 11. x x x x x
12. So far as the first contention regarding finding of alleged anti-managerial activities of both the petitioners for the period of 21st February, 1975 to 10th March, 1975 is concerned, our attention was invited by the learned counsel for the petitioners to the relevant on record.
13. The petitioners in their evidence of course stuck to their story that they had not committed any misconduct. The aforesaid evidence of the witnesses on record of the case indicates that against petitioner Vasantiben, two incidents of 21st February, 1975 and 3rd March, 1975 were alleged wherein she is said to have anti-canvassed regarding the goods sold in the emporium while in respect of petitioner Bhadraben also, two incidents are alleged on 28th February, 1975 and 3rd March, 1975 by the concerned witnesses. The learned counsel for the petitioners are right when they contended that there is no positive evidence of any of the customers to show that on any other day during the relevant period, between 21st February, 1975 and 10th March, 1975 any other anti-canvassing was resorted by any of the petitioners. However, from the general evidence as deposed to by witness Ansari, the manager of the handloom house, it appears clear that during the entire period, the petitioners along with other striking workers were standing outside the handloom house and were not permitting customers to enter. It is easy to visualise that some of the customers might have chosen to give evidence before the Court and might have also signed the complaint book Ex. 30 contemporaneously. There might be other customers who might have gone back on account of the obstructions offered to them by the striking workers including the petitioners. However, in view of the positive evidence of the concerned witnesses against both the petitioners that they did anti-canvass on the concerned days, it can also be inferred that during the entire period, they would have followed the same modus operandi. When such an inference is drawn by the Labour Court from the aforesaid positive evidence of the concerned witnesses, it cannot be said that this inference is in any way contrary to the evidence on record or uncalled for or totally perverse. It is, therefore, not possible to agree with the first contention canvassed by the learned counsel for the petitioners that the finding recorded by the Labour Court that during the relevant period from 21st February, 1975 to 10th March 1975, the petitioners who had struck work along with other workers, had anti-canvassed in connection with the articles sold at the handloom house, is in any way perverse or unsupported by the evidence on record. It must be kept in view that the present proceedings are under Art. 227 of the Constitution and this Court's interference with the award passed by the Labour Court on evidence can be strictly within the legally permissible limits. This Court cannot sit as a Court of Appeal and interfere with pure finding of fact reached by the Courts below (vide A.I.R. 1970, SC 61). It is, therefore, not possible to accept the first contention canvassed on behalf of the petitioners.
14. x x x x x
15. That takes us to the second contention. It was contended that the evidence on record shows that all the 21 employees had struck work between 21st February, 1975 and 10th March, 1975 and the cause of the strike was a common cause viz. that one employee Bhatia was transferred from Ahmedabad to Madras. During the said strike, when picketing was going on by the striking workers and when customers were prevented from entering the handloom house, all the striking workers can be said to have adopted a common modus operandi. Under these circumstances, when all of them were permitted to resume on 13th March, 1975, there was no reason to pick up the petitioners and three other workers Sharadbhai, Pankajbhai, and Robinson for active hostile treatment and consequently, the action of the respondent-employer in giving active hostile discriminatory treatment to the petitioners, amongst others, is totally arbitrary and unjustified and it amounts to victimization. So far as the above contention is concerned, we may note what the Labour Court has to say in this behalf.
In para 39 of its judgment, the Labour Court has noted this contention and has observed :
'Out of 21 employees who had proceeded on strike, only five employees have been discharged and the rest of them have continued in the employment. For this, it can be said that the management has led evidence against the two concerned workmen for their anti-management activities which go to the domain of the industrial activities undertaken by the handloom house. These activities are no doubt very notorious as the two concerned workmen were never proved to be silent striking employees for one or two days but from 21st February, 1975 to 10th March, 1975; both of them were actively proved in exciting the customers not to purchase goods and not to go inside the handloom house which ultimately resulted into reduction of sale in the emporium.'
The Labour Court has, therefore, taken the view that out of 21 employees, who ultimately resumed their duties on 13th March, 1975, the petitioners and other three persons who had been found to have actively anti-canvassed in connection with the goods sold at the handloom house can be said to be standing apart and formed a class by themselves and, therefore, these militant employees were terminated from service as compared to other workers who had merely adopted a passive attitude of non-co-operation and Satyagrah. In view of the aforesaid it cannot be said that the reasoning of the Labour Court is in any way contrary to the evidence on record or perverse from any view point. However, the learned counsel for the petitioners submitted before us that so far as Ulkaben and Anjuben were concerned, they had also anti-canvassed against the goods sold at the emporium for which there were 4 and 2 instances respectively on the record of the case while for employees Kiranbhai and Kalpana, there was evidence to suggest that at least on one occasion each, they also actively indulged into anti-canvassing. However, the management had thought it fit to condone all these lapses on the part of these workers who were exactly and identically situated as the petitioners and have only picked up the petitioners for this hostile attitude. To that extend, the action of the management can be dubbed to be totally arbitrary. So far as this aspect of the matter is concerned, we must note that when witness Ansari, the manager was in the box, no question was put to him as to under what circumstances these other workers Ulkaben, Kalpanaben, Anjuben and Kiranbhai were continued in service and the petitioners were terminated from service even though these workers had also anti-canvassed regarding the goods sold at the emporium at the relevant time. If such a question was put to the said witness, he could have put forward his explanation about the same. It is also interesting to note that even before the Labour Court, the main thrust of discrimination urged on behalf of the petitioners by the learned counsel was that all the 21 employees were similarly situated out of whom only 5 were selected for hostile treatment. No further argument was urged on the basis that at least 4 other aforesaid employees were in any case similarly situated like the petitioners and without terminating them, the petitioners' termination would be arbitrary. In that view of the matter, such a factual contention which would call for an explanation from the respondent and its relevant witnesses, cannot be permitted to be urged for the first time before us in the present proceedings under Art. 227 and hence, we do not dilate on this aspect any further. The second contention canvassed on behalf of the petitioners, therefore, fails.
16. That takes us to the third contention to the effect that anti-canvassing was not misconduct within the meaning of regulations. The learned counsel for the petitioners invited our attention to All India Handloom Fabrics Marketing Co-operative Society Limited Staff Regulations. They took us to Regn. No. 29 which defines the term 'misconduct'. The said regulation reads as under :
'Misconduct defined :-
Without prejudice to the meaning of the word 'misconduct' it shall be deemed to mean and include the following.
(a) wilful insubordination or disobedience.
(b) theft of the properties of the society.
(c) corrupt practices of all descriptions.
(d) habitual late-attendance or absence without leave or absence without sufficient cause -
(e) carrying on private business without the knowledge and express permission of the Secretary of the society.
(f) drunkenness, fighting, riotousness or disorderly behaviour within or out of the office.
(g) neglect of work.
(h) breach of the service rules.
(i) causing damage to the property of the society.
(j) sleeping while on duty.
(k) lending or borrowing money from subordinate employees.
(l) conviction in a Court of law involving moral turpitude.
(m) leaving work without sanction.
(n) giving false information regarding age, qualifications and other particulars of the employee.
(o) making representations, to the Directors individually or to the Board or executive committee other than through proper channels.
(p) abetment of or attempt at any of the above acts of misconduct.'
It is interesting to note that misconduct defined; is without prejudice to the meaning of the word 'misconduct' and it is deemed to mean and include (a) wilful insubordination or disobedience : (g) neglect of work and (h) breach of the service rules. Thus any breach of the service rules would be included in misconduct. The learned counsel for the petitioners also took us to the Service Rules of 1975 applicable to the parties. In Chapter VII of the rules, topic of conduct, discipline and appeal has been dealt with. Rule 85 is relevant rule which requires to be reproduced at this stage.
'Every employee shall serve the Corporation honestly and faithfully and shall use his utmost endeavour to promote the interest of the Corporation and shall show courtesy and attention in all transactions and intercourse with every person with whom he comes in contact in his capacity as an employee of the Corporation.' A combined reading of the Staff Regulation 29(h) and Service Rule 85 leave no room for doubt that if it is alleged against an employee that he has not honestly and faithfully served the Corporation at a given point of time or that he has not used his utmost endeavour to promote the interest of the Corporation, he shall be deemed to have committed misconduct. If an employee of the Corporation where goods are being exposed for sale to the public actively anti-canvasses against the quality of the goods it can easily be said that he has not served the Corporation honestly and faithfully and that he has not used his utmost endeavour to promote the interest of the Corporation. On the contrary, he can be said to have acted against the interest of the Corporation. That would clearly bring into violation of service Rule 85 which itself would be a misconduct within the meaning of Regulation 29. It is not possible to agree with Mr. Mehta that anti-canvassing against the goods sold at the emporium would not by itself be a misconduct within the meaning of the service regulations in the light of the peculiar wording of the relevant regulations and the rules. In that view of the matter, it is not necessary to dilate upon the decision of the Supreme Court in A. L. Kalra v. P & E Corpn. of India Ltd. [1984-II L.L.J. 186], on which reliance was placed by the learned counsel for the petitioners. In the aforesaid decision, the Supreme Court speaking through D. A. Desai, J. observed (para. 22) :
'Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct.'
On the facts of the case the Supreme Court, it was found that the alleged misconduct of the employee did not fall within any of misconducts specifically enumerated in the relevant rules binding to the employees of the Project and Equipment Corporation of India Ltd. The aforesaid decision proceeded on the peculiar wording of the relevant Conduct, Discipline and Appeal Rules applicable to the parties. On the facts of the present case, as seen above, the scheme of the rules and regulations binding on the parties is entirely different and consequently, the ratio of the decision of the Supreme Court in the aforesaid case cannot advance the case of the petitioners any further. The third contention of the learned counsel for the petitioners therefore also fails.
17. That takes us to the forth contention on behalf of the petitioners. That pertains to applicability of S. 11A of the Act to the facts of the present case. A mere look at S. 11A shows that 'where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court. Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require'. We are not concerned with the proviso to S. 11A and hence we do not mention the same. The aforesaid provisions of S. 11A give full play to the concerned court to pass appropriate orders regarding punishment in the facts and circumstances of the given case. So far as the facts of the present case go, it appears clear that whatever anti-management activities were said to have been committed by the concerned petitioners squarely fell within the relevant period between 21st February, 1975 and 10th March, 1975. It is not the case of the respondent that any time beyond that period, any such activity was undertaken by the concerned petitioners on the basis of which the impugned orders of discharge were passed against the concerned petitioners. It is an admitted position on the record of the case that during the relevant time, all the 21 employees of the respondent were on strike as the were agitating a common cause against the management viz., illegal transfer of their leader Bhatia from Ahmedabad to Madras. Right or wrong, the said transfer was the root cause of dissatisfaction of all the employees and they made a common cause out of it against the management. It is interesting to note that none of the striking employees, except Ulkaben who was the wife of Bhatia, had any personal axe to grind. The petitioners obviously had joined the crusade making a common cause and common issue with Bhatia and others. Therefore, they were agitating a collective cause against the management. They had struck work. They were picketing and offering Satyagrah outside the handloom house during that period. When they had struck work and when they were offering Satyagrah, they would persuade customers not to enter the handloom house and not to purchase any goods therefrom. Up to that extent, the action of the striking workers can be said to be within permissible limits. So far as the petitioners are concerned they are said to have exceeded the limit when they indulged into active anti-canvassing in connection with the goods sold in the emporium. To that extent, they did enter the forbidden field and can be said to have committed misconduct. However, the facts remains that they committed this misconduct during the time they were agitating a common cause and only during the time they were on strike along with other workers. A grievance was made by Mr. Vyas for the respondent that Mr. Bhatia was not a union leader. It is not shown that he was the Secretary of the Union. May be, at the relevant time, he may not be the Secretary, but the evidence shows that there was union of workers to which the workers were attached and if the workers felt that transfer of Bhatia to Madras keeping his wife at Ahmedabad, though both of them were serving in the same branch, may be a calamity which may visit other workmen, if not today, then tomorrow and on that basis if all the workmen make a common cause and raised a crusade against the management and went on strike, it cannot be said that the workers were not agitating a common cause or that they were least concerned with the transfer of Bhatia. In that background, when agitating 21 workers were, so to say, suffering from a mass hysteria and had gone on strike and had indulged in picketing outside the handloom house, it cannot be said that misconduct committed by these two petitioners alone would make them liable to the extreme penalty of termination of service which naturally brought on economic death to them. Whether in this background of the events and facts, extreme penalty of termination of dismissal was called for or not, squarely fell for consideration of the Labour Court when it jurisdiction under S. 11A was expressly invoked. Let us see what the Labour Court has to say in this behalf. In para 42 of its award, the Labour Court noted that its power under S. 11A was invoked on behalf on behalf of the petitioners. It also noted the contention of the petitioners that lesser punishment in lieu of discharge must be given to the concerned workman Smt. Dave in case the Court come to the conclusion that she committed the misconduct of instigating the customers and preventing them from entering into emporium by misrepresenting them that the articles sold by the handloom house were more inferior in quality and the handloom house charges ex-orbitant prices for such inferior articles. Having noted this contention, the Labour Court proceeded to say that it was needless to repeat that the transfer of Bhatia was purely a personal cause of Bhatia himself which was not attached with or which was not related to the service conditions or working conditions of two concerned workmen Smt. Dave and Smt. Shah and that the act of instigating the customers and preventing them from entering into emporium continuously from 21 February, 1975 to 10th March, 1975 was nothing but the act which was committed by them to throttle the industrial activity of the handloom house. In that view of the matter, the employer was justified in losing confidence in them and hence there was no case for reinstating these workmen. This is what the Labour Court has observed in paras 42 and 43 of the judgment. To say the least the aforesaid approach of the Labour Court completely ignores the basic requirement of S. 11A. With respect, the Labour Court does not seem to be at all alive to the thrust of that provision. The Labour Court ought to have considered whether in the background of the circumstances that transpired, misconduct committed by the concerned workmen was so grave especially in the light of the mass hysteria suffered by all the workmen working in the handloom house, as to justify extreme penalty of dismissal or termination being imposed on these two employees. As this aspect was not considered by the Labour Court, a moot question arises before us to what we should do in these circumstances.
18. On the aspect of loss of confidence by the management, Mr. Vyas invited our attention to the ratio of the Supreme Court reported in AIR 1973 SC 1403 : and submitted that when the management had lost confidence in a workman, there is no question of getting him reinstated. Now, it must be stated that the aforesaid decision of the Supreme Court was rendered in connection with an earlier case of the year 1968. In those days, S. 11A was not on the statute book. Consequently, the aforesaid decision of the Supreme Court cannot strictly be applied to the fact situation where S. 11A applies. But even that apart, as we have observed earlier, it is totally perverse to even allege and contend that the concerned management would also lose confidence in sales assistants who during the relevant time when the entire staff was on strike went on picketing outside the handloom house and prevented customers from entering the handloom house and while doing so they indulged in anti-canvassing regarding the goods sold at the emporium. In case of such a mass movement, crusade and mass hysteria, actions taken and statements made by the concerned striking workmen cannot be judged on the touchstone of cold logic resorted to in an air-conditioned Court room detached from the atmosphere under which such statements are made and such acts are undertaken. They have to be judged in their own settings which were aflame and explosive in character. Consequently there was no reason for the management to lose confidence in the concerned workmen. It may also be noted that the manager, Mr. Ansari who was in charge of the emporium in those days is no longer in service of the respondent. The petitioners have already suffered agony of starvation and un-employment for more than nine years. This is a case in which instead of losing confidence, confidence should be reimposed in each other by both the sides. Therefore, there is no reason why order of reinstatement should be passed in favour of the concerned petitioners in exercise of our powers under S. 11A of the Act.
19. In this connection, let us see the latest judgments of the Supreme Court on this point. In Jitendra Singh v. Shri Baidyanath Ayurved Bhawan Ltd., [1984 - II L.L.J. 10]. The Supreme Court speaking through Ranganath Misra, J. was concerned with a case in which, the industrial Tribunal in a reference had awarded lesser punishment for the misconduct of an employee who was a librarian working with Baidyanath Ayurved Bhavan, by directing the employer to reinstate the employee with continuity of service but with half back wages by way of penalty for his misconduct. The said order of the industrial Court was set aside by the High Court on a writ petition under Art. 227 and the High Court substituted another penalty by way of termination from service with compensation. The said order of the High Court was brought in challenge by the dissatisfied workmen. While allowing the appeal by special leave, the Supreme Court made the following pertinent observations :
'Under S. 11AA advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Art. 227 of the Constitution does not enjoy such power though as superior Court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal, in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it.'
Having observed as above, the Supreme Court in para 5 of the report laid down as under :
'Mr. Prasad for the respondent No. 1 invited our attention to the fact that the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make, took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power to the High Court in every type of cases. It is sufficient for our present purpose to hold that on the fact made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law.'
On the combined reading of the aforesaid observations of the Supreme Court it appears clear that the Supreme Court has not laid down any universal formula that in cases where a question arises before the High Court about proper exercise of power under S. 11A by the Tribunal, the matter should always be remitted. On the contrary, it has been expressly made clear that the Supreme Court should not be understood to have denied that power to the High Court in every type of cases. So far as the facts of the present case are concerned, we must note that the Labour Court completely went at a tangent and basing its conclusion on irrelevant facts, refused to exercise jurisdiction under S. 11A. This is not a case in which the Labour Court has invoked it power under S. 11A and substituted one type of punishment for other punishment imposed by the management. Here is a case in which the Labour Court has failed to consider the relevant facts of the case and has refused to exercise its jurisdiction under S. 11A on totally unsustainable grounds. If that is so, it will certainly be open to this Court at this stage to pass proper orders under S. 11A of the Act which ought to have been passed by the Labour Court. That would not amount to substituting one type of punishment for the other as passed by the labour court under S. 11A itself. It will only amount to passing for the first time proper order under S. 11A when the Labour Court did not think it fit to invoke its powers under S. 11A which as we have observed earlier, has amounted to complete failure of exercise of jurisdiction under S. 11A by the Labour Court and which necessarily has resulted into total failure of justice. The concerned two petitioners have been out of job since more than 9 years and five months. They were dismissed from service on 20th March, 1975. We are on the last date of August, 1984. If at this stage, the petitioners are sent back to the Labour Court for reconsideration of their cases under S. 11A, it would give rise to injustice and would amount to advancing mere technicality dehors the very concept of doing substantial justice between the parties. It would add to further agony of the unemployed petitioners who have suffered for such a long period and would not in any way advance the cause of justice. The respondent will also not stand to gain anything as against the final outcome of the labour court proceedings there can be a further writ petition to this Court by either side and the entire situation would remain in a fluid stage for a couple of years more. It is, therefore, better for both the sides that they know after more than nine years of the impugned termination orders as to where they stand. We, therefore, reject the request of Mr. Vyas for the respondent to remit the proceedings to the labour court for the purpose of deciding the question about appropriate punishment to be imposed on the petitioners under S. 11A. We, on the contrary, ourselves undertake that task in the interest of all concerned. In our view, the fact that misconduct of the petitioners is strictly confined to the period of strike between 21st February, 1975 and 10th March, 1975 and as it is not the case of the respondent that they had earlier antil-canvassed against the goods sold at the emporium, extreme penalty of dismissal is absolutely uncalled for and unjustified. We do not ascribe to the view of the labour court that the management had lost confidence in these two workmen because of their anti-canvassing. Whatever anti-canvassing is said to have been done by these workmen in connection with the goods sold at the emporium was only during the time they were on strike and were picketing outside the doorsteps of the handloom house making a common crusade against the transfer of their leader Bhatia from Ahmedabad to Madras. They had no personal axe to grind in that matter. They were exposing a common cause which concerned all the workmen. While doing so, they might have overstepped the limits of Satyagrah and picketing. Still however, there was no positive intention on the part of the concerned workmen to be actively hostile or inimical to the management for all times to come. In that view of the matter, in our view, penalty of removal from service or dismissal would be too harsh. Instead, these two workmen are required to be reinstate in service with continuity of service. However, so far as the question of back wages is concerned, it has to be observed that conduct of the petitioners was not totally blameless even though they were on strike during the relevant time and were making a common cause for Bhatia in whom they were not personally interested. In this connection, we may profitably draw upto a decision of the Supreme Court of Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha. [1980-I L.L.J. 137]. In para 148 of the judgment, Krishna Iyer, J. has made the following pertinent observations :
'Another facet of the relief turns on the demand for full back wages. Certainly, the normal rule, on reinstatement, is full back wages since the order of termination is non est Lad's case [1979-I L.L.J. 257] : and Panitole Tea Estate's case (A.I.R.) 1971 S.C. 2171 : Even so, the industrial court may well slice off a part if the workmen are not wholly blameless or the strike is illegal and unjustified.'
On the facts of the present case, we find that the present two petitioners were not wholly blameless. Even though they had joined, the common strike along with other workmen when evidence against with them shows that they overstepped the limits and indulged in anti-canvassing activities against the goods sold at the emporium during the relevant time, they must be said to have committed misconduct for which they must receive suitable penalty. In our view, suitable penalty would be to deprive 50% of back wages which would be a substantial amount as both of them are out of service since 20th March, 1975 till today. We may observe at this stage that both the petitioners are house-wives and it is not the case of the respondent that at any time after 18th March, 1975 till today, either of the petitioners was gainfully employed in any alternative job. The said economic set back would be sufficient corrective for these two workmen. In our view, that penalty is sufficient and would squarely meet the requirement of S. 11A of the Act in the light of the facts of this case. The fourth contention canvassed by the learned counsel for the petitioners will stand accepted accordingly.
20. So far as the 5th contention is concerned, the past record of the concerned workmen was rightly seen by the labour court while it decided to consider the question as to whether powers u/s. 11A of the Act were to be exercised or not. There was no question of showing past record to the workmen prior to the order of discharge as there was no departmental inquiry held against them. It is only for the first time before the labour court that evidence was permitted to be led to justify the punitive action against the workmen and when such evidence was led and if S. 11A powers were to be invoked, the management was entitled to produce the past record of the workmen in support of its case that no leniency need by shown to the workmen. Therefore, the submission of Mr. Mehta for the petitioners that past record could not have been seen at all by the Labour Court cannot be accepted. However, we must make it clear that even the past record of both the petitioners nowhere indicates that any anti-canvassing was ever done by them in the past. That will go a long way in supporting their case that proper orders under S. 11A ought to have been passed by the labour court. As the Labour Court has not done so, we ourselves have undertaken that task as discussed earlier.
21. x x x x x