J.P. Jain, J.
1. This writ petition arises out of an industrial dispute between the petitioner-Corporation and the respondents Nos. 2, 3 and 4 who are (1) Rajasthan State Roadways Karamchari Sangh, Jaipur; (2) Rajasthan State Roadways Corporation Karamchari Sangh, Jaipur; and (3) the State Roadways Workshop Union. The dispute was referred by the Government of Rajasthan under Section 10(l)(d) of the Industrial Disputes Act, 1947 for adjudication by the Judge, Industrial Tribunal, respondent No. 1. Subject-mutter of reference are seven disputes contained in seven separate questions. Question No. 3 relates to the dismissal of the six employees of the central workshop of the Corporation. The Tribunal by the impugned award found their dismissal invalid and ordered their reinstatement with full back wages. He left the other questions to be decided at a subsequent stage. The Corporation has challenged this award in this writ petition.
2. The facts leading to this particular disputes are that on 28-7-69 one driver, Shri Fateh Sher Khan and one conductor of the Corporation, while on duty, were manhandled by some miscreants. They went to the concerned police station to lodge a report. The police instead of writing the report and taking action against the miscreants put Fateh Sher Khan under lock-up and he was not released till 2-30 p.m. This news caused stir among the employees of the Corporation and some of them approached the management to intervene and take suitable action against the police action. The management did not appear to have listened to their request. The result of this was that the employees of the Corporation resorted to a tool down strike from 2-30 p.m. to 4-30 p.m. the rest of the working hours of the day. The strike also spread in the central workshop where the six workmen were employed. The management charge-sheeted the six workmen who are respondents Nos. 5 to 10 and two others. Shri A.C. Sethi was entrusted with the domestic inquiry and he found the six respondents guilty of the charges levelled against them. In consequence of the inquiry the management dismissed the six employees from service. Since some disputes regarding payment of wages according to Ranawat Commission and the Central Wage Board recommendations, for payment of bonus; for the confirmation of the temporary employees, etc., were already pending, the two sunghs and the union sponsored the cause of these six employees. It was in these circumstances, the Government of Rajasthan referred all the disputes including the one arising out of the dismissal of these six workmen to the Industrial Tribunal. The Tribunal by its order dated 15-10-1971 gave the award so far the dispute No. 3 was concerned as aforesaid. The award was published on 25th November, 1971 under Section 17 of the Industrial Disputes Act.
3. Learned Counsel for the Corporation has contended that the Judge, Industrial Tribunal did not act within his jurisdiction in deciding the dispute piece-meal. According to him there is no provision under the Industrial Disputes Act which empowered the Tribunal to give a part-award. On the other hand, Mr. Mridul, learned Counsel appearing on behalf of the workmen, submitted that the the questions referred were not inter-connected, and the question No. 3 in particular, having no relation with the other questions, the Tribunal in deciding the dispute relating to the dismissal of the workmen as a part-award, committed no error of jurisdiction.
4. After having considered the rival contentions, I am of the opinion that the Judge, Industrial Tribunal did not exceed his jurisdiction, in the circumstances of the case, in deciding one of the disputes as a part-award. Section 2(b) of the Industrial Disputes Act defines award as follows:
'Award' means an interim or a final determination of any Industrial Dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10A.
5. There is no dispute between the parties that so far the question No. 3 is concerned the impugned order is a final determination leaving nothing to be decided subsequently. The decision of this dispute cannot be said to be interlocutory in character or in the nature of interim relief. Reference may be made to Asbestos Cement Ltd. v. P.D. Sawakar and Ors. 1970-II L.L.J. 129, where the arbitration proceedings under Section 10A of the Industrial Disputes Act, Arbitrators, at the first instance, decided only one of the issues relating to the increased dearness allowance out of 20 items of demand and in respect of the same the award was passed. The award was subsequently published under Section 17 and it became final and enforceable. The management preferred a writ petition but the High Court rejected the writ petition on the ground that the award was not final. Leave to appeal to Supreme Court was also dismissed on the ground that neither the award nor the order dismissing the writ petition was final under Article 133(1) of the Constitution. In an appeal by special leave before the Supreme Court their Lordships observed as follows:
There is no dispute that the question of dearness allowance alongwith several other questions was, by agreement between the parties, referred to the arbitration of respondents 1 to 3 as provided by Section 10A of the Act and that a copy thereof was published in the Government Gazette as required by Sub-section 3 of Ural section. There is similarly no dispute that the aribtrators. instead of determining all the disputes at one time, first took up the question of dearness allowance, deciding to take up the rest of the disputes at a subsequent stage and gave their award calling it Part I award. Under Sub-section 4 of Section 10A, the Arbitrators submitted the said Part I award duly signed by all of them to the Government. As required by Section 17(1), the said Part I award was published in the manner prescribed, therefor, by the State Government and there under Section 17(2) it becomes final and could not be called in question by any court in any manner whatsoever. Under Section 17A(i), the award become enforceable on the expiry of 30 days from the date of its publication under Section 17, in the present case, as from May 15, 1965. Therefore, so far as the question of dearness allowance, among other disputes, was concerned, Part I award became final and binding on the parties and nothing further remained to be done or determined in respect of the controversy between the parties on the question of dearness allowance. The award, therefore, was not an interlocutory order in the sense of any dispute in respect of its subject -matter remaining to be finally adjudicated by the Arbitrators or the rights of the parties in relation thereto remaining pending any further determination. In this sense there can be no doubt that so far as the dispute as to the dearness allowance was concerned, the Arbitrators by the said Part I award finally adjudicated it and gave their decision leaving nothing to be adjudicated or decided upon at any subsequent stage of the arbitration.
6. Their Lordships also held that the dismissal of the writ petition was a final order within meaning of Article 133(1) of the Constitution. The order of the High Court dismissing the writ petition was set aside and the case was sent back for disposal according to law.
7. There is yet another case of the Supreme Court, The Management, Hotel Imperial. New Delhi and Ors. v. Hotel Workers' Union : (1959)IILLJ544SC . Though the case before the Supreme Court was with regard to interim relief but their Lordships while reading the definition of award pointed out that it is open to the Tribunal to make an award about some of the matters referred to it while some others still remain to be decided. The following observations can be aptly quoted:
The next question is as to how the tribunal should proceed in the matter if it decides to grant interim relief. The definition of the word 'award' shows that it can be either an interim or final determination either of the whole of the dispute referred to the Tribunal or of any question relating thereto. Thus it is open to the Tribunal to give an award about the entire dispute at the end of all proceedings. This will be final determination of the industrial dispute referred to if. It is also open to the Tribunal to make an award about some of the matters referred to it whilst some others still remain to be decided. This will be an interim determination of any question relating thereto. In either case it will have to be published as required by Section 17. Such awards are, however, not in the nature of interim relief for they decide the industrial dispute or some question relating thereto. Interim relief, on the other hand, is granted under the power conferred on the Tribunal under Section 10(4) with respect to matters incidental to the points of dispute for adjudication.
8. In the present case as noticed above no interim relief has been granted and the order passed on 15-10-1971 finally determined the disputes regarding the dismissal of six workmen. That being so, it is a final determination of one question relating to the entire industrial dispute and it falls within the ambit of 'award' as defined under Section 2(b)of the Act.
9. On behalf of the Corporation reliance has been placed on Punjab National Bank Limited v. A.N. Sen and Ors. . Nagercoil Electric Supply Corporation represented by its proprietor S. Kumaraswami, Pioneer Motors, Nagercoil v. Industrial Tribunal, Trivandrum and Anr. A.I.R. 1953 T.C. 167; and Management of Radio Foundation Engineering Ltd, and Anr. v. State of Bihar and Ors. : AIR1970Pat295 . In all these cases the question involved was with regard to interim relief before the final adjudication of the dispute and in none of them, the question which has arisen in the present case, was under consideration.
10. In the Punjab case the Tribunal directed the Employer Bank to pay wages and allowances to the employees till further orders. Their Lordships held that the expression ''interim award' does not necessarily mean determination of some items out of the items that the Tribunal is called upon to determine and that, therefore, the Tribunal had jurisdiction to pass the interim order which came within Section 2(b) before final determining the matter referred for adjudication.
11. In Travnncore Cochin case the management was required to pay the wages with arrears to the 28 workers who were either retrenched or dismissed. The Tribunal was not found to have considered the report which the Chief Engineer Electricity submitted to the Government on 16-6-1961 before it ordered the interim relief. In the circumstances of that case, the learned Judge quashed the award.
12. In the Patna case the interim order passed was a direction to deposit two months wages for payment to the workman. On the facts of that case their Lordships held that no case for interim order was made out.
13. Reference has also been made to Jaipur Spinning & Weaving Mills Ltd., Jaipur v. The President, Jaipur Spinning & Weaving Mills Ltd. Mazdoor Union, Jaipur (1960) 10 I.L.R. Rajasthan 171. Their Lordships held 'that the language of Section 10 of the Industrial Deputes Act is quite general and must govern all awards, whether final or interim. By the interim award only such reliefs can be granted as can be given in a final award,' Obviously the words ''Interim award' are in context to the interim relief. From the facts of the case as well, it appears that the question before their Lordships was whether the industrial 'tribunal was right to allow a provisional increase in the wages of a sider to compensate him for the increased work-load, during the pendency of the dispute. They found that the grant of relief at an interim stage can be appropriately granted before an award is finally given.
14. The next contention that has been raised on behalf of the Corporation is that the Tribunal had no valid ground to interfere with the finding reached at the domestic enquiry when it failed to find that domestic enquiry was in any way unjust and improper. Mr. Mridul on behalf of the workmen strenuously urged that the Tribunal, in fact, held that the conclusions arrived at domestic enquiry were perverse. He, however, conceded that the discussion by the learned Judge of the Industrial Tribunal has not been happy but he can support the decision of the Tribunal from the evidence that has been placed on record by the Corporation. Learned Counsel have addressed this Court at length in support of their respective contentions.
15. In order to appreciate the rival contentions it is necessary to state some facts. The charges served on the workmen are identical. The relevant part of the charges-sheet against Shri Manohar Lal is exitracted below:
You, Shri Manohar Lal, Body Fitter Gr. II, Central workshop, Rajasthan State Road Transport Corporation, Jaipur are hereby charged for the following offences:
(1) that you on or about 2. 30 p. m. dated 28th July, 1969 while functioning as Body Fitter Gr. II stopped the work without: any notice and without any information. You were asked to do your work by Shri P.M. Kulshreshtha AME but you refused to work. You further instigated the other workers not to work and forced them to stop doing their work, which means you were on illegal strike and instigated other employees to take part in the illegal strike. You intentionally disobeyed the orders of your superior officers. These acts of yours are misconduct under Standing Order 35 (sic) Clause (f)(1)(s) of the Rajasthan State Road Transport Workers & Workshop Employees Standing Order.
16. According to the charge-sheet the charges are (i) that Manohar Lal stopped to work without notice; (ii) that he refused to work in spite of the asking by the A.M E. and he then disobeyed the order of his superior officer and (iii) that he instigated the other workers not to work which meant that he was on illegal strike and instigated the other employees to take part in that strike. Shri A.S. Sethi found all these six workmen guilty for the misconduct as defined under Clause (f)(1) and (s) of the Standing Order 34. The Works Manager agreed with the report of Shri Sethi and dismissed them from service of the Corporation with immediate effect. The Tribunal found that the charges did not stand proved on merits. According to it there was no specific charge for participating in the illegal strike and the charge for instigating others was also not clear. There was no evidence of instigation against Manohar Lal or any other workmen. He also found that the punishment meted out to these workmen was an unfair labour practice and there was a discrimination in picking up only six persons for the alleged illegal strike. In short, the finding of the learned Judge of the Industrial Tribunal is that the conclusion reached at the domestic enquiry is perverse. It is true that he did not find the domestic enquiry to be unjust and improper.
17. This brings me to the question as to what is the scope within which the Tribunal can interfere with the findings arrived at the domestic enquiry.
18. In Indian Iron & Steel Co., Ltd. and Anr. v. Their Workmen, S.K. Das J. who spoke 1958-I L.L.J. 260 : A.I.R. 1958 S.C. 130, for the Court observed as follows:
Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse.
19. The above principles were reiterated in the case between G. Mekenzie & Co. Ltd., v. Its Workmen and Ors. 1959-I L.L.J. 285. Their Lordships further observed:
It is for the management to determine what constitutes major misconduct within its standing orders sufficient to merit dismissal of a workman but in determining such misconduct it must have facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and without motives of vindictiveness, intimidation or natural justice. When the management docs have facts from which it can conclude misconduct, its judgment can not be questioned provided the above mentioned principles are not violated. But in the absence of these facts or in case of violation of the principles set out above its position is untenable.
20. The observations of S. K. Das, J., in Indian Iron Steel Company have been quoted with approval in the case arising between J. K. Cotton Spinning and Weaving Company Ltd. v. Its Workmen 1965-II L.LJ. 153. Again in the case between Workmen of Motipur Sugar Factory (Private) Ltd., v. Motipur Sugar Factory Private Ltd. 1965-II L.L.J. 162, their Lordships of the Supreme Court observed as regards the scope of enquiry before Tribunal as follows:
It is new well-settle that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to Tribunal where domestic enquiry hag been properly held-See Indian Iron and Steel Company v. Their Workmen 1955-I L.LJ. 260; but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.
21. In the case between State Bank of India v. R.K. Jain and Ors. 1971-II L.L.J. 599, Vaidialingam, J., who spoke for the Court stated the law in the following words;
The legal position regarding circumstances underwhich the Tribunal can interfere with the domestic enquiry have been laid down by this Court. Among the circumstances which will justify interference are whether the order of discharge is punitive or mala fide or when it amounts to victimisation or unfair labour practice. It can also be set aside when there has been a violation of the principles of natural justice in the conduct of inquiry ; Tata Oil Mills Co., Ltd. v. Their Workmen 1966-II L.L.J. 602, and Ananda Bazar Patrika (P) Ltd. v. Its Workmen : (1963)IILLJ429SC .
22. In a later decision of the Supreme Court in Delhi Cloth and General Mills Co., Ltd. v. Ludh Budh Singh 1972-I L.L.J. 180, Vaidialingam J., discussed the law in detail and observed:
The law regarding the nature of the jurisdiction exercised by a Tribunal in dealing with an application under Section 33 of the Act was dealt with in Delhi Cloth and General Mills Co., Ltd., v. Ganesh Dutt and Ors. 1972-I L.L.J. 172, (supra), where it was laid down that the nature of the jurisdiction of the Tribunal is a very limited one. The legal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and permission must he given unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice, or is acting mala fide.
23. Again his Lordship observed that once the Tribunal is satisfied that the conclusion arrived at by the Enquiry Officer is a possible one the Tribunal has no jurisdiction to sub. stitute its judgment for that of the enquiry officer. His Lordship further bid down that the test of perversity of a finding will be that the said finding is not supported by any legal evidence at all. The finding will also be held perverse in those cases where the finding is one which on reasonable person could have arrived at on the material before it. On the reading of the entire decision of the Supreme Court the following principles also emerge and they are stated as follows:
(1) If no domestic enquiry has been held or if the management makes it clear that it does not rely upon any domestic enquiry held by it is straightaway entitled to adduce evidence in support of the action proposed to be taken. The Tribunal is bound to consider that evidence so adduced before it on merits and give a decision thereon.
(2) If a domestic enquiry has been held it is open to the management to rely upon such enquiry in the first instance and alternatively enquiry is proper and binding simultaneously adduce is (additional evidence before the Tribunal) justifying its action. In such a case no inference can be drawn, without anything more, that the management has given up its enquiry.
(3) When the management relics on the enquiry and also simultaneously adduces evidence before the Tribunal without prejudice to its plea that the enquiry is proper, it is the duty of the Tribunal in the first instance to consider whether the enquiry is valid or proper. If it is satisfied the enquiry was proper the question of considering the evidence before it on merits no longer survives. It is only when the Tribunal holds the enquiry was not properly held it derives jurisdiction to consider the evidence adduced before it and decide on the basis of such evidence.
(4) When the management relies on the domestic enquiry it is open to them to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence in case the preliminary issue is decided against them. When the preliminary issue is decided against the management and the latter wants to give evidence before the Tribunal, and opportunity to adduce such evidence must be given. It will not be just and fair for the Tribunal to refuse to take evidence.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendancy of the proceedings to adduce such evidence the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded and decide the matter.
(7) The above principles apply to the proceedings before the Tribunal which have come before it either on a reference under Section 10 or by way of application under Section 33 of the Act.
24. In the background of this statement of law, it has to be examined if the Tribunal was right in its interference with the decision of domestic enquiry, Iris conceded by Mr, Mridul that there is good evidence in all the cases of the six workmen to support the finding of strike. I will, therefore, start with this premise that there was a tool down strike from 2.30 p.m. to 4.30 p.m. on 28-7-1969. The contention of Mr. Mridul, however, is that the strike was not illegal and there is no evidence on record that it was in any way in contravention of Section 23, and 23 or it fell within the meaning of Section 24 of the Industrial Disputes Act. Learned Counsel for Corporation submitted that the workmen concerned were the employees of the public utility service and since the strike in question was without notice, it violated Section 22 of the Act. He has referred to Section 2(n) defining public utility service and the Rajasthan Rajpatras Extraordinary dated 23-10-1968 and 23-6-69. According to him transport service (other than Roadways) for the carriage of passengers or goods has been declared to be the public utility service by the State Government by the notifications published in the aforesaid Rajpatras. The answer to this contention by Mr. Mridul is two fold. One, that it is the transport service which is meant for the carriage of passengers or goods which has been declared as public utility service and not the service Central Workshop of the Corporation to which the six workmen were employed ; and two, that it has not been made clear in the charge-sheet that the workmen were employed in the public utility service and therefore the strike was illegal being in contravention of Section 22.
25. From a close reading of the charge-sheet it is clear that the workmen were charged from stopping the work without any notice As a matter of fact this accusation only amounted to cessation of work and not in fact a strike. That apart, it has been stated in the charge-sheet that the workmen instigated the other workers not to work and forced them to stop doing their work which meant that they were on illegal strike and instigated other employees to take part in the illegal strike. It is thus true that the charge being vague does not specify that the workmen were employed in the public utility service and as such their having gone on strike without notice was illegal. To make out a case of the breach of Section 22, two important requirements have to be set out and proved, namely: (i) that the concern in which a strike took place is a 'public utility service' within the meaning of Section 2(n) of the Act ; and (ii) that the strike is in 'breach of a contract of service' of the striking workmen Both the ingredients are missing in the charge-sheets served upon the workmen.
26. The contention of Mr. Mridul that the workmen concerned, who were employed in the Central Workshop cannot be said to be as the employees of the public utility service, is also not without substance. Section 22 bans the commencement of strikes and lock-outs in public utility service, while Section 23 bans strikes and lock-outs generally in industrial establishments in the circumstances enumerated therein. Though every industrial establishment is not a public utility service, hut every public utility service is an industrial establishment. Therefore, the provisions of Sections 22 and 23 cumulatively will apply to prohibition of strikes and lock-outs in public utility services. Section 2(n) defines the expression 'public utility service,' In addition to industries specifically enumerated therein Clause (vi) of Section 2(n) further provides that the industries specified in the first Schedule to the Act may be declared to be public utility services by the 'appropriate Government.' The breach of Sections 22 and 23, makes the strike illegal and entails the penalties under Section 26. For esta. blishing the contravention, therefore, it must be proved that the concern in which the strike took place is a ''public utility service' within the meaning of Section 2(n) of the Act. The case of Swadoshi Industries v. Its Workmen 1960-II L.LJ. 78, is on this point. Here a company was running three units, namely, cotton taxtile weaving unit, a silk unit and an art silk products manufacturing unit. The cotton textile industry was notified to be a public utility concern for the purposes of Section 22 by the 'appropriate Government'. The concerned workmen, 230 in number, were employed at the time of their going on strike in the silk mill unit. No evidence was led by the company to show that at or about the relevant time or prior to that the concerned workman had ever worked in cotton weaving mill There was no evidence to show that by the terms of their employment, the concerned workmen were employed to work in the cotton textile section was ever assigned to any of the concerned workmen. On this evidence, it could not be considered that the concerned workmen were employed at the relevant time in a 'public utility service' within the meaning of Section 2(n) and for the purposes of Section 22 of the Act. It was held that the burden of proof was on the employer-company to show by clear and cogent evidence that the conditions of service required the concerned workmen to work in the cotton weaving mill when required. The language used in the first schedule and the relevant notification, denotes that it is the transport service used for the carriage of passengers or goods which was declared a public utility service under Sub-clause (vi) of Clause (n) of Section 2 of the Act. Obviously the employees working as body-fitters, mechanic, helper & cleaner in the Central Workshop are not concerned directly with the transport service of the Corporation which is used for the carriage of passengers or goods. And there is on evidence on record to show that these six workmen, according to the conditions of service, could be called upon to work, when required, in the transport service used for the carriage of passengers or goods.
27. There is no dispute for the proposition that every strike is not illegal and the workers enjoy the fundamental right to resort to strike whenever they are so pleased in order to express their grievances or to make certain demands. Strikes are illegal under the Indian Law only when they are in contravention of the provisions of Sections 22, 23 and 24 of the Act. In this view of the matter, I am unable to agree with Mr. Raja Narain that the strike was illegal on account of the fact that the workmen were the employees in the public utility service and it contravened Section 22 or 23. At any rate, the workmen had no notice of this fact in the charge-sheet. The domestic enquiry which held them guilty for the illegal strike did not as well mention in the enquiry report that the concerned workmen were the employees in the public utility service The result of the enquiry, therefore, suffers from a basic error, which is apparent on the face of the record. The management did not have facts or evidence from which it could conclude misconduct on the ground that the strike was illegal. It might as well be noticed here that no other ground was pressed on behalf of the Corporation, to show that the strike was illegal.
28. Next question that arises for my examination is whether the Tribunal was right in saying that there was no evidence of incitment or instigation against these six workmen. Learned Counsel for parties have taken me through the evidence. But before I deal with the evidence, I will prefer to discuss the law on the point. Clause (s) of the standing Order 34 makes the incitment as misconduct in the circumstances mentioned in the clause. The clause reads as follows:
34. The following acts and omissions shall be treated as misconduct: (s) 'Striking work or inciting others to strike work in contravention of the provisions of any law or rule having the force of law, for the time being in force.
According to this clause inciting others to strike work is a misconduct only when it is in contravention of any law or rule. Section 27 of the Industrial Disputes Act also provides penalty for instigating or inciting others to take part in or otherwise acting in furtherance of a strike or lock-out which is illegal under the Act. Every strike or lockout is not illegal, any instigation or incitment would not, therefore, be illegal unless the particular strike or lock-out complained of, is ''illegal' under the Act. Hence the persona instigating or inciting would be guilty only when it is established that the strike or lock-out which he has incited or instigated, to his knowledge, was illegal. I have held above that the tool-down strike on 28-7-1969 was not illegal strike. In this view of the matter the alleged incitment by the six workmen, even if proved, would not amount to misconduct within the meaning of Clause (s) of Sunning Order 34 or punishable under Section 27 of Industrial Disputes Act.
29, However, I will presently consider as to what the word 'incitment' signifies. In State of Bihar v. Ranen Nath and Ors. : AIR1958Pat259 . Their Lordships while dealing with the appeal by the State of Bihar against an order of acquittal of the respondent under Section 27 of the Industrial Disputes Act, had an occasion to consider the meaning of the words 'instigation and incitment'. They give to the words their ordinary gramatical meaning. Their Lordships observed as follows:
The words 'instigates' and 'incites' should be read to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitment under Section 27 of the Industrial Disputes Act. The words seem to convey the meaning 'to goad or urge forward or to provoke or encourage the doing of an act.' It is sometimes, difficult to bring out the exact meaning of words which, by themselves, are so expressive and precise and, not unoften, in trying to interpret such words, we are faced with the danger of using words, which, on closer scrutiny, may not carry the same sense.
30. In Aditya Mills Ltd., Madanganj v. Ram Dayal 1972 R.L. W. 478, a Bench of this Court, discussed the meaning of the word 'incites or instigates'. It was held that the ingredients of the word 'instigates' or 'incites' apporently are something more than mere asking a person to do a particular act. For stimulating action words must come from a person who exercises some kind of influence over his audience.'
31. After having read the evidence led against the six workmen I find that there is no evidence to hold that they or any of them incited or instigated other workmen to strike work. In the case of Manohar Lal Prahlad Mohan Kuhhreshtha witness only stated that Manohar Lal and Noori asked other persons to strike work. It is also not clear from his statement as to who were those workmen whom they asked. Reghubir Kumar is another witness who deposed at the domestic enquiry that he saw Manohar Lal asking others to stop work. Jiwan Lal is another witness, who said that he saw Manohar Lal at 2-45 p. in. asked him about the strike, and he told him that one should do as others do. Brijendra Maihur deposed that Manohar Lal had gone to his section told the workman under him that he did not have to work. This evidence in my opinion, does not make out a case of incitment or instigation. The evidence against other workmen is still meagre and of a weaker type. There is no evidence that any of these six workmen used force, or committed violence, or caused any obstruction in bringing about the strike among the employees of the workshop. As discussed above 'instigation' or 'incitment' signify something deeper than a mere asking of a person to do a particular act.
32. I have extracted above the charge-sheet of Manohar Lal. The charge regarding incitment does not contain any detail. It fails to mention whom the workmen had instigated and what he did and in what capacity he was asking other workmen to strike work. In these circumstances the management left it open to itself to lead whatever evidence it chose at the time of the enquiry. In this view of the matter the finding reached at the domestic enquiry is not supportable by any legal evidence led at the time of the enquiry and the Tribunal was right in holding that the finding of incitment was perverse.
33. On behalf of the workmen it has also been contended that if there was no evidence of incitment or instigation, the discrimination is at large in the orders passed by the management. The argument is, that according to the Corporation there was a tool-down strike in the workshop and other units of the Corporation, these six workmen alone have been chosen to be punished for striking work. This contention is correct. If the strike was illegal then all the workmen, who had gone on strike, were liable to be punished. No special reasons have been given either in the charge-sheet or before the Tribunal or in this Court as to why these six men alone were picked up for punishment. It is, therefore, obvious that if the charge of incitment falls on the ground there will be no difference between those six workmen and other persons who had participated in the strike. In the sense between Burn & Co. Ltd. v. Their Workmen and Ors. 1959-I L.L.J. 450, workmen were put on indefinite suspension for participating in an illegal strike and for inciting the workmen to go on such strike. The company had taken back a large number of workmen who participated in such strike. Dealing with the question of suspension the Industrial Tribunal found that the charge of inciting the workmen was not proved. Hence it held that the suspension of the concerned workmen for mainly participating in an illegal strike was unjustified in view of the fact that the company had taken back in service a large number of workmen who also participated in such strike.
34. Again in the case, between Northern Dooers Tea Company Ltd. v. Workmen of Dem Dima Tea Estate 1964-I L.L.J. 436, where the Industrial Tribunal held that the action of the employer in selecting six workmen out of a large number of strikers for punishment was mala fide inasmuch as if was based on irrational and unreasonable discrimination. The employer was unable to give any rational or reasonable explanation why the six workmen were chosen out of a large number of strikers and proceeded against. Their Lordships of the Supreme Court held the award of the Tribunal directing the reinstatement of the concerned workmen as justified. Thus the finding of the Tribunal in the present case, that the dismissal of the six workmen concerned was an unfair labour practice and discriminatory in nature, is correct.
35 It has been admitted before me that the Corporation did not apply before the Tribunal to adduce additional evidence justfying its action. It remained content with domestic enquiry. Though the Tribunal did not hold that the domestic enquiry was unjust or violated any principle of natural justice but it found that the conclusions of the enquiry were perverse as they could not be supported on the material before it. In my opinion, the Tribunal substantially acted within its jurisdiction and within the scope as enunciated by their Lordships of the Supreme Court in the various decisions referred to above. Though it is true that at some places in the judgment the Tribunal travelled beyond its scope but I have no hesitation to hold that its conclusions are correct.
36. Coming to the other two charges falling under Clause (f) and (1) of Standing Order 34 I find no discussion in regard to them in the judgment of the Tribunal. Clause (f) and (1) read as follows:
(f) Indecent, disorderdly or rude behaviour with any fellow worker or officer or subordinate or businessman or customers and any other person connected with Corporation's Transport business.
(1) Wilful insubordination or disobedience or misbehaviour whether alone or in combination with others to any lawful order of superior.
37. As regards the misconduct falling under Clause (f) there appears to be no accusation in the charge-sheet. Even the Enquiry Officer has not said about it, in the enquiry reports.
38. There is a finding of the Enquiry Officer that these six workmen disobeyed the orders of the superior officers. The order dismissing these six workman in a combined punishment for all the charges. In view of the fact that the main charge of misconduct under Clause (s) had failed it was not possible for the Tribunal to have upheld the order of dismissal. For the reasons mentioned above I have also held that the charge of misconduct as defined under Clause (s) has no legs to stand and the conclusion arrived at by the management was rightly held to be perverse
39. The result is that the writ petition fails and is hereby dismissed. The Corporation will pay costs to the respondents Nos. 5 to 10.