Gayadin Ram v. Ram Pada Roy — 1969 DIGILAW 122 (CAL)

JUDGMENT Dasu. J. This appeal is directed against the judgment of B.N. Banerjee, J., dated 6.3.68, by which his Lordship made absolute in part the Rule obtained by the Respondents before us (Rama Pada & Ors.) in Matter No. 30/61 filed on 2.2.61. 2. The petitioners in that Matter are workmen under Gayadin Ram (the appellant before us), carrying on business under the name and style-Hindusthan Iron & Steel Co, (hereinafter referred to as "the Company"). There was a dispute between the parties regarding irregular payment of wages, which was settled through conciliation, as per annexure A, dated 12.6.57. On 15.6.57 the Company suspended Sobodh Guha the Vice President of the Workmen's Union and up to 21.9.57, went on "refusing employment" to 35 other workmen and the dispute arising out of such non-employment was referred, by the Govt. of West Bengal, for adjudication, to the Fourth Industrial Tribunal, which resulted in an Award, dated 10.4.58 by which the Tribunal directed reinstatement of 26 out of the 35 workmen, including Subodh Guha. The Company moved this Court under Art. 226 and got the Award modified in that the order of reinstatement except in favour of Subodh Guba was quashed. 3. The petitioner-Respondent's case is that as a result of the aforesaid proceedings, the Company started a campaign of victimisation against the workmen and refused employment to different batches of workmen on different dates and of them served chargesheets on 26 workmen, asking them to show cause why they should not be dismissed for the misconduct of staging an illegal "stay-in-strike" and preventing other willing workers to join their work on 27.1.58 (vide p. 41 of the paper-book). This was followed by similar charge-sheets against another 29 workmen. Conciliation proceedings having failed, the dispute was referred by the Govt. for adjudication to the First Industrial Tribunal, on 13.10.58 (p. 160 of the paper-book). Of the two issues so referred, we are, in this appeal, concerned only with the first issue which, as amended by order dated 17.10.58 (p. 164 of the paper-book), was - “Whether the refusal by the Company to employ the workmen (names given in the list attached) till the date of reference (i.e. 13.10.58) of this dispute to this Tribunal is justified ? What relief are they entitled to ?" 4. What relief are they entitled to ?" 4. The Company then brought a petition under Art. 226 of the Constitution to quash the reference to the Tribunal, which was numbered Matter No. 210 of 1958. The Rule obtained thereon was eventually discharged on 19.3.59. The plea of the Company before the Tribunal was that 54 out of the 55 workmen who had been charge-sheeted, were dismissed on 22.9.58, after due enquiry and that 41 workmen had been suspended for security reasons. The Tribunal eventually gave its award on 5.8.60, (p. 163 of the paper-book), holding that, (a) the dismissal of the 54 workmen involved was justified, but that (b) they should be given compensation to the extent of one month's wages on account of the delay in the enquiry and issue of dismissal letters (pp. 207, 216), (c) the suspension of 41 workmen for security reasons was also justified, and that (d) of the suspended workmen, 35 should be dismissed as the Tribunal found it proved that they were guilty of stay-in-strike during the period from 6.8.58 and 11.8.58 (p. 213). 5. This brings us to the present litigation. Not satisfied with the Award, the workmen brought the instant petition to quash the Award on the following grounds, inter alia - (i) That the Company had no power to suspend ; (ii) That the dismissal was bad because of want of service of notice of the alleged domestic inquiry; (iii) That no inquiry had been held; (iv) That the Award was bad inasmuch as there was no evidence with respect to 49 out of the 54 workmen, as named at p. 15 of the paper book; (v) That the order of dismissal of 32 of the suspended workmen, made by the Tribunal, suo motu, was without jurisdiction. The trial Court held (a) That the order of dismissal of the 54 workmen for misconduct was bad in so far as it was given retrospective operation but that it would have effect from the date of the order, if it was otherwise upheld (p.309); (b) That the dismissal was bad in respect of 49 workmen, for want of any evidence, as contended by petitioner-workmen (p.309); (c) That the order as to dismissal of the 32 of the suspended workmen was covered by the Reference, but that it was bad (p. 312) because (i) Stay-in-strike was a legitimate form of trade union activity and was, consequently, not a 'misconduct' for which workmen could be dismissed ; (ii) Assuming that it was a misconduct there could be no dismissal without holding an enquiry on this charge, which was actually fixed for 17.4.59 but eventually did not take place. 6. Upon the above findings, the Court made the Rule absolute, to the following extent only- (a) That part of the Award which upheld the dismissal of 49 out of the 54 workmen was quashed; (b) That part of the Award which directed dismissal of 32 workmen under suspension was quashed (p. 313). 7. The Company has preferred this appeal against the aforesaid judgment, envarious grounds, which are being dealt with, under two heads- (i) Re : 49 dismissed workmen; (ii) Re: 32 suspended workmen; (iii) Re: 49 dismissed workmen; 8. A. The first ground urged is that the issue referred to the Tribunal being whether "the refusal to employ" the workmen included in the list annexed to the order of reference-was justified, the trial Court exceeded its jurisdiction in entering into the question whether their 'dismissal' was justified and, if not, what relief they would be entitled to. 9. The question raised is not peculiar to an industrial dispute but arises whenever the jurisdiction of a statutory tribunal depends upon a question being referred to its determination by the competent authority, say, under the Stamp Act, the Income Tax Act and Sales-tax Act and the like. In all such cases. it is patent that the jurisdiction, as limited by the terms of reference, cannot be widened by the Tribunal itself. (1) Express Newspapers v. Workers, (1962) 11 LLJ 227 (234) 10. In all such cases. it is patent that the jurisdiction, as limited by the terms of reference, cannot be widened by the Tribunal itself. (1) Express Newspapers v. Workers, (1962) 11 LLJ 227 (234) 10. But, in the case of an Industrial Tribunal, the matter is dealt with in S.10(4) of the Act itself and the answer to the question raised has to be found out from an interpretation of that provision, which says that the Tribunal shall confine its adjudication to those points (i.e., the points of dispute for adjudication as specified in the order of reference and matters incidental thereto.) 11. It is true that the question referred to the Tribunal in the instant case, was whether "the refusal to employ" the workmen in question was justified, and it has been held that the expression "refusal to employ" does not involve the concept of 'dismissal' but refers to, the concept of 'lockout,' as defined in S.2 (1) of the Act and that 'lock-out' presupposes that the employment subsists and has not been terminated, as in the case of discharge or dismissal (1) Express Newspapers v. Workers, (1962) 11 LLJ 227 (232) SC; (2) Feroz Din v. State of West Bengal, (1960) 1 LLJ 244 (249) SC). 12. But that does not conclude the problem raised before us, because, we have still to determine whether, in the facts of the instant case, the question of 'dismissal' may be said to be incidental to the question which was referred to the Tribunal. There has been quite a large number of decisions as to what would be covered by the word ‘incidental’, and the following propositions appear to emerge therefrom; (a) The word 'incidental' will not include separate items or subjects of dispute (3) CES Corpn. v. CESW Union, AIR 1959 SC 1191 ; (4) UPESC v. Workmen, AIR 1960 SC 818 , nor can it include parties not Included in the reference. (5) DCM v. Workmen, AIR 1967 SC 469 . (b) At the same time it has been held that the terms of reference under Sec.10(1) of the Act should be construed not "too technically or in a pedantic manner", but "fairly and reasonably" ( AIR 1963 SC 569 (576), Express Newspapers case). (5) DCM v. Workmen, AIR 1967 SC 469 . (b) At the same time it has been held that the terms of reference under Sec.10(1) of the Act should be construed not "too technically or in a pedantic manner", but "fairly and reasonably" ( AIR 1963 SC 569 (576), Express Newspapers case). It follows that, by reason of the expression 'matters incidental', the jurisdiction conferred by a reference shall be held to include- (i) the jurisdiction to decide jurisdiction, questions without which on adjudication can at all be made by an Industrial Tribunal, e.g. whether the dispute in question is an "industrial dispute" as defined by the Act ( AIR 1963 SC 569 (ibid). (ii) the jurisdiction to decide matters arising out of or connected with the dispute (5) DCM v. Workmen, AIR 1967 469, but not an independent matter (6) Workmen of B.I.C. v. B. I. C. (1965) 11 LLJ 433 (S.C.) ; (iii) in order to determine the scope of the reference the Tribunal may refer to the pleadings of the parties ( AIR 1967 SC 469 (473) ; 13. In the instant case, the case of the workmen before the Tribunal was that the Management had refused to give work" on various dates and presumably it is on such representation that the Government framed the term of reference to the Tribunal as "refusal to employ". The plea taken by the management before the Tribunal was that it was not a case of 'refusal to employ' but that the workmen had been 'dismissed' by them after disciplinary proceedings held against them for misconduct. If the management's plea was upheld, as was done by the Tribunal, upon the evidence before it the question referred to the Tribunal could not be answered in favour of the workmen. 14. It is evident that the scope of inquiry upon the issues of "refusal to emply" and 'dismissal' are altogether different. Where the issue, as in the instant case, was whether the 'refusal to employ' was justified, the business of the Tribunal was to find out whether (a) there was a refusal to employ within the meaning of s.2(1) of the Act and (b) whether such lock-out was justified and valid under the provisions of the Act relating to lock-out. e.g. SS. 10(3), 10A(4A), 22-24. 15. e.g. SS. 10(3), 10A(4A), 22-24. 15. When the issue is, on the other hand, whether a dismissal is justified, the Tribunal is called upon to determine whether (a) the dismissal was upon a charge of misconduct for which dismissal could be inflicted under the contract or the statutory Standing Orders governing the parties; (b) whether the inquiry which resulted in the order of dismissal was properly conducted, in accordance with the principles of natural justice (7) Firestone Co. v. Workmen, AIR 1968 SC 236 (240); (c) whether on the materials, the finding at the domestic enquiry can be said to be baseless or perverse; (d) whether the dismissal was bona fide or amounted to victimisation or unfair labour practice (8) Indian Iron & Steel Co. v. Workmen, AIR 1959 SC 130 (138) 16. It is quite evident that all these manifold questions which arise when the validity of an order of dismissal is referred to the Tribunal cannot arise when the Question referred to the Tribunal is whether 'refusal to employ' the workmen concerned was justified. The learned trial Judge, thus, clearly went beyond his jurisdiction in going into the question of validity of the dismissal, to hold that there was no ‘evidence' to sustain the order of dismissal and to the order of dismissal, sitting in the writ jurisdiction over an order of the Tribunal on the present reference. 17. In fairness to the learned Judge, however, it must be stated that he was misled by the form in which the Tribunal had expressed itself in the Award. Instead of holding that it was not a case of 'refusal to employ' but a case of dismissal and that, since the service of the workmen had been terminated, the alleged refusal to employ must be held to be justified, the Tribunal said: "It is, therefore, awarded that the dismissal of the 54 workmen is justified; that the Company was also justified in refusing them employment after the date of their dismissal." 18. The opening words apparently suggest that the Tribunal was giving its decision upon the issue of validity of the dismissal, which had not been referred to it. The opening words apparently suggest that the Tribunal was giving its decision upon the issue of validity of the dismissal, which had not been referred to it. Instead of going into the merits of this pronouncement of the Tribunal, the trial Court should have quashed this portion of the Tribunal's award as without jurisdiction, of course, the view which we take may compel the workmen to resort to further proceedings to challenge the validity of the orders of dismissal dated 22.9.58. But, for such inconvenience, the workmen themselves are to blame. The Tribunal has held that the workmen were aware that Management had held an inquiry against them after serving charge-sheets and dismissed them by the orders of 22.9.58 and yet the workmen approached the Government with a story of "refusal to employ", and the reference was made by the Government on such terms. That charge-sheet had been served on many of the Respondents and that they had submitted their explanations to the charges was admitted in paras 17-18 of the petition under Art. 226 of the Constitution. Though in para 34 it was denied that there had been any inquiry or dismissal upon these charges. There is a concurring finding of fact of the Tribunal and the Court below that notices of the inquiry had been served upon the workmen but that they chose not to appear at the enquiry. In these circumstances, it is clear that the workmen should not have approached' the machinery under the Industrial Disputes Act with a case of "lock-out”. 19. It was at one stage contended on behalf of the Respondents that charge-sheets had been issued by the Appellant only against 27 persons. That, however, is not correct. The charge-sheets were issued in three instalments, against several groups of persons in relation to incidents taking place on various dates. These charge-sheets, dated 3.2.58 11.2.58 and 25.2.58 are to be found at pp 13-81 of the paper-book and the orders of dismissal dated 22.9.58 (pp. 89 et seq-) deal with all these charge-sheets. That, however, is not correct. The charge-sheets were issued in three instalments, against several groups of persons in relation to incidents taking place on various dates. These charge-sheets, dated 3.2.58 11.2.58 and 25.2.58 are to be found at pp 13-81 of the paper-book and the orders of dismissal dated 22.9.58 (pp. 89 et seq-) deal with all these charge-sheets. The charges included in these charge-sheets are- (a) That the workmen mentioned in the first charge-sheet had, as leaders, instigated a stay-in-strike at the place of work on 27.1.58 and prevented willing workers to attend their duties; (b) That the workmen included in the second charge-sheet wrongfully detained the car of the proprietor on his way out of the factory, on 8.2.58; (c) That the workmen included in the third charge-sheet attempted a forcible entry into the factory on 23.2.58 and resistance having been offered by the Management, threw brickbats injuring some persons, abused the management and threatened loyal workers. 20. At one place of his judgment, the learned trial Judge observed that stay-in-strike was not a misconduct for which disciplinary action could be taken against the workmen. But the summary of the charges just given shows that beside stay-in-strike, there were other charges such as preventing other workmen, detaining the proprietor, forcible entry into the factory, etc. which also could sustain disciplinary action. 21. In the view which we have taken, the judgment of the trial Court should be set aside, and the Award of the Tribunal should be restored in the simple form of answering the issue referred to in the affirmative: leaving the question of validity of the orders of. dismissal for appropriate proceedings hereafter. Re. 32 suspended workmen: 22. The plea of the management regarding those men was (not that they had been dismissed but) that they had been suspended for security reasons and that, accordingly, the refusal to employ them at the material time was justified. The Tribunal dealt with this plea in para 43 onwards of his Award. It came to the finding that under a charge-sheet dated 7.8.58. these workmen had been suspended with effect from 9.8.58, on the following charge : That these workmen induced other workmen to stage a stay-in-strike and had on 6.3.58 forcibly prevented other willing workers to stop their work and that such threat and obstruction to other workmen was continuing even after 6.8.58, 23. these workmen had been suspended with effect from 9.8.58, on the following charge : That these workmen induced other workmen to stage a stay-in-strike and had on 6.3.58 forcibly prevented other willing workers to stop their work and that such threat and obstruction to other workmen was continuing even after 6.8.58, 23. The management, accordingly, directed the respondents concerned to show cause why they should not be dismissed and pending the enquiry, suspended them. The Tribunal came to the definite finding that the Respondents in question had on the 6th August, come to the factory armed with iron rods, etc. and forcibly stopped the work, by using force and intimidation against willing workers. He found, on the evidence on the record, that the charge brought against these workmen was true and that, accordingly, these workmen “should be dismissed from service and the company’s refusal to employ them would be justified”: 24. We agree with the learned trial Judge that the Tribunal could not direct or recommend a dismissal when there had not yet been any enquiry upon the charges brought against these workmen. He, therefore, rightly quashed the direction of dismissal as contained in the Award. 25. This brings us to the further question whether the direction made by, the Court below itself was justified, namely, that the suspended workmen "deserve re-employment with wages for the period of suspension as laid down in the Hotel Imperial case”. The law on this point is now settled : (a) The employer has the right to suspend a workmen, i.e. to refuse to allow him to work, pending enquiry into charges of misconduct; (b) But, unless there is anything in the contract of employment or any statutory rules in that behalf, the employer must pay the employee his wages for the period of such suspension. (c) But, as held in Kesoram Cotton Mills v. Gangadhat, AIR 1954 SC 708 (714), the only purpose of suspension pending enquiry is to facilitate the enquiry into the charges and the question of reinstatement or payment of wages during the period of suspension would arise only after the enquiry is concluded, this way or that. 26. In the instant case, the enquiry into the charges has not yet been completed. It is, therefore, premature to talk about reinstatment or payment of wages to the suspended workmen. 26. In the instant case, the enquiry into the charges has not yet been completed. It is, therefore, premature to talk about reinstatment or payment of wages to the suspended workmen. We, therefore, agree with the appellant that the learned Judge has no jurisdiction either to direct reinstatment or to direct payment of wages during the period of suspension. 27. It has also been rightly contended that the only question referred to the Tribunal was whether the refusal to employ these workmen upto the date of reference was justified. No question as to the validity of the suspension had been referred to the Tribunal. On this point the appellant finds support from the observations of the Supreme Court in (9) L.D. Sugar Mills v. Ram Sarup, AIR 1957 SC 82 (87 para 10). There the question arose whether the conduct of the management in preventing the workmen from continuing work was justified. The Labour Appellate Court came to the finding : "As a matter of fact, the management never thought of a lockout. Their idea was to suspend the suspected persons pending enquiry for which they gave notice" 28. Nevertheless, the Tribunal came to the conclusion that the conduct of the management amounted to a "lockout". The Supreme Court held this conclusion to be "absolutely unjustifiable", and the order of the Tribunal directing reinstatement of the suspended workmen was 'set aside'. It was also observed that the only object of an order of suspension pending enquiry was to enable the management to hold the enquiry and that as soon as the Court was satisfied that the refusal to employ was due to the fact of an enquiry being pending in which suspension was ordered, the Management should be allowed to proceed with that enquiry. This view is also supported by the observations of the Supreme Court in (8) the Iron & Steel Co. case, (AIR 1958) SC 130 (para 20). 29. Following the observations in the L.D. Sugar Mills case, therefore, it must be held that as soon as it was found that there as an order of suspension pending enquiry, the Tribunal as well as the trial Court were bound to answer the question referred to in the affirmative, regarding these suspended workmen and leave the matter there, so far as the present proceedings are concerned. Since there was a pending enquiry, the appellant was justified in refusing work to the workmen concerned and that answer was sufficient to dispose of the Reference before the Tribunal. The right of the workmen to recover wages during the period of suspension or of the management to continue the enquiry pending which the suspension has been ordered should be left for appropriate proceedings open to the parties hereafter. 30. It is also to be pointed out that no question as to the validity of the charges brought against the workmen had been referred to the Tribunal. It has been rightly contended on behalf of the appellant that even if the charge of stay-in-strike did not amount to a misconduct, there was also the charge of intimidation and obstruction to willing workers, upon which the enquiry has been initiated. Hence, the learned Judge was not right to assuming, in the instant proceeding, that the enquiry proceedings were illegal and without jurisdiction altogether. 31. It follows that the observations of the learned Judge regarding reinstatement and payment of wages during the period of suspension were without jurisdiction in the instant proceeding. It is to be noted, however, that in the operative portion of his judgment, he did not say anything more than this; "The part of the award directing dismissal of 32 workmen under suspension is also quashed. The rest of the award is not interfered with in any way". 32. It cannot, therefore, be held that the learned Judge gave any binding direction for payment of wages or reinstatement. We need not, therefore, interfere with the order of the Court below besides observing that it is not necessary in the present proceeding to determine the question of reinstatement or payment of wages during the period of suspension or the validity of the pending enquiry, and that these questions will remain open for appropriate proceedings. Let us now read the order of the Tribunal with respect to the suspended workmen. (Para 43) "It is awarded that except three workers that are mentioned below, all other workers of this group of 35 workmen who were charged with the misconduct of stay-in-strike during the period from 6th August 1958 to 11th August 1958 should be dismissed from service and the Company's refusal to employ them would be justified." 33. (Para 43) "It is awarded that except three workers that are mentioned below, all other workers of this group of 35 workmen who were charged with the misconduct of stay-in-strike during the period from 6th August 1958 to 11th August 1958 should be dismissed from service and the Company's refusal to employ them would be justified." 33. If, therefore, we uphold the trial Court's judgment with the observation suggested, the Award of the Tribunal will be modified leaving only the last portion in tact, namely, that "the Company's refusal to employ them would be justified", which was the only proper Award on the issue referred to the Tribunal. 34. In the result, this appeal is allowed in part, but without any order as to costs, on the following terms; (a) The judgment of the Court below in respect of the 54 dismissed workmen (as referred in this judgment) be set aside and the Award of the Tribunal be restored in the simple form of answering the issue in the affirmative, leaving the question of validity of the orders of dismissal for appropriate proceedings hereafter. (b) The judgment of the trial Court regarding the 32 workmen is affirmed subject to the modification that no pronouncement shall be made as to the question of reinstatement or payment of wages during the period of suspension or the validity of the pending enquiry, in the present proceeding. In view of our judgment, all interim orders are hereby vacated. Before concluding, it is necessary to advert to a formal matter. It is reported to us that the appellant Gayadin Ram had died some time in December 1969, that is to say, between the hearing of this appeal and delivery of judgment. In these circumstances, the provisions of R. 4 of Ch. XVI of the Rules of the Original Side of this Court should apply and the date of this judgment shall be the date of the last hearing of the appeal, which was the 3rd June 1969. The operation of this order will remain stayed for six weeks from 18.2.1970. Basu, J.: I agree.