JUDGMENT - V.D. TULZAPURKAR, Ag. C.J.:---By this petition filed under Articles 226 and 227 of the Constitution of India the petitioner (Messr Bharat Barrel Drum Mfg. Co. Pvt. Ltd.) is seeking to challenge the legality and/or validity of an industrial award dated 30th March, 1970 rendered by respondent No. 1 in reference (II) No. 389 of 1968. A few facts giving rise to the petition may be stated. The petitioner company inter alia engages itself in the manufacture of iron steel battles and drums and for that purpose runs a factory at 95, Ferguesson Road, Lower Parel, Bombay 13. The respondent No. 2 happens to be the union of the employees working with the petitioner factory and respondents Nos. 3 to 32 are the 30 employoees or workers in respect of whom the impugned award was made by respondent No. 1 (Member, Industrial Tribunal, Bombay). It appears that on 17th October, 1967 about 544 workers employed in the petitioner factory went on strike and that strike continued right upto 28th February, 1968. According to the petitioner company at the material time when the workers went on strike several industrial references pertaining to the disputes between the employers and the employees were pending, four before the Industrial Tribunals and the fifth one before the Labour Court in Bombay and in view of the tendency of these references before the Industrial Tribunals and the Labour Court the said strike which had been resorted to by the 544 workers was illegal inasmuch as it was in contravention of sections 23 and 24 of the Industrial Disputes Act, 1947. Through the intervention of the Commissioner of Labour, a settlement was arrived at between the parties on 1st March, 1968 as a result of which the strike was called off with immediate effect. An agreement was reduced to writing and signed by the petitioner company and the representatives of the respondent No. 2 union recording the terms and conditions of the said settlement. It appears that barring 30 workers (who are respondents Nos. An agreement was reduced to writing and signed by the petitioner company and the representatives of the respondent No. 2 union recording the terms and conditions of the said settlement. It appears that barring 30 workers (who are respondents Nos. 3 to 32 to the petition) the petitioner company took back all the other workers and members of the staff and they were permitted to resume their duties forthwith on the understanding that their services would be continuous and there would be no charge in their service conditions except that no payment for the period of the strike would be made, which period was agreed to be considered as leave without pay. The 30 workers, whose names were put in the schedule to the agreement, were also permitted to resume their duties within one week after the date of resumption of the duties by the remaining workers, but it was agreed that these 30 workers would be taken back as temporary workers, though it was agreed that there would be no change in their employment or other conditions of service and there would be no payment to them for the period of strike, which was to be regarded as leave without pay. As regards these 30 workmen a further term of settlement was that the question whether these workmen should be made permanent with continuity of service, should be referred to the tribunal for adjudication. Eventually the Government of Maharashtra referred the aforesaid dispute (subject-matter of Clause 4 of the agreement dated 1st March, 1968) to the adjudication of the Industrial Tribunal under section 10(1)(d) of the Act the demand of the workmen being that these 30 workmen should be made permanent with continuity of back service and all past privileges and benefits. A statement of claim was filed before the Tribunal on behalf of these 30 workmen by respondent No. 2. Union and a reply was filed by the petitioner company. No evidence was recorded before the Tribunal and the rival parties merely made their submissions. Principally on behalf of the 30 workmen the contention raised was that the petitioner company without any rhyme or reason discriminated against these 30 workmen by permitting them to resume their duties on temporary basis and they should be made permanent just as the remaining workmen had been taken on permanent basis with continuity of service. Principally on behalf of the 30 workmen the contention raised was that the petitioner company without any rhyme or reason discriminated against these 30 workmen by permitting them to resume their duties on temporary basis and they should be made permanent just as the remaining workmen had been taken on permanent basis with continuity of service. On behalf of the petitioner company it was contended that there was justification for treating these 30 workmen differently inasmuch as these 30 workmen who were leaders of three unions had not merely participated in the strike but had instigated the remaining workmen to go on strike and as such the petitioner company had permitted them to resume their duties on a temporary basis and as such they were not liable to be made permanent with continuity of service. By his award dated 30th March, 1970 the respondent No. 1 made two findings, one in favour of the petitioner company and the other in favour of the 30 workmen and on a plain reading of the award the two findings appear to be rather inconsistent with each other. The respondent No. 1 held that the strike was illegal inasmuch as the same had been resorted to during the pendency of reference in the Industrial Tribunals and Labour Court and the action of taking back 30 workmen as temporary workmen could not be said to be illegal or improper. After making such a finding in favour of the petitioner company the respondent No. 1 has gone on to hold that these 30 workmen shall be entitled to continuity of service prior to, and benefit of service before, the date of the strike; that these workmen will however not be entitled to all the past privileges and benefits. The final order passed by the respondent No. 1 runs to this effect :- "The 30 workmen described in the annexure of the schedule of the reference shall be made permanent by the company with continuity of its back service as provided for in the standing orders." It is this award made by the respondent No. 1 that is being challenged by the petitioner company before us. It was urged by Mr. Mehta who appeared for the petitioner company that on a plain reading of the award the respondent No. 1 could be said to have made two inconsistent findings. It was urged by Mr. Mehta who appeared for the petitioner company that on a plain reading of the award the respondent No. 1 could be said to have made two inconsistent findings. He pointed out that initially on the principal point the respondent No. 1 has recorded a finding in favour of the petitioner company in that he has come to the conclusion that the strike which was restored to by the workmen of the petitioner company was illegal inasmuch as it was in contravention of sections 23 and 24 of the Industrial Disputes Act, 1947 and he has further recorded a finding that the action on the part of the petitioner company in taking back the 30 workmen as temporary workmen could not be said to be illegal or improper. In other words, according to Mr. Mehta the respondent No. 1 has clearly come to the conclusion that the conduct on the part of the petitioner company in taking back 30 workmen on temporary basis was perfectly justified inasmuch as they had restored to a strike which was clearly and manifestly illegal being contrary to sections 23 24 of the Act. He urged that once such a finding was recorded it is difficult to understand as to how the learned Member of the Industrial Tribunal could proceed to hold that these workmen shall be entitled to continuity of service prior to, and benefit of service before the date of the strike. He further urged that even the final order made by the learned Member of the Tribunal is difficult to understand inasmuch as he has directed that these 30 workmen should be made permanent by the company with continuity of its back service as provided for in the standing orders without making any attempt o indicate as to what was the position under the standing order under which he has directed that these 30 workmen be made permanent with continuity of service. There is undoubtedly considerable force in this contention of Mr. Mehta. There is undoubtedly considerable force in this contention of Mr. Mehta. There is no doubt that the two findings which have been recorded by the learned Member of the Tribunal appear to be rather inconsistent with each other, for if once the learned Member of the Tribunal came to the conclusion that the strike was illegal and the action on the part of the petitioner company in taking the 30 workmen back on temporary basis was proper and justified, we fail to appreciate as to how the learned Member of the Tribunal could further direct that these 30 workmen would be entitled to continuity of service prior to and the benefit of service before the date of the strike. Mr. Mehta, therefore, urged that consistent with the first finding that has been recorded by the Tribunal and consequently the final award made by it should be quashed, for in view of the first finding that has been recorded by the Tribunal and consequently the final award made by it should be quashed, for in view of the first finding none of the 30 workmen would be entitled to be made permanent with any continuity of service as directed. Mr. Kamerkar appearing for the Union and the 30 workmen, however, has contended that if at all, the matter will have to be remanded back to the Tribunal for disposal according to law if the Court comes to the conclusion that the first finding recorded by the Tribunal should prevail. He, however, contended that even the first finding recorded by the Tribunal will have to be regarded as perverse, for there was no material or any evidence whatsoever on record for the Tribunal to come to the conclusion that the action of the petitioner company in taking back the 30 workmen on purely temporary basis was justified, notwithstanding the finding that the strike resorted to by all the workmen was illegal the same being in contravention of sections 23 and 24 of the Industrial Disputes Act, 1947. We find considerable force in this contention urged by Mr. Kamerkar. We find considerable force in this contention urged by Mr. Kamerkar. It is true that questions of internal management and, discipline are entirely within the scope and power of the employer, that is to say, the petitioner company in this case and if once the strike resorted to by all the 544 workmen between October 1967 and 28th February, 1968 is held to be illegal, the same being in contravention of sections 23 and 24 of the Act, it would be for the management to decide what type of punishment should be inflicted for the misconduct indulged in by the workmen. However, the reference, that was made to the Tribunal under the settlement that was arrived at between the parties on 1st March, 1968, had expressly referred the demand of these 30 workmen to be made permanent with continuity of service and therefore, not only was the question about the legality or otherwise of the strike in issue before the Tribunal but the question of proper punishment to be meted out to these 30 workmen for the misconduct indulged in by them in resorting to strike was also very much in issue before the Tribunal. It is not as if that simply because the workmen participate in an illegal strike that necessarily and in every and each case dismissal must be visited upon the workmen. The quantum of punishment would very depending upon the facts and circumstances in each case. In the instant case it was the gravamen of the Unions case that the petitioner company had discriminated against these 30 workmen by taking them back purely on temporary basis and by allowing the remaining workmen to resume their duties on a permanent basis with continuity of service and it was upto the petitioner company to make out a case and justify this action on their part before the Tribunal. Mr. Mehta pointed out that it was the petitioner companys case that these 30 workmen had not merely participated in the illegal strike but were the leaders of the Unions and had actually instigated the other workmen to go on strike and it was for this reason that differentiation was made between the 30 workmen on the one hand and the remaining workmen on the other. The Union, on the other hand had emphatically denied that there 30 workmen had instigated the strike as alleged by the petitioner company. The Union, on the other hand had emphatically denied that there 30 workmen had instigated the strike as alleged by the petitioner company. On this aspect of the question the only material paragraph in the award is paragraph 7 which runs thus :--- "7. The Union contended that these 30 workmen only were picked up from amongst the 600 workmen, who had struck work and were dismissed. It further said that this smacks of victimisation of the workmen as they have been taken up on temporary basis because they happen to be the leaders of the several Unions. It is true that several other workers had taken part in the strike and were dismissed and only 30 workmen have been picked up for the temporary employment. It do not think that there is anything wrong in this. The mere taking of action against a few of the workmen would not show mala fides, discrimination or victimisation of the persons. It would be improper in such case to punish all the workers........" There is not even a finding recorded by the learned Member that these 30 workmen were the instigators and had instigated the other workmen to go on strike. In point of fact it was upto to the petitioner company to justify such different treatment that had been meted out to these 30 workmen on some basis and the basis suggested was that these 30 workmen had instigated the other workmen to got on strike, i.e. it was said that they were instigators and not merely participators in the strike. Now on this aspect Mr. Mehta relied upon the fact that the heading of the schedule in which the names of these 30 workmen had been set out, which had been annexed to the agreement dated 1st March, 1968, itself ran thus : "List of workmen who instigated the strike" and according to him such an agreement together with the schedule had been signed by the Union and therefore the Tribunal could be said to have relied upon some sort of an admitted position on the part of the Union that these 30 workmen had instigated the strike. In the first place, the Tribunal has nowhere referred to this heading which occurs at the top of the schedule listing the names of names of the 30 workmen, but apart from that, notwithstanding this agreement and the heading of the schedule, in the statement of claim which was filed by the Union before the Tribunal in paragraph 26 thereof the Union has specifically averred after referring to this heading of the schedule that there was no evidence on record whatsoever before the Enquiry Officer who allegedly held ex parte that these 30 workmen were responsible for instigating the strike. In other words, there was a specific averment to the effect that these 30 workmen had not instigated the strike. Curiously enough this averment was nowhere denied by the petitioner company in the reply which it filed to the statement of claim, though a general statement was made by the petitioner company in its reply that these 30 workmen were leaders of the Unions. In fact it was the Unions case that it was because these 30 workmen were leaders of the Unions that victimisation had been indulged in by the petitioner company in picking them up and taking them back only on temporary basis. In any case apart from the question whether there was material before the Enquiry Officer showing that these 30 workmen were instigators of the strike, admittedly no evidence or material was put before the Tribunal to show that these 30 workmen had in fact instigate the other workmen to go on strike. In the absence of any such material being on record it is difficult to sustain the finding of the Tribunal that the conduct on the part of the petitioner company in taking back the 30 workmen on a purely temporary basis was proper or justified or was not illegal or wrong. In fact such a finding will have to be regarded as perverse as being not supported by any evidence on record especially when a categorical averment made by the Union in its statements of claim had not been denied by the petitioner company in its reply. If that be the position on record, it is difficult to sustain even the first finding that has been recorded by the respondent No. 1. If that be the position on record, it is difficult to sustain even the first finding that has been recorded by the respondent No. 1. Having regard to the aforesaid discussion, it is not possible merely to set aside the second finding as well as final order passed by the Tribunal as suggested by Mr. Mehta, but the whole award including all the findings recorded by the respondent No. 1 will have to be quashed and set aside and the matter will have to be remanded back. In the result, the entire award including both the findings recorded by the respondent No. 1 is quashed and set aside and the matter is remanded back to the Tribunal for disposal according to law. No order as to costs. -----