JUDGMENT 1. - The petitioner which is a registered trade union, espousing the cause of the aggrieved workman, has moved to this Court by the instant writ petition through its General Secretary Shri Madan Singh, contending inter-alia that the petitioner is a union of the workmen employed in the industrial establishment of M/s Saraf Textile Industries Ltd., Sanganer, Jaipur - respondent No. 2, which is affiliated to the Rajasthan Trade Union Kendra, Jaipur. A charter of demands dated July 28, 1988 on behalf of its workmen was submitted to the Management of respondent No.2 vide Annex-1. The demands were to the following effect:- 1. The services of all the workmen should be regularised and the workmen who have been removed from service should be taken back to duty. 2. The increase of wage @ 35% be given to the piece rated workmen. 3. 25% increase be given in wage to those workmen who are employed at the fixed rate. 4. Dearness Allowance @ Re. 1.50 per point be given to the workmen as per consumer index for Jaipur and Ajmer and this benefit should be extended with effect from August, 1988. 5. The workmen should be given Medical Allowance of Rs. 50 per month. 6. The workmen should be supplied two cakes of soap per month. 7. The workmen should be given two uniforms in each year. 8. All the workmen should be given P.L. & C.L. benefit and should also be given atleast 12 gazetted holidays in a year as per rules. 9. All the workmen should be given overtime allowance. 10. The benefit of bonus for the year 1989 be given to the workmen at 20% w.e.f. the year 1979. 11. The minimum wage of the workmen should be fixed @ Rs. 30 per day. It will be thus evident from the perusal of the above charter of demands, that the petitioner-union voices its genuine grievance for the overall improvement and amelioration of the terms and conditions of service of the workmen serving under the establishment of respondent No. 2. 2. Through the demand-charter the petitioner-union further requested the management of respondent No. 2 that in the event of failure of the respondent to concede or communicate in respect of the said demands within 15 days from the receipt of the said demand-charter the petitioner-union will be constrained to resort to strike. 2. Through the demand-charter the petitioner-union further requested the management of respondent No. 2 that in the event of failure of the respondent to concede or communicate in respect of the said demands within 15 days from the receipt of the said demand-charter the petitioner-union will be constrained to resort to strike. No reply was conveyed or communicated to the petitioner-union nor did they hear anything in this regard either from the State or from the Management of respondent No. 2. It has been further contended in the petition that the matter relating to the above demands of the workers was referred to the Conciliation Officer on July 30, 1988 by the Management and since no settlement could be arrived at between the petitioner-union and the Management of respondent No. 2, the Joint Labour Commissioner submitted a failure report to the Labour Commissioner and Special Secretary, Labour Department of the State vide Annex-2 dated September 16, 1988. From the perusal of the report of the Conciliation Officer it is revealed that no officer on behalf of the Management took part in the proceedings on three effective dates i.e. on August 12, 1988, August 17, 1988 and on August 26, 1988 and neither any reply nor any summoned record was made available for perusal of the Conciliation Officer. It has been further contended in this regard that the attitude of respondent No. 2 was totally uncooperative inasmuch as the Management had failed to supply and submit the requisite documents and details during the conciliation proceedings to the Joint Labour Commissioner. Thus no settlement could be arrived at on the demands as represented by the petitioner-union. Since the Management did not concede to the above demands raised by the petitioner-union, the petitioner-union resorted to strike with effect from January 29, 1989. 3. On account of the failure of the conciliation proceedings, the report was sent to the State by the Conciliation Officer and the State Government accordingly referred the matter for adjudication to the Industrial Tribunal, Jaipur. It is under these circumstances and during the pendency of proceedings before the Industrial Tribunal that the Labour Department, the State of Rajasthan (respondent No. 1) passed the impugned order dated November 8,1988 vide Annex-3, against which this writ petition has been preferred to this Court. 4. It is under these circumstances and during the pendency of proceedings before the Industrial Tribunal that the Labour Department, the State of Rajasthan (respondent No. 1) passed the impugned order dated November 8,1988 vide Annex-3, against which this writ petition has been preferred to this Court. 4. It has been further contended in the writ petition that without ensuring a prompt and speedy settlement of the genuine demands of the workmen as referred to above in Ex.No. 2, the Special Secretary to the State Government (Labour Department), Respondent No. 1, issued an order on November 8, 1988 by having resort to Section 10-K(i) of the Rajasthan Amendment (Act No. 14 of 1970) to the Industrial Disputes Act, 1947 (for short 'the Act'), the operative part of which (vide Ex.3) reads as under:- " 1. Excluding those workmen against whom criminal cases were pending investigation before the police and those workmen who have got their accounts settled finally by the management, the remaining other workmen who were on duty as on July 28, 1988 will be taken back to duty within 15 days from the issuance of this order and they shall be provided with all general service benefits. The workmen are directed to report for duty within 15 days from the date of the issuance of this order and shall resume their duty immediately thereafter. 2. The management will pay to all those workmen who report back for duty, a sum of Rs. 500 as advance pay within 5 days of their joining of the duty and the said amount shall be adjusted from the salary of the workmen in 5 equal instalments commencing with effect from November, 1988. 3. During the period the aforesaid order remains effective, no action shall be taken mala fide against the workmen with a view to victimise such workmen nor any lock-out shall be declared by the Management with a view to deprive entry to the workmen in the industrial establishment. The workmen will also not resort to strike and shall make every endeavour to increase the productivity in the industry. 4. This order shall remain effective for a period of one year from the date of its issuance. By Order Governor SD/- (K.L. Kochhar) Spl. Secretary (A)" 5. The workmen will also not resort to strike and shall make every endeavour to increase the productivity in the industry. 4. This order shall remain effective for a period of one year from the date of its issuance. By Order Governor SD/- (K.L. Kochhar) Spl. Secretary (A)" 5. It will be appropriate to refer to the provisions of Section 10-K of the Act, which stipulates as under:- "10-K(1) Notwithstanding anything contained in the Act, if in the opinion of the State Government, it is necessary or expedient so to do, for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment or maintaining industrial peace, it may by general or special order, make provision : (a) for requiring employers, workmen or both to observe for such period as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order; and (b) for prohibiting, subject to the provision of the order, strikes or lock-outs generally or a strike or lock-out in connection with any industrial dispute". 6. A perusal of Annex-3 reveals that the basic reason for which the impugned order came to be passed was to the effect that those employees against whom criminal cases were pending investigation either with the police or proceedings were pending before the Court, should not be taken back to duty except those employees against whom no such criminal cases were pending and the benefit of Section 10-K of the Act was to be extended only to such employees who were falling in the latter category. Such employees were directed to report back to duty within 15 days from the date of the passing of the said order i.e. with effect from November 8, 1988 with a view to ensure maintenance of industrial peace in the establishment of respondent No. 2 public safety or convenience and also to ensure maintenance of public order, supplies and services essential to the life of community. Another object was to prohibit resort to strikes by the workers generally or lock- out by the management of the industry in particular in connection with any industrial dispute. Another object was to prohibit resort to strikes by the workers generally or lock- out by the management of the industry in particular in connection with any industrial dispute. It has been vehemently contended at the bar by Shri Kashyap, learned counsel for the petitioner that the impugned order dated November 8, 1988 is grossly illegal, unjust and contrary to law, arbitrary and irrational in view of the fact that the impugned classification categorising the two sets of employees i.e.,:- (i) those against whom criminal cases are pending investigation either with the police or before the court; and (ii) those employees against whom no such cases are pending, is not sustainable in law and deserves to be struck down as unconstitutional in view of the fact that the said classification has no reasonable nexus to the object sought to be achieved since in all probability it was open to the management to take back to duty those employees who were on strike at the first instance and then only to have initiated the disciplinary action against them and if as a result of the enquiry the finding of the enquiry officer of the disciplinary authority was to the effect that the said employees are guilty of misconduct having resorted to strike in violation of the Standing Orders of the Management then in that event only after having given sufficient opportunity of hearing to the said employees in compliance with the requirement of law and the interest of natural justice, the services of such employees could be terminated or dispensed with by the Management. It has been further contended by the learned counsel that without having resort to the procedure as envisaged under the Act, it was not open to the Management to have straightaway passed the impugned order, depriving the workmen of their right to employment and livelihood as enshrined under Articles 16 and 21 of the Constitution of India. It has been further contended that right to livelihood is an essential part of Article 21 of the Constitution since its scope has been so meaningfully enlarged by the Apex Court in its several judgments. It has been further contended that right to livelihood is an essential part of Article 21 of the Constitution since its scope has been so meaningfully enlarged by the Apex Court in its several judgments. It has been further contended by the learned counsel that the petitioner-union had made several representations to respondent No. 1 against the impugned order dated November 8, 1988 , as referred to above, wherein the petitioner-union had specifically raised a demand for deletion of the Service Condition No. 1, which is to the effect of barring the cases of those employees against whom criminal cases are pending investigation either with the police or the matter is sub-judice before the concerned court, the others will be taken back to duty, deserves to be quashed and set aside since there is no basis for making such classification by segregating the two set of employees by the employer which does not meet the test of reasonable classification. It has been further contended by the learned counsel that the said classification is also violative of Articles 14 and 16 of the Constitution of India since there is no foundation or basis for making such classification by the Management of respondent No. 2. 7. It is under these circumstances, as referred to above, that the impugned order has been assailed by the learned counsel for the petitioner and he has also contended that as many as 17 workmen whose details have been given in the FIR No. 236/88 Annex-2/7 dated September 28, 1988 have been adversely affected by the impugned order and the said employees have not been taken back to duty by the Management of respondent No. 2. 8. In support of his contentions, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the matter of Kusheshwar Dubey v. Bharat Coking Coal Ltd. and Anr. reported in (1988-II-LLJ-470) , wherein the question which had arisen for consideration of the Apex Court was as to whether the departmental proceedings pending for the alleged acts of misconduct could be proceeded with simultaneously with criminal proceedings pending before a criminal court on the same facts. It was held that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer the disciplinary proceedings awaiting disposal of the criminal case. It was held that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer the disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or as it may be deemed appropriate in circumstances of the case, injunction from the court. It was further held that whether, in the facts and circumstances of a particular case, there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. It is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the peculiarities of the individual situation. 9. Applying the ratio of the aforesaid judgment of Hon'ble Supreme Court to the facts of the instant case, I am of the opinion that it was not necessary for the Management to have dispensed with the services of the affected workmen against whom criminal proceedings were pending either before the courts or pending investigation before the police since notwithstanding the said proceedings, the Management of respondent No. 2 should have in all probability appointed an enquiry officer or referred the matter to the competent disciplinary authority constituted by the said respondent to go into the various questions of alleged misconduct and after having examined the said questions thoroughly in all fairness should have awaited the report of the enquiry officer before taking the impugned action of straightaway dispensing with the services of the said employees or could have given lesser punishment instead of imposing the extreme penalty of dismissal/removal from service since the circumstances of the case do not justify the imposition of major penalty of dismissal/removal from service. 10. Reliance has, also been placed by the learned counsel on the judgment of Karnataka High Court in the matter of A.R. Kavi v. Karnataka Agro Industries Corporation and Ors. reported in 1993-LLR-482 , wherein the similar question had arisen for consideration of the Karnataka High Court. 10. Reliance has, also been placed by the learned counsel on the judgment of Karnataka High Court in the matter of A.R. Kavi v. Karnataka Agro Industries Corporation and Ors. reported in 1993-LLR-482 , wherein the similar question had arisen for consideration of the Karnataka High Court. In this case the appellant, an employee of the respondent Management, who was aggrieved by the simultaneous initiation of a disciplinary proceeding besides the criminal proceedings and a civil suit for the alleged misconduct against the said employee sought a writ of prohibition prohibiting the respondent employer from proceeding further with the disciplinary enquiry initiated against him. The learned Single Judge of the High Court declined to grant the relief on the ground that the petitioner had not brought to the notice of the Court any particular circumstance to indicate as to how he would be prejudiced if the disciplinary proceeding went on simultaneously, hence an appeal was preferred to the learned D.B. of the High Court which held that when disciplinary proceedings and criminal action are initiated on the same set of facts both cannot be allowed to go on simultaneously. It was further held that the fact that the trial in the criminal case has not yet commenced is no ground to refuse the stay of the disciplinary proceedings, which is not the case here since in this case the Management had refused to take back the affected employees of the petitioner-union on the ground of pendency of investigation with the police and/or criminal proceedings before the Court and instead proper course which should be resorted by the Management was to take the said workmen back to duty at the first instance and then to initiate disciplinary enquiry against the said employee and during the pendency of the enquiry or after its completion thereafter either the Disciplinary Authority recorded the findings of misconduct against the delinquent workmen or if the criminal court arrived at a decision convicting the said employees then in that event only it was open to the Management of respondent No. 2 to have passed the impugned order of dismissal/removal of the said employees or to have awarded the lesser punishment which the circumstances of the case may so warrant, which course has not been adopted in this case. 11. 11. In reply to the writ petition, the respondent No. 1 State has contended that the Conciliation Officer as well as the Joint Labour Commissioner made best possible efforts to make the amicable settlement between the parties but since no settlement could be arrived at, the Conciliation Officer submitted his failure report. It is further contended that even the Labour Commissioner made his efforts to resolve the dispute but the same could not be settled and under these circumstances, the impugned order dated November 8, 1988 (Annex-3) came to be passed. It will be pertinent to refer to Clause-18 of Schedule-I of Model Standing Orders of the Rajasthan Industrial Employment (Standing Orders) Rules, 1964 (for short 'the Rules') which stipulates disciplinary action for cases of alleged misconduct and regulates the procedure for dealing with such cases of (a) Minor misdemeanours and (b) Major misdemeanours. Sub-section (3) of Clause 18 of the aforesaid Standing Orders stipulates that if a major misdemeanour is alleged against a workman, the management before taking any action against the workman will hold an enquiry by an officer appointed for the purpose. He shall be given a charge-sheet, clearly setting forth the circumstances alleged against him and requiring explanation. He shall be informed in writing about the time and place at which enquiry into his alleged misconduct is to be held. He shall be given an opportunity to answer the charge and permitted to be assisted by a workman of his choice, working in the establishment. If he refuses or fails to present himself for enquiry, the enquiry shall be conducted ex parte. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witnesses in his defence and cross examine any witnesses on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman's plea shall be recorded. Sub-clause (2) of the Clause 18 stipulates that a workman charged with major misdemeanour may be suspended from duty for the alleged misconduct pending enquiry or final disposal of his case. Such an order shall be in writing and taken effect immediately on delivery to the workman. Sub-clause (2) of the Clause 18 stipulates that a workman charged with major misdemeanour may be suspended from duty for the alleged misconduct pending enquiry or final disposal of his case. Such an order shall be in writing and taken effect immediately on delivery to the workman. Sub-clause (3) of Clause 18 stipulates that the workman, who is placed under suspension, shall during the period of such suspension be paid a subsistence allowance at the rate specified as per the Payment of Wages Act, 1936 or at the rate which may be applicable at the relevant time. Sub-clause 3(c) of Clause 18 stipulates that if on the conclusion of the enquiry, or as the case may be, of the criminal proceedings, the workman has been found guilty of the charge and it is considered that an order of suspension may meet the ends of justice, the employer shall pass orders accordingly. 12. A perusal of the above provision makes it evident that in all probability it is binding on the Management to have a resort to the above statutory provision and follow the procedure as envisaged under the Act as well as in the Standing Orders before resorting to the extreme penalty of dismissal/removal of an employee from the service which evidently has not been done in this case. I am of the opinion that it was not open to the employer to have passed the impugned order dated November 8, 1988 (Annex-3), as referred to above and that order is not sustainable in the eyes of law and deserves to be quashed and set aside. 13. Mr. R.S. Sharma, learned counsel for respondent No. 2 while refuting the contentions advanced by the learned counsel for the petitioner, has supported the impugned order Annex-3, on the ground that since the workers had resorted to strike which was illegal, therefore, the Management was within its right to dispense with their services. He has further contended that after the submission of demand-charter issued on July 28, 1988 the workers had resorted to strike on July 29, 1988, without prior notice to the Management. He has further contended that after the submission of demand-charter issued on July 28, 1988 the workers had resorted to strike on July 29, 1988, without prior notice to the Management. He has further contended that the dispute was referred for conciliation to the Conciliation Officer on July 30, 1988 and after failure of the conciliation proceedings on September 16, 1988, the State Government referred the matter to the Industrial Tribunal, Jaipur on November 8, 1988 and the adjudication of the dispute before the Industrial Tribunal is still awaited. In reply to the writ petition on behalf of respondent No. 2 it is stated that the impugned order dated November 8, 1988 passed by the Management of respondent No. 2 was justified by terminating the services of the workmen. 14. I have heard the learned counsel for the parties at length and have examined their rival claims and contentions and I am of the considered opinion that it was neither desirable nor proper for the respondents to have passed the impugned order directing not to take back to duty those workmen against whom criminal proceedings were pending investigation with the police or before the court, since prima facie, presumption of guilt could not be drawn against the workmen either in absence of the decision of the disciplinary authority constituted by the Management of respondent No. 2 or in absence of the initiation of proper enquiry and departmental proceedings in this regard. I am further of the opinion that the proper course which the Management of respondent No. 2 should have adopted was to have appointed an enquiry officer at the first instance in accordance with Clause 18 of Schedule-I of Model Standing Orders, Rules of 1964, who may conduct enquiry against the workman, who had resorted to strike after giving them sufficient opportunity of being heard, by following the procedure as contemplated in the Standing Orders, as referred to above and only thereafter on the conclusion of enquiry he was competent to impose the penalty of dismissal/removal from service after recording the finding of guilt in this regard. 15. The Writ Petition is accordingly allowed, the impugned order dated November 8, 1988 (Annex-3) is quashed and set aside. 15. The Writ Petition is accordingly allowed, the impugned order dated November 8, 1988 (Annex-3) is quashed and set aside. The respondents are accordingly directed to take back the workmen to duty whose names are mentioned in the FIR Annex-2/7, within two months from the date of submission of certified copy of this order and after reinstating the workmen, appoint an enquiry officer within one month thereafter, who may conduct and complete the enquiry within three months thereafter in accordance with the Standing Orders (Rules) 1964, as referred to above and pass suitable orders. The respondents are further directed to pay backwages to the affected workmen with all consequential benefits which may be admissible to them in accordance with law. The parties are left to bear their own costs. *******