M/S. BHARAT SUGAR MILLS LTD. versus SHRI JAI SINGH AND OTHERS

1961 S t/ftf'flbtr 20,

~1/S. BHARAT SGGAR MILLS LTD. ,_ ..

SHRI JAI SIKGH AN"D OTHERS

(K. K. WA:sc1100 and K. C. DAS GuPl'A,JJ.)

ln·lu.ili'1.1.1l Dispute- "Go s/.0111" by toorkmen-AppliM-tion for 1u:.1·111ission lo dio1nia~-/Jomestic enquiry not prop;;r-1/ T1£bu11rt! c11n tal..·t inde71e11dt:nt ei:idence for jindiny prima Jacie. CURe-J[ ala fideB and t:ir.liuiisat-ion-De.lay in ma/ring applica-tion-rJJec! of-lndustrial Lis pule" Act, 1947 ( 14 of 1947). s. 33.

<~< rtai11 workmen of the appellant re~ortc<l to "go slo\•1". The appellant held domestic enquiry and as result thereof decided to dismi:is 21 \vork1nen. After considerable delay it made a11 application under s. 33 of the Industrial Disputes Act, l 9-17, for permission to disn1iss these workmen. l~vidcnce was led l>efore the Tribunal to prove the charge against the v•orkmen, 'fhe 'J'ribunal held that the don1estic enquiry was not proper, that the appellant \Vas .<.\uilty of 1nala fide conduct and victimisaiion, that, except in the ca!.<: of one \vorkmcn, the others were not guilty of any <lcliiJert\tc go slo\v and accordingly granted permission in respect of the one workman ul'Jne. Ti1e appellant contended that the finding that the remaining 20 \vorkmcn \\·ere not guilty of deliberate go slow l':as pcr,·erse and that the finding in respect o!· ma/a fide& and victimisation was arbitrary and erroneous. ·rhe \vorkmen contended that once the domestic enquiry \Vas found to be improper the Tribunal had to dismiss the application and it could not take independent evidence and arrive at finding of its O\vn as to the guilt of the workn1cn.

lletd, that in an application under s. ~3 of the Industrial Disputes :\ct, 1947, when there has hecn no domestic enquiry or v.•hcn the domestic enquiry has not been properly conducted it is the duty of the Tribunal to take evidence of both side• and to decide whether the alleged misconduct has been made out. The evidence produced before the Tribunal clearly cstablisht"d that 13 out of the 20 workmen were g1dlty of deliberate go slow. Go slo\'' v.;as p~rnicious and dishonest practice ,,·hich was misconduct puni'lhable with dismissal under the standing orders. Actual participation in go slow v.;as serious misconduct and the management could not rea:;onably be accused of mala fide" or revengefulness if it proposed punishment of dhmisc;al for such conduct. There was delay in holding the domestic enquiry. and the manage· ment sho,,·ed lamentable callousness in this matter. In cases of chi1 nature the enquiry should be held a~ early as possible, specially when the lvorkmcn are put under suspension. Again, there was delay in making the application for prrmisaion to

S.C.R. SUPREME COURT REPORTS

dismiss. But these de la vs did not show that the managenu:n t was guilty ofmala fides 'or ~fan inten.tion t~··~ict!mise. The order of the Tribunal refusing permsss10n to d1sm1ss 13 of the workmen was entirely "vrong and unjust and could not be allowed to stand. Sa•a Musa Sugar Works v. Shobrati Khan, [19591 Supp· 2 S. C. R. 836, Shri Ram Swarath Sinha v. Bdsund Sugar Co_., Ltd. 1959 L. A. C. 697 and Punjab National Bank Ltd. v. its workmen, [1960 I S. C: R. 806, referred to ..

CIVIL APPELLATE JURISDICTION: Civil Appeal

No. 252 of 1960.

Appeal by special leave from the Award dated March 6, 1958, of the Industrial Tribunal, Bihar, Patna in Misc. Case No. l of 1959.

A. B. N. Sinha, K. K. Sinha and G. N. Dikshit, for the appellants.

T. R. Bhasin, for the respondents.

1961. September 20. The Judgment of the

Court was delivered by

DAs GUPTA J.-The appellant, Sugar Mill Company, made on December 31, 1956 an applica-tion under s. 33 of th~ Industrial Disputes Act before the Industrial Tribunal, Bihar, Patna for the dismissal of 21 workmen for misconduct in connec-tion with "go slow" allPged to have been resorted to by the workmen of the factory from the midnight of February 12, to tho February 18, 1955. The Tribunal held that actual participation in "go slow" had been establiHhed only against one of the workmen at the Donga Pnd and that the "go . slow" at the btor ~tages in which the other 20 workmen had been engaged occurred as necessary consequence of this go slow by one workman at the Donga end and was not deliberate "go slow" by theDL The Tribunal was of opinion also that the management was not acting bona fide and really was seeking to victimise active members of the Union which the employer had refused to recognise. Accordingly, it refused permission in respect of 20 of tho workmen and gave permission to dismiss only Nihora Dubey workman at the Donga. The

M/s! Bharat Su~r ·Mills. Ltd. v. Shri Jai Sinth

Das Gupl11

1111 JI Is. Bharat SJJfar Mills Ltd. v. Shri Jai Sinth D11s C11pta ].

correctness of this refusal is challenged before ns in this a~pc~l by special . Jeav?. Tho a•Jpellant's contention 1& two-fold. First, 1t is said that the finding of tho Tribunal that these wol'kmen in respect of whom permission to dismiss was refused were not guilty of any deliberate go slow is perverse; secondly it is contended that tha Tribu· nal's ,·iew t.hat the employer was guilty of mala fide conduct and victimisation of these workmen for Union acthities is arbitrary and erroneous.

It does not appear to have been disputed that

"go slow" was actually resorted to in this factory from February 12, to· February 18, 1955. It was indeed hardly open to the wc•rkmen to dispute this, after all the pomp and ceremony with which "go slow" was celebrated. We find that as earl·v as January Hi, 1055, JO demands were communicated by the Unhn on behalf of th~ workm1>n b.~ lotter which said that unlcRs these demands were concJded by the January 26, 1955 tho workmen wo11ld rnsort to "go slow" from January 30, 19.i5. This notice to "go slow" appears to have been withdrawn on the 22nd January, UJ55, apparently on the ad vice of tho Assistant Commi~sionor of Lal-our, Muzaffarpur. further let!Rr was issued the ! ame day in which Ci demands wcr<> made with <l- rccuest to concede these by the 6th February fail;ng which it was said they would "resort to go slow from the February 19, 1955". The SPcrotary of th•' Bharat Sugar Mills to whom tho Conciliation Officer w1 ote, that very day, wrote back on January !!2, 1955, that they had not received any notice dated Janaary 22, l!J5!i. In reply to further communicrtion from the Assistant Labour Commissi·Jner che appollant sent telegram on February 3, 1~55, regreting inability to attend the ~r_oposed conc1la· tion meeting on February 4, 19<><>, as both the Secretary and tho Assistant Secretary were away. Then on February 8 another toleg.ram w&H s~nt on behalf of tho management infor"'Ylmg the ~ss1stant Labour Commissioner that the Genara 1 ::;ecretary would bo returning soon and that any date after

3 S.C.R. SUPREME COURT REPORTS

the 11th may be fixed. Thereafter, in reply to further communication from the Assistant Commis-sioner inquiring as to what date would suit the management the General Secretary Shri K.C. Sarda sent another telegram requesting the Assistant Labour Commissioner to fix any date before the 17th. This telegram was sent on February 11. On the next date, February 12, Sarda sent further telegram to the Assist>int Labour Commissioner stating that he would come to Muzaffarpur on the 15th afternoon. Before any action could however be taken by the Assistant Labour Commissioner, the workers commenced their "go slow" from the midnight of February 12.

"Go slow which picturesque description of deliberate delaying of production by workmen pre-tending to be engaged in the factory is one of the most pernicious practices that discontendr,d or disgruntled workmen sometime resort to. It would not be far wrong to call this dishone.st. For, while thus delaying production and thereby reducing the output the workmen claim to have remained employed and thus to be entitled to foll wages. Apart from this also, "go slow" is likely to be much more harmful than total cessation of work by strike. For, while during strike much of the machinery can be fully turned off, during the "go slow" the machinery is kept going on reduced speed which is often extremely damaging to machi-nery parts. For all these reasons "go slow" has always been considered serious type of misconduct. The Standing Orders which have been made under the Standing Orders Act· for the appellant factory specify "go sh.>w" as misconduct in Rub-cl. (u) of cl. (1) para.. Munder the words: "M>tlingering or deliberate delaying of production and carrying out of orders." It is strange therefore to see that notice of intention to commit this misconduct was solemnly given by the Union in one letter after another. Some light on the mystery is however thrown by the fact that in Bihar Committee to

lrl / s. Bharat Su:ar .~ills Ltd. Y,

Shr-i Jai Singh D:is Gupta J.

M/1. Bharat Sugar Ju ;!11 Lid. v. Shri ]ai Sinth fltU Cupia ].

consider and report on the qucstian of "~o slow" _,... tac tics in industries was appointed by tho B· har Central Standing Labnur .Advioory Board and the report of the Committee was submitted in bl51. The Commitee made sever:d recomme·1dations including one that "go slow'' by workPrs s'ioui<l be treatecl on pqr with strike. It also recommen·led however that worker8 should not resort to "go slow" without at least 7 davs notice, that the noti :e would remain in force for 4\vccks but that it would not be ncressary to notify the exact date of starring the "gc slow". Another rccor.1mtndation , .. as that wc•rkt'r8 should n :Jt re.;ort to "go slow" dvring the p(·mlf'll"Y of c·onciliation proeeedini; but that tho e011eiliation proceeding must be coneluded within four wc·eks of th~ notice'. Th" Commit.tee went to tlw length of recom1w ndirg that "go Hiow" dm· to mal.pr;.etices by the m:magen,ent would be justiiicd. Bv resolution dated DllJembPr I, 1!':31, the G;:,vcrnmcnt of Bihar "were i1leascd to ar~ept the recommendations of the 'go ~low' Commit tee and ex,iressed their "thanks'' to the member'' of the Committee for the well co11sid< red report." No action was however taken to delete item (u) of clause (I) of para. M of the Standi11g Orders and so under the Standing Ordrrs which it may bo mcntiu11ed were certified on Xovcmbcr 7, 1951, the deliberate delaying of production co11tinued to remain "miscomluef' under the law inspit<l of the blc.si.11gs it received from tho Committee and the Government of Bihar.As to the fact that "go slow" waA rest,rtcd to in th" factory from tho midnight of February 12, 1. f>G, up to the February 18, 1955, could not ho and wnH not disputed, it becomes necessary to consider the evidence on the record to examine the con· clusion rcache<l by the Tribunal that there was no deliberate "go slow" by any of the pre8cnt 1·es-pondents. The chargn-shects which were served on tho workmen nccusrd them not onlv of actual participation in the "go slow" but also of instigating and intimidating other workmm to "go slow". It is

3 S.C.R.

to be noticed however that while "inciting others to strike work" is misconduct under the Standing Orders para M. cl. sub-cl. (u) incitement to deli· berate delaying of production has not been speci-fically made misconduct under the Standing Orders.

We shall therefore confine our attention to the appellant's case that these workmen actually participated in the "go elow''. complaint w.as made on behalf of the respondents that the charges that were given to the workmen were vague. We have examined the charges and consider this complaint wholly unjiustfied. We have no hesi-tation however in accepting the criticism by the learned counsel for the respondente that the enquiry made by the domestic tribunal of the appellant was far from proper enquiry, as the minimum require-ments of natural justice were not satisfied. It appears that no witness was examined by the Enquiring Officer and the only person examined was the workman against whom the enquiry was being held. Reports by some officers of the company were taken into consideration but it does not appear that the contents of these reports wPre read out and explained to the workmen. The persons whose reports were thus considered were present at the enquiry, but even so it does not appear that the workman was given an opportu-nity to examine them. Indeed, as none of these persons were actually examined in the presence of the workmen the question of their cross-e:;amination by or on behalf of the workmen did not arise. The workman thus had not only no proper chance of knowing what was being alleged against him and by whom but also no chance of testing the correct-ness of the allegations that were in fact made in the written report.

In view of these serious defects in the enquiry by the domestic tribunal it was not possible for the Industrial Tribunal to place any reliance on the findings of that domestic tribunal in order to decide

M/s. Bharat Suzar Mills Ltd. v. Shri J ai Singh Das GuptaJ.

1961 M/s. Bharat Suear Mills Ltd. v. Sh1i Jai Sirtth Das Gupta J,

whether permission to dismiss should be given - • under s. 33 of tho Industrial Disputes Act. (Vide Phulbari Tea RstatP- v. Its Workmen)(').

Evidence was however adduc1Jd by the appellant before the Industrial Tribunal to make out its case that the workmen concorned were in fact guilty of the alleged misconduct. On behalf of tho respondents it has been urged before us that once ' it is found that tho enquiry by tho domestic tribunal has bern defective it was not open to the Industrial Tribunal before whirh the application nncler section 33 is made to allow any 0e\·i<lcnco to be adduced before it. We sco no force in this contention. When an application for permission for dismissal iR made on tho allegation that the .. workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment tho Tribunal has to satisfy itllelf that there is prima facie case for such dismissal. Where there has been proper enquiry by the management itself the Tribunal, it has been settled by number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is perverse and should givo the permission ' asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is arting mala fide. But tho mere fact that no enquiry has been hold or that the enquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether tho case that the workman has • been guilty of tho allell'ed misconduct has been made out. Tho proper way for performing this duty where there has not been proper enquiry by tho management is for tho Tribunal to take evidence of both sides in respect of tho alleged misconduct. W11rn such evidence is adduced before the Tribunal the management is deprived of tho benefit of having tho findings of tho domestic- -tribunal being accepted as prima f11cie proof of the (I) [1'60] (I) S. C.R. 32.

3 S.C.R. SUPREME COURT REPOR~

alleged -misconduct unless the finding is : perverse and has to · prove to the satisfaction of the Tribunal itself that the. workman was· guilty of the alleged misconduct; We do not :think it either just to . the management or indeed even fair to the workman himself that in such case the·· Industrial Tribunal should refuse to take.evidence and thereby drive the management ·to· make further. applica-tion for permission after holding proper enquiry and deprive the . workmau of the benefit of the Tribunal itself being satisfied ·-.on evidence adduced before it that he was guilty of the alleged misconduct•

M/s. Bharal Sugar Mills Ltd. .. Shri Jai Sinzh Du GupiaJ~

benefit of

It may be pointed· out in this connectfon that in Sasa .Musa Sugar -Works v. Shobrati Khan & others(') the management's application under section 33 had not been precPded by any enquiry into the misconduct . of the workman· and ·. that itself, it was urged on behalf of the · wox:km,.n was reason why the application should be rejected. The Industrial Tribunal held that all the evidence which might have been taken in the enquiry by · the management had been led· before it and it was in full . possession of the facts an_d no question of · auy prejudice to the workmen arose as it would be open to it on a.review of the entire evidence before it to decide whether the application for permission to dismiss should be granted or not. On consi-deration of that·· evidence · the Tribunal held as regards 16 of the workmen concerned that ·there was no evidence· that they had taken part in the allerred misconduct 0of "go slow" or instigation to "go slow". No objection ·appears ·to have be_en taken either before the Appellate. Tribunal or before this Court to the application being disposed of on the. evidence taken before the Industrial Tribunal itself; and in fact this Court allowed the application under section 33 in respect· of all the ~ • 48 workmen on the basis of the evidence given before the Induatrial Tribunal.

(I) [1959] S. C.R. Suppl. II p. 8:15,

1961 ~f fs. --· Bharat S~gar MUlr Lid. ' ti. . · ShTf_? ai Sinz!a -· Du Gupta j• .

' SUPREME COURT REPORTS [1962] 692

. It is worth noting that several years ' before this, the Appellate Tribunal had in Shri Ram· Su:arath Sinha v. Belsund Sugar Oo.~ Ltd. (1 ), laid it down that the materials on" which Tribunal acts .iti disposing. of an applica~ion. for permission to · dismfos may consist of :-· .

. · ;(Ir-entirely the evidence taken by the

. management at the enquiry and the proceedings of · ·the enquiry, or ' ·

(2) that evidence and ill addition thereto

. further evidence led before the Tribunal, or

(3) evidence placed before the Trib~nal fo'

the first time in support of the charges.

It ;as pointed out there that . the last "men"c

tioned case pre·supposed an absence of prior · enquiry _by the management. It is not without-significanM that even though the question whether in the absence of proper. prior enquiry by the management evidence can for the first time. be .. placed before the Tribu~al in support of the alleged mfficonduct had. been discussed in Belsund Sugar ~ Oo., Ltd.'('), no·. objection to. the taking of such evidence for the first time before the Tribunal was . raised before this c.mrt" on". behalf of the . resp on. dent in Sasa.lllusa Sugar Work's Case('). ,

. Nor can we ignore the .fact .that for long time now, it has been settled law that in the. case of an adjudication of dispute arising out of dlli· ' missal of workman by the management (as distinct from· an application for permission to dismiss under s. 33), evidence can be adduced for the first time be-fore the Industrial Tribunal. The important effect of the omllision to hold an enquiry. is merely this : that tho tribunal would not have to consider only whether there was prima facie· cas" but would decide for itself on the evidence adduced whether . the charges have really been· made out. This was

(I) [1959] L. A. C., 691.

(2, [1959] S. C.R. Suppl. II p. 836.

. . . . . . ' ;

·-...:..:_:_____:--=

3 S.C.R.

• recently pointed out again in the Punjab Nation~l ~ Bank Ltd., v. Its Workmen(') in these words: 'if no Enquiry has in fact been held by the employer; the issue about the merits of the impugned order of dismissal is at large before the Tribunal and, on the evidence adduced before it, the tribunal has to <lecid"l for itself whether the misconduct alleged is proved ...... ". The reasons for which it is proper for the Tribunal to take evidence itself as regards the alleged misconduct when adjudicating upon dis-pute arising out of an order of dismissal which has been made by the management are equally present in the case where the management makes an appli-cation for permission to dismiss without having held proper enquiry. In our opinion the tribunal rightly allowed the management to adduce evidence before it in support of its application fo(j permis-sion to dismiss even though the domestic enquiry held by it was highly defective as pointed out above.

Of the six witnesses examined on behalf of the management the important evidence as regards the participation in the "go slow" during the period February 12 to February 18 is given by Ishwari Dayal, Chief Engineer, Kanpur, the Chief Chemist and Bhikari, machine man.

On February 13, 1955 the Chief Engineer

submitted report to the Secretary, K. C. Sarda about what he had seen that very day. He refer-red to this report in an affidavit sworn before Magistrate and stated that the facts stated in the report was true. In his deposition before the Tribunal he has referred to this affidavit and said that the statements made therein are correct. While more satisfactory way of putting De.ya.l's evidence on record, would have been to record his testimony on all these matters mentioned in the affidavit and report directly, it cannot be reason-ably said that the statements made in the affidavit and report do not amount to legal evidence on

(1) [1960] o> s.c.R. 806.

M/s. Bharat Su:ar Mills Ltd. v. Shri Jai Singh Das Gupta J.

J9;J M/s. B!oaral S.,ar Mill• Ltd. v. Shri Jai SU.,h Das Gupta].

which tho Tribunal could act. In this report the Chief Engineer states thus:-

"! noticed that groups of persons from

the assembled crowd moved about tl1c factory announcing the commencement of the 'go-slow' and actually threatened tho£o who would not fall in line with them. I particularly noticed Harikishan Kuer,. Baijnath Singh, Ramdeo Singh, Nagondranath and Baldeo and others whose namr I did'nt remember in the crowd taking an aoti ve part''.

Later in tho report he says that:

"as result of tho instigation as aforesaid

and perhaps as planned in advance, the 'go-elow' actually started with tho incoming shift. The abnormally slow running of the Mill Engine and the Cano Carrier came to my notice immediately. I personally checkod up the stream pressure and found that it was normal. Thereupon I called Dhannoo Mistry, Mill House Fitter and expressed my resent-ment at low speed, after all my persuasions and directions to them not to rosort to go-slow. Dhannoo Mistry had tho impudence to tell me that it shall remain low as thoy had gone on go slow and the question of restoring the normal speed did not arise. Finding Dhannoo Mistry's attitude as it was, I went with tho Shift Engineer Mr. l\Iukhorji to Swarath Singh who was at the l\Iill Engine and Hardeo Singh who was at tho Cano Carrier Clutch, and asked them to restore normal speed immediatoly .................. Thoy paid no heed to my orders and wore det-0r-mined to continuo tho go slow."

It is important to notice that of tho persons named

by this witness as having taken an active part-by which ho obviously meant an active part in moving about tho factory announcing tho commencement of tho go slow-Baijnath Singh and Ramdeo Singh

3 S.C.R. SUPREME COURT REPORTS

were both engaged in the Evaporator section, Eaijnath being an Evaporator Cooly while Ramdeo Singh being an Evaporator Reliever; Harikish:m Kuer was an Assistant Panman while Baldeo and Nagendranath Prasad were Engine men, Baldeo • being an Assistant Fitter and Nagendranath being Fit<er.

We have no hesitation in believing as correct these statements made by the Chief Engineer in his report made on February 13. There can be no doubt therefore that Swarath Singh, Hardeo Singh and Dhannoo actually participated in the go slow. As regards Harikishan Kuer, Baijnath, Ramdeo and Nagendranath and Baldeo we have to remember that it is not disputed that there was in fact go slow in the different jobs on which these men were engaged. If they had not been proved to have taken an active part in promoting the go slow, there may have been some scope for saying that the go slow in their jobs was the consequence of the go slow at the Donga and not deliberate go slow on their part. When however we find that these per-sons were active in asking other workmen to go slow, they cannot be reasonably heard to say that the go slow in their own jobs was not deliberate on their part. The Tribunal was in our opinion clearly in error in thinking that the go slow in the jobs where these persons were engaged was merely the result of the go slow at the Donga end and not deliberate go slow on their part. In our opinion, the evidence of Ishwari Dayal definitely establishes that these several persons, Harikishan Kuer, Baij-nath Singh, Ramdeo Singh, Nagendranath Prasad, Baldeo, Dhannoo Mistry, Sawarath Singh and Har-deo Singh did actually participate in delaying pro-duction.

The Chief Chemist, A. N. Kapur, submitted to the Secretary one report on February 12, 1955 and two more reports on February 13. In the first report he said that having received information at about 9.30 A. M. that Guiab Singh, Evaporatorman,

M/s. Bharat Sugw Mills Lti. v. Shri Jai Singh [)as Gupta J.

1~1 M/s. Bharat Sugar Mills ltd. v. Slui Jai Sir11h Das Gupta].

was inciting persons who were doing periodical cleaning of the Evaporators that day that they should do the cleaning slowly as if tho "go-slow" had already started in their case, he immodiately went to the Evaporators and questioned Guiab Singh about his alleged conduct and that Guiab Singh ultimately admitted that it was true but that ho had merely been saying what others had decided.

In the second report marked Ex. 4 (b) the

Chief Chemist states that trouble strrted on tho midnight of February 12 after "C" shift was OYer and that he noticed "Baijnath Singh, Hira Sukul, Harikishan Kuer, Ramdeo Singh, Ramayan Singh and Golla among others asking other workers to stay on and see that the go slow was actually star-ted. He says also that the noticed Kawalpati and Bachan, Centrifugal Coolies and few others tak-ing prominent part in proclaiming that go slow must bo started.

In the third report the Chief Chemist stated

that after 8 A. M. on Fcbruarv 13 he noticed Kawalpati and Bachan and Amar.?tfaht1J, Jai Singh and Guiab Singh and others going round the factory and openly saying that as tho go slow had started any workman who sided with the factory will be severely dealt with. Wo can see no reason to doubt the truth of tho statements made by the Chief Chemist. Of the persons named by him, Baijnath Singh, HarikiRhan I\ ucr and Ramdeo Singh were also named by Ishawari Dayal as we have already pointed out above. In addition to these Hin Sukul, Ramayan Singh, Golla, Jai Singh Amar :lfahto and Guiab Singh must be held to have actually 11.'lked others to go slow and when this fa.ct is taken with the admitted fact that "go slow" was actually practised at the stages of pro-duction where these workmen were engaged there can be no escapo from the conclusion that they wcro guilty of active participation in go slow,

3 S.C.R. SUPREME COURT REPORTS

As regards Kawalpati and Bachan we have, apart from this evidence of the Chief Chemist that they were going round the factory saying that go slow must be continued, the evidence of Bhikari Rout that on February 14 he found these two, not operating the machine, and sitting there on gunny bag and sugar was falling down from the Pugmill. From this evidence of Bhikari Rout takt1n with the evidence of the Chief Chemist, it appears clear beyond anv reasonable doubt that these two workmen, Bachan and Kawalpati did also actively participate in "go slow".

We are therefore of opinion that the evidence adduced before the Tribunal clearly est11blishes that the following respondents, HarikiE·han Kuer, Baijnath Singh, Ramdeo Singh, Nagendranath Prasad, Baldeo, Dhannoo l\Iistry, Swarath Singh, Hardeo Singh, Kawai pa ti, Bachan, Ramayan Singh, Jai Singh, Hira Sukul, Golla and Guiab Singh were guilty of misconduct within the meaning of para-graph M cl. ( 1) sub-cl. (u) of the Standing Orders. Of these Ramdeo Singh and Golla are reported to be dead.

Before however permission can be granted to dismiss them for this misconduct we have to see whether the charge of mala fide and victimisation brougbt against the management is true. The workl!llen's suggestion which found favour with the Tribunal was that it was because of the Union activities of these 21 workmen that the manl\ge· ment decided to take action against them and that the allegation that they had taken part in the go slow was merely sham excuse. As regards the above workmen who it is established by the evi-dence were in fact guilty of go slow, can it be said that though the management takes action against them for this misconduct the real reason for the management's proposal is these people's Union activities? We are unable to see any justification for this view. If the misconduct had not been

M / s. Bharat Sugar Mills Ltd. v. Shri Jai Singh Das Gupta J.

M/s. Bharat Sugar Mill• Ltd. v, Shr/ .Tai Singh DaaGupta J.

GllS StJPREllrE COURT REPORTS

[l!l62]

serious and still the management sought to dis-miss them, taking advantage of the fact that under the Standing Orders punishment of di;missal coulcl Le givcu, there might have Leen some scope for an argument that the apparent reason for tho mnnagement 's action was not the real rpason. It is not possible huwcver to consider actual paiticipa-tion in go slow as anything but vny serious mis-conduct and no management can be accused reasonably of mala fide or of revC1Jgcfulncss if it propos('S punishment of dismisrnl for fUth conduct.

The Inclustrial Tribunal appears to have beerr impr('SSP<l by the fact that 13 other workmen who were suspended were pardoned and taken back while 21 were not allowed to join duty. It appears clear that se">eral at least of the l:; who had been taken hack wcro also active members of the Union. There is no ground for saying therefore t.hat the manage· mcnt discriminated against these 21 workmen Lccanse of the fact that they were active members of the Union. It may very well Le that they have been taken back as their active participation in tho go slow was not established. Without knowing fully the circumstances under which those 0ther 13 were taken Lack to work it is not proper to hold that there has been any discrimination against these 21.

Learned Counsel for tho respondents next contended ·that mala fide and victimisation w~re \vrit large on the conduct of the management in preventing the holding of meeting for conciliation which was attempted by the Assistant Labour Commissioner. It is also urged that by this conduct the company provoked the workmen to rosort to go slow. Even if it were found that the company had deliberatoly avoided the proposed mooting there would be no ground for saying that the workmen had been "1>rovoked" to go slow. lnspitc of the recommendation of the go slow committee and the resolution of Bihar Government "go slow" continued to be misconduct under the Standing Ordors .. and

ll 8.C.R;

mere refusal of the company to attend the con-ciliation meeting cannot be considered such provo-cation as would compel or justify the commission of misconduct. Nor can we find-even' assuming for the present that the company did deliberately pre· vent the conciliation meeting before the 12th February-that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their Union acti-vities, while purporting to take action ostensibly for some other activity. It would be unreasonable to think that the appellant, expected that if the meeting was not held on the date as proposed the workmen were sure to start go slow and that that would give the management an opportunity of pro-ceeding against the Union workers. It, was not un-reasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not. wish to ilay that no unfair conduct on the part of the management in negotiations over the worlrnrs' threat to go slow would eyer justify finding of mala fides on the employer's part, we must clearly say that the mere asking for adjournment of con-ciliation me,eting i~ not such conduct on which mala-fides or an intention to victimise can be reasonably based.

Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several tele-grams sent by the management to the Labour Commissioner and there is nothing on the recordjto justify conclusion that these reasons were not true or honestly given.

Our attention was drawn to the delay in holding the enquiry and the subsequent delay:· in filing the application for permission to dismiss.

1~61 M/s. Bharat fSu_{ar Mills Ltd. v. Shri Jai Sin·11h Das Gpta J •

1961 Jl/r, Bliarst Su1ar Mill< Lid. v. Shri jai Singh

D., Gu,ta ].

That there has been great and indeed unusual delay is clear. The charge-sheets were served on the workml'n in l\Iarch 1955 and the explanations were received about the middle of March, but the domes-tic enquir.v took placo in Sept!,mbcr 1955. Trying to cxpl>1in this delay of sevcral;months, Sarda, the General Secretary, has stated thus :-"The enquiry into the charge sheets could not be commenced before the beginning of September, 1955, because of my continued ill h~alth which necessitated complete rest for sc~·ernl wc~ks at time and also because of my multifarious assignments which took mo many time to Patna and outside the Sta to of Bihar. I could not assign ihe matter of holding th€ enquiries to other officers namely Chief Engineer or tho Chief Chemist because they were themselrns complain-ants against the workmen concerned."

We are unable to consider this explanation wholly satisfactory and are indi.ned to think that tho management showed lamcntablo callousness in this matter of proceeding with th•i enquiry. In cases of this nature the enquiry should be held as early as possible, specially when the management takes the step of putting the workmen under suspension.

No application for pcrmissio11 to dismiss was filed immediately. It was only in August 1956 that such an application was filed under s. 22 of the Industrial Disputes Appellate Tribunal Act be. fore the I.abour Appellato Tribunal, Calcutta. But that was rendered i.nfructuous on account of the disposal of the matter before the Labour Appel-late Tribunal. Tho present application was made as late as December 30, 1956, aftor an application by the workmen themselves under section 23 of tho Industrial Disputos Appellate Tribunal Act had been withdrawn. We do :oot find any satisfactory ex· planation for the management's delay in applying for permission to dismiss. At the same time, it is not po88ible to say that theso dolays show even remotely \hat in making the application for per-

3 S.O.R.. SUPREME OOURT REPOH.TS 70l

mission to dismiss the management was guilty of mala fides or an intention to victimise.

We have therefore come to the conclusion that the Tribunal's order in refusing permission to diqmiss these workmen, viz., Harikishan Kuer, Baij· nath Singh, Nagendranatb Prasad, Baldeo, Dhannoo Mistry, Swarath Singh, Hardeo Sim(b, Kawalpati Bachan, Ramayan Singh, Jai Singh, Hira Snlml and Guiab Singh was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the Tribunal's order was granted when special leave was allowed by thi; Court and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.

As the two re1pondents Ramdeo and Golla are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been en-titled to permission to dismiss tbeso two with effect from this date, if they were living. These two will be entitled to wages till the date of their death.

As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before the Indus-trial Tribunal does not establish the charge of mis-conduct against them.

We accordingly allow the appeal in part 1tnd set aside the order of the Industrial Tribunal in respect of these 13 \Vorkmen named above and order that the management is granted permission to dismiss them with effect from the date of this judgment. There will be no order as to costs.

Appeal allowed in part.

M/s. Bh4rat Sugar Mill• Ltd. V• Shri ]ai Smgh DasGupa ].