WORKMEN OF THE MOTOR INDUSTRIES CO. LTD. versus MANAGEMENT OF MOTOR INDUSTRIES CO. LTD., BANGALORE

WORKMEN OF 111E MOTOR INDUSTRIES CO. LTD.

MANAGEMENT OF MOTOR INDUSTRIES CO. LTD., BANGALORE April 15, 1969

(1. M. SHELAT,

V. BHARGAVA AND C. A. VAIDIALINGAM, 11.]

lndu.rtri.al Dispure--Strike by work~n without notice against terms of uttlement between workmen's association and management-Strike wMthq saved from being illegal because call not given by association-Strik• In breach of terms of settle'1U!nt is illegal zmd<r s. 29 of Industrial Dilputu Act, 1947-Distinction b.zw•en iU•galiry und<r s. 24 ands. 29-Un/air labour practic~Victimisation-Findings of enquiry officer whether fMM'eTS•.

There was settlement entered into on De<:ember 23, 1964 between the Motor Industries Company Employees Association and the management of the company. Under cl.-5 of the agreement it was agreed inter alia that the workmen will no! l1P oo strike without at least four days' notice. How-. .,_ on May 11, 1966 the workmen went on strike without notice as prollost against the suspension of ooe of the workmen. Later in the day Ill« discussions the workmen reswned work. On May 18, 1966 the ..i.bliabmtnt officer submitted complaint to the Chief Penonnel Olllcer 11 result of which charge.sheets alfeging stoppage of work, abandoning place <if. work and inciting clerks and officers to join the strike were served upon five of the workmen. Against one of them the charge of disorder-ly oooduct and intimidation was also made. The enquiry officer held three of the charged workmen guilty of acts of misconduct under staod-E lns order 22(2), (3), (13) and (18). ·The management passed orders of dimilsul against the three workmen. The industrial dispute thus arising waa referred to the Labour Court which held that the said enquiry wu validly held and that the management were justified in passing the orders of dlsmisu.l.

In appeal by special leave the 'following contentions were raised on behalf of the workmen-appellants : (i) that the said association not having given call for the said strike the said charges were misconceived and the orders of dismissal we"' consequently not smtainable; (ii) that the said 'ltrike, which wu spontaneoosly staged by the workmen, was not illegal under s. 24 of the Industrial Disputes Act nor was it in contravention of any law as required by standing order 22(2) and (3); (iii) that the said diaciplioary proceedings were in contravention of the agreement arrived at on May 11, 1966, and therefore, the dismissal following such disciolinary proceedings amounted to unfair lahour practice: (iv) that the orders of ctismWal were passed on charges including that of intimidation though the misconduct of intimidation was not found hv the cnqWry officer and hetfce the said orders were illegal; (v) that to puni~h only three workmen when large number of workmen had taken part in staging the strike and in inciting others to join it constituted victimisation: (vi) that the findings of the enquiry officer were based on no evidence or were perverse in that no reaeonable body of persons could have arrived at them on the evidence before him.

HELD: (i) Clatl9C 5 of the settlemrnt dated December 23, 1964 did not contemplate any dichotomy betwtto the association and the workmen

as suggested on benalf of the appellants. Such an interpretation is repug-· nant to the principle that settlement once arrived at by the association must be re4"fded as one made by it in its representative character, and therefore binding on the workmen. Therefore, although the settlement mentioned in cl. S the management, workmen and the association, the expression •work.men' therein was unnecessary, for without that expression also it would have been as efficaciously binding on the workmen as on the association. This conclusion was strengthened by the fact that the settle-B ment mentioned the management and the association on behalf of the workmen only as ·the parties thereto and the signatories thereto also were only the representatives of the two bodies. (309 F-HJ

Further, tho appellants' contention if accepted would lead to our• prisins result, namely, that though strike at the instance of the associa· ilon required iour days' notice, notice by the workmen without any call from the association would not require any such notice and that the settlement left complete liberty to the workmen to launch sudden strike. The ftrst contention on behalf of the workmen had therefore to be re· jected. [309 DJ

(ii) Read in the context of the other provisions of Part I of the settle-ment of which it was part, cl. 5 was intended to prohibit (a) direct action without notice by or at the instance of the association and (b) strikes by workmen themselves without the approval of the association. The words 'in no case' used in the clause emphasized that direct action by either party without notice should not be resorted to [1]for any reason whatsoever. There could be no doubt that the settlement was one as defined by s. 2(p) of the Industrial Disputes Act and was binding on the workmen under s. 18(3) of the Act until it was validly terminated and was in force when the said strike took place. The strike was lightning one, was resorted to without notice and though it was not at the call of the association, it was in breach c:lf cl. 5. [311 A-CJ

The 5trike was in the matter of suspension of one of the workmen pending domestic enquiry against him, matter which obviously was not one of the matters covered by the said settlement. It was, there/fore,. not strike illegal under s. 24 rMd with s. 23 ( c) . However being in con-travention of cl. 5 of the said .ettlement and that settlement being bind· ing on the workmen concerned and in operation at the time was punish-F able under s. 29 and therefore. illegal under that section. (312 FJ

The strike being illegal, standing order 22 would apply and p11rticipat· ing in or inciting others to join such strike would amount to misconduct for which the management was entitled to take disciplinary action. The second contention on behalf of the workmen must also, therefore, fail. (313 DJ

for which the management was entitled to take disciplinary action. The second contention on behalf of the workmen must also, therefore, fail. (313 DJ The Tata Engineering & Locomotive Co. Ltd. v. C. B. Mitter, C.A. No. 633/ 1963 dt. 2-4-1964, referred to. (iii) The Labour Court on the evidence held that the association failed to prove that the management had a~eed in order to end the strike on May 11, 1966, not to take action against any of the workmen in connec-tion with the strike, though it may be that they might have agreed not to victimise any workmen for participating in the strike. In fact the management did not impose any penalty against any workman for joining the- strike, not even against the three concerned workmen. This finding beinj! purely one of fact and the Labour Court having given cogent reasons for it this Court would not interfere with it. The contention alleging un· fair labour practice must also therefore fail. [313 G-H]

(iv) Although in his repon the enquiry officer did not use the expres-A skln 'intimidatioo' the evidence which he accepted was that the workman m question thumped his band on the table and used threatening words to an Officer of the company. 1be en'!uiry officer's finding of disorderly behaviour mu:.• therefore be held to mclude acts of intimidation. Accord-ingly the contention tbat the orders of dismissal were bad as they took mto ac::ount the charge of intimidation of the company's officers although tho enquiry officer bad found that charge was not proved, must be rejected. !314 Jl-'-<j]

(v) The evidence showed that the lhree workmen concerned were in the forC'front of the crowd which entered the premises of the company and committed and incited disorderly behaviour. In taking action against them and not the rest of the work.men there was no discrimination and no victimisation. [315 CJ

Burn & Cn. Ltd. v. Workmen, [1959] I L.LJ. 450, distinguished.

~vi) There \\'as no substance in the contention that the findings of

tho enquiry officer were based on no evidence or were perverse.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2123 o(

Appeal by special leave from the Award dated March 23, 1968 of the Labour Court, Bangalore in Reference No. 39 of 1967.

M. K. Ramamurthi, B. R. Dolia, S. Pappu and Vineet Kumar;

for the appellants.

H. R. Gokhale, C. Doraswamy and D. N. Gupta, for respon-E

dent No. 1.

The Judgment of the Court was delivered by

Shelat, J. This appeal, founded on special leave, arises out of an industrial dispute between the respondent-company and the Motor Industries Company Employees Association which the Government of Mysore referred to the Labour Court, Bangalore, for adjudication under s. IO ( 1) ( c) o( the Industrial Disputes Act, 1947. The dispute related to the dismissal by the management of three workmen, Sandhyavoo, G. Prabhakar and M. V. Vasudevan out of the five workmen against whom the management had held domestic enquiry at which they were found guilty of acts of misconduct charged against them.

The facts leading to the said dispute and the reference are as follows:

On August 24, 1964 the said association handed over to the management charter of demands. Negotiations between the parties having failed, the demands were taken before the concilia-tion officer when the parties arrived at settlement dated Decem-ber 23, 1964. On April 29, 1966, the management issued I notice suspending for day, i.e., May 4, 1966, one B. G. Shenoy

as and by way of penalty. In consequence of protest by the association, the said suspension was postponed and on May 10, 1966, the management served charge-sheet on Shenloy and sus-pended him pending an enquiry. On May 11, 1966 the associa-tion demanded withdrawal of the said suspension and the said charge-sheet. Discussions took place on that day from 9.45 AM. to 12.30 P.M. between the association and the management· and the parties thereafter adjourned at 1 P.M. for lunch having decided to resume the talks at 2.30 P.M. At 2 P.M. the first shift ended and the workers of the second shift began to come in. The workmen of the first shift, however, stayed qn and those of the Sl'r.ond shift along with the workmen of the general shift joi.ned them and all of them went on strike. The discussions which were resumed at 2.30 P.M. ended in an agreement at 5 P.M. and the workmen returned to work. On May 18, 1966 the assistant establishment officer submitted complaint to the chief personnel officer alleging certain acts of misconduct by crowd of workmen mentioning therein the names of five of them including the said three workmen. On May 25, 1966 charge-sheets alleging stop- . page of work, abandoning the place of work, 1nciting clerks and officers of G. 2 department to join the said strike, disorderly beha-viour including intimidation and assault on one, A. Lakshman Rao, were served upon those five workmen. Correspondence thereafter ensued between the association and the management wherein the association protested against the management's decision to adopt disciplinary action against the said five workmen despite the agree-ment ·arrived at on May 11, 1966. Thereafter, domestic enquiry was held on June 30, 1966 which was completed on July 27, 1966 when the enqillry officer made his report hold1ng the said three workmen, Sandhyavoo, Prabhakar and Vasudevan, guilty of ~cts of misconduct under standing order 22(2), (3), (13) and (18). He exonerated the other two workmen except on the charge of participating in the strike and loiter1ng about under clauses (2) and (18) of the said standing order. On August 12, 1966, the management, agreeing with the report, passed orders of dismissal against the said three workmen which gave rise to the said refer-ence. On March 23, 1968 the Labour Court gave its award hold-ing that the said enquiry was validly held and that the mainage-ment were justified in passing the said orders of dismissal.

. Mr. Ramamurthi, appearing for the association, challenged the said awaro on the following grounds : (1) that the said asso-ciation not having given call for the said strike, the said charges were misconceived a.nd the orders of dismissal were consequently not sustainable;.(2) that the said strike, which was spontaneously staged by the yvorkmen, was not illegal under s. 24 of the Indus-trial Disputes Act, nor was it in contravention of any law as

required by standing order 22(2) and (3); (3) that the said dis-ciplinary proceedings were in c0ntravention of the agreement ai:rived at on May 11, 1966, and therefore, the diSlllissal following such disciplinary proceodings amounted to unfair labour practice; ( 4) that the orders of dismissal were passe<l on charges including that of intimidation though the misconduct of intimidation was not found proved by the enquiry officer ?nd hence the said orders were illegal; ( 5) that to punish only three workme'l when large number of workmen had takein part in staging the strike and in inciting others to join 11 constitutrd victimisation; and (6) that the findings of the enquiry ofli.:er were based on no evidence or were perverse in that no reasonable body of persons could have arrived at them on the evidence before him.

The argument on which the first contention was based was that the settlement dated December 23, 1964 was arrived at be-tween three parties, the management, the association and the men, ~d that µie association being the union registered under the Trade Unions Act was an entity distinct from the workmen. Under cl. 5 of the settlement it was the association which was obliged to give four days' notice if it decided to reson to strike, go-slow tactics or other coercive action. The said clause did not imp<''\C any such obligation on the workmen. The workmen thus having no such obligation and the said strike being spontaneous one, without any call for it from the association, it could not be said to be in breach of the said settlement, am' therefore, would not lall under the mischief of s. 23 of the Act, the first condition of which is that to be illegal under s. 24 read with s. 23 it must be in breach of contract. Standing order 22 requires that participat-ing in strike would be misconduct if it is in breach of some provision of law. But as the strike was not in c0ntravention of s. 23, it would not constitute misconduct under that standing order. Therefore, the charges against the said three workmen were misconceived a.nd the orders of dismissal passed against them on the basis that they stood established were bad. In our view this argument cannot be sustained. The construction of cl. 5 of the settlement suggested by Mr. Ramamurthi is contrary to (a) the tenor of that settlement, (b) the provisions of the Industrial Disputes Act under which settlement arrived at between an em-ployer and union representing the employees during conciliation proceedings is binding not only on such uniqn but also the work-men whom·it represents and (c) the principles of collective bar-gaining recognised by industrial law. The settlement was pack-age settlement by which the management and the workmen, through their association, arrived at certain terms in the presence of the conciliation officer. The settlement. besides settling the demands contained in the said charter of demands, sets out the necessity of harmonious relations and of cooperation between the

management and thci workmen so as to promote higher and better llfllduction. . It was to achieve this object that direct action on the part of either of them such· as strike by· the workmen and lock-out by tile employer without notice was prohibited. Evidently the provision for four days' 111<>tice before any direct action was taken by either of them was provided tor 'so that during that period if • tliefe ]Has any lflevance it could be ironed out oy negotiation. Cl. 5 ,of ,the setd~ment falls in two parts : ( l) .~e subs~tive ~. and (2) the c;:oroUl\I)' thereot. The first part inter alia provided ibat neither tbC ~iation nor the management .would resort to any direct act.ion, such as strike; go-slow tactics or lock-out or any sucn coercive action without giving to the other four days' notice. The secona pan provided an undertaking on the part of the asso-c ciation to cooperate with the management, if there was any strike by workmen ·'OV'l:thout ·any can therefor ·from th1n1ssociation, if the J:!lllllll&emt:ll,t were to tiike disciplinary action against the workmen. 1f the construction of cl. 5 suggested by Mr. Ramamurtbi' were to be accepted it would leild to surprising result, namely, that though strike at' the mstanee elf the assaciatiqn required four days' ·notice, a'.strike by the y;orkmen witllout any call froi:n the associa-tion wciuld not require any such notice and tliat the. settlement left complete'1ibert)r to the workmen to Iitunch sudden strike. Such ·a cqnstructlon '.appears qn the very face of it contrary to the object a11d PQrpos_e , ~ ~ settleJ!!ent and patti9ularly cl. 5 which en vi· sages 11ottce periQ\1 Of four days to enable the parties to resolve I: a· dispute \Jef9te dirCct action on its account -is iesort.ed to by either of. tl1~ • ·The =ested construction is illso untenable, for surely the' ~iation · pe<;tive of tne workme,n cannot by itself resort to· any clirect ai;tion: ii ow can, for instance, the asi>ociation resort to· go-~9\v ,tactjcs without giv~g · ciill for it to the ·workmen ? It is ob.vious, theretore, ~a~.~l.' 5 does not contemplate any dicho-t~ bet)veen the association and the workmen as suggested by r ~r. ;R,amami¢hl, besides being repugnant to the. principle that settlemtint an;ived at 'by the association must be regarded as one made '>Y .it in .its representative, character, and therefore, binding 6n the workmen. Therefore, although. the 8ettlemeiit mentions in cf. 5 tjle mana$ement, w9rkmqd and t)le association, the expression 'workiJ'leri' thCjtein .was unne~sa.ry, for, Without that expression ~ it woajd have ~n as Cfficacfotisly binding on the workm~ as _011 tl!e 11$8ociation .. ~.conclusion .is strengthqried by th~ f~ ~ .~ settlement ll)CUtiOJ18 fu.e man!lge~e'!t _and the associatton orl ·behalf qf .the workmen· only as tlie ·parties thereto and the .signatories thereto also are oally ·the representatives ol ' the twO 90lii~. Noµe of .the woi:lcmen, nor any one separately represent-" _i,ng tl\ein a.lti,xeci ·1.µs .signatu~· to it. If lighting strike without _bo\ic;e. is 1U,es~ uii~ any p~sion of law (a q\Iestion which we ~hiill pre..entty consiaer &tandmg order 22 wohld coJl\e into opera-.non ana &tatting qr joit\ing such strike 'arid' il!citiilg others to L 13 Sup.C,I,/69-o ..

loin it would amount to miSconduct for which disciplinary action by the management would be possible.

The next quei;tioo is whether the management could validly take disciplina,ry action against the workmen concerned in respect of the said strike. The recitals of the said settlement show that u result of the association presenting the said charter of demands negotiations between the management and the aasociation took place on the said demands as also on certain p~ made by the management, that on their failure conciliauon proccedin!I'! took place in the course of which the parties anived at the said aettlement which, as aforesaid, was signed by the representatives Of the management and the association in the presence of the conci-liation officer. The settlement thus was one under s. 12 ( 3) of the Industrial Disputes Act and rule 59 of the Rules made thereunder by the: Govemmqnt of Mysore. It was to come into force as from January 1, 1965 and was to remain in force for three years and was thereafter to continue to be in force until its tennination by either side. It is clear from Part I thereof that the object with which it was made was to promote harmonious rdatons and co-operation between the comp~y. the association and the workmen so that the company may on the one hand DC al>le to achieve increased production and On the other be in position to afford maximum opportunity for continued employment. To accom-plish these aims it was agreed that the company <:fl its part should be managed on sound and progressive lines and the association and the workmen on their part should combat any wasteful prac-tices adversely affecting workmanship and production and assist the mainagement in apprehending persons responsible for acts such as theft, sabotage and other subversive activities. As cl. 5 ol the settlement itself states it was "in order to ensure continuation of smooth working" that the company and the association agreed that in no case would either of them resort to direct action such as lock.outs, strikes, go-slow and other coercive action without four days' notice and that should one or more workmen resort to any such direct action without the approval Of the association, the association would cooperate with the company in any disciplinary action which the company would take against such workmen. Then follows the agreement on the said demands ol the workmen, 3ifld the proposals made by the management in the details of which it is not necessary to go, and finally, the agreement that the parties would adhere to the code of discipline and the grievance procedure annexed as ~exure IV to the settlement. The said code also inter alia provided that there should be no strike or Jock.out with-out notice, that neither party should resort to coercion intimida-tion, victimisation or go-slow tactics, that they would avoid litig~­tion, sit-down and stay.in strikee and lock.outs and would not perm.it demonstrations which are not peaceful or rowdyism. Read

in the context of the other provisions of Part. I of the settlement of which it is part, cl. 5 was intended! to prohibit (a) direct action without notice by ot at the instanee of the association, and (b) strikes by workmen themselves withOtit fue approval Of the ~ ciation. . The words "'1 no case" used in the; clause emphasJSe that direct action by either party without notice should not be re-B sorted to for any reason whatsoever. There can be no doubt that the settlement was one as defined by s. 2(p) of the Industrial Dis-putes Act and was binding on the workmen i¢er s. 18(3) of the Act until it was vitlidiy terminated and was in force when the said strike took place. The strike was lightning one, was resorted to without notice and was not at the call of the association ~ was, therefore, in breach of cl. 5. Could the management. then take disciplinary ac.tion against the c0ncerned workmen in respect of such strike. ? Standing order 22 qnumerates various acts constituting misconduct. Cls. 2, 3, 13 and 18 provide that striking either singly or in combination with others ln contravention of the provisions of any Act, inciting any other workmen to strike in cqnlravention of any Jaw, riotous or disorderly behaviOUJ:" or any act subversive of discipline l!nd loitering within the cqmpany's premises while on duty or absence without permission from the appointed place of work c0nstitute misconduct. . The j>?int is whether participation iiri . and incite-ment to join !he said strike were in respect of strike whiqh was in contraVel)tion of any Act or law. Section 23 proy.jdes. that no workman employed in an industrial esta])lishment sl\all go on strike in breach of contract and during the.perio4 in. which settle-ment is in operation, in respect of any of the .matters . C()vered by · such settlement. The prohibition against worlanl\ll going .on strike thus envisag\)S two conditions; (a) that it is.in ~ch of contract and (b) that it is during the period in which settl.emc;nt is in operation a,nq is in respect of any of. the .matters, c;overed by such settlement. The said settlemeint was . contract between the ~mp any. and the. asso9\ation repl'!\~ting. the workmen and it was m operation on May 11, 1966. But was it in respect of matter covered by the settlement 7 Under s. 24 .a strike is illegal if it is commeooed in cOntravention of s. 23. Section 26 inter alia p~­G vides that any workman .who commences, continues or atherw1se acts in furtherance of. strike which iii iileg'al ul!der the Act sh.all be punislled with illlprisohment far ~enil extending to one inon~J:i or with fine which ·may extend to Rs. $0 .or with ~- · secµoD. 27 provides .punishinent of person wh(! instigat~. or inqites-Qthers to take part in or, otherwise jicts in .futtheranee of an Hlegal strike. The stiike envisaged by these two sections is cleyly the one Whicb is ille2al under s. 24 read with s. 23 . .A strike in breach of con-tract during the operation of settlememit anci in respect of matter covered by that settlement falls under s. 23 ( c). But whereas s. 26

punishes workman for going on an illegal strike- or for any act in furtherance of such strike, s. 29 lays down the penalty for person, not necessarily workman, who commits· breach of term of settlement which is binding under the Act. · It is, there-fore, an offence for any person on whom _settlement is binding under the Act to commit breach thereof and the legislature has viewed it to be more serious offence, for, it has higher punish-ment of imprisonment extending to six months than the punish-ment for commencing etc. an illegal strike under s. 26. . Thus, commencing strjke or acting iIJ furtherance of it in breach of settlement binding on the person who so commences it or acts in its furtherance is an offence punishable under s. 29.It is clear that there is distinction between. strike envisaged -by s. 23 ( c) in respect of matter covered by settlement and strike in breach of settlement envisaged by s. 29. That position was conceded by Mr. Gokhale for the management;~ But his argu-ment was that the strike in question was, firstly, in respect of matter covered by the said settlement, namely, its prohibition with-out notice while that settlement was in force and secondly that it was in breach of that settlement, and consequently, it was illegal both under s. 24 and s. 29. This contention does not seem correct, firstly, because though an agreemeµit not to resort to strike without notice would be the subject matter of settlement, strike in contravention of such an agreement is not in respect of any of the matters covered by such settlement. Secondly, such construction would mean as if Par!iame;nt intended to provide two different penalties, one under s. 26 and the other under s. 29, for the very same offence, one higher than the other, an intention difficult to attribute. The strike was in the matter of the suspen-sion of the said Shenoy pending domestic enquiry against him, matter which obviously was not one of the matters covered by the said settlement. It was, therefore, not strike illegal under s. 24 read ·1vith s. 23 ( c). However, the strike was in contravention of cl. 5 of the said settlement a.nd that settlement being binding on . the workmen concerned and in operation at the time was punish· able under s. 29, and therefore, iJlegal under that section.

The question whether strike in contravention of similar clause in settlement was illegal arose in The Tata Engineering and Locomotive Co. Ltd. v. C. B. Mitter & Anr. ([1 ]) As in cl. 5 of the settlement before us, the settlement there also provided that "in no· case" would the parties thereto resort to direct action such as lockouts, strikes, go-slow and other direct action without four . days' notice. The strike in question was commenced in respect of demand by workman for ·a pair of gum-boots .. dema,id

(1) C.A.No. 633of1963, dee. on April 2, 1964.

--.-----=--=.,.. .......,.,

.""'~---

If • _.

'~ _,,. '

not cowred by the settlement. It was common ground that the strike would not fall within the ambit of s. 24 bµt the controversy ~whether it WllS otherwisC illegal; the workmen's contention being di.at it was not, as the Said clause against strike without il.otice applied ~y to one declared for enforcing one or the other demand8 which. fOnned the subject matter of the settlement and • since that clause the strike arose was illapp&able. out ol matter not covered by the settlement, This Court negatived the conten-tion and held that the words "in no case" in that clause meant strike for whatever reason and tho11gh it was conceded that jt was not illegal under s. 24, ii: was, nevertheless, held to be illegal not because it was in respect o( matter covered. by the said settle., ment but because it was in contravention of the settlement which was binding_ on the concerned workmen, which meaint that tbe Court held ilie strike to be illegal under s. 29. In our view the decision in the present case must be the same. The strike was illegal not under s. 2.4 but becau~ it wa• in contravention of the settlemeint binding on the workmen concerned. Consequently, standing order 22 would apply and participating in or inciting others to join such strike would amount to misconduct for which the management were. entitled to take disciplinary action. But against that position, the argumqnt was that the agreement dated May 11, 1966 under which' the workmen called off the strike also pri:>vided that no disciplinary action would be taken £ against any workmen in respect of the strike on that day and that therefore the proceedings taken against the three workmen in violation of that agreement aniounted to unfair labour practice. The agreement was. oral. According to Bernard, Secretary of tile association, the agteelli.ent was that (a) the charges and the sus-pension order passed. against the said Shelioy should be withdra\\ID, (b) the company should pay the wages for the 3 ! hours period of the strike provi4ed !he workmen made good ~ loss of produc-tion durin~ that period, and ( c) . the management would take no 'action against any one for going Qll strike. The evidence of Martin, the company's !e$;hliical airector, on the other h1111d, was that the company agreed Ollly not to punish the said Shenoy and to consider paying wages for the hours of the strike. The Labour Court Oii this ovidence held that· the association failed to prove that the management had agreed not tO take action against allY of the work-men in conne¢tion with .the strike though it may be.that they migt: have agreed not to victimise any workman for participatilllg in the strike.-In fact, the management did not . impose . any penalty against any workn18n. for joining the strike, not .evon against the· three CQ!lcerned workmen. Thit findjng being purely One of fact and the Labour Court havin11 given cogent reasons for· it we would not interfere with it without the utmost reluctance. We have been taken through the evidence and the correspondence between the

parties but we fail to seo any error on the part of the Labour Court 111 reaching that finding.

The next contention was that the orders of dismissal were bad as they took into account the charge of intimidation of the com-pany's officers although the enquiry officer had found that that charge was not proved. The charge-sheets, exs. M/ 4A, M/ SA and M/ 6A against the three workmen alleged in express terms dis-orderly behaviour and iintimidation. The report of the enquiry officer against the said Vasudevan clearly stated that the enquiry officer accepted the evidence of the management's witnesses and that on that evidence all the charges against him stood proved. While summarising those charges, he, no doubt, did not in so many words me the expression "intimidation". But the evidence which he, as aforesaid, accepted, was that Vasudevan along with other workmen entered the G. 2 department at about 3 P.M. on that day and thumping his hand on the table of the said Lakshman Rao threatened that officer in the following words : "now I am in the forefront [of the crowd]. You camnot do anything. You ask your people to come out and you also come out. Otherwise you can see what we can do for you now". The said Lakshman Rao had also deposed that he was surrounded by the workers who started pushing and pullin~ him. The evidence of other officers was that as the crowd which forced its way into this department got unruly they were also forced to leave their places of work. The evidence against Prabhakar was that he too was in the fore-front of that crowd which squeezed· Lakshman Rao and some members thereof inflicted kicks on him. Similarly, there was the evidence of one Raja, the assistant personnel officer, and others that Sandhyavoo was one of those in the forefront of that crowd. According to Raja, Sandhyavoo tried to lift him from his seat with view to force him to leave his tablo and finding that the crowd had become restive he left his place. Acceptamce of this evidence by the enquiry officer must necessarily mean acceptance of the version of these officers that they were intimidated by the crowd which forced its way into their department led by thes~ three work-men. Though the enquiry officer has not, in so many wo•ds, used the expression 'intimidation' his finding of disorderly behaviour must be held to include acts of intimidation.

Lastly, were the orders of dismissal against the three workmen ac:s of victimisation on the part of the management when admit-t, .Hy large number of workmen had staged the strike and also '-'ed others to join that strike? The orders against the three w." '.men being identical in terms we take the orders passed a~ainst Vasudevan as specimen. That order sets out four ~cts of mis-conduct by him; (I) striking or stopping work, (2) inciting, (3) riotous and disorderly behaviour and ( 4) loitering about in the

company's premises. Though each Ollie of these acts, according to the order, was misconduct punishable with dismissal, the order states that so far as acts 1 'and 4 were concerned, the management did not wish to take serious view of them as large number of "misguided''. workmen. had stopped work and left their places of work without permission. The management, therefore, took ac-B tion only m respect of acts falling under els. 3 and 13 of standing order 22 evidently for the reason that they considered incitement, intimidation and riotous and disorderly behaviour as "very grave in nature". We do not think that in taking this view the m3jlliage-ment discriminated against the three workmen concerned as against the rest or that they dismissed them with the object of victimis-c ing. The evidence in the enquiry clearly disclosed that whep the crowd forced its way into the G. 2 department it was Jed by these three workmen, all of whom were in the fore.front thereof and two of them had defiantly forced the officers to leave their tables. One of them had threatened as to what he and the others who were behind hi111 in that crowd could do to him if he did not comply 3jn<I the other had tried even to lift another officer from his chair to compel him to leave his place of work. In these circumstances the management cannot be blamed if they took serious view of these acts of the three workmen concerned, who had taken up their position in the forefront of that crowd, position indicative of their having led that crowd into that departmont and having acted as its !elide~. An act of discrimination can only occur if amongst those equally situated an unequal treatment is meted out to one or more of them. Havini been found to be the leaders of the crowd, action taken agai\fi.<t them cannot on any principle be regarded as discriminatory or unequal. The decision in Burn & Co. Ltd. v. Workmen(') relied on by Mr. Ramamurthi has no bearing on the facts of this case and cannot assist him. Once misconduct graver 1:hain that of the rest was found proved against these three workmen and for which the punishment is dismissal, victimisation cannot legitimately be attributed to the management. It is relevant in this connection to remember that so far as their rarticipation in the strike aiDd loitering bout were concerned, no action was taken against these three workmen on the ground that those acts were common with those of the rest of the workmen. In view of these facts it is not understarrdable how the impugned orders of dismissal could be characterised as acts of victimisation. It is also not possible to say that the fiinding of incitement and disorderly behaviour of ·these three workmen was perverse or such as no reasonable body of persons could come to on the evidence on record on the ground only that the others also were guilty of those acts. For, there would be nothing wrong if those who misled or misguided other workmen were selected for disciplinary action

(I) (1959] I L.L,J. 4.lO.

and n~t the victims of their persuasion, who in following their precept did similar acts.

In our judgment the orders of dismissal, based on the findings in the domestic enquiry which did not suffer from any infinnity. could not be successfully impeached, and therefore, the Labour Coun was right in upholding them. The appeal fails and is dis-11 missed. There will be no order as to costs.

Appeal dismissed.