GUJARAT STEEL TUBES LTD. v. GUJARAT STEEL TUBES MAZDOOR SABHA (2)

Citation: [1980] 2 S.C.R. 146

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, D.A. DESAI, A.D. KOSHAL

Case summary

Furthernlore, even though all sainctions short of punitive discharge may be employed by a Management, low wages and high cost of living, dismissal of several hundreds with disastrous impact on numerous families, i~ of such sensitive social concern that, save in exceptional...

Judgment text

GUJARAT STEEL TUBES LTD. v. GUJARAT STEEL TUBES MAZDOOR SABHA N Guj. L. R. 108 @ 140; approved. Rohtas Industries & Anr. v. Rohtas Industries Staff U11io11 and Ors. [1976] 3 SCR 12: followed. Nagendranath Bara and Anr. v. The Con1missioner of Hills Divisions and c Appeals, Assani & Ors. , [1958] SCR 1240; Engineering lvlazdoor Sabha v. HiiTd Cycle Ltd. , [1963] Suppl. I SCR 625; State of A. P. v. Srel'rama Rao, [1964] 3 SCR 25 @ 33; P. H. Kalyani v. Mis Air France, Calcutta, [1964] 2 SCR 104; referred to. "Tribunal" sirnpliciter has a sweeping signification and does not exclude Arbitrator. A tribunal literally means a seat of justice, may be, a commission, a Court or other adjudicatory organ created by the State. All these are tribunal and naturally the. import of the word, in Section 2(r). ofl the Industrial Disputes Act, embraces an arbitration tribunal. [188 E-F-H 189 A] Dawki11g v. Rokely, L. R. 8 Q. B. 255; quoted with approval. r .

, An Arbitrator has all the po~veys under the terms of reference, t'o which ·E both sides are party, confer. In the instant case, the Arbitrator had the authority to investigate into the propriety of the discharge and the ver,acity of the misconduct. Even if section llA of the Industrial Disputes Act is not applicable, an Arbitrator under Section 10A is· bound to act in the spirit of the legislation under which he is to function. A commercial Arbitrator who derives his juris~ diction from the terms of reference will by neca;sary implication be botind to decide according to law and when one says "according to law", it only means F existing law and the law laid down by the Supreme Court being the law of land, an Arbitrator under section 10A will have; to decide keeping in view the spirit of section llA. [196 B-DJ Union of Ilidia v. Bungo Steel F"! niture (P) Ltd. [1967] I SCR 324; reterred to. G Per Koshal J. (Contra) 1.

The orders of discharge could not be regarded as orders of their dismissal ' . and were on the other hand, orders of discharge simp1iciter properly passed ~' under Model Standing Order 23. [235 C-D] (a) Cl&Uses (3) and (4) of M. S. O. 25 speak of an inquiry only in the case of an order falling under sub-clause (g) of clause (1) of that M. S. O. H The only sub clause of clause (I) of M. S. O. 25 to which the provisions of ~lauses (3) and. (4) of that M. S. O. wonld be attracted is sub clause (g) and -/if an order of discharge falls under M. S. 0. 23, an inquiry under clauses (3) and • • GUJARAT STEEL TUBES V, MAZDOOR SABHA 151 (. 4) of }. f. S. 0. 25 would not be a pre-requisite thereto even though such an A order is mentioned in sub-clause (f) clauso (I) of tbat M,S. 0. ' [222 H, 223 A] (b) Under M. S. 0. s. 23 and 25, the Management has tbe powers to effect termination of the services of an empJoyee by having recourse to either ot: the1n. Jn action taken under I\. f. S. O.

23, no element of punishment is involved and • the discharge is a discharge simpliclter; and that is why no opportunity to the . concerned employee to show cause against the termination is provided for. B Dismissal~ however~ which an employer may order is in its very nature, a punishment, the infliction of which therefore has been made subject to the result of an ' inquiry (having the semblance of a trial in a criminal proceeding). Exercise of each of the two powers hais the effect of the termination of the services of the concerned employee but must be regarded, because of the manner in which each bas been dealt with by the M. S. O. as separate and distinct from the other. [223 C-E] (c) To contend that once it was proved that the order of discharge of a workman was passed by reaeon of a misconduct attributed. to hin1 by the· management, the order cannot but amount to an order of dismissal is wrong for two reasons. For one thing, clause (1) of M. S. 0.

25 specifically states iii sub~ dames (f) tbat a workman guilty of misconduct may be dischargod under M. S. O. 23. This cleairly means that when. the employer is satisfied that a '\\-·orkman has been guilty of misconduct he may [apart from· visiting the workman with any of tho punishments specified in sub clauses (a), (b), (c), (cl) and (e) of clause (1) of M. S. O. 25] either pass against him an order of discharge for which no inql! iry precedent as provided for in clauses (3) and (4) of M. S. 0. 25 would be necessary, or n1ay dismiss him a-ftoc holding such an inquiry which of the two kinds of order, the employer shall pass is left entirely to his: discretion. [223 E-H] It is true that the employer cannot pass a real order of dismissal in the garb of one of discharge.

But that only means that if the order of termination of services of an employee is in reality intended ta push an employee amd not merely to get rid of tim because he is considered useless, inconvenient or troublesome, the order even though specified to be an order of dismissal covered by sub clause (g) of clause (I) of M. S. O. 25. On the other hand if no such intention is made out the order would remain one of discharge simpliciter even though it has been passed for the sole reason that a misconduct is imputed to the employee. That is bnw M. S. Os. 23 and 25 have to be interpreted. M. S. O. 25 specifically gives to the employer the power to get rid of "a workman guilty of misconduct" by passing an order of his discharge under M. S. O. 23. • [224 A-DJ Secondly, the reasons for the termination of service of a permanent ""'orkn1an under M. S. 0. 23 havo to be recorded in writing and communicatod to him, if he so desires, under clause (4-A) thereof.

Such reasons must obviously consist of an opinion derogatory to the workman in relation to the performance of his duties, and whether such reasons consist of negligence, work shirking or of -serious overt acts like theft or en1bezzlement~ they would in anY case amount to misconduct for which he may be punished under M. S. O. 25. There being no case in which such reasons would not amount to misconduct, the result is that M. S. O. 23 would be render otiose if terminMion of service thereunder for misconduct could be regarded as a dism. issal and such a result strikes at the very root of accepted canons of interpretation. If it Wlls open to the Court to "lift I I • i • . (1980] S. C. R. Z the veil" and to hold an order of discharge to amount to dismissal merely because the motive behind it was a misconduct attributed to the employee, the I services of an employee could be terminated without holding against him an inquiry such as is contemplated by clauses (3) and (4) of M. S. O. 25.

(224 D-GJ ' Bombay Corporation v. Malia11kar, [1978] 3 SCR 1000; applied. • Merely because it is the reason which weighed with tho employer in effective the termination of services \vould not make1 thei order of such termination as one founded on misconduct, for such a proposition would run counter to. the plain meaning of clause ( 1) of M. S. 0. 25. For Ml order to be "founded" an mis· conduct, it must be intended to have been passed by way of punishment, that is, it must be intended to chastise, or cause pain in body· or mind or harm or loss in reputation or money to the concerned worker. If such an intention cannot be spelled out of the prevailing circumstances, the crder of discharge or the reasons for which it was ostensibly passed, it cannot be regarded as an order of dismissal. Such would be the C'3. Se when the employer orders discharge 1n the interests of the factory or of the general b~dy of workers. (226 A. CJ Chartered Bank, Bombay v.

The Chartered Bank Employees Union, [1960] 3 SCR 441; The Tata Oil Mills Co. Ltd. [1964] 2 SC! t p. 123; The Tata Engineering and Locomotives Co, Ltd. v.. S. C. Prasad, [1969] 3 S. C. C. 372; Workmen of Sudder Office, Cinnamore v. Management, [1970] 2 L. L. J. 620 followed. The real criterion which forn1cd the touchstone of a test to determinel whether . an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order, that! is, the intention with which it was passed. If the intention was to punish, that is tol chastise; the order • may be regarded as an order of dismissal; and for judging the intention, the question of mala fides (which is the same thing as colourable exercise of power) becomes all important. If no mala fides can be attributed to the management, the order of discharge must be regarded as one having been passed unde. r M. S. O. 23 even though the reason for its passage is serious misconduct.

[228 CDJ (2) The arbitrator could not exercise tho powm conferred on a Tribunal -~ under section 11A of the 1947 Act and could not therefore interfere with the punishment awarded by the Management to the workmen (even if the discharge could be reaarded a punishment). [235 D-EJ Throughout the I. D. Act, while ~arbitrator' would include an umpire. a Tri~ bunal would not include an arbitrator but would mean only an Industrial Tribunal constituted under the Act unless the context makes it necessary to give the word a different connotation. In sub section (1) of section 11, the word • 'Tn'bunal' has been used in accordance with the definition appearing in clause (r) section 2 because an arbitrator is separately mentioned in that sub"'5eCtion~ In sub-sections (2) and (3) of that section a Board, a Labour Court, a Tribunal and a National Tribunal have been invested with certain powers. A Tribunal I -oc. as cootemplated by sub-sections (2) and (3) then, would not include an arbitrator.

[233 A-BJ It is a well settled canon: of interpretation of statutes that the language used by the Legislature must be regarded as the only oource of its intention uni.. ,. such language is ambiguous, in which situation the Preamble to ! he Act; the Jstatement Of Objects of and Reasons for bringing it on the statute book rutd •• GUJARAT STEEL TUBES V. MAZDOOR SABHA 153 the pnrpose underlying the legislation may be taken into consideration for ascertaining such intention. That the purpose of the legislatjon is to fulfil a socio-economic need, or the express object underlying it does not con1e into the picture till an ambiguity is detected in the language and the Court n1ust steer clear of the temptation to mould the written word according to its own concept of what should have been einacted, It is thus not permissible for the Supren1e • Court to take the statements of objects and Reasons or the purpose underlying the enactment into consideration, while interpreting section 1lA of the I.

D. Act. [231 F-G, 234 Cl ' 3. The High Court exceeded the limits of its jurisdiction in interfering with the said punishment, in the instant case, purporting to act in the exercise of its powers under Article 227 of the Cnnstitution of India. [235 E·F] The High Court, \Vhile discharging its functions as envisaged by that Article, does not sit as a Court of Appeal over the Award of the' Arbitrator but exercises lin1itcd jurisdiction \vhich extends only to seeing that the arbitn1. tor uas functioned within the scope of his Jegal authority. In this view of the m~tter it was not open to the High Court to revise the punishment (if the discharge is regarded as such) meted out by the l\ till in a more or less disorganised condition in spite of Unions and Federation. Therefore, it lacks the power that true combination gives. (2) Hence, my advice to the employers would be that should willingly regard workers as the real owners of the concerns which they fancy 3 they have created. ( ) .. •••.

•.. •" Tuned to these values are the policy directives in Articles 39, 41, 42, 43 and 43A. They speak of the right to an adequate means of • • livelihood, the right to work, humane conditions of work, living wage ensuring a decent standard of life and enjoyment of Je[sure and participation of workers in management of industries. De hors these man- - (1) Socialism of my Conception (M. K. Gandhi) by Anand T. Hingorani, Bhartiya Vidya Bhavan. (2) ibid. (3) Ibid. , dates, law will fail functionally. Such is the value-vision of Indian Industrial Jurisprudence. The matrix of facts-A Pre-view The nidus of facts which enwomb the issues of law may be elaborated a little more at this stage. In t1le vicinity of Ahmedabad City, the appellant is a prosperous engineering enterprise which enjoys entrcpreneureal excellence and employs over 800 workmen knit together into the respondent Union called the Gujarat Steel Tubes Mazdoor Sabha (lhe Sabha, for short).

Fortunately, the indusry has had an innings of escalating profits but the workmen have had a running complaint of a raw deal. Frequent demands for better conditions, followed by ;iego:iated settlements, have been a lovely feature of this establishment, although the poignant fact remains that till the dawn of the seyenties. the gross wages of the workmen have hovered around a harrowii;g hundred rupees or more in this thriving Ahmedabad industry. The course of this precarious co-existence was often ruffled, and there \Vas, '110\V and then. some flare-up leading to strike, conciliation anLl even reference under Section 10. When one such reference was • pending, another unconnected dispute arose which, after some twists and tmns, led to an industrial break-down and a total strike. The episodic s! ages of this bitter battle will have to be narrated at length a little later.

Suffice it to say that the Management jettisoned all the 853 workman and recruited some freshers to take their place and to keep the wheels of production moving. In the war of attrition that ensued, labour lost and capitulated to Capital. At long last, between the two, a reference to arbitration of the disputes was agreed upon under Section lOA of the Industrial Disputes Act 1947 (the Act, for short). The highlight of the dispute referred for arbitration was whether the termination orders issued by the Management against the • \vork1ncn whose names \Vere set oy. t in the annexure to the reference ' \\'er~ "legal, proper and justified"; if not, \\"hethcr the workn1un \Vere 'entitled to any reliefs including the relief of reinstatement with continuity of service and full back wages'. The arbitrator's decision went against the Sabha while, on a challange under Article 226, the High Court's judgment virtually vindicated its stand. This is the hang of the case. The substantial appeal fr.

Ly the Management while the Sabha has a marginal quarrel over a portion of the judgment as disclosed in its appeal. The 'jetsam' workmen, a few hundred in. number, have been directed to be reinstated with full or partial back pay and this is the bitter bone of contention. nciJ'at'ons and two settlements. We MC not directly concerned with tho cluster of clauses therein save one. 64 workmen bad been discharged or dismissed, of whom half the number were agreed to be reinstated. The fate of the other half (32 workers) was left for arbitration by the Industrial Tribunal. The dark clouds clem:ed for a while but tho sky turned murky over again, although the previous agreement bad promised a long, spell of normalcy. The Sabha, in October 1972, met and resolved to raise demands of which the principal ones were non-implementation of tbc Wage Board recommendations, bonns for 1971 and wages during the lockout period. The primary pathology of industrial friction is attitudinal.

The Management could have (and, indeed, did, with a new Uriion) solved these problems had they regarded the Sabha as partner, not saboteur. Had the bitter combativeness of the Sabha been moderated, may be the showdown could have been averted. Apportioning blame does not help now, but we refer to it here because Sri Ashok Sen, with feeling fury, fell fow of the criticism by I ,J the Hlgh Court that the Management had acted improperly in insisting on arbitration, and argued that when parties disagreed, arbitral reference was the only anGwer and the workers' fanatical rejection of arbitration made no sense. We need not delve into the details of the correspondence relied on by either side to reach the truth. For, the Unions --,.. case is that in the prior settlement between tho two parties arbitral refenince came only after negotiations failed. That was why they pressed the Management to reason together, avoiding wrestling with each other before a slow-moving umpire.

Sri Tarkunde, for the Sabha, urged that the workmen were not intransigent but impatient and pleaded for a negotiated settlement since · the main point in dispute, namely the implementation of the Central Engineering Wage Board's recommendations, was too plain to admit n of difference, given good faith on both sides. Wc will examine the substance of this submission later but it needs to be emphasised that workmen, surviving on starving wages and with notoriously fragile staying power, are in no mood for adjudicatory procedures, arbitral or other, if the doors of negotiation are still ajar. The obvious reason for this attitude is that the litigative length of the adjudicatory apparatus, be it the tribunal, the court or the arbitrafur, is too lethargic and long-winded for workmen without the wherewithal to survive and is beset with protracted challenges either by way of appeal upon appeal or in the shape of writ petitions and, thereafter, appeals upon appeals.

The present case illustrates the point. Where workmen on hundred rupees a month demand immediate· negotiation the reason is that privations have no patience beyond a point. Now and here, by negotiation, is the shop-floor glamour. In this very matter, although the controversy before the arbitrator fell within a small compass, he took a year and ninety printed pages to decide, inevitably followed by a few years and hundred and thirty printed pages of judgment in the High Court and a longer spell in this Court with slightly lesser length of judgment. Which workman under Third World Conditions can withstand this wasting disease while hunger leaves no option save to do or die? Raw life, not rigid logic, is the mother of law.

~ After the demands were raised by the Union, the main issue being implementation of the Wage Board recommendations, a stream of correspondence, meetings and inchoate settlements ensued, but the crucial 1 question, which would have meant 'cash and carry' for the workmen, balled solution. Do negotiate since the appl;cation of the Wage Board recommendations are beyond ambiguity, was the Sabha's peremptory plea. We differ; therefore, go to arbitration, was the Management's firm response. A stalemate descended on the scene. No breakthrough being visible, the Sabha charged the Management by its letter of January 25, 1973 with breach of clause 6 of the Agreement of August 4, 1972 which ran thus : "That the parties agree that for a period of 5 years from the date of this settlement all disputes will be solved by mutual negotiations or, failing that, by joint arbitration under GUJARAT STEEi TUBES v. MAZDOOR SABHA (Krishna Iyer, !. ) 161 Section lOA of the I. D. Act, 1947.

Neither party shall take any direct action including go-slow, strike and lock-out for a period of 5 years from the date of this settlement. " Various aspersions of anti-labour tactics were included in the Sabha's letter but the most money-loaded item was the grievance about the Wage Board recommendations. The temper, by now, was tense. • The Management, on the same day, (January 25, 1973) set out its versinn on the notice board and the High Court's summary of it runs thus : "The notice stated that during the course of the meeting with the representatives of the Sabha held on January 20, 1973 the Company had expressed i! IS willingness to implement the Wage Board recommendations according to its interpretation oo and with effect from January 1, 1969 without prC:. judice to the rights and contentions, of the workmen and leaving it open to the parties to take the matter to1 arbitration for resolution of the points of dispute. The Sabha, however, had turned down thi.

s suggestion and it came to the notice of the Company that workmen were being instigated by making false representations. The Company clarified that on and with effect from January 1, 1972 every workman would • be entitled to the benefits of Wage Board recommendations, irre. ;pective of whether the concerned workman had put in 240 days attendance. " The Sabha's answer was a strike two days later. This event of January 27 was countered quickly by the Management restating its attitude on the Wage Board recommendations, asserting that the strike was illegal and in breach of the settlement of August 4, 1972 and p wholly unjustified because the offer of reference to arbitration, negotiations failing, had been spurned, by the Sabha.

The notice wound up with a command and a caveat : "If the workmen do not immediately resume duty, the Company would not be under any obligation to continue in service those 32 workmen who have been taken back in service pursuant to the settlement dated August 4, 1972. Be>ides, if (the workmen) continue causing loss to the Company from time to time in this manner, the Company will not also be bound to implement the Wage Board, recommendations on and with effect from January 1, 1969, which may a15o be noted. The Company hereby withdraws all its proposals unless the Workmen withdraw the strike and resume work within two days. " This threat was dismissed by the workmen as a brutum fulmen and the strike continued. The Management, therefore, came up on the notice board castigating the Sabha with irresponsible obduracy in waging an illegal and unjustified strike, A warning of the shape of things to come was given in this notice.

The High Court has summed it up thus : "The Company gave an intimation that in view of such • obstinate attitude on the part of the Sabha and the workmen, it had decided to withdraw its earlier offer to implement the Wage Board recommendations on and with effect from January 1, 1969 as already cautioned in the notice dated January 27, 1973. The said decision must be taken to have been thereby co=unicated to the workmen and Sabha. The notice further stated that having regard to the obdurate, unreasonable and illegal attitude adopted by ~he workmen and Sabha, the Company had decided to take disciplinary proceedings against the defaulting workmen.

In this connection, the attention of the workmen was drawn to the fact that the strike was illegal not only because of the terms of the settlement dated August 4, 1972 but also because of the pendency of the reference relating to reinstatement of 32 workmen ( before the Indnstrial Court and, that, therefore, the Company was entitled to take disciplinary action against them. Finally, • the Company appealed to the workmen to withdraw their illegal and unjustified strike forthwith and to resmne work. " These exercises notwithstanding, the strike raged undaunted. the production was paralysed and the Management retaliated by an elaborate notice which dilated on its preparedness to negotiate or arbitrate and the Sabha's unreason in rejecting this gesture and persisting on the war path.

The stern economic sanction was brought home in a critical paragraph : "By this final notice the workmen are informed that they 1 should withdraw the strike and resume work before Thursday, • February 15, 1973. If the workmen resume duty according- • ly, the management would be still willing to pay salary according to the recommendations of the Wage Board on and with effect from January ! , 1969. Furthermore, the management is ready and willing to refer to the arbitration of the Industrial Tribunal the question as lo whether the fflflnagement has implemented the settlement dated August 4, 1972 and all other labour problems. In spite of this, if the workmen do not resume duty before Thursday, February 15, 1973. then the Company will terminate the serv! ces of all workmen who are on strike and thereaftu it will run the GUJARAT STEEL TUBES v. MAWOOR SABHA (Krishna Iyer, J. ) 163 factory by employing new workmen. All workmen may take note of this fact. " The count-down thus began.

February 15, 1973 arrived, and the Management struck the fatal blow of discharging the strikers-all the labour force, 853 strong-and recruiting fresh hands and thus work was resumed by February 19, 1973. I This public notice was allegedly sent to the Sabha and circulated to such workmen as hovered around the factory. It is common case that the notice of February 15, 1973, was not sent to individual workmen but was a signal for action. The drastic consequence of disobedience was spelt out in no uncertain terms : c "The workmen are hereby informed that \. hey ;hould resume duty on or before Monday, February 19, 1973 failing which the Management will presume that the workmen want to continue their strike and do not wish to resnme work until their demands as aforesaid are accepted by. the management. '} Parallel negotiations were going on even while mailed fist manoeuvres were being played up-thanks to the basic goodwill and tradition of dispute settlements that existed in this company.

Even amidst the clash of arms, bilateral diplomacy has a place in successfnl indns- • triaf relations. The Management and the Sabha allowed the talks to continue which, at any rate, clarified the area of discord. One thing that stood out of these palavers was that both sides affirmed the precondition of negotiations before arbitration over differences although the content. accent and connotation of 'negotiations' varied with each side. No tangible results flowed from these exercises and the inevitable ~ I happened on February 21, l 973 when the Management blotted out p the entire lot of 853 workmen from the roster, by separate orders of discharge from service, couched in identical terms. The essential terms read thus : "Your services are hereby terminated by giving you one month's salary in lieu of one month's notice and accordingly you are discharged from service.

You should collect immediately from the cashier of the factory your one month's notice-pay and due pay, leave entitlements and gratuity, if you are entitled to the same. The payment will be made between 12 noon and 5 p. m. Tf and when you desire to be employed, you may apply in writing to the Company in that behalf and on receipt of . the application, a reply will be sent to you in the matter. " .... A Casual workmen were issued separate but similar orders. The Management did record its reasons for the action taken, on February 20, 1973 and forwarded them to the Sabha and to the individual workmen on request. The anatomy of this proceeding is of critical importance in deciding the character of the action. Was it a harmless farewell to the workmen who were unwilling to rejoin or a B condign punishment of delinquent workmen ? The separate memorandum o!

Reasons refers to the strike as illegal and unjustified and narrates the hostile history of assault by workmen of the officers, their go-slow tactics and sabotage activities, their contumacious and a host of other perversities vindicating the drastic . ~ c action of determining the services of all the employees. The conclud- ~· ing portion reads partly stern and partly non-committal : "In the interest of the Company it is decided to terminate the services of all the workmen who are on illegal and unjustified strike since 27th January, 1973. D Under the circumstances, it is decided that the services of all the workmen who arc on illegal and unjustified strike should be terminated by way of discharge simpliciter. These workmen, however, may be given opportunity to • apply for employment in the Company and in case applica- • tions are received for employment from such employee~, E such applications may be considered on their merits later on.

It may be mentioned here that while arriving at the aforesaid decision to terminate the services of the workmen, various documents, notices, correspondence with the Union F and others, records of production,. etc. have been considered and . therefore the same are treated as part of the relevant evidence to come to the conclusion as aforesaid. FINAL CONCLUSION The services of all the workmen who are on illegal anc\ G unjustified strike since 27-1-1973 should be terminated by way of discharge simplicitcr and they should be offered all their legal dues immediately. The Administrative Manager is hereby directed to pass orders pn individual workers as per draft attached. H We thus reach the tragic crescendo when the Management and the workmen fell apart and all the workmen's services were severed. Whether each of these orders using, in the contemporaneous rerrsons, GUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer,!.

) 165 the vocabulary of misconduct but, in the formal part, the expression . 'discharge simpliciter', should be read softly as innocent termination 1 ~ or sternly as penal action, is one of the principal disputes demand- ¥ ing decision. We may as well comolete the procession of events before taking up the major controversies decisive of the case. The total termination of the entire work force of 853 employees was undoubtedly a calamity of the first magnitude in a country of chronic unemployment / and starving wages. Nevertheless, under certain circumstances, dis- . charge of employees may well be within the powers of the Manage- . ment subject to the provisions of the Act. With all the strikers struck off the rolls there was . for a time the silence of the grave. The conditional invitation to the employees to seek de nova employment by fresh apolications which would be considered on their merits, left the workers cold.

So the factory remained closed until April 28, 1973 when, with new workers recruited from the open market, production recommenced. Among the ·militans, the morale which kept the strike going, remained intact but among the others the pressure to report for employment became strong. Re-employment of discharged workmen began and slowly snowballed, so that by July 31, 1973 a substantial number of 419 returned to the factory. • The crack of workman's morale was accelerated by escalating reemployment and the Management's restoration of continuity of service and other benefits for re-employed hands. The Employer relied on this gesture as proof of his bona fides. Meanwhile, there were exchanges of letters between and 'trading' of charges against each ,_ other. The Management alleged that the strikers were violent and prevented loyalists' return while the Sabha was bitter that goondas were hired to break the strike and promote blacklegs.

These imputations have a familiar ring and their impact on the legality of the discharge of workmen falls for consideration a little later. The stream of events flowed on. The Sabha protested that the Management was terrorising workmen, exploiting their sagging spirit and illegally insisting on fresh applications for employment while they were in Jaw continuing in services. With more 'old workers' trickling back for work and their discharge orders being cancelled, the strike became ·~ . counter-productive. Many overtures on both sides were made through Je•ters but this apistolary futility failed to end the embroglio and brought no bread. The worker wanted bread, job, and no phyrric victory. A crescent of hope appeared on the industrial sky. The Management nut out a 'final offer' on May 31, 1973, calling on all workmen to rejoin lest the remaining vacancies also should be fiiled by fresh recruits.

The Sabha responded with readiness to settle and sough' ~ some clarifications and assurances. The employer informed : "Our offer is open till 10-6-1973. From 11-6-1973 we shall recruit new hands to the extent necessary. Thereafter workers who will not have reported for work shall have no chance left for re-employment with us. We repeat that those workers who will report for work wiU be taken back in employment with continuity of their services, that the orders of discharge passed against them on 21-2-1973 shalt be treated as cancelled and they will also be paid the difference in wages from 1969 as per the reco'mmendations of the Wage Board. " 1 The Sabha was willing and wrote back on June 8, 1973 but sought details about the attitude of the Management to the many pending de. mands. MeanwhHe, the sands of time were running out and so the Sabha telegraphed on 9th June that the workers were willing to report for work but were being refused work.

They de- • manded the presence of au impartial observer. The reply by the Management repelled these charges, but there was some thaw in the estrangement, since the time for return to work of the strikers was extended upto 16-6-73. An apparent end to a long strike was seemingly in sight with the Sabha sore but driven to surrender. On 13-6-73 th ~rnment to take over the factory as a 'sick' mill. These ordeals were described by Sri Ashok Se~ ( graphically to justify the submission that the Management had no choic~ caught between 'Scylla of strike aud Charybdis of take-over, but to get rid of the strikers and recruit new workers. If the employer did not discharge the strikers they were adamant and would not return to work, and the very closure compelled by the Sabha was being abused by it to tell the Central Government that for three months there had been no production and so the mill qualified to be taken over as 'sick' under the Industries (l)evelopment and Regulation) Act.

If the Management discharged the workers to facilitate fresh recruitment and save the factory from statutory takeover the cry was raised that the action was dismissal because an elaborate enquiry was not held. TI1e Management had avoided injury to the workmen, argued Sri Sen, by merely terminating their services without resort to disciplinary action and recording the . uncomplimentary grounds in a separate invisible order. He also underscored the fact that the strike was illegal and unjustified. as concurrently held by the Arbitrator ahd the High Court. ) We agree that industrial law promotes industrial life, not industrial •. ~ death, and realism is the soul of legal dynamics. Any doctrine that destroys industrial progress interlaced with social justice is lethal juristic and cannot be accepted. Each side has its own version of the role of the other which we must consider before holding either guilty. Sri Tarkunde told us the tale' of woe of the workmen.

In a country where the despair of Government is appalling unemployment it is a • terrible tragedy to put to economic death 853 workmen. And for what? For insisting that the pittance of Rs. 100 per month be raised in terms of the Central Wage Board recommendations, as long ago agreed to by the Management but put off by the tantalising but treacherous offer of arbitration when the point admitted of easy negotiated solution. Arbitration looks nice, but, since 1969, the hungry families have been yearning for a morsel more, he urged. Blood, toil, sweat and tears for the workers 2nd all the profits' and production for the Management, was the industrial irony! Knowing that every arbitral or other adjudicatory agency in GUJARAT STEEL TUBES V. MAZDOOR SABHA (Krishna Iyer, J. ) 177 {ndia, especially when weak Labour is pitted against strong Capital in ~1- the sophisticated procP..

ssual system, consumes considerable time, the · lowly working class is allergic to this dilatory offer of arbitration. They just don't survive to eat the fruits. Such was his ca5e. ' The story of violence was also refuted by Sri Tarkunde, since the boot was on the other leg. Goondas were hired by the J Management to sabotage the fundamental right to strike and with I • broken hearts . several of them surrendered. When, at last, the Sabha eed to see that all workmen reported for work within the extended me, the Management took to the typical tactics of victimisation, of j using work for all, as first offered, and of picking and choosing · even for the 250 vacancies. Moreover, other conditions were put upon the Sabha calculated to break unionism which those familiar with trade union movements would painfully appreciate. This insult and injury apart, the . orders of termination were painly dismissals for a series of alleged misconducts which were chronicled in separate proceedings.

The formal order was like a decree, the grounds recorded ncontemporaneously. were like the judgment, to use court vocabulary. It was obvious that the foundation for the termination was the catena oi charges set out by the Management. The true character of the order could not be hidden by the unfair device of keeping a separate record and omitting it from th~ formal communication. Law is not such an ass as yet and if the intent and effect is damnatory the action is disciplinary. Between these two competing cases, presented by counsel, we have to gravitate towards the correct factual-legal conclusion. A number of peripheral controversies have been omitted from this statement, for brevity's sake. When two high tribunals have spread Qut the pros and cons it is supererogation for this Court to essay likewise, and miniaturization is a wise husbandry Of judicial resources. First, we must decide whether the order of termination was a punitive discharge or a simple discharge.

• Here we reach the dj! emma of the law for discovering unfailing guidelines to distinguish b~tween dischar! i~ simpliciter and dismissal sinister. The search for infallible formulae is vain and o'nly pragmatic humanism can help navigate towards just solutions. We have earlier explained that from ·Dhingra's case to Shamsher Singh's case, the law has been dithering but some rough and ready rules can be decocted to serve in most situations. Law, in this area, is a pragma- 1ist, not a philologist, and we have set out the dual diagnostic tests applicable in such cases. It was not retr2nchment, according to the Manag~ment. Then · what was it ? If there was work to be done, why terminate services of workmen except as punishment ? Because, argued Sri Sen, the· workers did not work, being on strike and the Management, bent on , keeping the factory going, needed workmen who work.

To recruit fresh hands into the lists and to keep the old hands on the roster was double burden, and, therefore, the stri~ers had to be eased out to yield place to new recruits. The object was not to punish the work- • men but to keep the factory working. Accepting this plea, as it were, { the award ~f t~e arbitr. ator has _exonerated the Managem~nt of th~e. charge of d1sm1ssal while the High Court has held the achoo to be' · dismissal for misconduct and therefore bad in law. In our opinion, the facts of the case before us speak for themselves Here are workmen on strike. The strike is illegal. The· Management is hurt because production is paralysed. The strikers allegedly indulge in objectionable activities. The exasperated Management hits back by orderin'g their discharge for reasons set out ill' several pages in the appropriate contemporaneous proceeding. Misconduct after misconduct is flung on the workers to justify the drastic action.

In all conscience and common sense, the discharge is the punishment for the misconduct. The Management minces no wocds. What is explicitly stated is not a colourless farewell to make way for , fresh hands to work the fac'ory until the strike is settled but a hard hitting order with grounds of gL@ and penalty of removal. The inference is inevitable, however, ingenious the contrary argument, that precisely because the Management found the workmen refractory in their misc,onduct they were sacked. Maybe, the- Management had no other way of working the factory but that did not change the character of th~ action taken. Once we hold the discharge punitive the necessary consequence is that enquiry before punishment was admittedly obligatory and confessedly not undertaken. The orders were bad on this score alone. • Sri A. K. Se'n urg·od that in a dismissal the employee is denied sotne of the "lira!

and other benefits which he gets in a simple discharge, aod here all the empfoyees were offered their full monetary benefits, so that it was wrong to classify the orders of discharge as punitive. Maybe, a dismissed servant may well be disentitled to some, at least, of the financial benefits which his counterpart who-is simply discharged may draw. But that is not a conclusive test. Otherwise, the master • may 'cashier' his servant and camouflage it by offering full retiral benefits. Dismissal is not discharge plus a price. The substance of tlUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer, J. ) 179 1! he action is the litmus test. In th~ present case, the penal core, 'tied in tooth and claw", shows up once we prok; and the non-committal frame of the formal order is a disguise. For a poor workman loss of his job is a heavy penalty when inflicted for alleged misconduct, for he is so hungry that, in Gandhiji's expressive words, he sees God Himself in a loaf of bread.

Before we leave this part of the case, a reference to some indus- ' · trial law aspects and cases may be apposite though a little repetitive. ding orders certified for an industrial undertaking or the model ding Orders framed under the Industrial Employment Standing: rs Act provide for discharge simpliciter, a term understood in contradistinction to punitive discharge or discharge by way of_pe'nally. c It is not unknown that an employer resorts to camouflage by garbing: or cloaking a punitive discharge in the innocuous words of discharge simpEciter. Courts have to interpose in order to ascertain whether the discharge is one simpliciter or a punitive discharge, and in doing so. the veil of langnage is lifted and the realities perceived. In the initial stages the controversy raised was whether the court/tribunal had any D• jurisdiction to lift such a veil.

Prove and penetrate so as to rev>~al the reality, but this controversy bas been set at rest by the decision in Western India Automobile Association v. Industrial Tribunal. x Bombay. (') The wide scope of the jurisdiction of industrial tribunal/ court in (his behalf is now well established. If standing orders or the E terms of contract permit the employer to terminate the services ·of his employee by discharge simpliciter without assigning reasons, it would be open to him to take recourse to the said term or condition ~ and terminate the services of his employee but when the validity of __,.. ,. ___ such termination is challenged in industrial adjudication it would be competent to the industrial tribunal to ensure whether the F impugned discharge has been effocted in the bona fide exercise of the power coμferred by the terms of employment.

If the discharge bas been ordered by the employer in bona fide exercise of his power, then the industrial tribunal may not interfere with it; but the words used in the order of discharge and the form which it may have taken are not conclusive in the matter and the industrial tribunal would be G. entitled to go behind the words and form and decide whether the discharge is a discharge simpliciter or not. If it appears that the pul'ported exercise of power to terminate the services of the employee was in fact the result of the misconduct alleged against him, then the tribunal would be justified in dealing' with the dispute on the basis that, despite its appearance to the contrary, the order of discharge is If in effect an order of dismissal. In the exercise of this power, the (1) [1949] S. C. R. 321. . A court/tribunal would be entitled to interfere with the order in question [see 'Assam Oil Co. v. Its Workmen(')].

fn the matter of an order of discharge of an employee as understood within the meaning of the Industrial Disputes Act the form of the order and the language in ' which it is couched are not decisive. If the industrial court is . >atisfied that the order of discharge is punitive or that it amoun~s to victimisation or unfair labour practice it is competent to the court/ tribunal to set aside the order in a proper case and direct reimtate·· ment of the employee [see Tata Oil Mills Co. Ltd. v. Workmen(')]. The form used for terminating the service is not conclusivy and the tribunal has jurisdiction to enquire into the reasons which led to s:;:u;:. ch~_... r--,i(' termination. In the facts of the case it was found that Standing Or ers provided that an employee could ask for reasons for discharge i'l the case of discharge simpliciter. Those reasons were. given before the. tribunal by the appellant, viz.

, that the respondent's services were terminated because he deliberately resorted to go-slow and was negligent in the discharge of his duty. It was accordingly held that the services of the employee were terminated for dereliction of duty and_ go-slow in his work which clearly amounted to punishment for misconduct and, therefore, to pass an order under cl. 17(a) of the Standing Orders permitting discharge simpliciter in such circumstances was clearly a colourable exercise of power to terminate services of a workman under the provisions of the Standing Orders. Ii1 these circumstances, the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondent's services could be sustained (vide Management of Murugan Mills Ltd. v. Industrial Tribunal, Madras & Anr. (3) This view was affirmed in Tata Engineering & Locomotive Co. Ltd. v. S. C. Prasad ~ 4 & Anr. ( ). Aftw approving the ratio in Mumga11 Mills case, this Court in L.

Michael & Anr. v. M/s. Joh11son PumpsJ11dia Ltd(•) observed that the manner of dressing up an order did not matter. The slightly different obs•:wation i'n Workmen of Sudder Office, Cinna- 6 mare v. Ma11agmie11t( ) was explained by the Court and it was further affirmed that since the decision of this Court in The Chartered Bank v. The Chartered Bank Employee's Union(7) it has taken the consistent view that if the termination of service is a colourable exercise of power ''~sted in the management or is a result of victimisation (I) [19601 3 S. C. R. 457 at 462. (2) [1964] 2 S. C. R. 125 at 130. (3) [1965] 2 S. C. R. 148 at I 52. (4) [1969] 3 S. C. R. 372 at 373. (5) [1975] 3 S. C. R. 489. (6) [19701 2 L. i. J. 620. (7) [[960] 3 S. C. R. 441. GUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer, !. ) 181 or u. 'lfair labour practice, the court/tribunal would have jurisdiction to intervene and set aside such termination.

It was urged that a different view was taken by this Court in Municipal Corporation of Greater 1 Bombay v. P. S. Ma/venkar & Ors. ( ). The employee in that was qiscbarged ·from service by paying one month's wages in lieu of notice. This action was challenged by the employee before the Labour Court and it was contended that it was a punitive discharged. The Corporation contended that under Standing Order No. 26 the Corporation had the power to discharge but there was an obligation to give reasons if so demanded by the employee. The Corporation had also ower to disc~arge by way of punishment. The Court in this connect•on observed as under : "Now one thing must be borne in mind that these are two distinct and · independent powers and as far as possible neither should be construed so as . to· emasculate the other or to render it ineffective.

One is the power to punish an employee for misconduct while the other is the power to terminate simpliciter the service of an employee without any other adverse consequence. Now, proviso (i) to clause (1) of Standing Order 26 requires that the reason for termination of the employment should be given in writing to the employee when exercising the power of termination of service of the employee under Standing Order 26. Therefore, when the se. rvice of an employee is terminated simpliciter under Standing Order 26, the reason for such termination has to be given to the employee and this provision has been made in the Standing Order with a view to ensuring that the management does not act in an arbitrary manner. The management is required to articulate . the reason which operated on its mind in terminating the service of the employee. But merely because the reason for terminating the service of the employee is required to be given and !

he reason must obviously not be arbitrary, capricious or irrelevant--it would not necessa. rily in every case make the order cf termination punitive in, character so~ as require compliance with the requirement of clause (2) of Standing I Order 21 read with Standing Order 23. Otherwise, the power of termination of service of an employee under Standing Order 26 wonld be rendered meaningless and futile, for in no case it would be possible to exercise it. Of R course, ifmisconduct of the employee constitutes the (l) 11978] 3S. C. R. IOQO. A foundation for terminating his service, then even if the order of termination is purport·~d to be made under Standing Order 26, it may be liable to be regarded as punitive in charapter attracting the procednre of clause (2) of Standing Otder 21 read with Standing Order 23, though even in such a case it may be argued that the management has not punished the employee but has merely terminated bk service under Standing Order 26.

" It does not purport to run counter to the established ratio that the ~ form of the order is not decisive and the Court can lift the veil. How- _... J. ever, it may be noted that there was an alternative contention ~ . ·c the Court that even if the order of discharge was considered pl'l'nitive in character, the employer corporation had Jed evidence before the Jabour court to substantiate the charge of misconduct and that finding was also affirmed. We are satisfied that the Management, whatever its motives vis-a-vis • ;D keeping the stream of production flowing, did remove from service, on punitive grounds, all the 853 workmen. The Jaw is trite that the Management may still ask for an opportunity to make out a case for dismissal before the Tribunal.

The refinements of industrial Jaw in this branch need not detain '" because the arbitrator did investigate and hold that the workmen were gnilty of misconduct and the 'sentence' of dismissal was merited, even as the High Court did reappraise and reach, on both counts, the reverse conclusion. The Sweep of Article 226 ~ Once we assume that the jurisdiction of the arbitrator to enquire into the alleged misconduct was exercised, was there any ground under Article 226 of the Constitution to demolish that hl:>lding ? Every wrong order cannot be righted merely because it is wrong. It can be quashed only if it is vitiated by the fundamental flaws of gross miscarriage of justice, absence of legal evidence, perverse misreading of facts, serious errors of la'v o·n the face of the order, jurisdictional failure and the like. While the remedy under Article 226 is extraordinary and is of I ~ Anglo-Saxon vintage, it is not a carbon copy of English processes.

Article 226 is a sparing surgery but the lancet operates where injuoth:e suppurates. While traditional restraints like availability of alternative ;ff remedy hold back the court, and judicial power should not ordinarily rush in where the other two branches fear to tread, judicial daring is not daunted where glaring injustice demands even affirmative action. --. :1 GUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer, !. ) 183 The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the court's province and the remedy is appropriate to the judicial proces3- There is a native hue about Article 226, without being anglophi! i~ or anglo- ' phobic in attitude. Viewed from this jurisprudential perspective, we have to be cautious both in not overstepping as if Article 226 were as • large as an appeal and not failing to intervene where a grave error bas erept in. Moreover, we sit here in appeal O\'~r the High Court's Judge- " ment.

A. Jld an appellate power interferes not when the order appealed not right but only when it is clearly wrong. The difference is real, ough fine. μ ' ' What arc the primary facts which have entered the Tribunal's verdict in holding the strikers guilty of misconduct meriting · dismissal ? We must pause to remove a confusion and emphasise that the dismissal -01:der is not against the Union but the individual workers. What did each one do ? Did his conduct, when sifted and scrutinised, have any exculpation or extenuation ? Not strikers in the mass, but each worker separately, inust be regarded as the unit of disciplinary action. Eacl1 -0ne's role and the degree of turpitude, his defence on guilt and punisloment, must be adjudged before economic death sehtence is inflicted. A typical trial process instance will illumine the point.

Suppose there iB case of arson and murder in a village because of communal factioM and a hundred men from the aggressive community are charged in court with serious offences. Suppose further that convincing testimony of the provocation and aggression by that community is produced. Caii any single member of the violent community be convicted on 'mass' _-... ·evidence, without specific charge. i; of participation or clear proof of \_.. --. 'constructive involvement ? Judicial petspicacity clears this common fallacy. It is dangerous to mass-convict on the theory of community 'iuilt. Anger sometimes brings in this error. In our assessment, the arbitrator has been· swayed by generalities where particularities alone wonld have sufficed. A long story may be ·made short by skipping the details and focussing on essentials.

We · must, in fairness, state that the Arbitrator, an experienced and accepted tribunal in labour disputes, has exhaustively brought into the Award ·all available details pro and con with over-emphasi~ hen: and there . • > There are only a few confusions in his long award but, regrettably, they happen to be on a few fundamentals. The foremost, of course, is a mix-up between mob-misconduct and individual guilt. The next is getting Jost in the oceanic evidence while navigating towards a specified ,port. The High Court too has excelled in marshalling the . details a'nd l! a~dling the legal issues, although, even there, sbortcomir:gs' on basic issues have been pointed out by Sri A. K. Sen. We too are apt to err and reverse ourselves altbough we try our best to avoid error, The Supreme Court is final not because jt is infallible; it is infallible because it is final.

We propose to examine the essential issues from • the perspective we have set out and in their proper jmisprudential bearings. lf misconduct was basic to the discharge and no enquiry precedent to the dismissal was made the story did not end there in favour of the workmen. The. law is well-settled that the Management may stiff satisfy the tribunal about the misconduct. As a fact the' arbitrator held misconduct proved. He further· tlund; that the circumstances justified dismissal though he decided the order to mean discharge simpliciter. Was misconduct proved against each discharged worker at least before the arbili:ator ? If it was, did every worker deserve punitive discharge ? Dual jurisdictional issues arise here whlch have beeu argued at some length before us. The position taken up by Sri Sen was that the High Court could not, under Article 226, direct re-instatement, and· even if it felt that the arbitrator.

had gone wrong in refusing reinstatement, the court could only demolish the order and direct the arbitrator to reconsider the issue. What belonged, as a discretionary power, to a tribunal or other adjudicatory body, could not be wrested by the writcourt. To put it. pithily, regarding the relief of reinstatement, the arbitrat. or could but would not and the High Court would bnt could not. (We will deal later with the point that the arbitrator had himself no power under Section l l A of the Act but did have it in view of the wide terms· of reference. ) The basis of this submission, as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired•by the royal writs its sweep and scope exceed hide-bound British processes of yore.

We are what we are because our Constitution -framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our comlitionsc Heritage cannot hamstring nor custom constrict where the language I ~ used is wisely wi~e. The British paradigms are not necessarily models •-IL. in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddfe, except where gross injustice or fatal illegality and the like are present, ilihibit the . exercise but do not abolish the power. GUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer, J. ) 185 We may dilate a little more on Article 226 vis-a-vis awards of arbi- . '-· trators. The first limb of tbe argument is tbat when there is a voluntary joint submission of an industrial dispute to an Arbitrator named by tbem under s.

lOA of the Industrial Disputes Act, he does not functioo as a Tribunal and is not amenable to the jurisdiction of that Court under Article 227 or under Article 226. W'ithout furtl1er elaboration this contention can be negatived on a decision of this Court in Rohtas Industries Ltd. & Anr. v. Rohtas Industries Staff Union & Ors. (') This Court observed that as the Arbitrator under s. 1OA has the power . , to bind even tbose who are not parties to the reference or agreement tbe whole exercise under s. 1OA as well as the source of the force e Award on publication derived from the statute, it is legitimate to rd such an arbitrator now as part of the infra-structure of the· sovereign's dispensation of justice, thus falling within the rainbow of statutory tribunals amenable to judicial review. The second limb of tbe argument was tbat a writ of certiorari could not be issued to correct errors of facts. In this connection after affirming the ratio in' Engineering Mauloor Sabha v.

Hind Cycle Ld. , (') this Court observes that what is important is a question of law arising on the face of the facts found and its resolution ex facie or sub silentio. The Arbitrator may not state tbe law as such; even then such acute silence confers no greater or subtler immunity on the award than plain speech. We do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grouncls to set aside an arbitration award, 'thin partition do their bounds divide' on the facts and circumstances of the present case. Broadly stated, tbe principle of law is that the juristliction of the High Court under Article 226 of the Constitution is limited to holding the .

~· judicial or quasi-judicial tribunals or administrative bod~;,s exercising the quasi-judicial powers within the leading strings of legality and to see that they do not exceed tbeir statutory jurisdiction and conectly administer the law laid down by the statute wider which they act. So long as tbe hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can be no ground for interference. The power of judicial supervision of the High Court under Article 227 of the Constitution (as it then stood) is not greater tban those under Article 226 and it must be ..... limited to seeing that a tribunal functions within the limits of its authority [see Nagendra Nath Bora & Anr. v. The Commis1ioner of Hills DMsion & Appeals, Assam & Ors. (')]. This led to a proposition that in (I) (1976] 3 S. C. R. 12. ' (2) (19ti3] Supp. 1 S. C. R. 625. (3) [1958] S. C. R. 1240. 13-868SCJ/79 . :_. ;_____... -.. _______.

_______________ exercising jurisdiction under Article 226 the High Court is not constitut- / ed a Court of appeal over the decision of authorities, administrative or quasi-judicial.. Adequacy or sufficiency of evidence is not its meat. It is not ~e function of a High Court in a petition for a writ under Art. 226 to' review the. evidence and to arrive at an independent finding on the evidence. [See State of Andhra Pradesh v. S. Sree Rama Rao. (')] A con,titution Bench of this Court in P. H. Kalyani V· M/s. Air France, Calcutt? (') succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition. It was sa'id that in orderμto justify a writ of certiorari it must be shown that an order suffers from an erro/apparent on the face of the record.

It was further pointed out that ii the finding of fact is made by the impugned order and it is sho n that it suffers from an error of law and not of fact, a writ under Article 226 w0uld issue, and, while so saying, the decision in Na~endra Nath Bora's case was affirmed. Following the aforementioned d:dsion, the Gujarat High Court in Navinchandra Shakerchand Shah v. Manager, 8 Ahmedabad Coop. Department Stores Ltd. ( ) observed that the amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator oos arrived. Even apart from, but while approving, the Gnjarat ruling in 19 G. L. R. p. 108 cited before ns, we are satisfied that the writ power is larger given illegality and injustice, even if its use is severely discretionary as decided cases have repeatedly laid down.

We over-rule the / objectiop of invalidity of the High Courts order for want of power. The more serious question is whether the arbitrator had the plentitude of power to re-examine the punishment imposed by the Man:rgement, even if he disagreed w. ith its severity. In this case the arbitrator expressed himself as concurring with the punishment. Ilut if he bad disagreed, as the High Court, in his place, did, could he have interfered ? Armed with the' language. of Sec. 1lA, which confers wide original power to the tribunal to re-fix the 'sentence', Sri Sen argued that an arbitrator was uncovered by this . new Section. So, even if he would, he could not. And, in this case if he contd, he would not. There the matter ended, was the argument. We disagree. Even if he i ....... _' contd. he would not, . true; but that did not preclude the High Court from reviewing the order in exercise of its extraordinary constitutional power. Moreover, Sec. liA did clothe the arbitrator with similar (!

) [1964] 3 S. C. R. 25 at 33. (2) [1964] 2 S. C. R. 104. (3) [1978] 19G. L. R. 108 atl40. GUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer, I,) 187 power as tribunals, despite the doubt created by the ab>truse absence A J of specific mention of 'arbitrator' in Sec. llA. This position needs closer examination and turns on interpretational limitations. At this stage, to facilitate the discussion, we may read the provision : "llA. Where an industrial dispute relating to the dis- . This long excursion has become important because, once , in a while, social legislation which requires sharing of social philosophy between the Parliament and the Judiciary; meets with its Waterloo in the higher courts beoause the true role o~ interpretation shifts from Judge to Judge. We are clearly of the view that statutory construction which fulfils the mandate of the statute must find favour with the B· Judges, except where the words. and the context rebel against such flexibility.

, We would prefer to be liberal rather than lexical when ,reading the meaning of industrial legisfation which develops from day to day in the growing economy of India. The necessary conclusion ~~~from this discμssion is that the expression 'tribunal' includes, in the statutory setting, an arbitrator also. Contempor11neous para-legislative material may legitimately be consulted' when a word of wider import and of marginal obscurity needs to t>e interpreted. So viewed, we are not in a 'sound-proof system' and the I. L. 0. recommendation accepted by Indra· and the Objects and Reasons of the amending Act leave no doubt about the sense, policy and purpose. Therefore Section llA applies to the arbitrator in the present case and he has the power D· to examine whether the punishment imposed in the instant case is excessive. So has the High Court, if the Award suffers from a fnnda- , mental flaw.

A study of the lengthy award discloses no mention of Section l lA, and presumably, the authority was unmindful of that provision while Brendering the verdict. In a limited sense, even prior to Section. 11A, there was jurisdiction for a labour tribunal; including an arbitrator, to go into the punitive aspect of the Management's order. This Court has, in a catena of cases, held that a mala fide punishment is bad in law and when the punishment is grotesquely condign or perversely harsh or glaringly discriminatory, an easy inference of bad faith, un- p · fair labour practice or victimisation arises. The wider power to examine or prescribe the correct punishment belongs to tribunal/arb. trator even under Sec. 11 in no enquiry (or a defective enquiry which is bad, and, therefore, can be equated with a 'no enquiry' situation) • has been held by the Management. For, then, there is no extant order of guilt or punishment and the trib_unal determines it afresh.

In such G' a virgin situation both culpability and quantification of punisliment are within the jurisdiction of the tribunal/arbitrator. The present is such a case. Volleys of rulings from both sides were fired during arguments, the target being the limited area of the tribunal's power to overturn e• the quantum of punishment awarded by the Mamigement.. We do not think it necessary to re-gurgitate all that has been said by this Court I & . upto now, since it is sufficient to bring out the correct law in the ligh~ of the leadiog citations. It is incontrovertible that where, as here, no enquiry has been held by the Management, the entire subject is at large and both guilt and punishment, in equal measure, may be determined, without inhibition of jurisdiction, by the tribunal. Lastly, as rightly urged by counsel for the Sabha, an arbitrator has all the powers the terms of reference, to which both sides are party, confer.

Here, adinittedly, the reference is very widely worded and includ~s the nature of the punishment. The law and the facts do not call for further el'aboration and we ·hold that, in any view, the arbitrator had the :mthority to investigate into the propriety of the dlil. '--_ __.. 'II charge and the veracity of the misconduct. Even if S. 1lA is not applicable, an Arbitrator under s. lOA is bound to act in the spirit of the legislation under which he is to function. A commercial arbitrator who derives his jurisdiction . from the terms of reference will by necessary iruplication, be bound to decide •according to law and, when one si>ys 'according to law', it only means existing law and the law laid down bY, the Supreme Court beiog the law of the land, an Arbitrator under s. lOA will have to decide keeping in view the spirit of S. llA [See Union of Jndill v. Bungo Steel Furniture Pvt. Ltd. (1967)] 1 S. C. R. 324].

The Jurisdictional hurdles being thus cleared, we may handle the basic facts and the divergences between the Arbitrator and the High Court before moulding the final relief. Prefatory to the discussion about the factum of misconduct and its sequal, we must remind ourselves that the strike was illegal, having been launched when another industrial dispute was pending adjudication. Sec. 23(a) appears, at a verbal level, to convey such a• meaning although the ambit of sub-clause (a) may have to he investigated fully in some appropriate case in the light of its scheme and rationale. It looks strange that the pendency of a reference on a tiny or obscure industrial dispute--and they often pend too long-should block strikes on totally unconnected yet substantial and righteous demands. The constitutional implications and proctical complications of such a veto • of a valuable right to strike often leads not to industrial peace but to seething unrest and lawless strikes.

Bnt in the present case, both before the arbitrator and the High Court, the parties have proceeded, on the agreed footing that the strike was illegal under Section 23 (a). We do not reopen the issue at this late stage and assume the illegality of the strike. The Fatal Flaw in the Award: H ' The Achilles heel of the arbitrator's award is where he makes, - ! IS a substitute for specific and individuated findings of guilt and GUJARAT STEEL TUBES v. MA:l. DOOR SABHA (Krishna lyer, J. ) 197 ~ppropriate penalty vis-a-vis each workmen, a wholesale survey of the march of events, from tension to breakdown, from fair settlement to illegal and unjustified strike, from futility of negotjatiion to readi- .

, ness for arbitration, from offer of full re-employment t9 partial taking back on application by workmen in sack cloth and ashes, by picking and choosing after a humble declaration tha1l the strike has been • formally buried, from episodes of violence and paralysis of production to·backstage manoeuvres to get the factory taken over as a 'sick mill', andi after a fnll glimpse of this scenario, holds that the Sabha was always in the wrong, and inevitably, the Management was surely ~-,. IJ the Labour Officer and Labour Inspector had tried to persuade the concerned workmen to joint duty before the . :barge-sheet came to be issued.

As against these repeated bona fide attempts on the part of the management and an O\Itside agency to persuade the erring workmen, they not only did not resume work but 'also failed td acknowledge or E send a reply to the individual notices served upon them requesting them to resume work and they appear to have made it a condition precedent to their joining duty that the suspended workmen should also be taken · back. Even under such circumstances, the management did not straightaway terminate their services hut gave individual notices requiring the concerned workmen to show cause why their names should not he struck off and asked them to suhmlt their reply by a certain date. Even those notices were not replied. It is only thereafter that the services of the concerned workmen came to be terminated.

It is against this G • background that the Supreme Court held that there was ,,A "a persistent and obdurate refusal by the workmen to joint duty" notwithstanding the fact that "the management has done everything possible to persuade them and give them opportunities to come back to work" and that they had without any sufficient cause refused to do so which con- B stituted "misconduct" so as to 'justify the termination of their services". ~r, . A " .... If the workmen had been approached individually, not only those amongst them who were unwilling to join strike but were prevented from joining work would have taken courage to resume duty but even those amongst them who were undecided could also have been won over. That apart, those notices, as their contents disclose, were hardly persuasive efforts. They were a mixture of ultimatums, threats, complaints and indictment of the workmen and the Sabha.

Was it, therefore, a genuine effort on the part of a keenly desirous employer to offer an olive branch ? In Oriental, orders of termination were passed only after giving individual notices to the concerned workmen to showcause . c why their names should not be struck off. Besides, those notic~ were given after charges formally served upon each workmen earlier were dropped and persuasive efforts made in the meantime had failed. None of. those steps was taken herein. All that happened was that in one of the notices meant for mass consumption and circulation, such intimation \vas given.

" Even so, during the several years of the pendency of the dispute, surely some workmen would have secured employment ·elsewhere as was conceded by counsel at a certain stage, and it is not equitable to recall them merely to vindicate the law especially when new workmen already in precarious service may have to be evicted to accommodate them· In the course of the debate at the Bar we gained the impression that somewhere around a hundred workmen are likely to be alternatively employed. Hopefully, there is no hazard in this IUCSS. Another, facet of the relief turns on the demand for full back wages. Certainly, the normal rule, on reinstatement, is full back 1 wages since thei order of termination is non est. [see Lad's case( ) and Panitole Tea Estate's case(')]. Even so, the industrial oourt may well •lice off a part if the workmen are not wholly blameless or the ·G strike is illegal and unjustified.

To what extent wages for the long interregnum should be paid is, therefore, a variable dependent on a complex of circumstances. [See for e. g. 1967 (15) F. L. R. 395 paras ·~ 3 and 4]. We are mindful of the submission of Sri Tarkunde, urged in the connected appeal by the Sabha, that where no enquiry has preceded (1) G. T. Ladv. Chemicals and Fibres India Ltd. , [197911 S. C. C. 590. (2) Management ofPanitole Tea Estaie v. Workmen [1971] 3 S. C. R. 774. GUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer, J. ) 215 a punitive discharge and the tribunal, for the first time, upholds the punishment this Court has in D. C. Roy v. The presiding Officer, Madhya Pradesh Industrial Court, Indore & Ors. (') taken the view that full wages must be paid until the date of the award. There cannot be any relation back of' the date of dismissal to when the Management passed the void order.

2 Kalyani( ) was cited to support the view of relation back of the Award to the date of the employer's termination orders. We do not agree that the ratio of Kalyani corroborates the proposition propounded. Jurisprudentially, approval is not creative but confir- 11. 1atory and therefore relates back. A void dismissal is just void and does not exist. If the Tribunal, for the first time, passes an order recording a finding of misconduct and thus breaU1es life into the dead shall of the Management's order, predating of the nativity does llot a~ise. The reference to Sasa Musa in Kalyani enlightens this position. The latter case of D. C. Roy v. The Presiding Officer, Madhya Pradesh Industrial Court, Indore & Ors. (supra) specifically r~fers to Kalyani's case and Sasa Musa's case and holds that where the Management discharges a workmen by an order which is void for want of an enquiry or for blatant violation of rules of natural justice, the relation-back doctrine cannot be invoked.

The jurisprudential difference between a void order, which by a subsequent judicial resuscitation comes into being de novo, and an order, which may suffer from some defects but is not still born or void and all that is needed in the law to make it good is a subsequent approval by a tribunal ! '1Ilch is granted, cannot be obfuscated. We agree that the law stated in D. C. Roy (supra) is correct but llOIW that the termination orders are being set aside, the problem does not present itself directly. Even the other alternative submission oi. Sri Tarkunde that if the plea of the Management that the order is a discharge simpliciter were to be accepted, the result is a retrenchment • within the meaning of s. 2(oo) which, in this case, is in violation al_ s. 25F and therefore bad, is not a point urged earlier.

We are dillposed to stand by the view that discharge, even where it is not occasioned by a surplus of hands, will be retrenchment, having regard to the breadth of the definition and its annotation in 1977 1 SCR 586. But the milieu "in which the order was passed in February 1973 is not fully available, viewed from this new angle. So we decline to go into that contention. (1) [1976] 3 S. C. R. 801. ,(2) (1963]1L. L. J. 679. . t. Final Relief We are concerned with 400 workmen, some of whom have been claimed by death or other irreversible causes-casualties of litigative longevity ! are 370 workmen are left behind, of whom 239 are admit- 1 tedly permanent. We have already stated that 100, out of them, are probably fixed up elsewhere. So, we exclude them and direct that the remaining 139 alone will be reinstated. A list of the aforesaid 100 workmen will be furnished to the Management by the Sabha within two weeks from today. That shall be accepted as correct and final.

While reinstatement is refused for these 100 workmen, when __, shall they be deemed to have ceased to be in service for drawal of te1minal benefits? Their discharge orders having been quashed, they remain in service until today. We concluded the arguments on August 3, 1979 and on the eve of the closure of counsel's submissions certain inconclusive settlement proposals were discussed. We, therefore, consider August 3, 1979 as a pivotal point in the calender with reference to which the final relief may be moulded. We direct that the 100 workmen for whom reinstatement is being refused will be treated as in service until August 3, 1979 on which date they will be deemed to have been retrenched. We direct this due. Of course, if any workmen fails to report for work within 15 days of service ofwritten notice to him, with siniultaneous R copy to the Sabha, he will not be eligible for any more reinstatement or wages. 15-lf68SCl.

(19 ( ,\ The back wages run into a larg~ sum but a good part has been paid under the stay order of this Court. We make it clear that the payments made will be given credit and the balance if paid as directed below and within the \ime specified will not carry interest. If default is made, the sums in default will carry 10 per cent interest. The figures of amounts due will be worked out by both sides and 8 l · put into Court in 10 days from now. Half the amount determined by the Court, after perusing both statements, will be paid directly to the workmen or deposited with the Industrial Tribunal who will givi: notice and make disbursements, on or before 31-3-1980 and the other ~ half on or before 30-9-1980. , / '1 The conclusions may be capsulated for easier consumption. 1. Out of 370 . workmen directed to be reinstated by the High Court, 239 are permanent. It is assumed that 100 have found.

\ alternative employment and are not interested any more in re-· '•,, ·instatement and they are to be excluded from the direction of !. - 0 reinstatement. The Company must, therefore, reinstate 139 per- ~; manent workmen and the list of 100 workmen who are not to be reinstated would be supplied by the Sabha within two weeks from l the date of this judgment. The discharge order in respect of 100 ' workmen herein-before mentioned would be set aside and they ·ru:e deemed to be in service till August 3, 1979, when they will be retrenched and they will be paid retrenchment compensation as provided in s. 25F plus one month's pay in lieu of notice, the compensation to be worked out' on the basis of the wages that will be ad~ missible under the recommendations of the Engineering Wage Board / as applicable to the Company. This amount will be paid in lien of ~ reinstatement and they will also be paid 75 per cent of the back wages. 2.

The remaining 139 permanent employees would be paid 50 per cent of the back wages as directed by the High Court. · 3. 70 out of 139 permanent workmen directed to be reinstated should be provided actual employment on or before December 31, 1979, and the re. st on or before March 31, 1980. During this period and till the actual reinstatement each one of these 139 workmen I \. 4_.. , • should be· paid 2/3 of the monthly wages from August 9, f979, when the hearing in this case concluded. 50 per cent of the amount that becomes payable to each workmen under the directions hereinc above given will be paid on or before March 31, 1980, and ·the balance on or before September 30, 1980, and till then the amount will carry interest at the rate of 10 per cent. GUJARAT STEEL TUBES v. MAZDOOR SABHA (Krishna Iyer, !. ) 219 4. In respect of casual wor