In an industrial dispute, the burden of proof lies on the employer to show that the strike was illegal or unjustified, and the termination of service without a charge-sheet or inquiry may be considered vindictive and mala fide if aimed at breaking the strike or weakening the union.

Judgment

DAS GUPTA, J. : In this appeal the appellant, a public limited Company engaged in the manufacture of cotton textile, art-silk products and certain other goods challenges the correctness of an order made by the Labour Appellate Tribunal of India, Calcutta, by which in reversal of the order made by the Industrial Tribunal in a reference of an industrial dispute between the Company and its workmen the Appellate Tribunal reinstated 230 workmen. These 230 workmen along with other workmen were represented at that time by a Trade Union registered under the name of Swadeshi Industries Mazdoor Union struck work on April 27, 1951. On May 24, 1951, the Company terminated the services of all the workmen. On June 8, 1951, however the Company issued a general notice asking the workmen to come back on June 9, 1951. Not a single workman responded to this; but after a similar notice was issued on June 17, 1951, intimating that the factory would re-open on June 18, 1951 and asking the workmen to come to their work, a large number of workmen but not including these 230 workmen joined and were employed. On July 25, 1951, the Government of West Bengal made the reference out of which this appeal has arisen stating that an industrial dispute existed between this company and their workmen represented by the Swadeshi Industries Mazdoor Union in the several matters mentioned in the Schedule. Item 6 in the Schedule of the reference was as regards "dismissal of the workers and the relief they are entitled to". It appears that the registration of the "Swadeshi Industries Mazdoor Union, Panihati, Addy Bagan, 24-Parganas" was cancelled later and thereafter on January 14, 1952, the Government directed the substitution of the words "Swadeshi Industries Sramik Union, P. O. Panihati, 24-Parganas" in place of the words, "Swadeshi Industries Mazdoor Union, Panihati, Addy Bagan, 24-Parganas" in the order making the reference. The reference in so far as it was between all their workmen excluding these 230 was disposed of by the Tribunal in accordance with the terms of a compromise which was entered into between the Company and the workmen represented by the new Union. These 230 workmen were not however represented by the Union and the reference in so far as it was between these 230 workmen and the Company was disposed of on contest. The Industrial Tribunal (hereinafter referred to as the "first Tribunal") held that the strike was illegal inasmuch as these workmen struck work when employed in a public utility service, that apart from that also the strike was unjustified, that the strikers were guilty of unfair labour practice and that the management had not terminated their services vindictively or capriciously. The first Tribunal was of opinion that the order of termination even though no charge-sheet had been framed and no enquiry had been held was justified. Accordingly it refused to order reinstatement or to award them any compensation and also made no order on the other matters mentioned in the Schedule.

2. The Appellate Tribunal held on the contrary that there was no evidence to show that the workmen had been employed in a public utility service and consequently held that the strike was not illegal. It was also of opinion on a consideration of all the circumstances of the case that the strike was justified. It was further of opinion that the termination of service of these 230 workmen without framing any charge-sheet or holding any enquiry was unjustified. It held that the Management acted vindictively and capriciously in making the order of termination and not in good faith, its purpose being to break the strike and weaken the position of the Mazdoor Union. It was of opinion that these 230 workmen were entitled to reinstatement.

3. The Appellate Tribunal rightly thought that the principal point for consideration was whether the strike was illegal. The decision of this depends on the answer to the question whether these 230 workmen were employed in the c