1. Industrial dispute concerning the dismissal of employees for participating in illegal pendown strikes — Reference for adjudication under the Industrial Disputes Act. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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1959 Supreme(SC) 166
SUPREME COURT OF INDIA
24th September, 1959.
B.P. SINHA, P.B. GAJENDRAGADKAR AND K. SUBBA RAO, JJ.
Civil Appeals Nos. 519 and 520 of 1958.
Punjab National Bank Ltd., Appellants
Versus
All India Punjab National Bank Employees Federation and another, Respondents.
Civil Appeal No. 521 of 1958.
Advocates appeared
Mr. Ram Lal Anand, Senior Advocate, (Mr. Naunit Lal, Advocate, with him), for Appellants (in C. A. No. 519 of 1958); Mr. H. N. Sanyal, Additional Solicitor General of India and Mr. Ram Lal Anand, Senior Advocate, (Mr. Naunit Lal, Advocate, with them), for Appellants (in C. A. No. 520 of 1958) and Respondents (in C. A. No. 521 of 58); Mr. M. C. Setalvad, Attorney-General for India, MR. C. K. Daphtary, Solicitor General of India (M/s M. K. Ramamurthi, Dr. Syed Mahummud, R. K. Garg, Miss A. B. Varma and Mr. Janardan Sharma, Advocates, with them), for Respdt. No. 1 (in C. A. Nos. 519 and 520 of 1958) and for Appellant (in C. A. No. 521 of 1958); M/s. Hardyal Hardy & M. R. Krishna Pillai, Advocates, for Respondent No. 2 (in C. A. Nos. 519 and 520 of 1958).
Contravention of Section 33 of the Industrial Disputes Act does not render a dismissal void for automatic reinstatement; the tribunal must still evaluate the merits. Participation in a peaceful pendown strike does not per se disqualify an employee from reinstatement.
Headnote:(A) Industrial Disputes Act, 1947 - Sections 2(q), 10, 23(b), 33, and 33A - Dismissal of employees for participating in illegal strikes - Effect of contravention of Section 33 - Whether dismissal without prior permission of the tribunal is void and inoperative - Contravention of Section 33 does not automatically entitle the employee to reinstatement; the tribunal must still adjudicate upon the merits of the dismissal under Section 10 or Section 33A (Paras 31-34) - Where no domestic enquiry is held by the employer, the issue of merits is at large before the tribunal to decide based on evidence (Para 38).
(B) Industrial Disputes Act, 1947 - Section 2(q) - Pendown strike - Refusal to work while occupying seats constitutes a strike - Mere participation in an illegal strike does not necessarily justify refusal of reinstatement (Paras 44, 53) - Civil trespass is a civil tort and not a bar to reinstatement (Para 46) - Criminal trespass requires intent to insult or annoy, which is not inferred from the mere intent to pressure the employer (Para 47).
(C) Reinstatement - Principles - Normal rule is reinstatement in cases of wrongful dismissal, balanced against discipline and social justice (Para 36) - Hiring of new employees does not preclude the reinstatement of wrongfully dismissed employees (Para 63) - Responsibility for subversive acts is individual and not collective; the doctrine of conspiracy is not applicable to disqualify all strikers (Paras 55-60).
Facts of the case:
A large number of employees were dismissed for participating in strikes. The strikes were found to be illegal. The employer dismissed the employees without obtaining the mandatory permission from the tribunal as required under the Act and without conducting a domestic enquiry. The appellate tribunal ordered the reinstatement of most employees but refused a few based on their involvement in subversive activities. Both the employer and the employees appealed these findings.
Findings of Court:
The court held that contravention of the statutory ban on dismissal during pending proceedings does not make the dismissal void in a manner that bypasses a merit-based enquiry. It further held that a pendown strike is a recognized form of strike and does not automatically disqualify a worker from reinstatement. Individual responsibility must be proven for subversive acts, and the employer's failure to hold an enquiry puts the merits of the dismissal entirely before the tribunal.
Issues: 1. Whether dismissal in contravention of Section 33 of the Act is void and mandates automatic reinstatement. 2. Whether participation in a pendown strike constitutes criminal trespass or a bar to reinstatement. 3. Whether collective responsibility can be attributed to all strikers for subversive documents.
Ratio Decidendi: The court reasoned that Section 33A and Section 10 allow the tribunal to examine the merits of a dismissal even if the procedural requirement of obtaining permission was ignored. A pendown strike falls under the definition of "strike" and, unless accompanied by violence or specific subversive acts, does not justify refusal of reinstatement. The court emphasized that industrial adjudication should avoid legalistic approaches and focus on the facts of each individual case, ensuring that the right to reinstatement is not defeated by the employer's own procedural failures.
Result: Appeals filed by the employer dismissed; appeal filed by the employees partially allowed for one individual.
Legal Category Hierarchy
- labour and industrial law
- tort
-
criminal law
-
offences against property
- criminal trespass (Para 47)
-
offences against property
- administrative law
Table of Contents
2. Whether participation in illegal strikes or publication of subversive documents justifies dismissal and bars reinstatement — Validity of dismissals under Section 33, Industrial Disputes Act. (Para 7 , 8 , 17 , 20 , 21 , 55 , 65 , 66 )
3. Pendown strikes are strikes under Section 2(q); contravention of Section 33 allows merits-based review; reinstatement is the normal rule for wrongful dismissal, subject to specific misconduct. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 57 , 58 , 59 , 60 , 62 , 63 , 67 , 68 )
4. Contravention of Section 33, Industrial Disputes Act, does not render dismissal void ab initio; the tribunal must still adjudicate the merits of the dismissal. (Para 33 , 34 , 40 )
5. Bank's appeals dismissed; employees' appeal allowed only for one individual for reinstatement. (Para 64 , 69 )
6. What is the legal effect of an employer contravening Section 33 of the Industrial Disputes Act?
Contravention of Section 33 does not automatically render a dismissal void or inoperative. The tribunal has the jurisdiction to determine both whether the section was contravened and whether the dismissal was justified on its merits before deciding on reinstatement. (Para 33 , 34 )
7. Does a pendown strike fall within the definition of a strike under Section 2(q) of the Industrial Disputes Act?
Yes, a pendown strike—where employees enter the premises but refuse to work under a common understanding—constitutes a cessation of work or refusal to continue to work, thus falling within the definition of a strike under Section 2(q). (Para 44 )
8. When does the act of striking employees remaining on premises constitute criminal trespass?
To constitute criminal trespass under Section 441 of the IPC, the entry or continuance must be with intent to insult or annoy. If the sole intention is to pressure the employer to concede demands, it does not satisfy the requisite criminal intent. (Para 47 )
9. What is the general principle for ordering reinstatement in cases of wrongful dismissal?
The normal rule is reinstatement, but this is balanced against social justice, fair play, and industrial discipline. Reinstatement may be refused in exceptional cases where the employee is guilty of specific subversive acts, violence, or gross misconduct. (Para 36 , 42 )
10. How does the absence of a domestic enquiry by the employer affect the tribunal's review of a dismissal?
If no enquiry is held, the employer cannot claim the dismissal was a bona fide exercise of managerial function. Consequently, the merits of the dismissal are open for the tribunal to decide independently based on the evidence adduced. (Para 37 , 38 )
Judgment
GAJDENDRAGADKAR, J. : (who delivered the judgment on his behalf and on behalf of Sinha, J.) These three appeals arise out of an industrial dispute between the Punjab National Bank, Ltd., (hereinafter called the Bank) and two sets of its employees represented by the All-India Punjab National Bank Employees Federation (hereinafter called the Federation) and the U. P. Bank Employees Union (hereinafter called the Union) respectively. On July 2, 1951, this dispute was referred by the Central Government for adjudication to the industrial tribunal of which Mr. A. N. Sen, a retired Judge of the Calcutta High Court, was the sole member. It raised two issues. The first was whether the 150 workmen mentioned in Sch. II attached to the reference had been wrongfully dismissed by the Bank, and the second had reference to the claim for reinstatement and payment of wages and allowances from the date of dismissal to the date of reinstatement. The reference thus made has gone through a long and protracted career and the final decision of the dispute would be reached after we dispose of the present appeals. In order to appreciate the points raised for our decision in these appeals it is necessary to indicate briefly at the outset the salient points of controversy between the parties, the findings made by the original tribunal, the conclusions reached by the Labour Appellate Tribunal in its interlocutory and final judgments and the decision of this Court in the appeal which had been brought before it by the Bank against the interlocutory judgment of the Labour Appellate Tribunal.
2. The 150 employees, whose dismissal has given rise to the present dispute are spread over several branches of the Bank. 52 of them work at its head office in Delhi, 15 in Bombay, 73 in East Punjab and 10 in U. P. 140 workmen in the first three areas are represented by the Federation while the last 10 in U. P. are represented by the Union. All of these employees took part in strikes which, according to the Bank, were illegal. The strikes in which the two respective groups of workmen took part were, however, for different reasons.
3. The strike in which the Federation took part was the result of the suspension by the Bank of its typist Sabharwal employed in the Delhi Branch of the Bank on April 17, 1951. It appears that Sabharwal, who was the Secretary of the Punjab National Bank Employees Union, Delhi, had applied for leave for seven days on April, 3, 1951, but his application was rejected; even so he absented himself from duty and went to Bombay. As soon as he resumed his duties on April 14, 1951, he was supplied with a written charge sheet for absence without leave which he refused to accept. It was then sent to him by registered post, and on April 17 he was suspended. This suspension was followed by an immediate pendown strike at the head office of the Delhi Branch subsequent to which the Bank suspended 60 other employees. This led to a general strike in Delhi and many other branches and it commenced at different dates from April 18 to 20, 1951. On April 21-22, 1951, the Bank issued notices calling upon all striking members of the staff to report for duty by 10 A.M. on April 24, 1951, and it warned them that if they did not comply with the notice it would be taken that they had voluntarily ceased to be its employees and their services would be deemed to have terminated from that date. This was followed by another notice on April 24 which announced that the strikers who had failed to report for duty as aforesaid had ceased to be the employees of the Bank from April 24, 1951. An option was, however, given to the strikers who were still willing to rejoin duty to apply in that behalf and explain their action in staying away. It is common ground that the 140 employees represented by the Federation who had taken part in the strike were dismissed by the Bank for absence due to the strike. That is the genesis of the dispute between the Bank and the Federation in relati
