1. Application under Section 33, Industrial Disputes Act for permission to dismiss workmen for go-slow misconduct — Tribunal's refusal of permission challenged. (Para 1 )
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1961 Supreme(SC) 319
SUPREME COURT OF INDIA
JUSTICE SRI K. N. WANCHOO, JUSTICE SRI K. C. DAS GUPTA, Civil Appeal No. 252 of I960, dated 20 September 1961
Bharat Sugar Mills, Ltd.
Versus
Jai Singh and others
If a domestic enquiry is defective or absent, the Industrial Tribunal can still take evidence from both parties to determine if the alleged misconduct is proved before granting permission for dismissal under Section 33 of the Industrial Disputes Act.
Headnote:(A) Industrial Disputes Act, 1947 - Section 33 - Permission for dismissal - Defective domestic enquiry - Power of Tribunal to take evidence - Where a domestic enquiry is not held or is improperly conducted, the Tribunal is not absolved of its duty to decide whether the alleged misconduct is made out - The proper course is for the Tribunal to take evidence from both sides to determine if a prima facie case for dismissal exists.
(B) Misconduct - "Go-slow" - Deliberate delaying of production - Considered a serious and dishonest type of misconduct as it reduces output while claiming full wages and can cause damage to machinery.
(C) Victimization and Mala fides - To establish victimization, it must be shown that the employer intended to punish workmen for union activities while purporting to act for another reason - Mere delay in conciliation meetings or the pardoning of some workers does not necessarily establish mala fides or an intention to victimize.
Facts of the case:
An employer applied for permission to dismiss twenty-one workmen for participating in a "go-slow" action. The industrial tribunal refused permission for twenty of the workmen, concluding that their participation was not deliberate and that the employer was victimizing active union members. The domestic enquiry conducted by the employer was found to be defective for failing to satisfy the minimum requirements of natural justice.
Findings of Court:
The court held that the evidence presented before the tribunal established that several workmen actively participated in the "go-slow" by inciting others and deliberately delaying production. The court found no evidence of mala fides or victimization, noting that the seriousness of the misconduct justified the proposed punishment of dismissal.
Issues: Whether the Industrial Tribunal can accept evidence to prove misconduct when the prior domestic enquiry was defective, and whether the employer's actions constituted victimization of union members.
Ratio Decidendi: The absence or defect of a domestic enquiry does not prevent a tribunal from granting permission to dismiss if the tribunal is satisfied on the evidence adduced that the charges are proved. "Go-slow" is a serious misconduct. An employer is not guilty of victimization if the misconduct is serious and the proposed punishment is appropriate, regardless of whether some other employees were pardoned.
Result: Appeal allowed in part; permission granted to dismiss thirteen workmen with effect from the date of judgment.
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2. Whether the finding of no deliberate go-slow was perverse — whether the finding of mala fide conduct and victimization was arbitrary. (Para 2 )
JUDGMENT
Per Das Gupta, J.:-The appellant, a sugar mill company, made on 31 December 1956 an application under S.33 of the Industrial Disputes Act before the Industrial Tribunal, Bihar, Patna, for the dismissal of twenty-one workmen for misconduct in connexion with " go-slow " alleged to have been resorted to by the workmen of the factory from the midnight of 12 February to 18 February 1955. The tribunal held that actual participation in a " go-slow " had been established only against one of the workmen at the Donga end and that the " go-slow " at the later stages in which the other twenty workmen had been engaged occurred as a necessary consequence of this go-slow by one workman at the Donga end and was not a deliberate "go-slow" by them. The tribunal was of opinion also that the management was not acting bona fide and really was seeking to victimize active members of the union which the employer had refused to recognize. Accordingly, it refused permission in respect of twenty of the workmen and gave permission to dismiss only Nihora Dubey, a workman at the Donga. The correctness of this refusal is challenged before us in this appeal by special leave. The appellant s contention is twofold. First, it is said that the finding of the tribunal that these workmen in respect of whom permission to dismiss was refused were not guilty of any deliberate go-slow is perverse; secondly, it is contended that the tribunal s view that the employer was guilty of mala fide conduct and victimization of these workmen for union activities is arbitrary and erroneous.
It does not appear to have been disputed that " go-slow " was actually resorted to in this factory from 12 February to 18 February 1955. It was indeed hardly open to the workmen to dispute this, after all the pomp and ceremony with which " go-slow" was celebrated. We find that as early as 15 January 1955 ten demands were communicated by the union on behalf of the workmen by a letter which said that unless these demands were conceded by 26 January 1955, the workmen would resort to " go-slow " from 30 January 1955. This notice to "go-slow" appears to have been withdrawn on 22 January 1955, apparently on the advice of the Assistant Commissioner of Labour, Muzaffarpur. A further letter was issued the same day in which five demands were made with a request to concede these by 6 February failing which it was said they would "resort to go slow from 19 February 1955." The secretary of the Bharat Sugar Mills to whom the conciliation officer wrote, that very day, wrote back on 22 January 1955 that they had not received any notice dated 22 January 1955. In reply to a farther communication from the Assistant Labour Commissioner, the appellant sent a telegram on 3 February 1955 regreting inability to attend the proposed conciliation meeting on 4 February 1955, as both the secretary and the assistant secretary were away. Then on 8 February another telegram was sent on behalf of the management informing the Assistant Labour Commissioner that the general secretary would be returning soon and that any date after the 11th may be fixed. Thereafter, in reply to a further communication from the Assistant Commissioner inquiring as to what date would suit the management, the general secretary K. C. Sarda sent another telegram requesting the Assistant Labour Commissioner to fix any date before the 17th. This telegram was sent on 11 February. On the next date, 12 February, Sarda sent a farther telegram to the Assistant Labour Commissioner stating that he would come to Muzaffarpur on the 15th afternoon. Before any action could however be taken by the Assistant Labour Commissioner, the workmen commenced their " go-slow" from the midnight of 12 February.
"Go-slow" which is a picturesque description of deliberate delaying of production by workmen pretending to be engaged in the factory is one of the most pernicious practices that discontented or disgruntled workmen some time resort to. It would not be far wrong to c
