Judgment

HIDAYATULLAH, J. :- This is an appeal by special leave against the award of the Second Industrial Tribunal, West Bengal dated May 4, 1962 by which the Tribunal set aside the dismissal of eleven workmen employed by the appellant Company and ordered their reinstatement with all back wages except wages, for January 2, 1961.

2. The appellant Company carries on activity as engineers and contractors in different part of West Bengal. It had at Sukchar a store yard and at the relevant time it employed 30 workmen at Sukchar of whom 11 were permanent and the remaining temporary. We are concerned with the dismissal of the permanent workmen from January 2, 1961. According to the practice of the appellant Company fourteen days were holidays in each year. they included the lst of January. Whenever a holiday fell on a Sunday the usual practice was to make the following day a holiday and that is how the dispute arose over the 2nd of January which followed a Sunday in 1961. The case of the Union, in short, was that the eleven workmen did not attend work on 2nd of January treating it as a holiday while the cases of the appellant Company was that they had been expressly told that owing to pressure of work 2nd January was to be a working day and a holiday in lieu would be given on another subsequent day. In view of their absence they were given a chargesheet and after enquiry, were ordered to be dismissed. Before the enquiry they were placed under suspension and at the instance of the Union a reference was made to the Labour Officer for conciliation. The conciliation failed because the appellant Company did not appear. A reference, was trade to the Labour Tribunal by the Government of West Bengal on April 21,1961 of the following issue :

"Whether the dismissal of the following workmen is justified; what relief if any, they are entitled to, and * * * * * *

(here followed the 11 names)".

The Tribunal by its award held that there was no lock out or lay off by the employer as was pleaded on behalf of the Union and that the 11 workmen had gone on a strike but it was not illegal and that the punishment of dismissal for this strike must be treated as victimization of the employees and was quite unjustified both in severity and in relation to the strike for one day. The order setting aside their dismissal and reinstating them was passed.

3. It may be pointed out that the Enquiry officer recommended the dismissal of only 8 of these workmen. In regard to the remaining 3, benefit of the doubt was given for their absence on grounds which may now be mentioned. One Quigly, who was a Christian, was excused with a warning and deprivation of wages for 2nd January on the ground that he had informed the Works Manager that he would be unable to attend to his duties on 2nd January. One J. C. Bose was excused because he had joined on the 3 1st December after absence and was not in a position to know that the 2nd January was not declared a holiday. He was also warned and his absence was adjusted against leave due to him. Lastly, one A. K. Sarkar who was on leave till the 31st of December was excused because he was informed by Quigly that 2nd January would be a holiday. He was also warned and his absence was to be treated as leave with or without pay depending upon leave to his credit. These three persons were ordered to join duty but they did not as the Union was of opinion that the original dispute was still pending for conciliation and till the dispute was settled they could not join.

4. The appellant Company contends that the reference is bad because it refere to 11 workmen as "dismissed" when only 8 were so treated. Technically this is correct but we do not think that we should interfere with the award on this ground alone. All workmen were charged together and their defence more or less was that the day following the 1st of January was to be a holiday in accordance with the established practice, though three of them raised additional defence when asked to file