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IN THE HIGH COURT OF BOMBAY
P.D. Desai, C.J. K. Sukumaran, J.
Changunabai Chanoo Palkar .... Appellant.
Versus
Khatau Makanji Mills Ltd. and others .... Respondents.
Appeal No. 4 of 1991 in Writ Petition No. 2148 of 989, decided on 21-6-1991.
Advocates appeared :
N.M. Ganguli, for the appellant/original petitioner.
Shekhar Naphade, for the respondents.
The discretion to deny reinstatement with back wages was not exercised judicially in the present case. On the facts and in the circumstances of the case, the Industrial Court as also the Single Judge erred in law in denying the legitimate claim for full back wages for the period from 30th October, 1984 to 31st Decemher, 1985. The denial thereof on the facts and the circumstances of the present case was not only unwarranted hut would also amount to putting a premium on the litigating activity of the employer.
Taking a realistic view, however, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation his capacity to sustain himself throughout the protracted litigation is itself an awesome factor and if after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Any other view may amount to putting a premium on the unwarranted litigating activity of the employer. In other words, the rule is simple that the discretion to deny reinstatement or to cut down the quantum of back wages is ordinarily absent in such cases save for exceptional reasons.
Section 79-Constitution of India-Article 226-Strike by workers Declared illegal-Penalty of penal termination inflicted on applicant-Held Before Inflicting said penalty It was to be determined whether there was active participation of applicant viz, violence, sabotage etc. Penalty of penal termination not warranted-Scope and jurisdiction of Article 226 of Constitution.
The Industrial jurisprudence makes a cardinal distinction "and maintains a clear dichotomy between passive and active strikers. This is considered essential and of practical importance because the kind or quantum of punishment has to be modulated in accordance with the nature of participation in the strike.
Not reporting for work and remaining at home for fear of vengeance in a para violent situation or if the employment is in an urban township, leaving the place of work and returning to the native place in a rural area on account of economic compulsion and to avoid starvation in case of a prolonged strike, does not lead to an inevitable presumption of active participation in an Illegal strike. More is needed to bring home the mens rea and that burden is on the Management. The strike being illegal is really a non-issue under such circumstances. The focus is on active participation. Mere absence, without more, does not compel the conclusion of active participation or involvement.
Before inflicting penalty in disciplinary jurisdiction upon a workman who remained away from work during an illegal strike, an individualized inquiry would be necessary at which it will have to be determined whether there was active or passive participation on his part in the said misadventure. Active participation in the context means that he propelled the illegal strike or indulged in sabotage or vandalism or violence or intimidation or the like. The despair of the Management at facing an illegal strike in which a large number of workmen participate-some of them actively, some of them passively-resulting in a crisis is no justification to invoke the plea of community guilt and to resort to common condemnation. In disciplinary jurisdiction, save on proof of individual delinquency, neither finding of guilt nor infliction of penalty could be justified. Nor is it a defensible excuse, much less a valid vindication, for failure to hold an individualized inquiry that in the revealing circumstances in which a large number of employees had participated in the illegal strike, it was not possible to give a charge sheet to each individual in respect of the misconduct. Penalty sans inquiry is non est. True, if a dispute arises, the Management may still ask for an opportunity to separately make out a case against each workman before the industrial adjudicator. However, in that forum also, the role of the individual workman and the degree of his turpitude shall have to be proved and the whole case would be open before the adjudicator to decide whether the charge is proved and what punishment should be awarded And. if the adjudicators award is challenged before the High Court in writ jurisdiction, it can be quashed if it is vitiated by the fundamental flaws of gross miscarriage of justice, absence of legal evidence, perverse misreading of facts, serious errors of law the face of the order, jurisdictional failure and the like". The High Court has "to be cautious both in not over stopping as if Article 226 were as large as an appeal and not failing to intervene where a grave error has crept in". In the ultimate analysis, Article 226, however restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice, and, more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand. What the Tribunal may, in its discretion do the High Court too, under Article 226, can, if facts compel, do.
Illegal strike-Penalty in disciplinary Jurisdiction upon a workman for remaining away from work-Individual enquiry necessary to determine where there was active or passive participation on part of workman in said misadventure-Adjudicators award-Challenged before High Court under Article 226.
Held - It can be quashed if vitiated by fundamental flow of miscarriage of justice, absence of legal evidence, perverse misreading serious errors of law on face of order, jurisdictional failure and the like.
Article 226.
See Bombay Industrial Relations Act 1947-Section 79.
ILLEGAL STRIK
See Constitution of India, Article 226.
2. The case of the respondent company in the course of the adjudication proceeding was that the strike had been declared illegal and that by a notice published in a local newspaper on 28th February, 1982 the employees were apprised of the same and were called upon to resume duty. Again, on 6th April, 1982, by another notice published in a local newspaper, the employees were called upon to end the strike and to resume duty and informed that if they failed to do so, appropriate action would be initiated against them. The appellant, however, failed to report for duty which amounted to misconduct. In view of the prevailing circumstances in which a large number of employees had participated in the general strike, it was not possible to give a charge-sheet to the appellant or to hold an enquiry in respect of the misconduct. By an order dated 22nd December, 1982 she was, therefore, dismissed. The order of dismissal was sent to her at the recorded address but the envelope was returned, which gave rise to a presumption of due service. Under the aforementioned circumstances, according to the respondent company, the approach notice dated 10th November, 1984 was beyond the prescribed time limit and the application, therefore, was not maintainable.
3. During the course of the adjudication proceedings, the parties led evidence. The respondent company placed on record, inter alia, the envelope bearing the recorded address and returned by the Post Office. The appellant, however, denied that any such envelope was tendered to her at any stage. The Labour Court drew a presumption under section 114 of the Evidence Act and held that there was deemed service of the dismissal order upon the appellant and that since the approach letter was not served within three months thereof, the application under sections 78 and 79 was not maintainable. On merits, however, the Labour Court gave a finding in favour of the appellant. If found that the misconduct of the appellant was mere passive participation in an illegal strike for a fairly long period. For mere passive participation in an illegal strike, the extreme punishment of dismissal was not warranted and it was not proper and legal. Besides, the appellant was discriminated against because all the workers, who had participated in an illegal strike, had not been dismissed. Some of those workers were allowed to resume duty. For all these reaso
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