LexHIND CONSTRUCTION & ENGINEERING CO. LTD. versus THEIR WORKMEN
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A HIND CONSTRUCTION & ENGINEERING CO. LID. B c D E F G H v. THEIR WORKMEN November 9, 1964 [P. B. GAJENDRAGADKAR, C.J.; K. N. WANCHOO AND M. HIDAYATULLAH, JJ.] Industrial Dispute-Dismi1sal of workman-Some ordered to rejoin but fail to do so--Refermce of dispur. to tribunal treating them as dismissed if valid. Tribunal-pott•ers of-When punishment aniounts to victimisation or unfair labour practice-If Tribunal can interfere. Tho appellant company employed 30 workmen in its store yard of whom 11 were permanent and the remaining temporary. According to lhe prac- tice of the appellant company 14 days in each year (including the lat of January) were holidays and whenever a holiday fell on a Sunday the following day was made a holiday. The first day of January 1961, being a Sunday, the 11 permanent workmen did not attend work on the 2nd January trealing it as holiday, although they had been 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 day. Because of their absence, they were given a charge sheet and after enquiry, were ordered to be dis- mil!Sed. Upon a reference to it of the dispute, the Tribunal held that the work· men had gone on a strike (which was not illegal) but the punishment of dismissal for such a strike for one day was too severe and unjustified and most be treated as victimisation. Reinstatement of the employee. was .therefore order. It was contended on behalf of the appellant company, first, that after the enquiry, 3 of the 11 workmen were excused and ordered to rejoin duty and therefore the reference to the Tribunal was bad because it refer- red to 11 workmen as 'dismissed' when only 8 were so treated; secondly,. the Tribunal could not examine a finding or the quantum of punishment and was not justified in interfering with the punishment of dismis.•al after it had come to the conclusion that the workmen had gone ->n a strike, evm though the strike was not illegal. HELD : ( i) All the 11 workmen were charged together and raised similar defences except that 3 of them had r~ised additional defences. Al- though these three workmen were ordered to rejoin work, they could not have done so after their dispute was taken over by the Union and they would have been treated like the others unless they broke away from the Union by going a$ainst its wishes. The Government was therefore <:ntitled to treat the dispute relating to all the workmen as single and· undivided and refer it as such to the Tribunal. [87 H; 88 A-BJ (ii) Although it is a settled rule that the award of punishment for misconduct is a matter for the management to decide and if there is any jmtilication for the punishment imposed, the Tribunal should not inter- fere, where the punishment is so disproportionate that no reasonable em- ployer would ever have imposed it in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. [88 FJ SUPREME COURT REPORTS [1965] 2 s.c.rt. No reasonable empl<>yer _would have imposed the punishment of di•- /!.. missal on its enJirc permanent staff in similar circumstances. 1beir puni.,h- •ment ""t severe :ind out of proportion to the fault and therefore the intcr- .lerence by tll'I! Tribunal W<k• justified. [89 E-H; 90 A-BJ Case la\\' reviev.·cd. CIVIL APP!'LLATE JURISDICTION : Civil Appeal No. 970 of .1963. B Appeal by special leave from the Award dated May 4, 1962, -of the 2nd Industrial Tribunal, West Bengal, in Case No. Vffi- 146 of 1961. M. C. Setalvad, N. C. Shah and B. P. Maheshwari, for the appellant. c D. L. Sen Gupta ano Janardan Sharma, for the respondent. The Judgment of the Court was delivered by Hidayatullab, J. This is an appeal by special leave against the award of the Second Industrial Tribunal, West Bengal dated D 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 waj!;es except wages for January 2, 1961. The appellant Company carries on activity as engineers and E · contractors in different parts 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 tempo- rary. We are concerned with the dismissal of the permanent workmen from January 2, 1961. According to the practice of the
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