judgement:
ivil Appeal No. 1387 of 1987.
From the Judgment and Order dated 25.9.1986 of the Andhra Pradesh High Court in C.W. Appeal No. 1027 of 1986.
A.K. Sen, K. Srinivasamurthy and Kailash Vasdev for the Appellants.
M.K. Ramamurthi and M.A. Krishna Murthy, for the Re spondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The State Bank of India and two of its officers have filed this appeal by special leave against the judgment of a Division Bench of the High Court of Andhra Pradesh in Writ Appeal No. 1027 of 1986 dated 25.9.1986 affirming the judgment dated 28.3.
1986 of the learned Single Judge in Writ Petition No. 5133 of 1984 issuing a direction to the appellants to promote the respondent, Mohd. Mynuddin to the Middle Management Grade Scale III.
The respondent who was holding the post of the Manager, S.I.B. Division, State Bank of India, Vijayawada (Andhra Pradesh) which was a post in Middle Management Grade Scale II filed the above writ petition before the High Court in the year 1984 complaining that he had been wrongly denied promotion to the Middle Management Grade Scale III along with some others who belonged to his batch 535 without any reasonable ground, even though he was fully eligible for such promotion.
On the above basis he prayed for the issue of a direction to the management to promote him to the higher post with effect from 1979.
According to the appellants his case was not considered in the year 1979 on account of inadequacy of material regarding his eligibil ity but when it was brought to the notice of the management that he had necessary eligibility for the post, his case was considered in 1982 for the vacancies of 1980 and 1981 but he was not selected.
Again his case for promotion was consid ered on 13.8.1983.
Then again he was found not fit for promotion and, therefore, he was not promoted.
The main contention of the respondent before the High Court was that since there were no adverse remarks in any of his confidential reports, he should have been promoted to the higher post.
The learned Single Judge noticed that in the confidential reports relating to the respondent it had been recorded that his service was 'satisfactory ' in the years 1977 78, 1979 80 and 1980 81 and that there were no adverse remarks against the respondent.
The learned Single Judge, therefore.
found that on the material placed before the Court there was nothing which disentitled the respondent to the promotion in question and that the action of the management in not promoting him was arbitrary.
The learned Single Judge accordingly allowed the writ petition and issued a direction to the appellants to promote the respond ent to the post of Middle Management Grade Scale III with effect from 1.8.
1979 when his batch mates were promoted and that he should be given all consequential benefits.
Ag grieved by the judgment of the learned Single Judge the appellants filed an appeal before the Division Bench of the High Court which, as stated earlier.
dismissed the appeal affirming the judgment of the learned Single Judge by its order dated 25.9.
against which this appeal by special leave is filed.
It is admitted that the posts in the Middle Management Grade Scale III in the State Bank of India are posts to which appointments are made by selection.
The State Bank of India stated before the High Court that the promotion to Middle Management Grade Scale I11 posts depended not merely upon the eligibility but on merit and such promotion was accorded only after a proper evaluation of the service records, performance appraisal and potentiality of the officer concerned to assume higher responsibilities.
The evaluation was done by the Selection Committee.
which was expected to go into several aspects including the merits and demerits or all the candidates who were eligible.
It was further pleaded that the mere absence of adverse remarks did not entitle an employee to promotion to the next higher 536 grade automatically when promotion was by selection.
It was further pleaded that after applying the relevant tests laid down by several circulars issued by the Management embodying the guidelines in respect of the selection of officers for promotion to the Middle Management Grade Scale III it was found from time to time that the respondent was not entitled to be promoted.
It was further pleaded before us that in any event the High Court was not right in issuing a direction to the management to promote the respondent to the higher post particularly in the absence of any plea of mala fides.
The learned counsel for the appellants, however, has very fairly stated that even now the management is willing to consider the case of the respondent for promotion on a proper ap praisal of the relevant material by the Selection Committee.
Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted.
It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory '.
An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post.
Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials.
If promo tion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion.
There is good reason for taking this view.
The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection.
The duties of such posts may need skills of different kinds scientific, technical, financial, industrial.
commer cial, administrative, educational etc.
The methods of evalu ation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, there fore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer.
Of course.
the process of selection adopted by them should always be 537 honest and fair.
It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstance other considerations will arise.
The nature of the writ that can be issued in cases like the one before us has been considered by this Court in the State of Mysore and Anr.
vs Syed Mahmood and Ors.
, [ ; In that case rule 43(b) of the Mysore State Civil Services General Recruitment Rules, 1957 re quired promotion to be made by selection on the basis of seniority cum merit, that is seniority subject to the fit ness of the candidate to discharge the duties of the post from among persons eligible for promotion.
While making selections for promotions to the posts of senior statistical assistants from the cadre of junior statistical assistants, the State Government did not consider the case of the re spondents therein who were junior statistical assistants, and published a list promoting persons ranking below them in point of seniority.
The respondents therein filed writ petition before the High Court.
The High Court while refus ing to quash the seniority list directed the appellant State to promote the respondents as from the dates on which their juniors were promoted and treat their promotion as effective from that date.
In the appeal filed against the judgment of the High Court this Court observed that while making selec tions for promotion to the posts of senior statistical assistants from the cadre of junior statistical assistants, in 1959, the State Government was under a duty to consider whether having regard to their seniority and fitness they should be promoted.
Since the promotions were irregularly made the respondents therein were entitled to ask the State Government to reconsider their case.
In the circumstances.
this Court observed, that the High Court could only issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniori ty and fitness, the respondents should have been promoted on the relevant dates when officers junior to them were promot ed and that instead of issuing such a writ the High Court had wrongly issued a writ directing the State Government to promote them with retrospective effect.
This Court further observed that the High Court ought not to have issued such a writ without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959.
The ratio of the above decision is that where the State Government or a statutory authority is under an obli gation to promote an employee to a higher post which has to be filled up by selection the State Government or the statu tory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the Court should not ordinarily issue a writ to the Government or the statutory authority to promote an officer straightaway.
The principle enunciated in the above decision 538 is equally applicable to the case on hand.
It is seen that the Selection Committee constituted by the State Bank of India has considered the case of the respondent for promotion to the vacancies of the years 1980 and 1981 and for the subsequent period from time to time.
The Selection Committee did not find the respondent fit for promotion on all such occasions.
There is no allegation of bias or mala fides urged against the members of the Selec tion Committee or the management.
On the material placed before us we hold that at all relevant times the case of the promotion of respondent has been considered in accordance with law.
No other contention is urged before us.
On the facts and in the circumstances of the case we do not find any error committed by the appellants.
The High Court was not.
therefore, right in directing the appellants to promote the respondent with effect from 1979.
As mentioned earlier.
the learned counsel for the appellants has submitted that the Selection Committee constituted by the appellants would again consider the case of the respondent for promotion on a proper appraisal of the relevant material.
In the circumstances, we feel that the direction issued by the High Court should be set aside and we accordingly do so.
The appellants are, however, directed to consider the case of the respondent for promotion within four months from today and if on an assessment of the relevant material the State Bank of India finds that the respondent is fit to be promoted, he shall be promoted forthwith.
This appeal is accordingly disposed of.
There will.
however be no order as to costs.
P.S.S. Appeal allowed.

summary/full:
The respondent holding a Middle Management Grade Scale II post in the appellant Bank was found not fit for promo tion to Grade Scale III by the Selection Committee in the year 1979 and superseded.
His case was again considered in the years 1980, 1981 and 1983 but denied promotion.
He filed a writ petition in the High Court in 1984 for the issue of a direction to the management to promote him to the higher post with effect from 1979 with the assertion that he was fully eligible for such promotion.
The Single Judge noticed that in respondent 's confiden tial reports for the years 1977 78, 1979 80 and 1980 81 it had been recorded that his service was 'satisfactory ' and that there were no adverse remarks against him.
He, there fore, took the view that there was nothing which disentitled the respondent to promotion and that the action of the management in not promoting him was arbitrary, and accord ingly issued a direction to the appellants to promote the respondent with effect from 1.8.1979 when his batch mates were promoted.
The Division Bench dismissed the appeal filed by the appellants.
In this appeal by special leave it was contended for the appellants that the promotion to Middle Management Grade Scale III posts depended not merely upon the eligibility but on merit and such promotion was accorded only after a proper evaluation by the Selection Committee of the service re cords, performance appraisal and potentiality of the officer concerned to assume higher responsibilities, that the mere 533 absence of adverse remarks did not entitle an employee to promotion to the next higher grade automatically when promo tion was by selection.
that after applying the relevant tests laid down by the management for promotion to the Middle Management Grade Scale III it was found from time to time that the respondent was not entitled to be promoted, and that in any event the High Court was not right in issu ing a direction to the management to promote the respondent to the higher post particularly in the absence of any plea of mala fides.
Allowing the appeal, HELD: The High Court was not right in directing the appellants to promote the respondent to the Middle Manage ment Grade Scale 111 with effect from 1979.
[538C] If promotion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion.
This is because the Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post which is to be filled up by selection.
The duties of such posts may need skills of different kinds scientific.
technical, financial, industrial, commercial, administrative, educational etc.
The evaluation of the abilities should, therefore, in the public interest ordi narily be left to be done by the individual or a committee consisting of persons who have the knowledge of the require ments of a given post.
[536E H] Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted.
It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory '.
An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post.
Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials.
Of course, the process of selection adopted by them should always he honest and fair.
It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstances other considerations will arise.
[536C E; H; 537A] 534 State of Mysore and Anr.
vs Syed Mohmood and ors.
, [1968]3 S.C.R. 363, applied.
In the instant case at all relevant times the case of the promotion of respondent has been considered in accord ance with law by the selection committee constituted by the appellant Bank and it did not find him fit for promotion on all such occasions.
There is no allegation of bias or mala fides urged against the members of the selection committee or the management.
The appellants, therefore, cannot be said to have committed any error is not promoting the respondent. ]538B C] The appellants are directed to consider the case of the respondent for promotion within four months from the date of the judgment.
and if found fit to promote him forthwith.
[538E]


judgement:
ivil Appeal No. 1080 of 1987.
From the Judgment and Order dated 3.2.
1986 of the Punjab and Haryana High Court in C.W. No. 561 of 1986.
Pramod Ahuja and Kailash Vasdev for the Appellant.
P.N. Puri for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant, Makhan Singh, was working as the Secretary of Narainpura Co operative Agricul tural Service Society Limited, Narainpura, District Feroze pur Respondent No. 1 (hereinafter referred to as 'the Society ').
He did not attend to his duties between May 11, 1981 and May 29, 1981 and that he had stayed away from work during that period.
The Society passed a resolution on May 30, 1981 terminating his services.
On an industrial dispute being raised the Labour Commissioner, Punjab referred the following questions to the Labour Court, Bhatinda under section 10(I)(c) of the : Whether termination of services of Makhan Singh, workman is justified and in order? If not, to what relief/exact amount of compensation is he entitled? Before the Labour Court the appellant filed his state ment of claim in which he asserted that he had not attended to his work between May 11, 1981 and May 29, 1981 due to his illness, that he had taken leave for that period and that his services had been terminated by the management without any justification.
He further alleged that he had put in six years of service in the Society and was drawing a salary 529 of Rs.460 per month at the time of the termination of his services.
He prayed for reinstatement in his post and also for back wages.
The Society contested the claim of the appellant on various grounds.
It alleged that the Society was not 'an industry and the was not applicable.
It pleaded that the appellant had gone 'on a strike ' without obtaining any leave and that he had also committed embezzlement of the money belonging to the Society.
The Labour Court found that the appellant had committed embezzlement and that he had absented himself from duties without obtaining leave.
It accordingly found that the termination of the services of the appellant was justi fied.
It, however, held that the Society was an industry and the Labour Court had jurisdiction to pass the award.
The Labour Court accordingly rejected the claim.
Aggrieved by the award passed by the Labour Court the appellant filed a writ petition in Civil Writ Petition No. 561 of 1986 on the file of the High Court of Punjab & Haryana.
That petition was dismissed in limine by the High Court on February 3, 1986.
This appeal by special leave has been filed by the appellant against the decision of the High Court as well as against the award of the Labour Court.
Admittedly, no domestic enquiry was held by the manage ment before passing the order of termination of the appel lant 's services.
Before the Labour Court the management tried to justify the order of termination of appellant 's services on the two grounds, namely, that the appellant had embezzled certain amounts of the Society and that he had absented himself from duty without obtaining leave.
The evidence led by the management in support of the embezzle ment alleged by it is very scrappy indeed.
It relied upon the evidence of Ram Sarup, who was working as the Secretary of the Society that the appellant had received a sum of Rs. 125 from one shareholder Bhaga Ram but he had made an entry in the account books stating that only a sum of Rs.100 had been received and that the appellant had received a sum of Rs.1145 and Rs.150 from Sat Pal and Jagir Singh, sharehold ers of the Society respectively and had made entries in the account books showing that he had received Rs.920 and Rs.125 respectively from them.
The management produced three photo stat copies of the entries in the pass books which were marked as Exhibits M/1 to M/3.
The originals were not pro duced.
The appellant denied having misappropriated the amount of Rs.25 in the first case, Rs.205 in the second case and Rs.25 in the third case.
he stated that the photostat copies were fabricated documents.
The Labour Court however accepted the evidence placed before it by the management.
It did not go into the question whether the photostat copies, Exhibits M 1 to M 3, could be accepted as evi 530 dence in the absence of the originals.
The award shows that no explanation had been given by the management for not producing the originals.
We are not satisfied with the finding recorded by the Labour Court that the appellant had embezzled amounts belonging to the Society.
The said finding is without any basis and is, therefore, liable to be set aside.
The Labour Court has also accepted that the appellant had absented himself from duty without obtaining leave.
It is interesting to note that the case of the Society before the Labour Court was that the appellant had gone on a strike without getting any leave.
If he had gone on a strike no question of obtaining any leave would arise.
The appellant gave evidence before the Labour Court stating that he was ill and, therefore, he was not able to attend to his duties.
He also stated that he had obtained necessary leave sanc tioned before absenting himself from duties.
Of course, the appellant could not produce any record showing that he had given the application for leave to the management which could only be in the possession of the Society.
In any event there was no reason at all for rejecting the evidence given by him.
The finding on the above question is also not sus tainable on the material placed before the Court.
We regret to observe that the approach of the Labour Court to the whole case is highly casual and superficial.
On a consideration of the whole material placed before this Court we are of the view that the decision of the management in the instant case to terminate the services of the appellant without holding any domestic enquiry is not a bona fide one.
We accordingly hold that the termination of the appellant 's services is unjustified.
In the result we set aside the judgment of the High Court and the award passed by the Labour Court and pass an award directing the Society to reinstate the appellant in its service with effect from May 30, 1981, the date on which the Society passed the resolution terminating the appellant 's services.
The appellant shall be treated as being in the service of the Society without any break in his service.
He is entitled to all the consequential benefits.
We direct the Society to pay full back wages to the appellant from the date of termi nation of his service till the date of reinstatement.
Shri P.N. Puff, learned counsel for the Society pleaded that the appellant was working in another co operative society after his services were terminated and that the back wages payable to the appellant should be reduced by the salary drawn by him from the said society.
If the appellant has worked in any other society, as pleaded by the learned counsel for the Society, the amount of back wages payable 531 under this award shall be reduced by the salary drawn by the appellant during the period subsequent to his termination of service from any other society.
The Labour Court shall determine the actual amount payable by the Society to the appellant after hearing both the parties.
The appeal is accordingly allowed.
The appellant is entitled to recover costs from the Society which we quantify at Rs.1,000.
H.L.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent Society terminated the service of the appellant, who stayed away from work for a few days, without holding a domestic enquiry.
Upon an industrial dispute having been raised, the question whether the termination of service was justified was referred to the Labour Court under section 10(1)(c) of the .
The appel lant submitted that he had stayed away from work due to his illness and gave evidence in support thereof.
The respondent pleaded that the appellant had gone 'on a strike ' without obtaining any leave and had also committed embezzlement of money belonging to it.
The Labour Court came to the conclu sion that the appellant had absented himself from duties without obtaining leave and, accepting photostat copies of certain documents furnished by the respondent found that the appellant had committed the alleged embezzlement.
It accord ingly held that the termination of service was justified.
The appellant 's writ petition against the award of the Labour Court was dismissed in limine by the High Court.
Allowing the appeal by special leave and ordering rein statement of the appellant in service with full back wages, HELD:The termination of the service of the appellant without holding any domestic enquiry is unjustified.
[530E F] The finding of the Labour Court that the appellant had embezzled amounts belonging to the respondent without going into the question whether the photostat copies of documents produced could be accepted as evidence in the absence of the originals, when no explanation was given by the respondent for not producing the originals, is without any basis and is liable to be set aside.
The finding of the Labour Court that the appellant had absented himself from duties without obtaining leave is not sustainable for the reason .that the case of the respondent was that 528 the appellant had gone 'on a strike ' and, if that was so, no question of obtaining any leave would arise.
There was also no reason to reject the evidence given by the appellant in support of his assertion that he had not attended to his work during the relevant period due to his illness.
[530A C] (ii) If the appellant has worked in any other society, the amount of back wages payable shall be reduced by the salary drawn by the appellant from such society during the period subsequent to his termination of service.
[531A]


judgement:
Civil Appeal Nos.
44,45, 336, and 337 of 1957.
Appeals by special leave from the decisions dated 29th June, 1956, of the Labour Appellate Tribunal of India, Calcutta in Appeals Nos.
Cal.223, 226, 247 and 250 of 1955.
M. C. Setalvad, Attorney General for India, Dipak Datta Chaudhury and B. N. Ghosh, for the appellants in C. A. No. 44 and respondents in C. A. No. 45.
M. C. Setalvad, Attorney General for India, section N. Mukerji and B. N. Ghosh, for the appellants in C. A. Nos. 336 and respondents in C. A. No. 337.
section K. Acharya, Arun Kumar Dutt, D. L. Sen Gupta and Sukumar Ghosh, for the appellants in C. A. Nos. 45 & 337 and respondents in C. A. Nos. 44 & 336.
October 15.
The Judgment of the Court was delivered by section K. DAS J.
These four appeals by special leave arise out of certain labour disputes between the employer, Messrs. Indian Iron and Steel Company Limited and the Indian Standard Wagon Company Limited, Burnpur, Asansol, (hereinafter compendiously referred to as the Company) on one side and some of their employees on the other.
Messrs. Martin Burn Limited, 12 Mission Row, Calcutta, are the Managing Agents of the Company.
Originally, the case out of which Civil Appeals 44 and 45 have arisen was known as the case of 144 workmen, and the other case out of which Civil Appeals 336 and 337 have arisen was known as the case of 74 workmen.
At present, the 669 number of workmen involved in the four appeals is much smaller.
Civil Appeals 44 and 45 go together as they arise out of the same decision, Civil Appeal 44 being on behalf of the Company in respect now of 104 respondent workmen, and Civil Appeal 45 on behalf of 103 out of the said 104 workmen.
Similarly, Civil Appeals 336 and 337 go together and arise out of a common decision, Civil Appeal 336 being on behalf of the Company in respect of 10 workmen in three groups and Civil Appeal No. 337 on behalf of 31 workmen.
The facts of these two sets of appeals are somewhat different, and it will be conducive to convenience as also to clarity of discussion of the issues involved, if the two sets are dealt with separately.
Civil Appeals 44 and 45.
We take up first Civil Appeals 44 and 45.
With regard to these appeals the relevant facts are these.
In 1947 the Asansol Indian Iron and Steel Workers Union with one Prof.` Abdul Bari as President was recognised by the Company.
On the death of Prof. Bari, one Mr. Michael John became President and the Union continued to be recognised by the Company.
In 1951 the Company was declared a Public Utility Service under the .
It was alleged on behalf of the Company that on September 12, 1951, a procedure was established for an amicable settlement of such disputes as might arise between the Company and its employees.
The procedure was substantially this: in case of a dispute regarding an individual employee, the dispute would be referred first to the Shop in charge and then to a Works Committee, and the Union would discourage an individual approach to the management of the Company; if the Works Committee was able to effect a settlement, it would be final; but if it failed, the Union could take up the case on merits, with the management of the Company.
The above procedure, it is stated, was accepted at a joint meeting of the Works Committee held on November 13, 195 1.
Then we come to 1953.
The case of the company was that on January 18, 1953, certain workers of the, Hot Mills 670 section resorted to an illegal stoppage of work, and on the next day all the three shifts of the Hot Mills section commenced a 'slow down ' strike.
This adversely affected the production of the Company, and it addressed a letter to the Secretary of the Union on January 27, 1953, drawing the attention of the Union to the illegal stoppage of work and 'slow down ' tactics; the letter further stated that if there was no improvement in the attitude of the workers, the Company would be compelled to take such action as it considered necessary to bring about resumption of normal work.
Two days later, the workers of the Hot Mills section submitted certain demands, but not through the Union.
With regard to the demands made by the workers of the Hot Mills section, they were informed that joint petitions, without reference to the Union or the Works Committee, would not be accepted and so long as normal work was not resumed, no consideration could be given to the demands made.
It appears that the Union also informed the Company that the workers concerned had made no representation to the Union, and the Union did not support their activities.
It is obvious that at this stage there was a cleavage between some of the workers of the Hot Mills section and the Union.
The Company then issued certain notices to the workmen advising them of the consequences of their action.
The workers in their turn elected a committee of six men to press their demands; the Company, however, refused to negotiate with this committee.
The impasse continued and in March, 1953, there was a tripartite conference between the Labour Commissioner of the Government of West Bengal, the General Manager of the Company and the President of the Union.
Before this, the Company had issued a notice closing 'B ' and 'C ' shifts of the Hot Mills section.
The tripartite conference came to certain conclusions but failed to restore harmony, and one of the reasons for its failure was that the representatives of the workers of the Hot Mills section were not included therein.
The workers ' committee protested against the closing of two shifts, and the trouble continued till April 8, 1953, when the Company 671 issued a notice to the workmen that unless they voluntarily recorded their willingness to do normal work, they would be considered as no longer employed by the Company from 2 p.m. on April 10, 1953.
It was stated that on April 11, 1953, some 700 workers resorted to an illegal stoppage of work.
The Labour Minister, Government of West Bengal, then visited Asansol, and met the representatives of the workers, and of the Union and the Management.
He made some suggestions, which did not however end the trouble.
Meanwhile, an Action Committee was set up by the workmen.
There was a strike on April 27, 1953.
The Sub Divisional Magistrate, Asansol, promulgated an order under section 144 of the Code of Criminal Procedure and the situation continued to worsen.
Iron and Steel were declared to be essential to the life of the community under the provisions of the West Bengal Security Act, 1950, and leave to all employees was stopped by the Company.
Some 38 workers of different departments were discharged for alleged disobedience of orders, and on August 18,1953, the Action Committee gave a strike notice to the Company, stating that the workmen would resort to strike and abstain from duty from September 11, 1953.
We now come to the crucial date, August 23, 1953.
On this date the Company declared a lock out and issued a notice, which must be set out in full, because a good part of the argument of learned counsel for both parties has centred round this notice : " NOTICE.
Having regard to the continued existence of the go.
slow strike and the unsatisfactory working of the Plant and in consequence of the illegal strike which took place on (1) 18 1 53.
(2) 9 3 53.
(3) 11 4 53 to 20 4 53.
(4) 27 4 53 and 28 4 53.
(5) 15 7 53.
the Management has no option but to declare a lockout of the entire works except the special shifts in the 672 Hot Mills Section of the Sheet Mills with effect from Monday, the 24th August, 1953.
The following Departments will continue to operate: No. 3 Boiler Plant.
No. 2 Power House.
Nos. 1 and 2 Reservoir Pump Houses.
Riverside Pump Station.
Town Water Works.
Town Sub Station.
Coke Ovens.
Workers required in the above Departments will be notified.
The services of all other workers shall be deemed to be discharged with effect from Monday, August 24th, 1953.
Bunpur (Sd.) J. McCraken 23rd August, 1953.
General Manager.
" On September 17, 1953, another notice was issued by the Company lifting the lock out with effect from 6 a.m. on Friday, September 18, 1953.
This notice stated inter alia: "All employees on the Works rolls of the Company on the 23rd August, 1953, and who wish to report for duty, must resume work between 6 a. m. on Friday, the 18th September, 1953, and 10 p.m. on Saturday ' the 19th September, 1953, on their regular shift.
If, however, any worker in the vicinity of the Works is unable to resume duty on account of illness, he should report himself to the Company 's Medical authorities or if unable personally to attend, send written intimation of his sickness to the Company by Saturday, the 19th September, 1953.
In the latter case the Company will make arrangements for his medical examination.
Such worker should resume duty from the date he is declared fit by the Company 's Medical authorities.
Any worker who has left the vicinity of the Works may resume duty on or before Thursday, the 24th September, 1953, provided he produces evidence satisfactory to the Company of his absence.
" On September 23, 1953, the Company issued a third notice, which quoted a request received from the 673 President of the Asansol Iron and Steel Workers ' Union for extension of the time given to the workmen to resume work, and then concluded as follows: "The Company is pleased to accede to this request to the extent of one week 's extension and its notice No. GM/CS 3B/571 dated 17 9 53 may be considered amended accordingly, i.e., the extension will be until Friday, the 2nd October, 1953.
" Of the workmen with whom we are now concerned, 98 workmen reported for duty on October 1, 1953, 4 reported for duty on October 2, 1953, and one on October 9, 1953.
They were not, however, allowed by the Company to resume their duties.
This led to an industrial dispute which the Government of West Bengal referred to the Fifth Industrial Tribunal.
The two issues were (1) whether the Company was justified in keeping the workmen mentioned in three lists A, B & C, out of employment; and (2) whether the said workmen were entitled to employment and any other relief and/or compensation.
The Tribunal held that all the workmen who turned up on or before October 2, 1953, in pursuance of the notices issued by the Company were entitled to be taken back into employment without condition and of the two men who came later, one was ill of typhoid fever and had sufficient reason for reporting himself for duty on October 9, 1953.
On the second issue, the Tribunal said: " Accordingly, I award that these men, barring Shri Satyanarayan, No. 5 of the list C, attached to the order of reference, would get half salary for the entire period from the 2nd October, 1953, up to the date of their actual return to duties after this award.
I allow only half basic pay and no dearness allowance and no other allowance.
" From the decision of the Fifth Industrial Tribunal, two appeals were preferred to the Labour Appellate Tribunal, Calcutta.
The appeal on behalf of the Company was mainly against the order directing that the employees who had turned up on or before October 2, 1953, must be taken back in employment, and the appeal on behalf of the workmen raised the question 674 that full compensation should be given to the work.
, men who were directed to be taken back in employment.
The Labour Appellate Tribunal dismissed both appeals the appeal of the Company on merits, and the appeal of the workmen on the ground that it did not involve any substantial question of law.
Both parties then asked for and obtained special leave from this Court to appeal from the decision of the Labour Appellate Tribunal, Calcutta.
In Civil Appeal No. 44, Mr. M. C. Setalvad, Attorney General, has appeared for the Company and has argued that both the Tribunals below went wrong on principle in construing the notices dated August 23, 1953, and September 17, 1953, respectively.
According to him, the continued illegal stoppages of work, 'slow down ' tactics and strikes indulged in by the workmen despite the advice of their Union, left the Company no alternative but to discharge the workmen, except in some essential departments, with effect from August 24, 1953, and the notice dated August 23, 1953, though it stated that the Company declared a lock out of the entire Works except for some special shifts, really terminated the services of the respondents by discharging them with effect from August 24, 1953.
He has further submitted that the notice dated September 17, 1953, did not revoke the earlier order of discharge, but merely gave the respondents an opportunity of reemployment at the pleasure of the Company on fulfilment of certain conditions.
The learned Attorney General contends that if the notices are so construed, then the Tribunals below are wrong in holding that the respondents are entitled to be taken back in employment as of right.
He has further submitted that the Fifth Industrial Tribunal was wrong in law in holding that there could not be a lock out and discharge at the same time.
In our view, the two notices in question are not capable of bearing the construction which the learned Attorney General has pressed for our acceptance, apart altogether from the question if under the , there can be a simultaneous order of discharge and lock out in respect of the 675 same employees.
The question of construction is really a question of intention to be gathered primarily from the words used in the documents; and if the word .
used are ambiguous, then surrounding circumstances can be looked into for the purpose of construing the notices.
It is worthy of note that the first notice states inter alia that in consequence of the illegal strikes which took place on several previous dates, the Management has no option but to declare a look out of the entire Works except some special shifts with effect from Monday, August 24, 1953; then in the concluding portion the notice states " The services of all other workers shall be deemed to be discharged with effect from Monday, August 24, 1953.
The expression " shall be deemed to be discharged has to be read in the context of the declaration of a lock out; such an expression is neither usually employed nor apt to effectuate an intention to terminate the services of the workmen altogether.
A 'lock out ', according to the definition in the , means the " closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him ".
In this context, the notice when it said that the services of all other workers shall be deemed to. be discharged with effect from the date of the lock out really meant that the Company refused to employ the respondent workmen during the period when the place of employment was closed.
The second notice dated September 17, 1953, places the matter beyond any doubt.
It starts by saying that the "management have reasons to believe that many workers are desirous of resuming work" etc.; then it states that "all employees on the Works rolls of the Company on August 23, 1953, and who wish to report for duty, must resume work between 6 a.m. on Friday, September 18 1953, and 10 p.m. on Saturday, September 19, 1953.
" The expressions used in the second notice clearly show that the intention was not reemployment of discharged workmen, but resumption of work by employees who desired to resume work and whose employment had been stopped on account of the 86 676 look out.
The third notice dated September 23, 1953, which extended the date of joining to October 2, 1953, again said that " a large number of workers might have been prevented from resuming their work for reasons beyond their control " and gave that as the reason for extending the date.
If the three notices referred to above are read together against the background of events which bad happened prior to August 23, 1953, the only reasonable construction is the one adopted by the Tribunals, viz., that the employees whose employment had been refused during the lockout were permitted to resume work without any conditions if they reported for duty by a particular date, and on fulfilment of a condition if they reported for duty after that date.
The learned Attorney General has referred us to some oral and documentary evidence to show that the workmen themselves understood the notice dated August 23, 1953, as a notice of discharge.
He has referred particularly to the letter dated September 2, 1953, written by the Action Committee to the General Manager of the Company in which the notice dated August 23, 1953, was referred to as " an illegal and unconstitutional notice of discharge".
On the other side, Mr. section K. Acharya appearing for the respondent workmen has referred us to the evidence given by some of the Company 's servants, which showed that no formal order of discharge was recorded in the service book of the employees, as required by the rules; nor any notice of one month given for discharging the workmen; but on the contrary the workmen were given continuity of service for the entire period of their absence.
We do not, however, think that when the words used in the notices sufficiently and clearly bring out the intention of the Company, it is necessary to refer to other evidence in the record.
Moreover, this Court does not sit as a regular Court of appeal over Industrial Tribunals, and does not ordinarily subject the evidence given on behalf of the parties to a fresh review and scrutiny, unless it is shown that exceptional or special circumstances exist, or that substantial and grave injustice has been done or that the case 677 in question presents features of sufficient gravity to warrant a review of the decision appealed from.
It is necessary now to consider an alternative argument of the learned Attorney General.
He has contended that assuming that the notices bear the construction which we have put on them, the respondent workmen did not join on or before Saturday, September 19, 1953, the latest day by which they could resume work without any condition; they reported for duty on October 1, 1953, or October 2, 1953, but failed to produce evidence satisfactory to the Company of their absence as required by the notice dated September 17, 1953, and, therefore, they were not entitled to be taken back as of right and without any condition.
It is necessary to state here what happened between November 1953, and April 1954.
It appears that a large number of workmen who reported for duty on October 1, 1953, and October 2, 1953, were subsequently interviewed, and as a result of that interview 144 workmen were not taken back to employment.
What happened at the interview was stated by Shri section K. Kanwar, witness for the Company, who said : " Question: Why these 144 men were not taken ? Answer: These men were interviewed, but they could not give satisfactory explanation for not reporting for duty within the time given.
These men did not comply with the condition laid down in the notice of the 17th September, 1953.
Whatever happened during the interview has been put in writing.
" The writing which embodied the result of the interview was not, however, produced.
The same witness said that some workmen who were also subsequently interviewed were taken back without any explanation of their absence.
The evidence on this point is very Conflicting; one witness said that about 2,000 men came to the main gate of the Company on October 1, 1953, and October 2, 1953, and from October 2, 1953, the instruction of the company was " to take back only those who were not harmful to the running of the factory".
Another witness said that he did not 678 remember if any of the respondent workmen appeared before him on October 1, 1953, or October 2, 1953, and if any of them gave any reasons for their absence.
In view of the conflicting evidence on the point, it is not possible to proceed on the footing that the respondent workmen failed to produce satisfactory evidence of their absence, and that was the reason why they were not taken back by the Company.
The learned Attorney General drew our pointed attention to the evidence of Shri Promotho Nath Mukherji, witness No. 9 for the workmen, who said: "When the lock out was lifted I did not think it proper to join immediately because most people were then outside, secondly, my colleagues and others had not then joined, and.
lastly, my social status in the place combined with the above circumstances restrained me from joining.
" It may be that some of the workmen could have presented themselves earlier than they actually did, But that does not prove that the Company refused to take only those workmen who had failed to produce satisfactory evidence of their absence.
If that was the case of the Company, then it should have produced the writing which embodied the result of the interview or given sufficient evidence to establish that in each case the respondent workmen failed to produce satisfactory evidence of absence.
On the contrary, the Tribunal found that the Company scrutinised the conduct of the workmen to find out how far they were associated with the Action Committee, how far they took part in the meetings, etc., and on that basis, some workmen were taken back and some were not taken back.
It is somewhat late in the day to try to make out a case that each of the respondent workmen in these two appeals failed to produce satisfactory evidence of their absence.
For these reasons, we do not think that the appellant Company in Civil Appeal 44 has made out any case for our interference with the decision appealed from.
There was some argument before us as to the illegal nature of the strike declared by the workmen and also as to the legality of the lock out declared by the Company.
We do not pause to decide those 679 questions, because it is unnecessary to do so in the pre sent appeals.
We must make it clear, however, that our reluctance to pronounce on the conduct of the workmen prior to August 23, 1953, does not signify an approval of that conduct which rightly came in for a good deal of criticism by the Industrial Tribunal.
It has been somewhat faintly suggested that if the notice dated August 23, 1953, terminated the services of the workmen and the second notice, dated September 17, 1953, operated as a conditional revocation of the earlier notice, then there was no consideration for the condition imposed and the Company could change its mind : and ignore the condition.
In the view which we have taken of the three notices, it becomes unnecessary" also to examine this submission.
As to Civil Appeal 45 on behalf of the workmen in which the prayer is for payment of full compensation, it is sufficient to state that no question of principle is involved.
The Fifth Industrial Tribunal refused to give compensation, for the period anterior to October 2, 1953, on the. ground that the workmen themselves tried to coerce the Company by 'slow down ' tactics etc.; for the period after October 2, '1953, the Tribunal allowed half the wage as compensation on the ground that some of the workmen were near Burnpur and might have joined earlier, some claimed to come back to their services as of right without any explanations and none of the workmen had done any actual work for the period.
As we have said, no question of principle is involved and we do not think that the Tribunal has committed any error in the matter of awarding compensation.
Civil Appeals 336 and 337.
We now turn to the other two appeals.
We have stated that the case out of which these two appeals have arisen dealt initially with 74 workmen who had been discharged or suspended by the Company for" one reason or another. ' The question which was referred to the Fifth Industrial Tribunal was whether the discharge and/or suspension of these 74 workmen was justified if not, to what relief these men were entitled.
The Tribunal classified these men in four categories 680 (1)those whose services were terminated in accordance with the Standing Orders of the Company, for absence without permission for 14 consecutive days; (2) those who were dismissed for major misdemeanor; (3) those who were suspended but whose cases could not be disposed of finally; and (4) those who were dismissed for disobedience of orders and other activities in pursuance of a concerted plan of "go slow" strike.
The Tribunal considered the case of each workman under the four categories mentioned above and ordered reinstatement of 25 out of 74 workmen and granted to 24 of the workmen directed to be reinstated compensation equal to half basic pay for the period of forced unemployment.
From the decision of the Fifth Industrial Tribunal two appeals were taken to the Labour Appellate Tribunal, Calcutta, one on behalf of the Company and the other for the workmen.
The Labour Appellate Tribunal dismissed both the appeals.
Hence the two appeals before us by special leave.
In Civil Appeal 336 we are concerned with only 10 workmen, seven of whom fall in the category of those whose services were terminated in accordance with Standing Orders of the Company for absence without permission for 14 consecutive days.
These seven men are (1) Bamapado Mukherji, (2) Chandrasekhar Mukherji, (3) Niaz Hossain, (4) Dhani Ram, (5) Chandrabhan Sing, (6) Raja Sing, and (7) Jai Kishore Sing.
Two others, Samar Sen and Abharani Debi, fall in the category of those who were said to have been dismissed for major misdemeanour.
The tenth workman Himansu Chattoraj falls in a class by himself.
In Civil Appeal 337 on behalf of the workmen there are 31 appellants, nine of whom (except Samar Sen) are those who figure in the Company 's appeal.
The rest are those who were not ordered to be reinstated.
The cases of two of these men Akka Hossain and D. P. Das, have been specially placed before us by Mr. section K. Acharya, on the ground that Akka Hossair, stands on the same footing as Himansu Chattoraj and D. P. Das on the same footing as those whose leave was not granted and who were absent for 14 consecutive days without permission.
681 We now proceed to consider the cases of the 10 workmen in Civil Appeal 336.
Let us first take the seven workmen who were absent without leave for 14 consecutive days.
Standing Order No. 9 of the Company, which is the relevant Standing Order on the subject, is in these terms: " Absenteeism Workers absent without leave will be subject to disciplinary action.
Overstaying leave will be considered as absence without leave.
Any worker who is absent for 14 consecutive days without permission will be automatically discharged.
Also, any worker who is absent for 14 individual days during any period of 12 months is liable to discharge.
" What happened in the case of these men is that on diverse dates between July 5, 1953, and July 10, 1953, they were taken in custody by the police and remained in custody for some time; they applied for leave when in custody but leave was refused.
The Industrial Tribunal took the view that Standing Order No. 9 was not an inflexible rule, and a mere application for leave was sufficient to arrest the operation of the Standing Order.
When the case was before the Appellate Tribunal, Mr. section K. Acharya on behalf of the workmen conceded that he was not in a position to support the view of the Fifth Industrial Tribunal in this respect; he contended, however, that the Industrial Tribunal had in each case considered the justification for absence without leave, and in view of the circumstance that the men were in custody, the Company was not justified in refusing leave.
This contention found favour with the Labour Appellate Tribunal.
The point is now covered by a decision of this Court: Burn and Co., Calcutta vs Their Employees (1).
in that case one Ashimananda Bannerji was arrested tinder the West Bengal Security Act and detained in jail from January 25, 1949, to April '5, 1949.
The Company terminated his services on April 22, 1949, on the ground of continued absence.
The Appellate Tribunal Ordered his reinstatement on the ground that he had been discharged without a charge and without holding (1) ; , 798.
682 an enquiry.
This Court observed: "We are unable to agree with this decision.
The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto.
The order of the Appellate Tribunal is manifestly erroneous and must be set aside.
" The same principle should apply in the present case.
It is true that the arrested men were not in a position to come to their work, because they had been arrested by the police.
This may be unfortunate for them; but it would be unjust to hold that in such, circumstances the Company must always give leave when an application for leave is made.
If a large number of workmen are arrested by the authorities in charge of law and order by reason of their questionable activities in connection with a labour dispute, as in this case, the work of the Company will be paralysed if the Company is forced to give leave to all of them for a "more or less indefinite period.
Such a principle will not be just; nor will it restore harmony between labour and capital or ensure normal flow of production.
It is immaterial whether the charges on Which the workmen are arrested by the police are ultimately proved or not in a court of law.
The Company must carry on its work and may find it impossible to do so if a large number of Workmen are absent.
Whether in such circumstances leave should be granted or not must be left to the discretion of the employer.
It may be readily accepted that if the workmen are arrested at the instance of the Company for the purpose of victimisation and in order to get rid of them on the ostensible pretext of continued absence, the position will be different.
It will then be a colourable or mala fide exercise of power under the relevant Standing Order; that, however, is not the case here.
We, are of the view that the two Tribunals below have misdirect ed themselves as to the true scope and effect of the "Standing Order in question, and their decision with regard to the seven workmen mentioned above cannot be supported.
683 We now turn to the two persons in the second category Samar Sen and Abharani Debi, remembering what we have already stated as to the exercise of our jurisdiction on an appeal by special leave.
Samar Sen worked as the Manager of the Burnpur hotel, and one of the questions raised was if he was a 'workman ' within the meaning of the relevant provisions of the .
At the relevant time, `workman ' was defined in the Act as follows: " Section 2(s).
" workman " means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Government.
" The question is if Samar Sen did any clerical work for hire or his duties were merely supervisory in nature.
Both the Tribunals have referred to the evidence on this point and have concurrently found that Samar Sen was a workman within the meaning of that word as used in the ; they have referred to Samar Sen 's own evidence which showed that he had to write ledgers, file correspondence, enter the cash book, etc.
We see no reason to hold that the finding of the two Tribunals on this point is erroneous.
On merits, the case against Samar Sen was that as a result of a regular and proper enquiry, he was found guilty of unauthorised absence and insubordination, etc., and, therefore, the Company dismissed him.
The argument before us is that the Company having held a regular and proper enquiry in which Samar Sen had an opportunity of meeting the charges against him, it was for the Company to decide whether the charges had been proved and the Industrial Tribunal should not have interfered with the decision of the Company, unless it found that the decision was mala fide or amounted to victimisation.
It is necessary to state here, in the words of the Fifth Industrial Tribunal, its finding about Samar Sen.
The Industrial Tribunal said: 87 684 "Next, I consider the merit of the case.
On the 6th July, 1953, he went on leave.
On the 16th July, he applied for extension of leave for one month (vide exhibit 6).
He got a reply from the Company on the 25th or 26th July, 1953.
But as the Company refused his leave, he jointed on the 1st August, 1953, with a medical certificate of fitness.
So practically he was within 14 days ' admissible grace period for joining one 's duty.
When he was on leave, he was suffering from blood pressure and fever.
The doctor advised him to take rest.
Of course, he should have consulted the Companies ' doctor.
But even if he had not done so, it did not matter as he was then on leave allowed by the Company.
So where was his fault? Yes, his fault was that he was the Secretary of the Action Committee at that time.
The Action Committee to the Companies was like a red rag to the bull.
I find absolutely no reason why this man should be dismissed.
So I set aside the order of dismissal passed against him, and order his reinstatement.
I grant him compensation at half basic pay for the period of his forced unemployment.
" The finding really amounts to this that Samar Sen was victimised as he was the Secretary of the Action Committee; he was really ill and the only fault he committed was that he did not consult the Company 's doctor.
The learned Attorney General has very seriously contested the aforesaid finding of the Tribunal and taken us through the relevant evidence including Samar Sen 's own statements before the Enquiry Committee.
He has pointed out that though Samar Sen was said to be suffering from fever and blood pressure, his statements before the Enquiry Committee showed that he was not taking complete rest as " advised by his doctor but was engaged in doing some " public work." The argument advanced by the learned Attorney General might have been urged acceptably to a Court or Tribunal of first instance; but we are not such a Court or Tribunal, and in the absence of exceptional or special circumstances or of grave injustice, we shall not be justified in interfering with what really is a finding of fact.
685 This brings us to the case of Abharani Debi, where also the same principles apply.
She was a nurse in the Burnpur Hospital and the charge against her was that she had incited and instigated one Karu, a sweeper working in the hospital, not to attend his duties on the morning of September 5, 1953.
An enquiry was held and she was found guilty of the charge.
The Tribunal found that the charge against her was completely baseless, and the enquiry report against her made a mountain of a mole hill.
She made some comments to Karu with regard to a pass which had been issued to Karu, and the comments innocuous in themselves were magnified into a charge of intimidation.
It is significant that before the Labour Appellate Tribunal, the Company did not even argue the case of Abharani.
Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief.
In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management.
It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials the finding is completely baseless or perverse.
In our view, Abharani 's case comes under, clause (iv) above.
Lastly, we come to Himansu Chattoraj.
The Company 's case against him was the following.
It was alleged that since January, 1953, he incited other workmen to resort to 'slow down ' tactics.
On March 28, 1953, he was charged that he took an active part in the ` slow down ' strike in the Hot Mills section, and he initiated such action and instigated others to do the same.
On March 29, 1953, he submitted his explanation.
On March 31, 1953, he was suspended pending enquiries.
On April 3, 1953 and April 4, 1953, some 686 evidence was taken against several workmen including Chattoraj in the course of the enquiry, but the evidence not being of an overwhelming character against Chattoraj, the management postponed its decision pending further enquiry.
In May 1953, the Sub divisional Magistrate promulgated an order under section 144, Criminal Procedure Code, in which Chattoraj was mentioned.
In September, 1953, the dispute was referred to the Fifth Industrial Tribunal, which included the case of Chattoraj there being a suspension order against him.
It was stated that an application under section 33 of the , was made for permission to dismiss Chattoraj for activities subsequent to the charge sheet of March 28, 1953.
The Tribunal instead of dealing with that application made the following observations in its award regarding Himansu Chattoraj: " He was, therefore, charged on the 28th March, 1953, along with others.
There was an enquiry.
But as the evidence against this man was not overwhelming, the management postponed their decision for the time being.
This man, however, continued his activities with the result that the Sub divisional Officer of Asansol promulgated an order under section 144, Cr.
P.C., on the 15th May, 1953, and in which order his name was mentioned.
This workman was again obstructing the loyal workers after the lock out had been lifted.
So in view of the above, the Companies decided to terminate his services.
But it could not take any direct action as his case was referred to the Tribunal.
So the position is that the charge sheet on which this man was sought to be punished was not proved even according to the Companies ' own version.
For his other activities there is no charge sheet.
In such circumstances I do not think that the Companies were entitled to dismiss him.
So regard being had to this aspect of the matter, I order his reinstatement.
But as I am satisfied that.
this man indulged in activities which were prejudicial to the interest of the Companies, I do not allow him any compensation during the period of his forced unemployment consequent upon suspension.
This period 687 of unemployment should be treated as leave without pay.
He must be reinstated as soon as the award becomes operative." The Appellate Tribunal dealt with the case of this man very summarily by saying that his reinstatement was not open to any objection.
Before us, it has been argued that the decision that Himansu Chattoraj should be reinstated is vitiated by a basic error.
The only formal order against him was the order of suspension, which was certainly a valid order.
The Industrial Tribunal found that Chattoraj indulged in activities prejudicial to the Company and it is now recognised that deliberate 'slow down ' tactics and an incitement to other workmen to adopt such tactics both amount to misconduct.
The lower Tribunal was apparently satisfied that Chattoraj was guilty of such misconduct; yet it held that the charge sheet on which Chattoraj was suspended had not been proved.
If the order of suspension was the only subject if reference, so far as Chattoraj was concerned, the Tribunal could not order his reinstatement till the enquiry was completed.
If, on the contrary, the Tribunal proceeded on the footing that the company had decided to terminate the services of Chattoraj on the ground of his prejudicial and subversive activities then on being satisfied that Chattoraj was guilty of such activities the proper order would have been to give the Company permission to dismiss Chattoraj.
In either view, the order of his reinstatement is unjustified.
Only a few words are necessary to dispose of Civil Appeal 337.
The Tribunal had considered the case of each workman under the four categories mentioned previously and had refused reinstatement to those against whom it found that the Company had good reasons for dismissal.
Mr. Acharya has not been able to satisfy us that the Tribunals below committed any error with regard to the appellants of this appeal.
He has pressed the case of two persons Akka Hossain and D. P. Das.
Against Akka Hossain there was a charge for slow down tactics; later he was charged with assaulting the Company 's driver.
Though he was acquitted in a criminal proceeding, the Tribunal 688 found that the decision of the Company to terminate his services was justified.
D. P. Das absented himself from duty from July 5, 1953, and was absent without leave for more than 14 days.
His case was fully considered by the Tribunal, which found that his services were rightly terminated under the Standing Orders of the Company.
The result of the foregoing discussion is this: Civil Appeal 44, Civil Appeal 45 and Civil Appeal 337 are without merit and must be dismissed.
Civil Appeal 336 succeeds in part, and the decision of the Tribunals below is set aside in respect of the following eight men, only (1) Bamapada Mukherji (2) Chandrasekhar Mukherji, (3) Niaz Hossain, (4)Dhani Ram, (5) Chandrabhan Sing, (6) Raja Sing, (7) Jai Kishore Sing, and (8) Himansu Chattoraj.
In all other respects, the decision appealed from will stand.
In the peculiar circumstances of this case, the parties will bear their own costs here.
Appeal No. 336 partly allowed.
Others dismissed.

summary/full:
On account of the continued illegal stoppage of work, 'glow down ' tactics, and strikes indulged in by the workmen despite the advice of their Union, the appellant company issued a notice dated August 23, 1953, that in consequence of the illegal strike the Management has no option but to declare a lock out of the entire works except the special shifts with effect from August 24, 953 The services of all other workers shall be deemed to be discharged with effect from August 24, 953.
" Subsequently, the company lifted the lock out.
and gave notice on September 17, 1953, to the effect that all employees on the Works rolls of the Company on August 23, 1953, and who wish to report for duty, must resume work on September 18, 1953 A third notice gave extension of time to the workmen to resume work.
The question was whether the notice dated August 23, 1953, terminated the services of the respondents by discharging them with effect from August 24, 1953, and the notice dated September 17, 1953, merely gave them an opportunity of re employment at the pleasure of the company on fulfilment of certain conditions.
Held, that, on a construction of the notices, the expression "shall be deemed to be discharged" had to be read in the context of the declaration of a lock out, and the intention of the company was that the employees whose employment bad been refused during the period of lock out were to be permitted to resume work without any conditions if they reported for duty by a particular date, and on fulfilment of a condition if they reported for duty after that date.
Where some of the workmen who were taken in custody by the police applied for leave when in custody but were refused leave by the company acting under Standing Order No. o, and the Labour Appellate Tribunal took the view that as the workmen were in custody the company was not justified in refusing leave, held, that whether in such circumstances leave should be granted or not must be left to the discretion of the employer, unless, it was proved, that it was a case of colourable or mala fide exercise of power under the Standing Order.
668 Burn and Co., Calcutta vs Their Employees, [1956] S.C.R. 781, followed.
The powers of an Industrial Tribunal to interfere in cases of dismissal of workmen by the company, are not unlimited and the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management.
It will interfere (1) when there is want of good faith, (2) when there is victimisation or unfair labour practice, (3) when the management has been guilty of a basic error or violation of a principle of natural justice, or (4) when on the materials the finding is completely baseless or perverse.


judgement:
ivil Appeal No. 1466 of 1987.
From the Judgment and Order dated 8.12.1986 of the Calcutta High Court in Matter No. 1636 of 1985.
A.K. Sen, Shanker Kumar Ghosh and D.P. Mukherjee for the Appellant.
S.N. Kacker and G.S. Chatterjee for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
this is an application challenging the order of the learned single judge dated the 8th December, 1986 of the High Court of Calcutta.
By the impugned judgment the said learned Judge has set aside the order dated the 19th April, 1983 of anoth er learned single judge on the ground, inter alia, that the first learned Judge, when she passed the order, acted with out 571 jurisdiction.
There was an arbitration agreement.
Clause 25 of the said Agreement, inter alia, was as follows: "except where otherwise provided in the contract all questions of disputes relating to the granting of specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship and materials used in the work or as to any question claims, rights, matters, or things whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the work or execution or failure to execute the same where arising during the progress of the work or after completion or abandonment thereof was to be referred to sole arbitration of the Director/Unit Head, C.M.D.A. not connected with the particular work as may be appointed by the authority.
The award of the arbitrator shall be final, conclusive and binding on all the parties to the contract.
" On that basis the appellant had moved an application for removal of the named arbitrator before the first learned Judge which came up for hearing on 19th April, 1983 and this was by filing of an application under Section 20 of the for an order for filing the arbitration agreement, for appointment of an arbitrator and for other consequential reliefs.
By the order,dated 19.4.83 the said learned Judge has recorded the facts of this case and fur ther recorded that by virtue of the Clause 25 of the agree ment the appellant herein and prayed for appointment of an arbitrator for determination of the dispute that had arisen which had been set out in paragraph 15 of the petition.
Inasmuch as according to the appellant the directors of all the units of Calcutta Metropolitan Development Authority had already expressed their opinion in respect of the disputes that had arisen between the appellant and the respondent and inasmuch as by the Central Tender Committee, the directors were members.
Under the circumstances the appellant appre hended that the appellant might not get justice or proper relief under such circumstances.
There was reasonable basis of the apprehension against the unnamed arbitrator, and it was urged that instead of appointing any officer of the respondent as arbitrator an independent member of the Bar be appointed as arbitrator.
The learned Judge passed such order on 19th April, 1983 while recording these facts as alleged by the petitioner.
These appear to have been reasons for appointing Sri Amitav Guha as the arbitrator in this case in terms of prayer (c) of the said petition.
572 The learned judge in the impugned order has observed that the Court was bound to enforce the particular agreement with which the parties came to the Court, and the parties were not entitled to have any fresh opportunity to appoint a new arbitrator as that would amount to a new agreement between the parties.
This position is good in so far as it goes.
But that does not solve the problem in all situations.
The learned Judge also observed that no appointment can be made by the Court on the ground of disqualification of the arbitrator without having proper materials on record and without coming to a definite finding on this point.
The learned Judge further observed that the Court either should have given effect to the agreed machinery for appointment of the arbitrator or it could have appointed afresh after coming to a clear finding that all directors of the Unit of C.M.D.A. were biased against the appellant herein as well as they had rendered themselves disqualified from being ap pointed as arbitrators.
Until all of them were found dis qualified, the Court did not have the jurisdiction to ap point any new one and had to follow the correct machinery.
It appears that the first learned Judge has in fact held that the arbitrator named had disqualified himself on the ground of bias and on that basis, appointed an outside Advocate, Shri Amitav Guha as the arbitrator.
If the re spondents were not satisfied they could have moved an appeal against the order; instead respondents participated in the arbitration proceedings and acquiesced in such appointment.
The order was made on 19.4.83 appointing Shri Amitav Guha an advocate of the Calcutta High Court as sole Arbitrator.
The arbitrator appointed, started arbitration proceedings in which both the parties submitted to his jurisdiction and filed their respective claims and other documents in support thereof.
It appears from the List of Dates submitted before us that respondent No. 1 moved three interlocutory applica tions at different points of time which were, however, disposed of with orders in favour of the appellant.
Both parties got extention of the arbitration proceedings even by Hon 'ble Mrs. Justice Pratibha Bonnerjea at least 14 times and the last extention was granted upto November, 1985 by Justice Mrs. Bonnerjea.
In the meantime the said Arbitrator had held 74 sittings which were attended by the parties of both sides and their counsel.
A large amount of time and money, same at the cost of public have been spent on these.
In the year 1985 the respondent No. 1 challenged the validity of the order of appointment of arbitrator passed by first learned judge Where she acted on the basis of the findings mentioned hereinbefore.
Can a party be permitted to do that? In Arbn.
Jupiter Gener al 573 Insce.
Co. Ltd. vs Corporation of Calcutta, at 472) P.B. Mukherji, J. as the learned Chief Justice then was observed: "It is necessary to state at the outset that Courts do not favour this kind of contention and conduct of an applicant who participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees that the award has gone against him he comes forward to challenge the whole of the arbitration proceedings and without jurisdiction on the ground of a known disability of a party.
That view of the Court is ably stated by the Editor of the 15th Edition of Russell on the Law of Arbitration at page 295 in the following terms: 'Although a party may by reason of some disability be legally incapable of submitting matters to arbitration that fact is not one that can be raised as a ground for disputing the award by other parties to a reference who were aware of the disability.
If one of the parties is incapable the objection should be taken to the submission.
A party will not be permitted to lie by & join in the submission and then if it suits its purpose attack the award on the ground.
The presumption in the absence of proof to the contrary will be that the party complaining was aware of the disability when the submission was made. '" Mr. Kacker submitted that this principle could be in voked only in a situation where the challenge is made only after the making of an award, and not before.
We are unable to accept this differentiation.
The principle is that a party shall not be allowed to blow hot and cold simultane ously.
Long participation and acquiescence in the proceeding preclude such a party from contending that the proceedings were without jurisdiction.
Russell on Arbitration, 18th Edition,page 105 explains the position as follows: "If the parties to the reference either agree beforehand to the method of appointment, or afterwards acquiescence in the appointment made, with full knowledge of all the circum stances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings.
574 Attending and taking part in the proceedings with full knowledge of the relevant, fact will amount to such acquiescence." The Judicial Committee in decision in Chowdhury Murtaza Hossein vs Mussumat Bibi Bechunnissa, (31.A. 209) observed at page 220: "On the whole, therefore, their Lordships think that the appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceedings to make their awards, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as is stood before them, taking his chance of the decision being more or less favourable to himself; and that is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award.
" Relying on the aforesaid observations this Court in N. Chellappan vs Secretary, Kerala State Electricity Board and Another, ; , acted upon the principle that acquiescence defeated the right of the applicant at a later stage.
In that case the facts were similar.
It was held by conduct there was acquiscence.
Even in a case where initial order was not passed by consent of the parties a party by participation and acquiescence can preclude future chal lenges.
In the grounds of appeal no prejudice has been indicated by the appointment of the second arbitrator.
Mr. S.N. Kacker, learned counsel for the respondents drew our attention to the fact that the decision in the Chowdhuri Murtaza Hossein 's case was where the party chal lenged the appointment of the receiver after the award was made.
He also submits that in this case the respondents herein had challenged the order of appointment of the arbi trator on 19.4.83 and not after the arbitrator had made the award.
We are unable to accept this distinction.
Basically the principle of waiver and estoppel is not only applicable where the award had been made but also where a party to the proceeding challenges the proceedings in which he partici pated.
In the facts of this case, there was no demur but something which can be called acquiescence on the part of the respondents which precludes them from challenging the participation.
575 In that view of the matter, we are of the opinion that the judgment and impugned order cannot be sustained.
In the premises the appeal is allowed.
The order and judgment of the High Court dated the 8th December, 1986 are set aside.
The arbitration proceedings will go on before the Arbitrator appointed by order dated 19th April, 1983.
Time for making the award is extended for four months from today.
For fur ther extention of time the party may apply to the High Court of Calcutta.
The appeal is disposed of accordingly.
The parties will bear their respective costs.
P.S.S. Appeal allowed.

summary/full:
Clause 24 of the arbitration agreement between the parties provided for reference of all questions of dispute arising under the contract to the sole arbitration of the Director/Unit Heads of the respondent Authority, not con nected with the particular work.
All such officers having already expressed their opinion in respect of the disputes that had arisen, the appellant apprehended that he may not get justice or proper relief.
He, therefore, moved an appli cation under section 20 of the for appointment of an independent member of the bar as arbitrator instead of the named officer of the respondent Authority.
A Single Judge of the High Court held that the arbitra tor named had disqualified himself on the ground of bias and appointed an outside advocate as the sole arbitrator on April 19, 1983.
When arbitration proceedings commenced both the parties submitted to his jurisdiction and filed their respective claims and documents.
Upto November 1985 the said arbitrator held 74 sittings which were attended by the parties of both sides and their counsel.
Respondent No. 1 had moved three interlocutory applications.
Both the parties got extension of arbitration proceedings at least 4 times upto November 1985.
Respondent No. 1 challenged the validity of the order of appointment of arbitrator dated April 19, 1983 in the year 1985, when another Single Judge took the view that if the court was bound to enforce the particular agreement with which the parties came to the court, the parties were not entitled to have any fresh opportunity to appoint a new arbitrator as that would amount to a new agreement between the parties.
He further observed that no appointment can be made by the Court on the ground of disqualification of the arbitrator without having proper materials on record and without coming to a definite finding on this point.
Until then the Court did not have the jurisdiction to appoint 570 any new arbitrator and had to follow the correct machinery.
This order of the Single Judge dated December 8, 1986 set ting aside the earlier order dated April 19, 1983 was as sailed in the appeal by special leave.
Allowing the appeal, this Court, HELD: Long participation and acquiescence in arbitration proceedings preclude a party from contending that the pro ceedings were without jurisdiction.
The principle is that a party shall not be allowed to blow hot and cold simultane ously.
[573F] Basically the principle of Waiver and estoppel is not only applicable where the award had been made but also where a party challenges the proceedings in which he participated.
In the instant case, there was no demur but something which can be called acquiescence on the part of the respondents or which precludes them from challenging the participation.
[574G H] Arbn.
Jupiter General Insce.
Co. Ltd. vs Corporation of Calcutta, at 472; Chowdhury Murtaza Hossein vs Mussumat Bibi Bechunnissa, 3 I.A. 209; N. Chel lappan vs Secretary, Kerala State Electricity Board & Anr., ; and Russel on Arbitration, 18th Edn.
p. 105, referred to.