JUDGMENT Satish Chandra, J.
1. This and the connected writ petition are directed against the same award. Writ Petition No. 1007 of 1066 has been filed by the employers and Writ Petition No. 2246 of 1966 has been filed by the workmen. Both can be conveniently disposed of by a single Judgment.
2. On 15 April 1965 the State Government referred the following matter of dispute for adjudication to the labour court, Allahabad:
Whether the employers kept the workmen, named In the annex are, out of employment with effect from 14 July 1964, and hare subsequently terminated their services with effect from 13 July 1964 legally and/or Justifiably? If not, to what relief are the workmen concerned entitle?
In the annexure nineteen workmen were mentioned. They had been dismissed by the employers with effect from 18 July 1964 on the ground of fomenting and resorting to an illegal strike from 14 July 1964. The labour Court held that the managerial enquiry violated the principles of natural justice, because no genuine attempt was made to serve the ohargesheet and to give the workmen due notice. Then, It examined the question whether the termination was mala fide and with a view to victimize the workmen for trade union activities, or whether the workmen were guilty of resorting to an Illegal strike. On a review of the evidence led before It, the labour Court found that there was no victimization and the workmen concerned had resorted to an Illegal strike. The Court then considered the question as to whether the punishment of dismissal could be justified. It held that these nineteen workmen had taken a leading part la the strike and that they were the ringleaders. It held that for the prominent part played by them In sponsoring and resorting to the Illegal strike, the employers were justified In awarding the punishment of dismissal. The Court then considered issue 6 which related to the relief to which the workmen were entitled. The Court held that since the order of dismissal was not preceded by a proper enquiry, the order of dismissal will operate from the date the award becomes enforceable. For the period Intervening the order of dismissal passed by the employers and the date the award becomes enforceable, the concerned workmen would be entitled to their wages. For this conclusion the labour Court gave out additional reason, namely, that a bonus case was pending before the conciliation board on 18 July 1964 and the order of dismissal was passed, without obtaining approval, and as such In contravention of 3. 6E (2)(b) of the Uttar Pradesh Industrial Disputes Act. The labour court also found that six of the concerned workmen had already been reemployed and, therefore, they were not entitled to any relief. It ultimately decided that the other thirteen workmen were entitled to their wages till the date the award becomes enforceable, though they are not entitled to reinstatement.
3. The employers have challenged the ultimate finding that the order of dismissal will operate from the date the award becomes enforceable. It has been submitted that the labour Court having found that the order of dismissal was justified, erred in law In substituting for it a fresh order of dismissal. The finding that the order of dismissal was in contravention of Section 6E (2)(b) has also been challenged.
4. The workmen in their written statement had taken the plea that the dismissal order was In contravention of Section 6E (2)(6) bat they had not pressed any Issue on this plea. In the absence of any Issue the parties Could not lead evidence on the point. The grievance of the employers that the labour Court was not entitled to take this plea into consideration seems to be justified. It has also been urged that there was no evidence on the record to sustain this plea. It is said that actually the bonus dispute had been withdrawn by the workmen and was not pending before the conciliation board on 18 July 1964. The employers had made an application before the labour court for summoning the record relating to that matter so that the letter of withdrawal dated 11 July 1961 Could be filed. Sri S. C. Khare, learned Counsel, stated that the labour court had rejected this application. The award does not mention any evidence on the baala of which It baa been held that the bonus dispute was pending before the conciliation board. The learned Counsel for the workmen has not Invited my attention to any evidence on the record which could establish this fact. Under the circumstances, the labour court was in error, in relying upon this ground.
5. The other reason mentioned in the award that since there was no proper dismissal after a proper enquiry the order of dismissal shall operate from the date the award becomes enforceable, does not appeal to me. In this case an enquiry was held by the management but the labour court has held that It and the resulting report was not binding because It violated the principles of natural Justice. It IB now well-settled that the management can lead evidence to satisfy the labour court that the order of dismissal passed by them was justified. They are not confined to merely satisfying the labour court that an order of reinstatement should not be made by it. If the management is successful in establishing that their action was Justified then, obviously, their original order of dismissal becomes sustainable. That order has to be recognized as a valid order. No other extenuating circumstances has been mentioned in the award to support the postponement of the operation of the order of dismissal. Under the circumstances, there seems to be no valid reason for postponing the operation of the order of dismissal.
6. Learned Counsel for the workmen has relied upon the decision of the Supreme Court in Sasa Musa Sugar Works v. Shobrati Khan 1959II L.L.J. 388. There the management suspended some workmen and made an application under Section 33 of the Industrial Disputes Act for permission to dismiss them. In that concern there were no standing orders as to suspension. The management had made no enquiry prior to passing the order of suspension. The industrial tribunal had found that as there were no standing orders as to suspension in this factory, the management's liability to pay to the workmen their wages during the period of suspension, remained. The Supreme Court held that as the management held no enquiry after suspending the workmen and the proceedings under Section 33 were practically converted into the enquiry which normally the management should have held before applying to the Industrial tribunal, the management Is bound to pay the wages of the workmen till a case of dismissal IB made out In a proceeding under Section 33. For this the Court relied upon its earlier decision in the case of Ranipur Colliery v. Bhuban Singh and Ors. 1959-II L.L.J. 231.
7. In my opinion, this case is distinguishable. In this case, the Supreme Court was influenced by two circumstances: firstly, absence of any authority to pass an order of suspension and as such the management's liability to pay the wages during the suspension period, continuing. The Court also mentioned that the management failed in its duty to hold an enquiry at all. In the instant case, there Is no suggestion that the management was not authorized by the standing orders to pass an order of dismissal. The Supreme Court case related to proceedings under Section 33 where the industrial tribunal does not have to make an enquiry into the rights or wrongs of the proposed dismissal; in the case of Ranipur Colliery v. Bhuban Singh and Ors. 1959-II L.L.J. 231 (vide supra), the Supreme Court held that all the tribunal under Section 33 to see is whether a prlma facie case has been made out or not for lifting the ban Imposed by the section, and, whether a fair enquiry has, been made by the employer In which he came to the bona fide conclusions that the employee is guilty of misconduct. The proceedings under Section 33 are not in the nature of enquiry into the conduct of the employee by the industrial tribunal. In this case the Supreme Court emphasized that under the standing orders the management was entitled to suspend a workman pending enquiry, and that the management had conducted an enquiry and then applied for permission to dismiss, and that it had done all that he could do in order to bring the contract of service to an end. To expect the employer to continue paying the employee, after he had come to the conclusion that the employee was guilty of misconduct and should be dismissed, simply because of the accidental circumstance that an Industrial dispute being pending he baa to apply to the tribunal for permission is unfair. If this were not so, he would have to go on paying the employee for not doing any work, and the period for which this will go on will depend upon an accidental circumstance, viz., how long the tribunal takes In concluding the proceedings under Section 33.
8. The principles enunciated In this decision explain the reason why the Supreme Court held In Sasa Musa Sugar Works case 1959II L.L.J. 388 (vide supra) that the management was bound to pay the wages to workmen till a dismissal was made out In the proceedings under Section 33; In Sasa Musa Sugar Works case 1959II L.L.J. 388 (vide supra), the management had held no enquiry but had practically converted the proceedings under Section 33 Into such an enquiry though that was not within the ambit of that section. The management had not validly brought the contract of service to an end because under Its own standing orders It was not entltlad to pans an order of suspension without pay, and as such Its liability to pay the wages continued throughout the period of suspension. For that reason they were held bound to pay the wages for that period.
9. The management can legitimately ask the labour court adjudicating an Industrial dispute referred under Section 4 (k) of the Uttar Pradesh Industrial Disputes Act, to enquire Into the rights and wrongs of the conduct of the workmen. It has the right to satisfy the court that the workmen were guilty of misconduct and their dismissal was Justified. The nature of the Jurisdiction In such proceedings differs, and differs on vital matters from that conferred by Section 33.
10. This case, therefore, Is not an apposite authority for the proposition that even though the management was authorized by Its standing orders to end the contract of service by an order of dismissal, and had satisfied the labour court that Its order was, on facts, Justified, yet, It was bound to pay the wages for the period between the order of dismissal and the date of the award, a period which will depend on the fortuitous circumstances as to how long the proceedings continued before the labour court. The labour court was, therefore, In error In postponing the date of commencement of the order of dismissal and in directing that the concerned workmen were entitled to their wages till the date the award becomes enforceable. The Writ Petition No. 1007 of 1966 filed by the employers is liable to succeed.
11. The learned Counsel for the workmen has In Writ Petition No. 2246 of 1966 filed by the workmen, urged two points, firstly, that the finding that the concerned workmen were the ringleaders Is based on no evidence and secondly, that the labour court erred In upholding the order of dismissal of all the workmen en bloc. I am not impressed by either of the two submissions. The finding that these nineteen workmen were the ringleaders Is based upon the evidence on the record as well as upon the circumstances, appearing from that evidence. It cannot be said that the finding Is based on no evidence. In my opinion, oral and documentary evidence filed before the labour court was validly relied upon and on that basis the labour court could come to the Impugned finding. This is not a case where the finding is based on no evidence whatever.
12. The second point is equally without merit. It Is apparent from a perusal of the award that many more workmen were employed in the concern and that on 14 July 1964 nineteen workmen along with some other workmen resorted to an Illegal strike and that except for these nineteen, other workmen resumed work later on. This is, therefore, not a case where all the workmen who had initially taken part In the strike have been punished. These nineteen workmen have been found to be the ringleaders. Of these nineteen, six tendered an apology and were allowed re-employment. Therefore, the order of dismissal has been sustained by the labour court In respect of the thirteen workmen. Under the circumstances, it cannot be said that the labour court has upheld an order of dismissal of the workmen wholesale. Only those who were the ringleaders have been dismissed and the labour court rightly upheld the order of dismissal. This petition is, therefore, liable to fail.
13. In the result, Writ Petition No. 1007 of 1966 is allowed in part. The part of the award holding that the thirteen workmen are entitled to their wages till the date the award become enforceable in law after publication, is quashed. Writ Petition No. 2246 is dismissed. The parties shall bear their own costs in both the cases.