India General Navigation and Railway Co. Ltd. v Their Workmen (1959)

Industrial tribunals of the 1950s had developed a comfortable formula: a strike might be illegal under the Act, yet "justified" on its merits, so the strikers should not be punished. This case ended that formula. An illegal strike, the Supreme Court said, cannot also be a justified one — "These two conclusions cannot in law co-exist."

But the Court did not swing to the other extreme. Everyone who joins an illegal strike is liable to be dealt with, yet the punishment must be graded: the peaceful striker is not to be treated like the striker who used violence or defied the law, and wholesale dismissal harms the industry itself. The grading needs a proper inquiry with an individual charge-sheet for each workman.

The case also settles three other points that come up in exams: the limited role of a Tribunal reviewing a domestic inquiry; that a lawful lock-out does not become illegal merely because it is continued too long; and that the "finality" of an award under ss. 17 and 17A yields to the Supreme Court's power under Article 136.

The appellants — the India General Navigation and Railway Company and the Rivers Steam Navigation Company, known together as the Joint Steamer Companies — ran inland water transport in North East India and Pakistan. At Dhubri Ghat in Assam, workmen loaded and unloaded vessels and transhipped goods between railway wagons and vessels. The service had been notified as a public utility service. Until May 1954 the workmen had been employed through a contractor, the Assam Labour Supply Syndicate; the appellants then took them into direct employment.

Between May and July 1955 the appellants dismissed eight workmen after inquiries. On 21 July 1955 two Unions gave notice under s. 22(1) of a strike from 11 August. The Conciliation Officer received the notice on 26 July and held conciliation on 6 August, which broke down; he reported the failure on 8 August. Without waiting for the statutory period, a large number of workmen struck from midnight of 10 August. The appellants declared lock-outs on 11 and 13 August. The strike was called off from 19 August and the lock-out lifted from 27 August.

Thirty-seven workmen were convicted under s. 188 IPC for violating a prohibitory order under s. 144 CrPC and were dismissed. After an inquiry held in batches, 223 others were dismissed; when the appellants learned that a Board of Conciliation had been constituted, they held the dismissals in abeyance and sought the Board's permission. A further 52 were later convicted under ss. 143/188 IPC.

The dispute was referred to the Industrial Tribunal, Assam. The Tribunal held the strike illegal but "perfectly justified", held the lock-out illegal, and ordered reinstatement of 208 of the 260 workmen with full back wages from 20 August 1955, refusing reinstatement only to the 52 convicted under s. 143. It also ordered reinstatement of the eight workmen dismissed before the strike. The employers appealed by special leave.

1. Preliminary: does an appeal lie under Article 136 against an award that has become final and enforceable under ss. 17 and 17A? Had the appellants to exhaust s. 17A remedies? Was the State Government a necessary party?
2. Was the strike illegal, and can an illegal strike be "justified"?
3. Was the lock-out illegal?
4. How far may a Tribunal go behind a domestic inquiry into the dismissal of the eight workmen?
5. What punishment could be imposed on the strikers, and on what kind of inquiry?

The appeal was allowed in part. Each side bore its own costs.

The preliminary objections failed

"It is manifest that the provisions of the Act are subject to the paramount law as laid down in the Constitution." Whatever finality an award has under ss. 17 and 17A "must necessarily be subject to the result of the determination of the appeal by special leave." The award did not fall within either proviso to s. 17A, so there were no statutory remedies to exhaust. The State Government was not a necessary party: it "does not play any part in the proceedings, except referring the dispute to the Tribunal under s. 10 of the Act", and publication of the award is automatic.

The strike was illegal

Under s. 20 the conciliation proceedings were deemed to have begun on 26 July, when the Conciliation Officer received the strike notice, and lasted at least until his report of 8 August. "The strike, having commenced on August 11, was clearly illegal in view of the provisions of s. 22 of the Act."

An illegal strike cannot be justified

"These two conclusions cannot in law co-exist. The law has made a distinction between a strike which is illegal and one which is not, but it has not made any distinction between an illegal strike which may be said to be justifiable and one which is not justifiable." That distinction "is wholly misconceived, specially in the case of employees in a public utility service." Everyone participating in an illegal strike is liable to be dealt with departmentally, subject to review by a Tribunal. "The only question of practical importance which may arise in the case of an illegal strike, would be the kind or quantum of punishment". And: "the tendency to condone what has been declared to be illegal by statute, must be deprecated".

The Court added that, on the record, the strike was not justified in any event. The conciliation failed because the Union Secretary insisted that leave for the five workmen's representatives be sought by the Union alone, and too late; the Tribunal was wrong to blame the management, and wrong to find that the management had meddled in union affairs. The Court also criticised the Tribunal's "intemperate language".

The lock-out was not illegal

The Tribunal had ignored s. 24(3). "The continuance of the lock-out after August 19, may be unjustified; but that does not make the lock-out itself illegal."

Review of the domestic inquiry — the eight workmen

For four workmen, the Tribunal found the assault charge not made out; for two others, it found victimisation and mala fides. The Supreme Court would not interfere. But for Jahangir Sardar and Keayamat Hussain, the Tribunal had overlooked letters giving full particulars of the charges, and had required the "degree of proof" of a court. "In our opinion, the Tribunal misdirected itself in looking into the sufficiency of proof led before the inquiring officer, as if it was sitting in appeal on the decision of the employers." With no finding of mala fides or victimisation, their dismissal "on a proper inquiry, after giving the workmen concerned sufficient opportunity of explaining their conduct, must be upheld."

Punishment of the strikers must be graded

"To determine the question of punishment, a clear distinction has to be made between those workmen who not only joined in such a strike, but also took part in obstructing the loyal workmen from carrying on their work, or took part in violent demonstrations, or acted in defiance of law and order, on the one hand, and those workmen who were more or less silent participators in such a strike, on the other hand." Wholesale dismissal is not in the interest of the industry nor of the workmen. Dismissal is for those who "had fomented it, and had been guilty of violence". The Court proceeded "assuming, without deciding, that it is open to the Management to dismiss a workman who has taken part in an illegal strike", and did not decide the standing-orders question.

Sorting peaceful from violent strikers requires "a regular inquiry" held "after furnishing a charge-sheet to each one of the workmen". The Attorney-General was invited to produce the individual charge-sheets; he told the Court that no such documents were in existence and the bundle was said to have been lost. The Tribunal's finding that no individual charges were served therefore stood.

Result

• The 37 convicted under s. 188 IPC for defying the s. 144 order were among the violent strikers and "should not have been ordered to be reinstated."
• Dismissal of Jahangir Sardar and Keayamat Hussain upheld; reinstatement of the other six of the eight confirmed.
• The other workmen remained reinstated, but full back wages "would amount to wholly condoning the illegal act of the strikers." Since the workmen were guilty of an illegal strike and the inquiry was irregular, "When the blame attaches to both the parties, we think that they should divide the loss half and half between them." They got half wages from 20 August 1955 until the award became enforceable, and full wages after that. The Court also noted that as day labourers they must be assumed to have been earning a living meanwhile.

1. A strike that is illegal under the Industrial Disputes Act cannot at the same time be held "justified"; the Act knows no such category, least of all in a public utility service.
2. Every participant in an illegal strike is liable to be dealt with, but the kind and quantum of punishment must be graded — dismissal for those who fomented the strike, obstructed others, used violence or defied the law, not for silent participants — and that grading requires an individual charge-sheet and a regular inquiry.
3. Where the employer holds a proper inquiry, gives sufficient opportunity to explain, and there is no mala fides or victimisation, the Tribunal may not sit in appeal on the sufficiency of the evidence.
4. A lock-out lawfully declared under s. 24(3) does not become illegal because it is continued after the strike ends, though the continuance may be unjustified.
5. The finality of an award under ss. 17 and 17A is subject to the Supreme Court's power under Article 136.

• Direct question: Can an illegal strike be justified? Discuss the consequences of participation in an illegal strike. Lead with the "cannot in law co-exist" passage, then graded punishment, then the need for individual charge-sheets.
• Problem question: workmen in a public utility service strike while conciliation is pending; some block the gates and defy a s. 144 order. Illegal under s. 22; the obstructors and law-breakers may be dismissed after a proper inquiry; the silent participants deserve lesser punishment; a blanket dismissal without individual charges will not survive.
• Lock-out point: a lock-out in consequence of an illegal strike is protected by s. 24(3); its continuance after the strike ends may be unjustified, but that does not make it illegal.
• Domestic inquiry: use the case for the rule that a Tribunal does not reweigh evidence from a fair inquiry, absent mala fides or victimisation.
• Explain the relationship between the finality of an award under s. 17 and Article 136.