The Punjab National Bank, Ltd vs Its Workmen

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 519 to 521 of 1958

Decision Date: 24/09/1959

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha

The judgment in this case bore the title The Punjab National Bank Ltd versus Its Workmen and was delivered on the twenty‑fourth day of September, 1959. The opinion was authored by Justice P B Gajendragadkar, and the bench that heard the matter consisted of Justice P B Gajendragadkar together with Justice Bhuvneshwar P Sinha and Justice Subbarao K. The petitioner was the Punjab National Bank Ltd and the respondents were its workmen. The decision was recorded with the citation 1960 AIR 160 and also appeared in the Supreme Court Reports as 1960 SCR (1) 806. Additional citations recorded for the decision included references such as 1960 SC 762, 1960 SC 1262, 1961 SC 689, 1961 SC 860, 1963 SC 601, 1965 SC 917, 1965 SC 1803, 1968 SC 231, 1971 SC 2171, 1971 SC 2417, 1972 SC 136, 1972 SC 277, 1972 SC 1031, 1973 SC 1227, 1978 SC 995, 1978 SC 1380, 1978 SC 1428, 1979 SC 1652, 1980 SC 1896, 1981 SC 422, and 1990 SC 1054. The judgment further identified the statutory provisions that were relevant, namely sections 2(q), 10, 33 and 33A of the Industrial Disputes Act, 1947, together with the provisions relating to dismissal by an employer pending adjudication, the requirement of a proper enquiry, and the jurisdiction and scope of an industrial tribunal in cases of pen‑down strike and questions of legality.

The factual background outlined in the headnote described that the employees of the plaintiff bank had initiated pen‑down strikes which were subsequently followed by a general strike while an industrial dispute between the bank and its workmen was awaiting arbitration. The Government of India intervened in the dispute, and as a result of a subsequent agreement the bank reinstated all its employees except a group of one hundred and fifty who were the subject of positive objections by the bank. The Government then referred the cases of those one hundred and fifty employees to an Industrial Tribunal under section 10 of the Industrial Disputes Act, 1947 for adjudication. The tribunal was asked to decide two questions: whether the dismissal of those one hundred and fifty employees had been wrongful and what wages and allowances the eight hundred and seven employees who were reinstated would be entitled to upon reinstatement. The employees argued that the bank sought to penalise active trade‑union workers through the dismissals, while the bank contended that the employees had participated in illegal strikes intended to paralyse its business and to scare away its customers. The Industrial Tribunal, without hearing any evidence, concluded that because the strikes were illegal, the bank was justified in dismissing the employees, yet it directed the bank to make certain payments to the dismissed workers on compassionate grounds. Both the bank and the employees appealed this award. The Labour Appellate Tribunal then held that although the strikes were illegal under sections 23(b) read with 24(1) of the Industrial Disputes Act, the bank, by entering into the agreement with the Government, had effectively waived its right to take penal action against the employees for participating in the illegal strikes. Consequently, the tribunal ordered that an enquiry should be conducted on additional evidence to decide the disputes on their merits. The bank challenged that interlocutory order by filing an appeal before this Court.

The Court observed that the strikes were unquestionably illegal under section 23(b) of the Industrial Disputes Act, and that the dismissals ordered by the Bank also violated section 33 of the same Act, leading the Court to dismiss the Bank’s appeal. After that, the Appellate Tribunal examined the matters on their merits, ordered reinstatement of one hundred and thirty‑six of the employees, but declined to reinstate those it found responsible for circulating posters and circulars that were prejudicial to the Bank’s credit. Both the Bank and the employees filed appeals before this Court. The employees raised two preliminary objections: first, that because this Court had already rejected the Bank’s challenge to the interlocutory order, the subsequent inquiry conducted by the Tribunal and the dismissal orders should be considered void; second, that the Bank had never formally framed any charges nor conducted a proper enquiry against the employees, rendering the dismissal orders entirely invalid. The Bank, on the other hand, argued that merely taking part in a pen‑down strike constituted misconduct sufficient to deny reinstatement, and that the entire group of strikers was jointly liable for the publication of the subversive material, so that none of the dismissed workers could escape responsibility.

The Court, delivering a per curiam judgment, rejected the employees’ preliminary objections and upheld the Appellate Tribunal’s decision, but modified it by allowing the appeal of one employee because of inconsistent findings in the Tribunal’s order. The judgment, authored by Justices Sinha and Gajendragadkar, explained that the legislative purpose of section 33 of the Industrial Disputes Act, 1947, was to preserve the status quo by prohibiting any employer action while a dispute was pending adjudication. However, the power granted to an Industrial Tribunal under that section was narrowly confined. When a proper enquiry had been held and no victimisation or unfair labour practice was involved, the Tribunal’s role in granting permission was limited to determining whether a prima facie case existed against the employee; it was not required to assess the suitability or adequacy of the proposed dismissal. Once permission was granted, the Tribunal could not impose conditions; it could only either grant or refuse the relief, thereby lifting the ban imposed by section 33. Such permission did not validate the dismissal nor bar it from being contested in an industrial dispute. In any subsequent dispute, the employer could rely only on the grounds expressly mentioned in the original charge‑sheet. The Court also noted a clear distinction between non‑compliance with section 33 of the Act, which merely avoided the penalty under section 31(1) of the Act, and non‑compliance with Article 311(2) of the Constitution, which would render a dismissal order final. The judgment concluded with a citation to Atherton West & Co. Ltd.

The Court referred to several earlier decisions, namely V. Suti Mills Mazdoor Union, [1953] S.C.R. 780; The Automobile Products of India Ltd. v. Rukmaji Bala, [1955] 1 S.C.R. 1241; Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [1956] S.C.R. 916; Indian Iron and Steel Co. Ltd. v. Their Workmen, [1958] S.C.R. 667; and McKenzie & Co. Ltd. v. Its Workmen, [1959] S.C.R. (Suppl.) 222. The Court observed that it was therefore incorrect to argue that a failure to comply with section 33 of the Industrial Disputes Act would automatically make a dismissal order void or deprive the Tribunal of jurisdiction to conduct an enquiry. Likewise, the absence of a proper enquiry could not have that effect. According to the Court’s construction of section 33A of the Act, the Tribunal’s jurisdiction was not confined merely to an enquiry about whether section 33 had been breached. Even if a breach of section 33 were established, the employer retained the right to justify the dismissal on its merits, and no distinction existed between a reference made under section 10 of the Act and a dispute raised under section 33A of the Act. The Court again referred to The Automobile Products of India Ltd. v. Rukmaji Bala, [1955] 1 S.C.R. 1241 and to Equitable Coal Co. Ltd. v. Algu Singh, A.I.R. 1958 S.C. 761. While the Court acknowledged that the Industrial Tribunal possesses the power, in appropriate cases, to order reinstatement where dismissals are contested, it stressed that no rigid rule could be laid down that would apply uniformly to every situation. In determining a case, the Tribunal must balance the competing claims of the employer and the employee – the employee’s entitlement to protection against wrongful dismissal and the usual remedy of reinstatement, against the employer’s interest in maintaining the safety and continuity of the industry. Consequently, the Tribunal’s approach cannot be strictly legalistic or doctrinaire, unlike the approach permissible in a civil court when evaluating the validity of dismissals under section 240 of the Government of India Act, 1935, or article 311(2) of the Constitution. The Court cited Western India Automobile Association v. Industrial Tribunal, Bombay, [1949] F.C.R. 321 and Buckingham & Carnatic Mills Ltd. v. Their Workmen, (1955) 11 L.L.J. 314. The Court further noted that if an employer fails to hold an enquiry before issuing a dismissal order, the Tribunal may still assess the propriety of the dismissal on the basis of evidence, and the employer cannot object on the ground that such assessment interferes with its managerial functions. The Court distinguished the earlier case of Madras Electric Tramways (1904) Ltd. Madras v. Their Workers, (1951) 11 L.L.J. 204, finding it inapplicable. Finally, the Court held that the question of reinstatement in cases of wrongful or illegal dismissal is ordinarily a factual determination; and where the Industrial Tribunal, after properly considering all relevant factors, declines to order reinstatement, this Court would be hesitant to intervene under article 136 of the Constitution unless a general or substantial question of law is involved.

In the matter before the Court, it was observed that a pen‑down strike fell within the definition of a strike contained in section 2(q) of the Industrial Disputes Act, 1947, and therefore it was not per se illegal. The Court noted that even if the conduct of the strike might involve an element of civil trespass, such an element could not, by itself, deprive an employee of the right to reinstatement. The decision in M/s. Burn & Co. Ltd. v. Their Workmen, A.I.R. 1959 S.C. 529, was cited in support of this view.

The Court further warned against the uncritical importation of American case law into the Indian context. It stated that extending the principles of American decisions to a pen‑down strike required a careful examination of the relevant provisions of the American statute and of the factual matrix upon which those decisions were based. Consequently, the case of National Labour Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 238, was considered and held to be inapplicable, as was the authority William Truax v. Michael Corrigan, 66 Law Ed. 311.

Regarding the present dispute, the Court held that the peaceful and non‑violent conduct of the strikers, as found by the Appellate Tribunal, could not be classified as criminal trespass within the meaning of section 441 of the Indian Penal Code. Accordingly, mere participation in the pen‑down strike did not strip the employees of their entitlement to reinstatement. The earlier decision in T. H. Bird v. King‑Emperor, (1934) L.R. XIII Pat. 268, was assessed and deemed inapplicable.

The Court also addressed the argument that the employer’s engagement of new workers during the strike might defeat the claim for reinstatement. It rejected this contention, emphasizing that the substitution of labour by the employer was not sufficient to extinguish the employees’ right to be reinstated after having been subsequently found to have been wrongfully dismissed. The decision in National Transport and General Co. Ltd. v. The Workmen, C.A. No. 312 of 1956, dated 22 January 1957, was referred to for this principle.

Moreover, the Court observed that the Appellate Tribunal had taken a common‑sense approach to the evidence and had held certain union office‑bearers and leaders liable for subversive acts, while refusing to extend that liability to the entire body of strikers on purely theoretical or academic grounds. The Court concluded that no principles of natural justice had been violated by the Tribunal’s findings.

The judgment was delivered in the civil appellate jurisdiction concerning Civil Appeals Nos. 519 to 521 of 1958, each taken by special leave from the decision dated 4 January 1955 of the Labour Appellate Tribunal of India, Calcutta. The appeals involved the decisions in Appeals Cal. 691/52 and Cal. 70/52. Counsel for the appellant in Civil Appeal No. 519 of 1958 included Ram Lal Anand and Naunit Lal. For the appellants in Civil Appeal No. 520 of 1958 and the respondents in Civil Appeal No. 521 of 1958, the Additional Solicitor‑General of India, H. N. Sanyal, appeared together with Ram Lal Anand and Naunit Lal. Representing respondent No. 1 in Civil Appeals Nos. 519 and 520 of 1958 and the appellant in Civil Appeal No. 521 of 1958 were M. C. Setalvad, Attorney‑General for India, C. K. Daphtary, Solicitor‑General, M. K. Ramamurthi, Syed Mahummud, B. K. Garg, Miss A. B. Varma and Janardan Sharma. Respondent No. 2 in Civil Appeals Nos. 519 and 520 of 1958 was represented by Hardyal Hardy and M. B. Krishna Pillai. The judgment was pronounced on 24 September 1959, with Justice Gajendragadkar delivering the opinion of the Court, joined by Justice Sinha, while Justice Subba Rao delivered a separate judgment.

In this case, the Court noted that the three appeals concerned an industrial dispute between the Punjab National Bank, Ltd. (the Bank) and two groups of its employees. The employees were represented respectively by the All‑India Punjab National Bank Employees’ Federation (the Federation) and by the U.P. Bank Employees’ Union (the Union). The dispute had been referred by the Central Government on 2 July 1951 to an industrial tribunal whose sole member was Mr. A. N. Sen, a retired Judge of the Calcutta High Court. The tribunal was asked to determine two questions. First, whether the one hundred and fifty workmen listed in Schedule 11 annexed to the reference had been dismissed unlawfully by the Bank. Second, the claim for reinstatement of those workmen together with payment of wages and allowances from the date of dismissal until the date of reinstatement. The reference has subsequently undergone a lengthy and complicated history, and the final resolution of the dispute will be effected after the present appeals are disposed of. To understand the matters now before the Court, it is necessary to set out briefly the main points of controversy, the findings of the original tribunal, the conclusions reached by the Labour Appellate Tribunal in its interlocutory and final orders, and the decision of this Court in the appeal filed by the Bank against the Labour Appellate Tribunal’s interlocutory judgment.

The one hundred and fifty employees whose dismissals gave rise to the present controversy were employed at various branches of the Bank. Fifty‑two of them worked at the head office in Delhi, fifteen were stationed in Bombay, seventy‑three were located in East Punjab and ten were in Uttar Pradesh. The first one hundred and forty workmen, i.e., those in Delhi, Bombay and East Punjab, were represented by the Federation, while the remaining ten in Uttar Pradesh were represented by the Union. All of the workmen participated in strikes that the Bank characterised as illegal. However, the two groups of workmen struck for different reasons. The Federation’s strike was triggered by the suspension of a typist named Sabharwal, who was employed in the Delhi Branch and who also served as Secretary of the Punjab National Bank Employees’ Union, Delhi. Sabharwal had applied for seven days’ leave on 3 April 1951; the application was rejected, yet he left for Bombay without permission. Upon his return to work on 14 April 1951, the Bank served him with a written charge sheet for absence without leave, which he refused to accept. The charge sheet was then dispatched to him by registered post and, on 17 April 1951, the Bank suspended him. Following the suspension, a pen‑down strike was launched at the Delhi head office, after which the Bank suspended an additional sixty employees. This action precipitated a general strike in Delhi and in many other branches, which spread over the period 18 to 20 April 1951.

In this case, the Court recorded that the Bank issued notices on 21 and 22 April 1951 directing all striking staff members to report for duty by ten o’clock in the morning on 24 April 1951. The notices warned that failure to comply would be taken as a voluntary resignation and that the employees’ services would be considered terminated as of that date. A further notice dated 24 April 1951 declared that the strikers who had not reported for duty were deemed to have ceased to be employees of the Bank from that day. However, the Bank also offered those who still wished to return to work the opportunity to apply for reinstatement and to explain the reasons for their absence. It was established as common ground that the 140 employees represented by the Federation who had participated in the strike were dismissed by the Bank on the ground of absence caused by the strike. This dismissal formed the basis of the dispute between the Bank and the Federation with respect to those 140 employees.

The Court further explained that the remaining ten employees, who were employed in the Uttar Pradesh branches, participated in a separate strike that began on 23 April 1951. This action followed a strike notice served by the Union on 22 April 1951 and formed part of a broader general strike that also involved Allahabad Bank and other banks in the Uttar Pradesh region. The Regional Labour Commissioner of the Uttar Pradesh Government intervened, recommending that the general strike be called off and that certain demands of the strikers be referred to an industrial tribunal for adjudication. Accordingly, on 30 April 1951 the strike committee resolved to end the strike and advised the workmen to resume duties from 1 May 1951. The advice did not reach all branches in time, and consequently some employees offered to return to work on 3 May 1951. While other banks in the region reinstated their employees who reported on that date, the Bank refused to accept its ten employees because they had not offered to rejoin on or before the prescribed date. The Bank therefore proceeded to dismiss those ten employees, and their dismissal also formed part of the reference before the Court. In total, the reference concerned the dismissal of 150 Bank employees. The strikes, which affected the head office and numerous branches across several states, attracted public attention, prompting the Prime Minister and the Labour Department of the Central Government to intervene; a conference was consequently convened in New Delhi between government officials and the Bank.

The Government and the Bank organised a conference that was attended only by officials of the two entities. Representatives of the Federation and of the Union were deliberately excluded from receiving an invitation to the conference. The conference resulted in an agreement whereby the Bank promised to reinstate every employee who had participated in the strikes, except those for whom it expressed “positive objections.” The agreement limited the number of employees who could be denied reinstatement to one hundred fifty. It further provided that the Central Government would refer each of those cases to a tribunal for adjudication. The parties reached this agreement after several meetings between Bank representatives and the Labour Department of the Central Government, and the final understanding was achieved on or about May ninth, nineteen fifty‑one. Following the agreement, the Bank’s head office issued a circular to all its branches requesting the names of employees whom the respective branch managers believed should not be considered for reinstatement. Each branch submitted its list to the head office, where the Bank examined the submissions and compiled a final list of one hundred fifty workmen it was unwilling to reinstate. The Bank subsequently communicated this list to the Central Government. In accordance with the agreement, the Central Government issued a notification on July second, nineteen fifty‑one, referring the dispute concerning the one hundred fifty employees to the tribunal. Before the tribunal, the Federation and the Union argued that the Bank’s refusal to reinstate the one hundred fifty workmen was part of a coordinated and deliberate scheme by management. They claimed the scheme was intended to victimise the President, Vice‑President, General Secretary, Secretaries, Treasurer of the Federation, the various trade‑union working committees, and the members of the strike committees. They further asserted that the sole purpose of the Bank’s refusal was to teach a lesson to the Federation and the Union and to punish all active trade‑union workers who had supported the employees’ cause. The Bank, on the other hand, maintained that the strikes in which the one hundred fifty employees had taken part were illegal and were not intended to secure any relief for the employees. According to the Bank, the purpose of the strikes was to paralyse the Bank’s business and to frighten its customers. The Bank also alleged that the one hundred fifty employees had committed “unpardonable acts of violence, intimidation, coercion and victimisation.” The tribunal issued two interim awards ordering the Bank to make certain payments to the one hundred fifty employees as allowances pending the final resolution of the dispute. On February second, nineteen fifty‑two, the tribunal delivered its final award. The final award held that the strikes were illegal and that the Bank was entitled to dismiss the employees solely on that ground.

In the original tribunal’s award, the dismissal of the employees was justified on the sole ground that they had taken part in an illegal strike. The tribunal considered it unnecessary to admit evidence on whether any of the striking workers had committed specific subversive or violent acts, and it also refused to allow the workmen to present evidence supporting the allegation that their dismissal resulted from victimisation. Consequently, the tribunal resolved the dispute solely on the illegality of the strike and the principle that participation in an illegal strike authorized dismissal. Nevertheless, the tribunal issued an order directing the Bank to pay the dismissed employees certain amounts on compassionate grounds. The Bank challenged the direction to pay those amounts by filing appeal No 25 of 1952 before the Labour Appellate Tribunal, hereinafter referred to as the appellate tribunal, while the decision that the 150 employees were not entitled to reinstatement was contested by two separate sets of employees through appeals No 69 and No 70 of 1952. The appellate tribunal recorded an interlocutory decision on 22 September 1952, after which the dispute was scheduled for further hearing on the issues identified by that decision. The Bank raised a preliminary objection before the appellate tribunal, contending that the employees’ appeals were incompetent; the appellate tribunal overruled that objection and proceeded to examine the merits. The appellate tribunal then framed two questions of law for consideration: first, whether an employer possesses the right to dismiss a workman solely because of his absence from duty resulting from participation in an illegal strike; and second, assuming such a right exists, whether the tribunal may scrutinise the employer’s exercise of that right and grant relief if the dismissal is found to have been exercised capriciously or as an unfair labour practice.

The appellate tribunal held that the strike initiated by the Federation was illegal pursuant to section 23(b) read with section 24(1) of the Industrial Disputes Act, 1947. The tribunal noted that an industrial dispute between the Bank and the Federation had been referred for arbitration to Mr Campbell Puri on 21 February 1950, and while those arbitration proceedings were still pending, the strike commenced on or about 17 April 1951, rendering the strike unlawful. Although the tribunal recognized that participation in an illegal strike might, in principle, give the employer certain rights against the striking workers, it also affirmed that the employer may voluntarily waive those rights. Such a waiver, the tribunal explained, can be inferred from the employer’s conduct. In this case, the tribunal observed that the Bank’s conduct, as demonstrated by the agreement it entered into with the Central Government on or about 9 May 1951, unambiguously indicated that the Bank had waived, or relinquished, any right to impose penal action against its employees solely for their participation in the illegal strike.

The appellate tribunal concluded that the Bank had relinquished any right to impose penal action against its employees solely because they had taken part in the illegal strike. In other words, the effect of the tribunal’s findings was that, although the strike was illegal, the Bank’s conduct—specifically the agreement it entered into with the Central Government around May 9, 1951—had precluded the Bank from exercising any alleged right to dismiss the employees for merely participating in that strike. The tribunal also addressed the broader legal question of whether participation in an illegal strike automatically warranted dismissal. It held that while an illegal strike relieved the employer of the obligation to pay wages for the period of the workers’ absence, it could not be stated as a general rule that such participation necessarily attracted the penalty of dismissal. The Bank, in its defence, attempted to justify the dismissals by alleging that the 150 employees had engaged in violent or subversive acts; however, the tribunal ruled that the Bank could not, at that stage, plead violence or subversive conduct as justification for the dismissals. The tribunal observed, “There is abundant authority … for the proposition that an employer can justify before the tribunal a dismissal only on the ground on which he purported to dismiss him and not a ground different from it.” Consequently, the tribunal held the dismissals to be wrongful. It was clear to the tribunal that mere participation in an illegal strike, or the consequent absence, did not entitle the employer to dismiss the employee, and that a tribunal could order reinstatement where appropriate. Having reached this conclusion, the tribunal noted that although the normal rule in cases of wrongful dismissal is reinstatement, each employee’s case had to be examined in light of the requirements of social justice, fair play, industrial peace, and discipline, which the employer emphasized. To evaluate the individual circumstances, the tribunal allowed both parties to present additional evidence on relevant points. The employees were permitted to introduce evidence supporting their claim of victimisation. The Bank sought to introduce evidence on five specific points; the tribunal found that evidence on points (3) and (5) would be irrelevant and that point (4) was too vague. Accordingly, the Bank was allowed to lead evidence only on point (2) and on certain heads mentioned in point (1). Thus, the parties were given the opportunity to present further evidence.

The tribunal allowed evidence on victimisation and on the past service records of the one‑hundred‑and‑fifty employees. It also permitted evidence concerning the conduct of any of those employees during the strike, limited to acts of violence, intimidation of loyal workers, or subversive acts against the Bank’s reputation. Finally, the tribunal allowed evidence about any later employment obtained by those employees, the duration of such employment, and the wages or emoluments they received. The tribunal ordered the Bank to file, within one month, a statement setting out particulars of the acts covered by the matters on which it could lead evidence for each of the one‑hundred‑and‑fifty employees. The Bank had to supply one copy of the statement to the Federation and another copy to the Union. In the meantime, the tribunal directed the Bank to make interim payments to the employees as indicated in its order. This interlocutory judgment was challenged by the Bank before this Court by an appeal under Article 136 of the Constitution. The Bank argued that the tribunal’s conclusion that it had condoned the illegal strike by its workmen was unjustified. It further contended that the Bank could rely upon the illegal strike as a justification for dismissing the workmen. Consequently, the Bank claimed that the tribunal’s order to refer the dispute for further enquiry was illegal and ought to be set aside.

The Supreme Court, speaking through Chief Justice Patanjali Sastri, decided that it was unnecessary to pronounce on whether the Bank had condoned or waived the illegal strike. The Court observed that even assuming no condonation existed, the dismissals remained illegal under section 33 of the Industrial Disputes Act. Even if the Bank could rely on the illegal strike as a justification, the statutory provision still rendered the dismissals unlawful. Section 33 therefore answered the Bank’s contention that the tribunal lacked jurisdiction to order reinstatement of the one‑hundred‑and‑fifty workmen. In effect, the strike was illegal under section 23(b) of the Act, and the dismissals were illegal under section 33, a parallel legal consequence. Accordingly, the Court dismissed the Bank’s appeal and held that there was no merit in the Bank’s plea that the tribunal had no jurisdiction to direct reinstatement. The Court pronounced its judgment on April 10, 1953, thereby dismissing the appeal and rejecting the Bank’s jurisdictional plea. Subsequently, the proceedings before the appellate tribunal resumed and concluded on January 4, 1955. On that date, the tribunal ordered reinstatement of the one‑hundred‑and‑thirty‑six employees and issued incidental orders for the payment of their wages. The tribunal declined to reinstate the remaining fourteen employees but issued orders for compensation in their cases.

In the subsequent hearing before the appellate tribunal, the tribunal addressed the remaining fourteen workmen by ordering the payment of compensation in their cases, while also refusing to order their reinstatement. During that hearing four general points were sought to be raised. The first point concerned the alleged invalidity of the reference that had been made to the tribunal. The second point questioned whether the relevant provisions of the Act were beyond the powers of the tribunal, i.e., ultra vires. The tribunal declined to allow either of those two contentions to be raised, and those matters were not presented before this Court either. The third contention advanced by the Bank was that both strikes had not been bona fide and therefore the striking workmen could not claim a right to reinstatement. The fourth and final contention asserted that the pen‑down strike was illegal and that participation in that strike should be treated as a circumstance that disqualified the strikers from being reinstated.

The appellate tribunal examined each of those submissions and concluded that the strikes in question were, in fact, bona fide. It further held that mere participation in a pen‑down strike could not, by itself, constitute a valid ground for refusing reinstatement. In reaching that conclusion, the tribunal considered the evidence presented by both parties concerning the nature and character of the strike. It observed that the employees had been given a clear instruction to remain seated until the police intervened and threatened arrest, and it therefore rejected the employees’ claim that the pen‑down strikers had “vacated their seats on the mere asking by the management.” According to the tribunal’s finding, the individuals who took part in the pen‑down strike not only stopped working but also continued to occupy their seats. The tribunal further found that the pen‑down strikers behaved quietly and peacefully; no slogans were shouted, no acts of violence or coercion were attempted, and they simply remained seated without performing any work. It was conceded before the tribunal that a pen‑down strike falls within the definition of “strike” provided in section 2(q) of the Act. However, the Bank argued that the refusal to vacate the seats when instructed by management introduced an element of illegality, rendering the strikers liable in a civil court for trespass. The tribunal was not persuaded by that argument and held that even if the striking workmen were deemed to have committed civil trespass, such liability would not be sufficient to deny them reinstatement.

The tribunal also examined the Bank’s reliance on several documents that the Bank claimed demonstrated subversive actions by the employees during the strike. The tribunal was not satisfied that those documents were authentic or that they could be effectively used by the Bank to support its case. The Bank further contended that during the strike posters and circulars had been issued that were clearly subversive of the Bank’s credit, and argued that employees responsible for issuing such material should not be reinstated. After reviewing those documents, the appellate tribunal formed its own view on their relevance and admissibility, as indicated in the portion of its decision that follows.

In the tribunal’s assessment, three of the documents presented by the Bank – namely Exhibit 255(a), Exhibit 255(c) and Exhibit 302 – were held to constitute subversive acts. Regarding Exhibit 302, the tribunal recorded two inconsistent observations in its decision, yet the decisive portion indicated that it was inclined to regard Exhibit 302 as objectionable and as a subversive act as well. The remaining documents, although expressed in forceful and intemperate language, were not considered by the tribunal to amount to subversive activity. A key issue that arose before the tribunal was the determination of who should be held responsible for the offending documents. The tribunal refused to hold all one‑hundred and fifty employees liable for the documents. In examining the evidence, the tribunal noted the statement made by H N Puri, who admitted that he had consulted eleven specified persons in preparing Exhibits 255(a) and 255(c) together with other documents; consequently, those eleven persons were deemed to share responsibility for those documents along with Puri. In the same vein, the tribunal held that those identified as responsible for Exhibit 302 should be treated on an equivalent basis. As a result of this finding, the tribunal declined to order reinstatement for fourteen employees. Concerning the remaining one‑hundred and thirty‑six employees, the tribunal concluded that it would be inappropriate to attribute liability for the publication of the three subversive documents merely because they were members of the working committee or active union leaders. After carefully considering the voluminous evidence presented by both parties on each of the one‑hundred and fifty employees, the tribunal found that the Bank had not established a case to refuse reinstatement of the one‑hundred and thirty‑six individuals. The tribunal further expressed dissatisfaction with a substantial portion of the documentary evidence produced by the Bank. It observed that many affidavits filed by the Bank appeared to have been prepared en masse, with deponents merely affixing their signatures thereafter. Numerous affidavits contained blank spaces for name, parentage and age that were later filled in ink, and several affidavits sworn at different locations employed identical wording. In some affidavits, material additions and alterations were made without the initials of either the deponent or the oath‑commissioner. The tribunal noted that certain witnesses for the Bank indicated that their affidavits had been drafted by the Bank’s lawyers, after which they simply signed and affirmed them before the oath‑commissioner. Accordingly, the tribunal found merit in the employees’ contention that some of the Bank’s documents may have been manufactured or tampered with after the strike had ended.

The tribunal observed that certain documents produced by the Bank appeared to have been manufactured or altered long after the strike had ended. The Bank advanced the contention that, even if such alterations had occurred, the Bank itself could not be held responsible for the acts of its branch managers in that regard. The appellate tribunal found this argument unpersuasive and rejected it. Consequently, the tribunal’s decision largely affirmed the employees’ case: it ordered the reinstatement of one hundred and thirty‑six of the one hundred and fifty employees and directed that compensation be paid to the remaining fourteen employees whose reinstatement was denied. This judgment gave rise to three appeals now before the Court.

Civil Appeal No. 519 of 1958 was filed by the Bank challenging the order of reinstatement of one hundred and twenty‑six employees represented by the Federation. Civil Appeal No. 520 of 1958 was also filed by the Bank, this time contesting the order that required the reinstatement of ten employees represented by the Union. The third appeal, Civil Appeal No. 521 of 1958, was filed by the Federation on behalf of the fourteen employees whose applications for reinstatement had been rejected. Special leave to appeal was granted to the Bank on 21 February 1958, but only with respect to the matters identified as grounds (b), (c), (d), (f) and (g) in paragraph 162 of its petitions. Ground (b) questioned whether employees who, before, during and after an illegal strike, spread oral and written propaganda—including open letters, posters, leaflets and hand‑bills—against the Bank’s stability and solvency among its customers, constituents and the general public, were entitled to be reinstated. Ground (c) asked whether, after the declaration of an illegal strike, the forcible occupation of seats and the refusal to vacate them on management’s order, which the tribunal had characterised as criminal trespass, should preclude reinstatement, especially in view of the tribunal’s finding that the employees had formed a large, riotous assembly inside and outside the Bank’s premises, delivered fiery and provocative speeches accompanied by scurrilous slogans directed at the institution and its senior officers, thereby rendering the Bank’s business impossible. Ground (d) examined whether a “pen‑down” strike of the character exhibited by the employees contravened any legal provisions and whether it could be exempted under the Trade Unions Act or the Industrial Disputes Act. Ground (f) concerned whether employees who, despite having taken part in an illegal strike and having been guilty of rioting, were invited by management to resume work, rejected that invitation contemptuously, and whose positions were subsequently filled by new recruits, could obtain an order that those new recruits be dismissed and the original strikers reinstated. Ground (g) raised the further question whether …

It was held that employees of a concern may approach their employers and ask whether the employers are required to employ, in their service, employees who belong to a different concern, and whether such a question falls within the definition of an “industrial dispute” under the Industrial Disputes Act. The Bank, in its petitions, had set out several additional grounds in paragraph 162, but the Court did not grant the Bank leave to pursue any of those additional grounds. About one and a half months after the Court had granted the Bank limited leave, the Federation filed a petition seeking special leave on 4 April 1955 and also asked that the delay in presenting the petition be condoned. The Court, on 9 April 1956, allowed the employees’ application for condonation of delay and granted them special leave to prefer their appeal. The special leave was not restricted to any specific grounds. These events constitute the material facts that gave rise to the three appeals now before the Court. Before examining the merits of the appeals, the Court decided to consider two preliminary objections raised by the learned Attorney‑General on behalf of the employees. The Attorney‑General argued that if those objections were upheld, the Bank’s appeals would have to be dismissed and the employees’ appeal would be allowed without any need to examine the substance of the orders under appeal. He emphasized that the questions raised were of considerable importance, acknowledged that certain aspects had been dealt with in earlier decisions of this Court, and nevertheless urged that the entire question be examined afresh. Accordingly, the Court indicated that it would address these contentions in detail.

The first objection asserted that, because of the Court’s decision in the appeal preferred by the Bank against the interlocutory judgment of the appellate tribunal, the entire enquiry conducted by that tribunal pursuant to the interlocutory judgment became invalid and ineffective. The Court had previously held that the dismissal of the one‑hundred‑and‑fifty employees was illegal under section 33 of the Industrial Disputes Act; an illegal dismissal is void and inoperative, and therefore it cannot be said to have ended the master‑servant relationship between the Bank and the employees. Consequently, despite the dismissal order, the employees remained in the service of the Bank and were entitled to reinstatement without the need for any further enquiry. This outcome, the Court explained, resulted from the Bank’s failure to comply with the requirements of section 33. The second contention pointed out that the Bank does not dispute that it conducted no enquiry into the alleged misconduct of its employees before issuing the impugned dismissal orders. It is well settled that, even when an employer is justified in terminating the services of his employees, he is obligated to serve a charge‑sheet and to hold a proper enquiry at which the employees may meet the charge‑sheet and present their defence.

In this case the Court observed that an employee must be afforded a reasonable opportunity to meet the charge‑sheet that is served against him. This obligation is regarded as a basic principle of natural justice and fair play. Because the Bank failed to give the employees such an opportunity, the dismissal orders challenged before the Court were deemed wholly invalid on that ground as well; consequently those orders were considered inoperative and void, and the employees consequently possessed an automatic right to be reinstated. To support this line of argument the learned Attorney‑General relied upon the decision of the Privy Council in The High Commissioner for India and High Commissioner for Pakistan and I.M. Lall (1). That authority held that a dismissal order issued against a person who was a member of the Crown’s Civil Service in India, without compliance with the mandatory provisions of section 240 of the Government of India Act, 1935, was void and inoperative, and that the civil servant was entitled to a declaration that he remained a member of the Indian Civil Service on the date the suit challenging the order was instituted. The Attorney‑General also referred to Khem Chand v. The Union of India (2), where this Court ruled that a dismissal order made against a public servant named in Article 311(a) of the Constitution, without observance of the mandatory provisions of Article 311(2), was void, and that the public servant whose dismissal was effected by such an invalid order continued to be a member of the service at the date of institution of the suit. The citation for that decision is recorded as (1) 75 1 A 225. (2) [1958] S.C.R. 1080. In light of these precedents the Attorney‑General urged the Court to hold that the contractual relationship between the Bank and its workmen was entirely unaffected by the dismissal orders and that, once those orders were declared void, the only appropriate relief was a declaration confirming the continuation of the master‑servant relationship and an order of reinstatement. While the argument may appear attractive at first sight, the Court examined the relevant provisions of the Industrial Disputes Act, namely sections 33, 33A and 10, and concluded that the argument could not be sustained. Section 33, as it stood in 1951, provides that during the pendency of any tribunal proceedings concerning an industrial dispute, no employer shall dismiss or otherwise punish any workman involved in the dispute unless the employer obtains the express written permission of the tribunal. This provision therefore imposes a categorical ban on dismissal, save for the exception of written tribunal authority.

In this provision, the employer may dismiss or punish a workman only after obtaining the written permission of the tribunal. The Legislature enacted the section to preserve a peaceful atmosphere while an industrial dispute is pending, by prohibiting any dismissal that might increase hostility between the parties. The primary purpose, therefore, is to maintain the status quo until the dispute is finally resolved, while simultaneously recognising that there may be circumstances in which the employer is justified in terminating employment. In such cases the statute permits dismissal, but only on the condition that the employer first secures the tribunal’s explicit written consent. The ban is expressed in mandatory terms, and under section 31(1) a breach of the ban constitutes an offence punishable as prescribed. The issue that required determination was the legal effect of a breach of the ban on the outcome of the industrial dispute that arises from it. When an employer applies for the necessary permission, the tribunal’s jurisdiction is narrowly confined. It must examine whether the employer has established a prima‑facie case for dismissal, which includes showing that a proper inquiry into the alleged misconduct was conducted and that the proposed dismissal does not amount to victimisation or an unfair labour practice. The tribunal’s inquiry is limited to assessing the existence of that prima‑facie case; it is not empowered to evaluate whether the dismissal order is appropriate, adequate, or overly severe, nor may it grant permission subject to conditions it deems fair. Its sole function is to either grant or refuse permission based solely on whether a prima‑facie case is made out. Even when permission is granted, the grant does not by itself validate the dismissal. It merely removes the statutory prohibition, allowing the employer to issue the dismissal order without incurring the penalty under section 31(1). Consequently, the dismissal may still be contested by the trade union, which can raise an industrial dispute concerning the termination. The effect of complying with section 33 therefore differs fundamentally from compliance with section 240 of the Government of India Act, 1935, or article 311(2) of the Constitution, where a dismissal that follows the statutory requirements becomes final and immune from further challenge. Under section 33, the removal of the ban simply permits the employer to act, but the dismissal remains subject to scrutiny by the tribunal if an industrial dispute is subsequently raised.

In this case, the Court explained that when an employer follows the applicable statutory rules and issues an order of dismissal, that order is normally considered final and its validity cannot be questioned. However, under section 33 the situation is different because the permission granted under that provision merely removes a ban that prevents the employer from dismissing a workman. The removal of the ban enables the employer to make a dismissal order and thereby avoid the penalty prescribed in section 31(1). Nevertheless, if an industrial dispute is subsequently raised concerning that dismissal, the tribunal must examine the dismissal order even though the employer had obtained the required permission under section 33. The Court noted that this principle has been consistently affirmed in its previous decisions.

For example, in Atherton West and Co. Ltd. v. Suti Mills Mazdoor Union (1) the Court considered a clause of a Uttar Pradesh Government notification that was comparable to section 33 of the Act. Justice Bhagwati observed that the enquiry carried out by the Regional Conciliation Officer under the clause was not an enquiry into an industrial dispute about the non‑employment of a workman who was to be discharged. Such a dispute would arise only after the employer, his agent or manager dismissed the workman in accordance with written permission obtained from the officer. The permission’s sole effect was to lift the ban on the employer; it did not “validate” the dismissal. Consequently, a dismissal order issued after obtaining the permission could still be the subject of an industrial dispute under section 2(k) of the Act, and the dismissed workman would be entitled to have that dispute referred to the appropriate authority.

Similarly, in The Automobile Products of India Ltd. v. Rukmaji Bala and Ors. (2) the Court dealt with the impact of sections 22 of Act 48 of 1950 and section 33 of the Act. It held that the purpose of section 33 was to protect workmen from victimisation by the employer and to ensure that proceedings related to industrial disputes were concluded peacefully. Accordingly, the tribunal’s role under section 33 is limited to either granting or refusing the permission, that is, either lifting or maintaining the ban. The section does not give the tribunal authority to adjudicate any other dispute or to impose conditions as a prerequisite for granting the permission. This view was also expressed in Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup (1). When an industrial dispute is raised on the ground of dismissal and referred to the tribunal, the tribunal naturally seeks to determine whether the dismissal was preceded by a proper enquiry conducted in accordance with the relevant standing orders and whether the employer engaged in victimisation or any unfair labour practice. If the enquiry was proper and no victimisation is found, the tribunal is generally reluctant to interfere with the dismissal order.

The Court explained that when a tribunal is asked to intervene in a dismissal dispute, it first examines whether the employer conducted a proper enquiry according to the relevant standing orders. If such an enquiry was duly held and there is no evidence that the employer engaged in victimisation or any unfair labour practice, the tribunal is usually hesitant to disturb the dismissal order. The Court referred to its recent decision in Indian Iron & Steel Co. Ltd. v. Their Workmen (2) to illustrate that the tribunal’s authority to interfere with dismissal cases is not limitless. The tribunal does not function as an appellate court that can replace the employer’s judgment with its own. Instead, the Court identified specific circumstances that would justify the tribunal’s interference: situations lacking good faith, instances of victimisation or unfair labour practice, clear violations of natural‑justice principles, basic errors by management, or cases where the management’s findings are wholly unsupported or perverse. The same reasoning was reaffirmed in O. McKenzie & Co., Ltd., and Its Workmen (3), emphasizing the narrow scope within which a tribunal may modify or set aside an employer’s dismissal decision.

The Court further stressed a fundamental procedural requirement before an employee can be lawfully dismissed: the employer must conduct a proper enquiry that begins with serving the employee a specific charge‑sheet. In the earlier case of Lakshmi Devi Sugar Mills, Ltd. (1), the Court held that the merits of a dismissal must be assessed solely on the basis of the charge‑sheet that preceded the enquiry; the employer may not introduce additional allegations thereafter. Although the Court noted that the extra acts of insubordination cited by the mill might have justified termination, the employer was barred from relying on those new charges because they were not part of the original charge‑sheet. Consequently, when a legitimate enquiry has been carried out and findings are recorded, the principles articulated in Indian Iron & Steel Co. Ltd. (2) apply, constraining the employer to the grounds expressly set out in the charge‑sheet. This position, the Court observed, is undisputed and underscores the necessity for employers to adhere strictly to the procedural safeguards mandated by Section 33 of the Act and the requirements of natural justice.

The employer was limited to the grounds that he had specified in the charge‑sheet presented against the employee. This limitation was not contested before the Court. The learned Attorney‑General argued that the principles applicable to deciding an industrial dispute arising from a dismissal, which had just been referred to, reinforced the compulsory nature of the restriction imposed on the employer by section 33 of the Industrial Disputes Act and also stressed the requirement of natural justice that every dismissal must be preceded by a proper enquiry. Accordingly, where the prohibition contained in section 33 was disregarded or where a proper enquiry was not conducted at all, the employer’s act of dismissing the employee had to be treated as void and inoperative. A case of this character, reported in (1) [1956] S.C.R. 916 and (2) [1958] S.C.R. 667, fell outside the principles that had been discussed up to that point. The employees put forward, in brief, the contention that the dismissal was therefore unlawful. The Court found that contention untenable in light of its own earlier decisions interpreting section 33A, and consequently turned its attention to that provision. Section 33A had been inserted into the Act in 1950. Before its enactment, the only remedy available to an employee for a breach of section 33 was to raise an industrial dispute and to request the appropriate Government to refer the matter to a tribunal under section 10 of the Act. The trade‑union movement had complained that resorting to section 10 caused delay and placed the entire discretion for redress in the hands of the Government, which was not bound to refer a dispute even when section 33 was contravened. This dissatisfaction led to the enactment of section 33A, which created a special procedure for adjudicating whether section 33 had been violated.

Under section 33A an aggrieved employee could lodge a written complaint, in the prescribed manner, with the tribunal. The provision required that, upon receipt of such a complaint, the tribunal should adjudicate it “as if it is a dispute referred to it in accordance with the provisions of the Act.” The tribunal was also required to forward its award to the appropriate Government, after which the normal provisions of the Act would apply to that award. Thus, by virtue of section 33A, an employee who suffered a wrongful dismissal in contravention of section 33 obtained a direct right to approach the tribunal for relief without having to rely on the referral mechanism of section 10. After the enactment of section 33A, the scope of the enquiry that the tribunal was to conduct became a point of controversy between employers and employees. The Court then had occasion to deal with this controversy in the proceeding.

In the earlier case of Automobile Products of India Ltd. (1) the Court, through Das, J., who then delivered the judgment reported in [1955] 1 S.C.R. 1241, examined the construction of section 33A of the Act together with the corresponding provision, section 23 of Act 48 of 1950, which at that time governed the Labour Appellate Tribunal. The Court observed that the language of the section made it clear that the authority to which a complaint was addressed must decide two matters: first, the effect of any alleged contravention, and second, the merits of the employer’s act or order. The learned Judge further explained that the provision stating that the complaint shall be dealt with by the tribunal “as if it were a dispute referred to or pending before it” indicates that the tribunal’s jurisdiction extends beyond merely determining whether the employer failed to obtain the required permission before acting; it also requires the tribunal to examine the substantive merits of the complaint and to grant appropriate reliefs, as noted on page 1253 of the judgment.

It was subsequently argued before this Court that, when conducting an enquiry under section 33A, the tribunal’s sole duty was to ascertain whether a contravention of section 33 had occurred and, if so, to issue a declaration to that effect, without addressing any further questions. The Court rejected that narrow view. A similar issue arose in Equitable Coal Co. Ltd. v. Algu Singh (1), and following the earlier decision in Automobile Products of India Ltd. (2), the Court held that an enquiry under the then‑applicable section 23 required consideration of two questions: whether the fact of contravention of the provisions of section 22 was proved, and, if it was proved, whether the order passed by the employer against the employee was justified on its merits. Consequently, there can be no doubt that, in an enquiry under section 33A, an employee cannot obtain reinstatement solely by proving a breach of section 33. Even after a contravention is established, the employer remains free to justify the dismissal on its merits. This aspect forms part of the dispute because the employee’s complaint is treated as an industrial dispute, and all relevant aspects of that dispute fall within the ambit of section 33A. Accordingly, the Court could not accept the argument that an enquiry under section 33A is limited only to determining whether the alleged contravention of section 33 has been proved. In the present matter, the impugned dismissal orders have consequently given rise to an

In this matter, the dispute between the Bank and its employees had been formally referred to an industrial tribunal by the appropriate Government under section ten of the governing legislation. The Court observed that there can be no doubt that when a complaint is presented under section thirty‑three‑A, the tribunal must examine not only whether the employer breached the provisions of section thirty‑three but also whether the dismissal itself is justified on its merits. The same principle must apply when the tribunal is engaged under section ten, because the scope of inquiry provided for in section thirty‑three‑A is, by logical extension, equally applicable to an enquiry conducted under section ten. Consequently, the subject matter that the tribunal must consider under section ten is the industrial dispute that exists between the Bank and its workmen. While the alleged breach of section thirty‑three by the Bank is undeniably one of the issues that the tribunal must resolve, the resolution of that particular question does not bring the inquiry to a close. The tribunal is also required to determine whether the orders of dismissal that are under challenge are otherwise justified, and, taking into account the relevant circumstances of the case, whether an order of reinstatement should be granted or denied. Only after the tribunal has examined all of these aspects can it properly address the industrial dispute that has been referred to it and issue a suitable award. In this context, the Court reminded that tribunals handling industrial disputes that arise from dismissals of employees possess clear jurisdiction to order reinstatement where appropriate. The issue of whether an industrial tribunal may direct reinstatement was first raised in 1949 before the Federal Court in the case of Western India Automobile Association versus Industrial Tribunal, Bombay. In that decision, the Federal Court examined the broader question of the powers of industrial tribunals and rejected the employer’s contention that giving a tribunal the power to order re‑employment would amount to creating a contractual relationship when one party was unwilling to enter into such a contract. Justice Mahajan, speaking for the Court, noted that the argument overlooked the fact that a dispute concerning the employment of a person, whether initiated by a trade union or objected to by a trade union, falls within the definition of an industrial dispute. In each of those situations, even if the employer is reluctant, the tribunal retains jurisdiction to direct either the employment or the non‑employment of the individual. The learned judge further explained that because such disputes are encompassed by the definition of “industrial disputes,” there is no logical basis for excluding an award of reinstatement from the tribunal’s jurisdiction. Since that judgment was handed down, the authority of industrial tribunals to order reinstatement in suitable cases has remained undisputed.

In exercising its power to order the reinstatement of dismissed employees, industrial tribunals have set out several general considerations to guide their decisions. When a dismissal is alleged to be wrongful, the prevailing rule in industrial adjudication is that reinstatement should be ordered. The Full Bench of the Labour Appellate Tribunal, in the case of Buckingham & Carnatic Mills Ltd. and Their Workmen, observed that while making such an order the tribunal must be guided by a sense of fair play toward the employee and by the need to maintain discipline within the concern. The tribunal must also weigh the employee’s past record, the nature of the alleged present lapse, and the grounds on which the management’s order is being set aside. The Court recognised that no rigid rule can be applied to every situation; each case must be examined on its own merits. In reaching its final decision, the tribunal must attempt to reconcile the conflicting claims of the employee and the employer. The employee is entitled to security of service and protection against wrongful dismissals, which ordinarily leads to a reinstatement order. However, in unusual or exceptional circumstances the tribunal may consider whether, in the interest of the industry, it would be desirable or expedient to refrain from directing reinstatement. As with many other matters before industrial courts, this question must be resolved by balancing the relevant factors and avoiding a strictly legalistic or doctrinaire approach. Such considerations do not arise when a civil court challenges the validity of a dismissal on the basis of non‑compliance with section 240 of the Government of India Act, 1935 or article 311(2) of the Constitution.

The discussion also turned to the effect of the Bank’s failure to hold an enquiry in the present case. Because the Bank did not conduct any enquiry, it cannot plausibly argue before the tribunal that it exercised its managerial functions and authority in good faith when it passed the dismissal orders, nor can it claim that the tribunal should be reluctant to interfere with those orders. The Court previously noted that where an employer conducts a proper enquiry, makes findings regarding alleged misconduct, and then dismisses the employee, the tribunal would be slow to interfere and would exercise its jurisdiction within the limits set by this Court in Indian Iron & Steel Co. Ltd. (1). Conversely, when no enquiry has been held, the merits of the impugned dismissal order remain fully open before the tribunal. On the basis of the evidence presented, the tribunal must decide for itself whether the alleged misconduct is proved and, if so, what the appropriate order should be.

The Court observed that the tribunal needed to determine whether the misconduct alleged against the employees had been proved and, if proved, what appropriate order should be made. Because no enquiry had been held by the employer, the question of whether the employer had exercised its managerial functions did not arise. This observation answered the argument that had been raised by counsel for the appellant. The appellant, however, attempted to support his position by referring to a decision of the Labour Appellate Tribunal in The Madras Electric Tramways (1904) Ltd. and Their Workers. In that case the tribunal’s order of reinstatement had been reversed on appeal, and the appellate tribunal had held that when management acted in good faith and possessed the knowledge and experience of the day‑to‑day operations of the concern, it was well qualified to decide what disciplinary sentence was appropriate, and that the sentence imposed by management should ordinarily stand unless it was unduly severe. It was clear from the record that, in that case, management had conducted a proper enquiry and the issue for determination was the limits of the tribunal’s jurisdiction in an industrial dispute arising from a dismissal that followed a proper enquiry. The Court noted that the principles applicable to such a situation had already been considered, but they could not be applied to the present case because the employer had conducted no enquiry at all. Consequently, the decision relied upon by the appellant was deemed irrelevant. The Court further held that the effect of the employer’s double default was not to confine the enquiry to the single question of whether the default had occurred; therefore, despite the default, the subsequent enquiry conducted by the appellate tribunal pursuant to its interlocutory judgment was proper and lawful. On that basis, the two preliminary objections raised by the learned Attorney General were dismissed. The Court then turned to the two appeals filed by the bank, Civil Appeals Nos. 519 and 520 of 1958. It emphasized that the limited leave granted to the bank meant that only the specific grounds covered by that leave could be considered, and even those grounds had to be examined in the light of the findings already recorded by the appellate tribunal, which were no longer open to challenge. The appellate tribunal’s later enquiry had been confined to the question of whether the bank could prove any specific circumstances that disqualified the employees from claiming reinstatement. In other words, the enquiry sought to ascertain the nature of the “positive objections” the bank raised against each employee. The rest of the matters

The Court observed that any matters still in dispute between the parties were to be resolved by the other findings that had already become final. In view of this limitation, the Court first examined the specific grounds on which the Bank had obtained leave to appeal. A simple reading of those grounds revealed that several were vague and were based on factual assumptions that contradicted the findings recorded by the appellate tribunal. Consequently, when the appeals were presented before the Court, counsel Mr. Anand and counsel Mr. Sanyal reframed their arguments to fit within the narrow scope of the permitted grounds and advanced five distinct points. The first point asserted that participation in a pen‑down strike constituted an act of such a subversive nature that any employee who joined the strike should be barred from obtaining reinstatement. The second point contended that the publication and circulation of subversive documents resulted from a coordinated plan and therefore represented a collective activity of all the strikers, making each of the employees before the Court liable and justifying denial of reinstatement. The third point challenged the appellate tribunal’s finding that only fourteen persons were directly and actively involved in preparing and publishing the subversive documents, describing that finding as contrary to the weight of the evidence and perversely reached. The fourth point argued that the tribunal committed a legal error by failing to consider that, after the dismissal of one hundred and fifty employees, the Bank had hired new personnel, rendering any order of reinstatement against the dismissed workers unjust and unfair. The fifth point maintained that the tribunal also erred by not taking into account that some of the dismissed employees had since obtained employment elsewhere, a circumstance that should affect the decision on reinstatement. The Court noted that these five grounds were the only matters the Bank sought the Court to examine in the present appeals. Before addressing each of those grounds, the Court made a general observation that, although not framed in exactly the same language, the substance of these contentions had already been raised before the appellate tribunal in support of the plea that the dismissed employees should not be reinstated. The Court reiterated its earlier emphasis that the question of whether reinstatement should be ordered in cases of wrongful or illegal dismissal is ordinarily a question of fact, requiring consideration of several relevant factors. The Court further explained that, if the appellate tribunal had duly considered those factors and concluded that fourteen employees did not merit reinstatement while the remaining one hundred and thirty‑six did, the Court would be reluctant to disturb that order under Article 136 unless a clear error giving rise to a general or substantial question of law could be demonstrated. Turning to the first contention raised by the Bank, the Court observed that it concerned the employees’ conduct in entering a pen‑down strike and the impact of that conduct on their entitlement to reinstatement. The Court then referred to the finding of the tribunal on this issue, noting that the tribunal had held that the

It was observed that the individuals who joined the pen‑down strike not only stopped performing their duties but also remained seated at their workstations. At the same time, a noisy and restless crowd assembled outside the Bank’s building, and several members of that crowd were heard chanting slogans that expressed support for the strike. The striking employees had been given clear instructions to remain seated until either the police intervened and warned them of possible arrest, or until official orders of discharge or suspension were formally served upon them. A point of dispute arose before the Court regarding exactly how many employees actually participated in this particular pen‑down action. Representing the Bank, counsel named Mr Anand argued that the findings of the appellate tribunal indicated that the majority of the striking workers had taken part in the pen‑down, and he further asserted that, in any event, at least fifty‑two employees were involved. To substantiate that claim, he submitted to the Court a list containing the names of those fifty‑two employees. Conversely, the Attorney‑General contended that, based on the tribunal’s own record, no more than ten persons could be said to have participated in the strike. While addressing the Bank’s contention, the Court assumed, for the purpose of analysis, that most of the strikers had indeed taken part in the pen‑down or sit‑down protest, as the tribunal had generally found. The Court then considered whether such a pen‑down strike fell within the definition of “strike” contained in section 2(q) of the applicable Act. Section 2(q) characterises a strike as the cessation of work by a group of persons employed in any industry who act together, or as a concerted refusal, or a refusal under a common understanding, by any number of persons who are or have been employed, to continue working or to accept employment. It was conceded before the appellate tribunal that a pen‑down strike is covered by this definition, and that view was not seriously challenged before this Court. A plain grammatical reading of the provision makes it difficult to exclude a situation in which workers enter the premises of their employment and refuse to pick up their tools or otherwise commence their ordinary duties. A refusal, arising from a common understanding, to continue working therefore constitutes a strike, and if, acting on that common understanding, the employees entered the Bank’s premises and declined to take their pens in hand, such conduct would unquestionably amount to a strike under section 2(q). The Bank’s primary grievance, however, was that the employees not only remained seated and refused to work, but also declined to vacate their seats when instructed to do so by their superiors. While that behaviour may suggest an element of insubordination, the Court held that it was a separate issue. Accordingly, the Court concluded that the pen‑down strike in which the employees participated could not be said to fall outside the scope of section 2(q) of the Act. The argument was then raised that the entry of the strikers onto the Bank’s premises amounted to civil trespass, on the basis that their licence to be on the premises was conditioned upon their willingness to perform their contractual duties during office hours.

The Court explained that the employees possessed a licence to enter the Bank’s premises, but that licence was conditioned on the employees’ willingness to perform the duties specified in their employment contract during office hours. Consequently, if the employees chose not to work, they lost the entitlement to that licence, and their presence inside the Bank would amount to a civil trespass. The employees, however, argued that as long as their employment continued they retained the right to enter the premises, and that entry also gave them the right to exercise a strike. They asserted that they entered as employees, took their seats, and then exercised their right to strike work. The Court noted that if the Bank had suspended the employees, the situation would be different; but while the master‑servant relationship remained in force, the employees could not be said to have committed civil trespass by entering the premises at that time.

To support its position, the Bank relied on the proposition that “even if a person has a right of entry on the land of another for a specific purpose, he commits a trespass if he enters for any other purpose or under any other claim or title apart from that under which he might lawfully enter.” An illustration of that proposition stated that a person who, having a licence to enter land, enters not by virtue of that licence but to contest the licensor’s title, commits a trespass (1). The Court observed, however, that this proposition is qualified by an exception: if a person enters for a lawful purpose, he is not a trespasser unless the case falls within the doctrine of trespass ab initio (2). The technical issue, therefore, depended on whether the employees held a limited or conditional licence that would be lost when they opted to strike. The Court held that it was unnecessary to decide this academic question in the present proceedings because the appellate tribunal was correctly of the view that, even if civil trespass were involved, that fact alone could not justify denying the employees’ claim for reinstatement. The Court added that, as noted in Salmond on Torts, 12th Ed., p. 158 (1) and p. 159 (2), the mere act of trespassing on an employer’s property does not bar reinstatement, nor is it more than a civil tort.

The Court then posed the question whether the conduct of the strikers, as found by the appellate tribunal, constituted criminal trespass under s. 441 of the Indian Penal Code. That issue was identified as the next point requiring decision, and arguments on that matter were noted.

The Court examined the Bank’s contention that the employees’ conduct constituted criminal trespass, which is an offence, and that therefore those who committed such trespass could not be reinstated. The Bank asserted that the employees had either entered the premises unlawfully or, having entered lawfully, had continued to remain there unlawfully with the intention of insulting or annoying their superior officers. The Court observed that criminal trespass under section 441 of the Code required the establishment of two essential ingredients: unlawful entry or unlawful continuance, and the specific intention to insult or annoy the officers. Even if it were assumed that the employees’ entry or continuance was unlawful, the Court found it difficult to accept the Bank’s argument that the entry was made with the requisite intent to insult or annoy the superiors. The Court noted that the primary purpose of the strikers was plainly to exert pressure on the Bank to meet their demands. Although the strikers might have been aware that a strike could irritate or offend the Bank’s officers, the Court held that such knowledge did not necessarily translate into the intention required by the criminal offence. The Court explained that where an illegal entry causes annoyance or insult, it cannot automatically be said that the actors acted with the purpose of causing that result. The distinction between knowledge of a possible consequence and the intention to bring about that consequence was emphasized as a key factor in determining criminal trespass. The Court further clarified that intent must be inferred from the surrounding circumstances, and that the mere inevitability or likelihood of a consequence does not automatically imply the requisite intent. The Court therefore refused to elaborate the point further, but added that the decision of the Patna High Court in T. H. Bird v. King‑Emperor, which the Bank relied upon, was wholly inconsistent with the Bank’s contention. Consequently, the Court concluded that the Bank had failed to prove that the conduct of the strikers, as found by the appellate tribunal, amounted to criminal trespass under section 441 of the Code. The Court then turned to the Bank’s reliance on the decision of the United States Supreme Court in National Labor Relations Board v. Fansteel Metallurgical Corporation. Both counsel for the employees, Mr Anand and Mr Sanyal, argued that the American decision was cited by the Bank as authority for the proposition that participation in a pen‑down strike automatically disqualified strikers from claiming reinstatement. The Court indicated that this American case required careful examination before any comparable principle could be applied in the present dispute.

In the United States case, the National Labor Relations Board had held that although the employees had participated in an illegal strike and had been ordered discharged, their status as employees continued because the definition of “employee” in section 2(3) of the National Labor Relations Act nonetheless applied to them. The Board further concluded that it possessed jurisdiction to direct their reinstatement under section 10(c) of that Act in order to give effect to the statutory policies. Both of those conclusions were repudiated by the United States Supreme Court in a majority opinion. The majority observed that when Congress enacted the National Labor Relations Act it “did not intend to compel employers to retain persons in their employ regardless of their unlawful conduct—to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property, which they (1) (1934) I.L.R. XIII Pat. 268. (2) 306 U.S. 238; 83 Law. Ed. 627. would not have enjoyed had they remained at work.” The Court also held that Congress was “intent upon protection of employees’ right to self‑organisation and to the selection of representatives of their own choosing for collective bargaining without restraint or coercion.” Applying those principles to the facts, the majority found that the strike in question was illegal from its inception and its prosecution, because it did not constitute the protected right of strike referred to in the Act. Rather, the Court described the action as an unlawful seizure of the employer’s building, undertaken to prevent the employer’s lawful use of the premises and to compel the employer by force and violence to submit to the strikers’ demands. The Court therefore concluded that ordering reinstatement or re‑employment of workers who had committed the acts identified by the Board would not further any policy of the Act; instead, it would frustrate the Act’s objective of promoting peaceful labour procedures. Justice Reed, delivering a dissenting opinion, argued that both labour and management had grievously erred, and that it would not be unreasonable to restore the parties to their former positions; consequently, he declined to overturn the Board’s reinstatement order. The Bank, relying on the Supreme Court’s majority judgment, contends that its employees who participated in the pen‑down strike are not entitled to reinstatement. However, before applying the American principle to an Indian pen‑down strike, the Court must recall that a pen‑down strike is expressly recognised as a strike under section 2(q) of the Industrial Disputes Act. Therefore, it would be unsafe to extend the United States decisions without first examining the specific provisions of the American statute and the factual matrix on which those decisions were based. Accordingly, the Court proceeds to consider the underlying facts.

In the case before the Court, the factual background on which the majority judgment relied was set out. The record showed that a hostile dispute had existed for a considerable period between the Corporation and its employees before the pen‑down strike began on 17 February 1937. The Corporation refused to recognize the external union and employed a labour spy who was tasked with gathering intelligence inside the union; the corporation continued to retain that spy. When the superintendent of the Corporation was asked to meet a union deputation, he insisted that the delegation be composed only of employees who had at least five years of service. Later the superintendent declined to hold a conference with the committee that included the external organization, and as a punitive step he ordered the union president to work in a room adjoining his office so as to keep him away from other workers. Against this backdrop of bitter relations the strike was launched. On the afternoon of 17 February the union committee resolved to conduct a sit‑down strike by taking possession of two key buildings owned by the respondent. Approximately ninety‑five employees entered and occupied those premises, thereby halting operations in the plant. That evening the superintendent, accompanied by police officers, visited each building and demanded that the men vacate. The occupants refused, and the counsel for the respondent, who was present with the superintendent, announced in a loud voice that all plant workers were discharged because of the seizure and detention of the buildings. Nevertheless the occupiers remained in the premises until 26 February, receiving food, blankets, stoves, cigarettes and other supplies from fellow members.

On 18 February the respondent obtained an injunction from the state court directing the men to surrender the premises. The men declined to obey the court order, and on 19 February a writ of attachment for contempt was served upon them. When the sheriff attempted to enforce the order, the men resisted, leading to a pitched battle in which the sheriff’s forces were repelled. Mediation efforts subsequently failed. Finally, on 26 February, the sheriff returned with an enlarged force of deputies; after another confrontation the men were expelled from the buildings and taken into custody. The arrested men were later prosecuted; most of them were fined and sentenced to imprisonment for violating the injunctions. A concise statement of these facts reveals the true nature of the strike that the Supreme Court was examining. The strike was not merely illegal; it was violent, began with the unlawful seizure of the employer’s property, involved armed confrontations between the strikers and the sheriff’s men, continued after the workers had been formally dismissed from employment, and persisted in defiance of a lawful injunction issued by a competent court. It is therefore difficult to accept the argument that the

The Court examined whether the majority decision in the earlier case could be applied to the present facts. Teller observed that the strike in question could be described as a traditional strike with the added element of trespass by the strikers upon the employer’s property. Consequently, the Court concluded that the earlier decision did not aid the Bank in arguing that mere participation in an illegal strike automatically defeats the employees’ claim for reinstatement. In this connection, the Court noted that, according to Teller, the Fansteel decision represented what was hoped to be the end of an unfortunate chapter in American labor history. Teller further warned that it would be dangerous to view the sit‑down strike solely as a manifestation of lawless labour leadership, because the causes of its emergence were deeper. He explained that labour had asserted that both capital and labour shared equal responsibility for the rise and development of such strikes. Teller added that a comprehensive analysis of a sit‑down strike could not ignore the notorious Mohawk Valley methods employed by Remington‑Rand to break strikes, nor the facts uncovered in the recent Rand‑Bergoff trial conducted under the Byrnes Act. He argued that the anarchy of law produced by unlawful employer use of violence and chicanery, in disregard of legal norms, made the sit‑down strike an effective counter‑measure. He concluded that it was no coincidence that statistics showed a sharp decline in sit‑down strikes immediately after the United States Supreme Court validated the National Labor Relations Act. The Court noted that this background was relevant when it was called upon to decide the question of reinstating employees in the Fansteel case. The Court then turned to the history of trade‑union legislation in England, observing that the trade‑union movement had to wage a long and bitter struggle to secure recognition of workers’ right to organise into unions and to exercise collective bargaining, even by means of strikes. A similar struggle, marked by violence on both sides, had occurred in America, where the employer’s “hire‑and‑fire” doctrine offered relentless resistance to workers’ attempts to form unions and to strike for trade‑union purposes. Finally, the Court referred to the dissenting judgment of Justice Brandeis in Williams Truax v. Michael Corrigan, where he provided an illuminating account of the development of the trade‑union movement in the United States, England and the colonies, observing that practically every change in the law governing the relationship between employer and employee must abridge

The Court explained that a legislative change may affect the liberty or property of a party when those concepts are measured by the law that existed at the time of the change. Such legislative modifications were described as an exercise of the police power. Although the statute might interfere with an individual’s existing liberty or property, the Court held that the statute would not be declared a violation of the due‑process clause unless the interference was arbitrary or unreasonable, or unless the measure, as a means, lacked a real and substantial relation to a permissible end. The discussion cited the cases reported at 306 U.S. 238, 83 Law Ed. 627 and at 257 U.S. 254, 66 Law Edn. 311. In the United States case, the validity of a provision of the Arizona Civil Code 1913, clause 1464, which prohibited an injunction in disputes between employers and employees concerning terms or conditions of employment, was challenged. A majority of the judges held that the provision contravened the Fourteenth Amendment, while Justices Holmes, Pitney, Clarke and Brandeis dissented. The Court noted that the main decision in that case did not provide direct assistance for the present appeals, but it acknowledged that counsel for the Bank, Mr. Anand, had attempted to argue that the acts for which the strikers were convicted in the Arizona case were similar to the acts alleged against the employees before this Court. The Court observed that such an argument would be relevant only if the Bank could demonstrate that the specific subversive acts alleged had actually been committed by the particular individual employees. The Court indicated that it would return to this point later in the judgment.

The Court then turned to the broader significance of the dissenting opinion authored by Justice Brandeis, noting that it had subsequently been treated as an authoritative exposition of the problems of trade‑unionism and of the historical development of the trade‑union movement. The Court observed that the Indian Trade Unions Act 1926 (16 of 1926), the Industrial Employment (Standing Orders) Act 1946 (20 of 1946) and the Industrial Disputes Act 1947 (14 of 1947) showed that the Indian Legislature had wisely drawn upon the experience of other countries in shaping legislation governing industrial relations, the formation of trade unions and the settlement of industrial disputes. It was contended that, although capital‑labour conflicts had occurred in the country, neither side had generally abandoned peaceful methods, and both parties had submitted their disputes to resolution under the statutory framework. In dealing with industrial disputes such as the present one, the Court emphasized that the primary focus must be on the relevant statutory provisions and the material Indian decisions that have interpreted them. Consequently, the Court concluded that a pen‑down strike fell within the definition of a strike under section 2(q) and, therefore, could not be deemed illegal per se, although the Court later found it to be unlawful for reasons explained in the subsequent portion of the judgment.

It was held that the pen‑down strike was illegal in this case because it had been commenced in contravention of section 23(b) of the Industrial Disputes Act. Nevertheless, the Court referred to its earlier decision in M/s. Burn & Co. Ltd. v. Their Workmen (1) and observed that mere participation in an illegal strike does not necessarily entail the rejection of a striker’s claim for reinstatement. The Court noted that, according to the findings of the appellate tribunal, the only fact proved against the employees whose reinstatement had been ordered was that they had taken part in the strike. Consequently, unless that finding is set aside, the Bank’s first contention fails. The Bank argued vigorously that, being a credit institution, a prolonged pen‑down strike could prejudice its credit standing. It was also pointed out that, even in industrial establishments, when large numbers of strikers enter the factory premises and sit around the plant, untoward and ugly incidents may occur, and therefore such pen‑down or sit‑down strikes should be discouraged. While the Court conceded that a highly charged atmosphere often accompanies strikes and that a large‑scale, continuous pen‑down strike may lead to undesirable consequences, it emphasized that the employer is not left without remedies. The employer may lawfully prevent strikers from entering the premises by employing effective and legitimate measures, as the Bank did from 23 April. The employer may also request the employees to vacate, and if they refuse, the employer may lawfully suspend them, conduct proper enquiries under the standing orders, and issue appropriate orders against them in accordance with the relevant provisions of the Act. The Court observed that, had the Bank been properly advised to adopt such a course, many of the difficulties it faced in the present proceedings would probably have been avoided (1) A.I.R. 1959 S.C. 529. Hence, the Court rejected the hypothetical argument that pen‑down strikes might sometimes lead to rowdy demonstrations, disturbances, violence, or damage to the Bank’s credit, and held that such speculation does not justify denying reinstatement to strikers who remain peaceful, non‑violent, and who have only occupied their seats during office hours.

The Court then turned to the second contention raised by the Bank. The Bank submitted that it was unnecessary to determine which specific employee had directly prepared or circulated the subversive circulars or posters. It argued that the offensive posters and circulars had been drafted, printed and distributed in pursuit of the common objective of the strikers, and therefore each of the strikers must share the responsibility for the act.

The employees advanced an argument founded on the theory of conspiracy, asserting that such a theory would render every conspirator liable for the acts of any other conspirator. The bank countered this claim by maintaining that the Union’s activities were irrelevant to the present enquiry, which concerned only the conduct of the dismissed strikers. The learned Attorney‑General urged the Court to consider that applying the doctrine of conspiracy in this dispute could have far‑reaching effects on the future of the trade‑union movement. He further suggested that because the Union and its activities were not the subject matter of the present proceeding, the argument of conspiracy need not be examined. According to his submission, upholding the conspiracy theory would make every Union office‑bearer’s wrongdoing imputable to the entire membership, an outcome he described as plainly unreasonable. He cited sections 17, 18 and 19 of the Indian Trade Unions Act 1926 (16 of 1926) in support of his position. The Court noted that this same contention had been raised by the employees in their appeal, and therefore it would be convenient to address both perspectives together. The Court further observed that the answer to both the technical and academic points was identical, emphasizing that industrial tribunals should avoid a doctrinaire or overly legalistic approach. It advised tribunals, as far as reasonably possible, to refrain from formulating sweeping general principles that claim to cover every conceivable case. The Court then recalled that the appellate tribunal, following its interlocutory judgment, had limited the enquiry to whether, for each dismissed employee, the Bank could point to any positive circumstance. The Bank would need to show such a circumstance in order to justify denying the normal rule of reinstatement. The Court stressed that the purpose of the enquiry was not to assess the legality of the Union’s collective actions, but solely to determine individual liability of the dismissed workers. Hence, any consideration of conspiracy would introduce an extraneous dimension that lay beyond the scope of the matters expressly raised before the tribunal.

The Bank’s third argument challenged the tribunal’s finding that only fourteen employees had been responsible for the subversive posters and hand‑bills, describing that finding as perverse. The Court expressed that it was not persuaded by this contention and found no merit in the Bank’s claim of perversity. It affirmed that there was no doubt that the three posters identified as Exhibits 255(a), 255(c) and 302 were indeed subversive of the Bank’s credit. The Court observed that these posters made serious imputations concerning the honesty of the Bank’s management and suggested improper use of the Bank’s funds. While acknowledging that many other Union documents employed exaggerated and militant language, the Court agreed with the appellate tribunal that such documents did not rise to the level of subversive attacks on the Bank’s credit. Consequently, the only remaining issue for consideration was whether the appellate tribunal’s conclusion that fourteen persons had actively participated in the creation of the offensive documents could be successfully challenged. The Court noted that the identification of the fourteen individuals was based on credible evidence, including statements and the provenance of the printed material. It further explained that the presence of these persons in the preparation process established a sufficient link to hold them accountable for the subversive content.

It was observed that a large number of documents issued by the Union before and during the strike employed exaggerated, militant and intemperate language. In the Court’s view, the appellate tribunal was justified in expressing disapproval of such language; however, the tribunal concluded that none of these documents could be regarded as subversive of the Bank’s credit, and the Court agreed with that conclusion. Consequently, the only remaining issue for consideration was whether the tribunal’s view that fourteen persons were actively involved with the offensive documents could be successfully challenged by the Bank. In reaching its finding, the appellate tribunal had relied substantially on the statement of H. L. Puri. When questioned whether the drafts of letters he had prepared were approved by the working committee or were his individual responsibility, he answered that the drafts were never written on an individual basis but were prepared after consultation with the working‑committee members. When asked to identify the persons he had consulted in drafting the poster dated 5 July 1949 (Exhibit 222), he listed nine names and appended the phrase “so on.” The tribunal posed several questions on the same subject, and Puri’s admissions indicated that most of the documents were issued by the secretary or the president after consultation with the persons he named. In that context, Puri also provided the names of the Federation’s office‑bearers in Delhi. Based on these admissions, the appellate tribunal concluded that the fourteen individuals named by Puri could safely be considered to have been actively associated with the drafting and publication of the subversive documents.

Mr Anand argued that the list of office‑bearers supplied by Puri actually comprised a much larger number of active Union workers and that, on the basis of Puri’s evidence, all of these workers should have been held responsible for the documents. He relied on an affidavit filed by Amar Singh on behalf of the Bank in support of that contentions. The Court found that argument to be without foundation. It was significant that, although the appellate tribunal had, by its interlocutory judgment, directed the Bank to file a statement detailing the acts alleged against each employee, no such statement was ever filed. Moreover, it was conceded by Mr Anand that the majority of employees who gave affidavits in the subsequent enquiry were not asked any general question concerning alleged subversive activities, nor were they specifically questioned about the particular subversive documents. The tribunal’s judgment showed that it first considered the general points and the evidence relied upon by the parties, and thereafter it exhaustively examined the evidence pertaining to each individual employee. The Court was satisfied that the Bank was not justified in contending that the exclusion of one hundred and thirty‑six employees from responsibility for direct participation in the drafting and publication of the subversive circulars and hand‑bills disregarded any important evidence. Accordingly, the contention that the tribunal’s finding was opposed to the weight of the evidence and therefore perverse was rejected.

In reviewing the matter, the appellate tribunal first addressed the general points and the evidence that each side relied upon, and thereafter it examined exhaustively the entire body of evidence relating to the case of each individual employee. The Court was satisfied that the Bank was not entitled to argue that, by excluding one hundred and thirty‑six employees from liability for direct participation in the drafting and publication of the subversive circulars and hand‑bills, the tribunal had disregarded any material evidence. Accordingly, the contention that the tribunal’s finding was contrary to the weight of the evidence and therefore perverse was rejected. The petitioner then asked the Court to look at several individual cases. He asserted that the tribunal had not properly considered the case of an employee named Joshi. While it is true that Joshi admitted taking part in the drafting of documents identified as pages 272, 274, 279, 280 and 286, none of those documents has been classified as subversive; consequently, it is untenable to maintain that Joshi’s connection with any of the three subversive documents has been established, and there is no basis for reopening Joshi’s case.

The petitioner’s attention was also drawn to the cases of five other employees – Narain Das, Chuni Lal, Som Datt, Trilok Chand and Charan Singh. The appellate tribunal found that the Bank had failed to prove any subversive act on the part of these five individuals; that determination rests on factual findings and, in the Court’s view, cannot be revisited. The petitioner attempted to overturn this conclusion by alleging that it conflicted with a single material document on record: a report prepared by Dina Nath on 24 April, which set out the incidents of 23 and 24 April and listed the persons who played prominent roles in those incidents, the list including the five employees in question. Because Dina Nath had died before the inquiry, he could not give testimony. The report was proved by Jagan Nath, then Superintendent of Police. The petitioner’s grievance was that, although the tribunal had accepted part of Jagan Nath’s evidence in its judgment, it had failed to consider his testimony when assessing the five employees’ cases. The Court considered this argument to be wholly misconceived. It was not correct to say that the tribunal had adopted the entirety of Jagan Nath’s evidence; when the tribunal examined the conduct of the crowd, it relied on the evidence of Rajinder Nath, Mehta, Ram Pratap and Amar Singh and held that only that portion of their testimony which was corroborated by Jagan Nath and, in part, by Puri should be believed. Beyond that limited corroboration, Jagan Nath’s testimony did not advance the Bank’s case against the five employees.

In the discussion of the evidence concerning the five employees, it was observed that although Jagan Nath, while introducing Dina Nath’s report, initially affirmed that the facts described in the report were correct, he later qualified his statement under cross‑examination. When questioned about specific details recorded in the report, Jagan Nath explained that the report had been prepared by Dina Nath and that he could not comment on its contents. He further admitted that during his visit to the Bank, while the strike was in progress, he was acquainted with only three individuals who participated in the activities narrated by Dina Nath. Consequently, the testimony of Jagan Nath did not demonstrate that he had a clear knowledge of any of the five employees, and the same limitation applied to Dina Nath, who was the author of the report. Because of this, it could not be said that the appellate tribunal’s conclusions regarding these five cases were flawed in a manner that would permit a successful challenge before this court. Moreover, the Bank appeared to have relied on evidence other than Dina Nath’s report in establishing its case against the five persons, and that other evidence had been rejected. After this, the appellant argued that the appellate tribunal, in ordering the reinstatement of one hundred thirty‑six employees, had failed to consider that the Bank had already engaged additional personnel in the interim, and that it would be inequitable to require the Bank to readmit the dismissed employees. The appellant sought to demonstrate the Bank’s interim hiring by citing statements made by the Union in bulletins and posters issued during the strike, which seemed to allege that the Bank was employing new hands pending the resolution of the dispute. However, to rely on such an allegation, the Bank would have needed to produce concrete details, such as the exact number of employees recruited and the terms of their engagement—facts that are within the Bank’s special knowledge and could have been readily proved. The Bank did not attempt to establish these particulars, and the argument does not appear to have been raised as a distinct plea against the reinstatement order before the appellate tribunal. In the absence of satisfactory material, the merits of this contention could not be properly addressed. Additionally, even if the Bank failed to prove a specific case against any of the one hundred thirty‑six employees, there was no justification to deny them the relief of reinstatement. The mere fact that the Bank may have hired other individuals in the meantime did not, in itself, defeat the claim for reinstatement. This principle was reiterated by this Court in National Transport and General Co. Ltd. v. The Workmen.

In this case, the Court observed that even if it may feel sympathy for the employer’s difficulty that arose after the wrongful dismissals because the employer subsequently hired new workers, the Court could not disregard the claims of the employees who, according to the findings of the lower tribunals, had been wrongfully dismissed. The Court stated that when a dismissal is proved to be wrongful, the usual rule is that the dismissed employees must be reinstated. The Court further explained that the hardship complained of by the employer was created by the appellants’ own hasty decision to terminate the workmen without conducting the normal inquiries and without framing a proper charge against them. Had the appellants followed the regular procedure and afforded the workmen a full and fair opportunity to present their case before the enquiring authority, the result might not have been as adverse. These observations were said to be equally applicable to the conduct of the Bank in the present appeals. The final argument advanced by counsel for the Bank, Mr Anand, was that a large number of the employees seeking reinstatement had already obtained fairly permanent positions elsewhere, and therefore it would be unnecessary to compel the Bank to reinstate them. The Court rejected this argument because it had never been raised before the appellate tribunal, and even when it was attempted to be raised before this Court, counsel for the Bank acknowledged that without any material evidence the point could not be pursued. The Court noted that the first two general points had been seriously presented before it by counsel for the Bank, namely Mr Anand and Mr Sanyal. Counsel for the Bank, Mr Anand, had also raised three subsidiary points in Civil Appeal No 519 of 1958, but the Court found no substance in any of those points. In Civil Appeal No 520 of 1958, counsel for the Bank, Mr Sanyal, did not challenge the findings of the appellate tribunal concerning the ten employees involved in that appeal. Consequently, both appeals filed by the Bank were dismissed with costs. The discussion then moved to Civil Appeal No 521 of 1958, which was filed by the employees and concerned the order refusing reinstatement to fourteen employees. After addressing two preliminary objections, the Attorney‑General, appearing for the employees, raised two general points. The first point contended that the appellate tribunal had erred in law by effectively penalising the fourteen employees for the actions of the Union, and in that regard it raised the …