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Civil Appeal No. 51-D of 1959, decided on 23rd February 1960,
(On appeal against the Award given by Mr. A. Awal, First Industrial Tribunal, Government of East Pakistan, Dacca, in Case No. 1 of 1958 and published in Dacca Gazette Extraordinary dated the 29th April, 1959).
(a) Industrial Disputes Act (XIV of 1947),'S. 19-Terminal date of settlement-To be fixed with certainty.
(b) Industrial Disputes Act (XIV of 1947), S. 18-Agreements entered into under settlement binding on employers and employees.
(c) Industrial Disputes Act (XIV of 1947), Ss. 23 (c) & 24 Calling of strike highly responsible act-Strike called on ground of grievances already settled-Illegal-Addition of false pretexts does not affect illegality-Award of Tribunal re-instating employees, in case of illegal strike, set aside.
(d) East Bengal Shops and Establishments Act, 1951, S. Illegal strike falls within "gross misconduct."
H. S. Suhrawardy and A. S. Chowdhury, Senior Advocates Supreme Court (T. H. Khan, Advocate Supreme Court, with them) instructed by Naimuddin Ahmad, Attorney for Appellant.
Hamidul Haq Chowdhury, Senior Advocate Supreme Court (Moinul Haq, Advocate Supreme Court with him), instructed by A. N. M. Nasiruddin, Attorney for Respondent No. 1.
B. A. Siddiky, Advocate-General, East Pakistan (K. Hussain, Advocate Supreme Court with him), instructed by Shahabuddin Ahmad, Attorney for Respondent No. 2.
Respondent No. 3 Ex parte.
Dates of hearing : 2nd and 3rd February 1960.
.-This appeal by special leave is brought before the Court by Messrs M. M. Ispahani Limited, a company doing business at Chittagong, and employing, on their own statement, about 170 persons on the office staff at the Head Office. The First Industrial Tribunal at Dacca, in a dispute referred to him by the Government of East Pakistan under the Industrial Disputes Act, 1947, has by his award dated the 23rd April 1959 directed that 28 of the office employees of the Company, who were dis missed by letter dated the 22nd February 1958, should be reinstated, and that one employee, a person named Kabir Ahmad who had by order dated the 31st December 1957, been reverted from the post of a clerk to his original post of office peon should be reinstated as a clerk. The reference was in respect of seven matters of difference, namely :-----
(2) "Whether the dismissal of 28 employees effected on 22nd February 1958 was justified and if not, whether they should be re-instated
(2) If any bonus should be given for 1956
(3) If any improvement in the existing medical facilities is called for
(4) If any overtime allowance for outdoor labour staff should be given and the rate thereof
(5) If the grades and pay-scales have been properly fixed as per provision of the Agreement
(6) Whether the two employees namely-Kabir Ahmad and Ejlash Mia should be re-instated in their former position
(7) (By subsequent notification) fixation of working hours for Darwans".
Relief has been given by the award in respect of items Nos. 1 and 6 only. Relief was refused in respect of item No. 7, as it was found that the working hours of Darwans had been fixed long before the arising of the dispute which resulted in the strike of the 8th February 1958. As to items Nos. 2, 3, 4 and 5, the Tribunal has found expressly that those matters were covered by a settlement effected as a result of conciliation between the Company and the registered Association of the office employees of the Company at Chittagong, on the 10th of April 1957, and by the effect of sections 18 and 19 read with section 12 of the Industrial Disputes Act the particular agreements on these points included in the settlement were binding upon the employees on the date of the reference, which was the 26th March 1958. The duration clause in the settlement was as under:---
"The duration of this agreement will be for two years from the date it comes into force. This agreement will not expire before the 31st of December 1958".
The clause does not appear to fix the terminal date with certainty. Under section 19 of the Act, the duration of a settlement is "such period as is agreed upon by the parties", and it comes into force, either on "such date as is agreed upon by the parties to the dispute", or "if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute". To comply with these simple requirements should involve no difficulty, but in this case, a formula was adopted which .9 would appear to fix two terminal dates, viz. under the law the 9th April 1959, and as a rider upon this, an agreement that the settle ment would not expire before the 31st December 1958. However that may be, it seems clear enough that on the date of the reference, the settlement was still in force, and the decision of the Tribunal that in respect of items Nos. 2, 3, 4 and 5, the agreements entered into under the settlement were binding upon the Association, is clearly not open to question.
For a proper understanding of the three remaining items in the reference, it is necessary to state certain facts. After the execution of the aforesaid agreement, the employees very quickly began to feel dissatisfied with it. They felt that they had allowed themselves to be over-persuaded into accepting an unsuitable settle ment, by means of solemn assurances given by the management, which had not been fulfilled. Certain correspondence between the Association and the Company has been exhibited to show what were the causes of dissatisfaction. There was correspondence regarding the grant of bonus, about the refixation of different grades of pay, about medical facilities, overtime allowance, working hours of the darwans and framing of service rules. It seems clear enough that the Association regretted having entered into the settlement, - but under the law, the terms of that settlement were binding equally upon the Association as upon the Company, at any rate up to the 31st December 1958.
These matters remained under correspondence and discussion till the end of November 1957. In that month, the Company took certain action against one of its employees Kabir Ahmad, who has been mentioned above. This man was an office peon when on the 15th December 1956 he was promoted on probation to the post of an "outdoor clerk attached to Clearing and Forwarding Section". The probation was for a period of three months, but after the expiry of that period, he was continued in his appointment. There is on the record a document, Exh. 2 (13), purporting to be a report on Kabir Ahmad's work by A. M. Bazlul Karim 'of the Bills of Lading section, as follows :----
"Kabir Ahmad of this section is fit for stamping the bills of lading only, but he is not in a position to undertake responsible works such as checking of bills of lading, calculation of freight and posting the B/L in the register, for which a better man is required".
It seems that on the same day, viz., 29th November 1957, a letter was written by the Company to Kabir Ahmad. What it contained is not mentioned in the evidence; nor has the letter itself been pro duced in evidence, but it is referred to in a subsequent letter (Exh. 78) dated the 17th December 1957, sent by the Company to Kabir Ahmad which commences with the following words :----
"We have received no reply as yet to our letter dated 29th November 1957, and now you are absent without leave and without any permission whatsoever for 24 days.
You have also failed so far to produce a medical certi ficate for your sickness between 16-9-57 to 4-10-57".
He was asked to show cause why his services should not be terminated immediately, and told that if he did not reply within four days, he should treat himself as discharged from service with effect from the 1st December 1957. It does not appear that Kabir Ahmad made a written reply, but on the 31st December, the Company wrote him a further letter, stating that his whole case had been reviewed and it bad been observed that he fell sick on the 17th November 1957, but had never reported his sickness, nor did he supply a medical certificate within the specified time. The letter proceeds as follows :----
"Your first intimation to this o e in the shape of a Doctor's Certificate reached us on 20th Member 1957, which was well over a month later. You were asked to inform this office on 29th November 1957, but you never replied to that letter. You were again asked to show cause why you should not be dis charged for your absence without leave on 17th December 1957, and you have not replied satisfactorily as yet.
In considering your case leniently, you are reverted to your old post of office peon as from 1st December 1957".
As the decision of this appeal turns almost entirely upon a cor rect appreciation of the case of Kabir Ahmad, it is desirable to state here what appears from the rest of the record in regard to this man. The Association made a grievance against the Company of the rever sion of Kabir Ahmad, and mentioned it in their first demand on 6th January 1958, by letter Exh. 46, where they spoke of the rever sion of Kabir Ahmad and the termination of the services of Ejlas Miah, a peon in the Shipping Department as being unjustified and illegal. The case of Ejlas Miah is connected with that of Kabir Ahmad, but will be dealt with- more fully a little later. With reference to Kabir Ahmad, the letter went on as follows :----
"As regards Mr. Kabir Ahmad it is noticed that the charges brought against him are far from the truth inasmuch as he fell sick on 17-11-57 and reported his illness to the management on 18-11-57 asking leave from the date of his absence. The medical certificate was also filed by him on 19-12-57 when demanded from him. He has also submitted his explanations as called for on 24-12-57".
Describing the action against Kabir Ahmad as "clear victimisation", the Association demanded that he be reinstated in his former position. A similar claim was made in respect of Ejlas Miah whose services had been terminated at about the same time as the reversion of Kabir Ahmad.
The Company in its reply on the charge in respect of Kabir Ahmad and Ejlas Miah, which they described as false and malicious, rested their case upon the facts as contained in a letter of the 6th February 1958 written by the Additional Labour Commissioner to the Employees' Association, from which letter they reproduced in their written statement the following passage :---
"Regarding the other demand for re-instatement of victimized workers it appears that there are only 2 specific cases of alleged victimisation viz. Kabir Ahmad and Ejlas Miah. The Manage ment have said that with a view to obtain business of a tem porary nature it became necessary to temporarily increase the clearing and' forwarding section of the Shipping Department. Kabir Ahmad, then a peon, was given the job of carrying out some of the elementary- routine work of that section, in view of his long service and 2 peons viz. Jalal and Ejlas Miah were engaged temporarily to cope with the temporary additional work. After this temporary additional work was discontinued, Kabir who from experience was found to be unsuitable for work other than that of a peon was reverted to his old job and Jalal having left the Coy's office only Ejlas, who was taken as substitute was retrenched. While the Coy. was trying to find an alter native employment for Ejlas, they got the report from the Coy's Doctor that Kabir was medically unfit to attend his work for an indefinite period because of serious conditions of his lungs. Consequently Kabir has been given medical leave and Ejlas has been absorbed in his place as a substitute".
The date of the replacement of Kabir Ahmad by Ejlas appears from the evidence of Mr. Driver, witness No. .12 for the Company of which he is Chief Accountant. He stated as follows regarding Kabir Ahmad and Ejlas Miah :----
"Kabir Ahmad is in service as a peon. He was formerly also a peon. He was made a clerk. My information is that he was not formerly (sic) confirmed. He was made a clerk because of length of service and because of some temporary additional work in connection with Dewanhat-Kaptai. He was again made a peon as he was found unfit as a clerk for the work as a clerk. Moreover he was absent for .a considerable period of time without sanctioned leave. I am not sure if it was sub sequently sanctioned.
The additional work in Kaptai ceased and so we had to seal the deptt. and Kabir was not required for that work. That was also a reason for making him a peon again. Though a clerk he did the work which an intelligent peon can do-such as putting stamps on bills of lading, and taking that to proper authority. He was given some other works which he could not do. The clerk under whom he was to work sent us a report about the kind of work done by Kabir (the report is Exh. Z-13)-Ejlas is still our employee except for a break from 1-1-58 to 8-1-58. He was retrenched on 1-1-58 and taken back on 8-1-58. He was paid full pay from 1-1-58, so there was no reason for any, grievance of Ejlas".
In cross-examination with reference to Kabir Ahmad, Mr. Driver made the following further statement :----
"Kabir was made a clerk for a specific period of 3 months on probation. I can produce that written order if required. He was given extension verbally. He worked for about one year on verbal extension. He was not given any warning in writing that he was not giving efficient work, during that one year".
No oral evidence was led by the Company in support or explana tion of the allegations appearing from their letters as to Kabir Ahmad having been absent from duty without leave on account of illness. Reliance was placed on the letters which have been referred to above. Kabir Ahmad himself made a statement as Union witness No. 9, and in the course of his evidence he stated as follows :---
"I worked as a clerk for one year. I went on sick leave. After I returned from leave I joined but I was reverted to the post of a peon. I read up to class VIII only.
P. W. 1 is the Secretary of our association. I got D. A. I have been demoted as I am on visiting terms with our Association members and Secretary. I want to go back to my previous post.
I read in Hathazari H. E. School. I cannot translate Bengali to English and English to Bengali. The correspondence in the deptt. in which 1 work as a clerk is all in English . . . . . . .
I used to attend jetty works also. Not a fact that any ' report was sent by the customs deptt. to withdraw me from that section as I do not know English. I was on leave during the strike."
It appears from Mr. Driver's statement that Kabir Ahmad's last leave before the strike of the 8th February 1958, commenced on the 8th January 1958. At the time of the reference, however, he was working as a peon and wanted as a result of the reference to regain promotion to his original post. But it is clear that his qualification to continue in a post of clerk is entirely dubious. He has little or no knowledge of English, and cannot therefore be regarded as competent to perform the duties of a clerk in the clearing and forwarding section of a large business concern, where all the documents to be handled are in English. It appears that under the stress of extra work in connection with Dewanhat Kaptai the Company employed him to do certain work which formed part of the routine duties of a clerk, and paid him as a clerk, although he was unfit to do the proper business of a clerk such as those described in the document Exh. Z-13, viz., checking of bills of lading, calculation of freight, making entries in registers etc. Therefore, on the ground of competence, Kabir Ahmad could have no claim to a post of clerk. Moreover, the particular post in which he had been kept for a period of about a year had ceased to exist with the completion of Dewanhat-Kaptai work. Therefore, to require that he should be reinstated as a clerk amounts to a direction to the Company that in spite of the fact that there is no work for an additional clerk in the particular section, such a post should be created, and Kabir Ahmad should be appointed to it. A further circumstance which appears from the evidence is that Kabir Ahmad's appointment was merely pro visional, in the sense that having been appointed on probation, he had continued on verbal extensions in the higher post. In such circumstances, the option must always be allowed to the employer to determine the period of promotion according to his own requirements, since it was not intended to, and did not in fact create any vested right in the employee to the superior post. Finally, the contentions of the Company that Kabir Ahmad absented himself from duty without permission on the pretext of illness, on several occasions, without furnishing medical certificates in proof of his incapacity to work, furnish a clear ground upon which an employee could reasonably be dismissed 'by his employer. Even the Association did not claim that Kabir Ahmad furnished a medical certificate within a reasonable time of laving absented himself from duty. In the association s letter the date of furnishing the medical certificate in respect of the absence in November/December is given as the 19th December 1957, and as has been seen, the charge that no such certificate had yet been furnished had been mentioned in the Company's letter to Kabir Ahmad dated the 17th December 1957. Clearly, sufficient appears in the evidence to indicate that Kabir Ahmad had not been behaving in this respect in the manner of a faithful employee, but that he had been going to work or not as he chose, and expecting to be granted sick leave by making belated applications and only furnishing medical certificates when - those were demanded.
Moreover, it is a common administrative practice that when a person who has been temporarily promoted proceeds on leave, he is reverted to his substantive appointment for the duration of his leave. It appears that finally about the first week of January 1958, a medical inspection showed that Kabir Ahmad was really unfit for duty, and he was granted leave. He had already been reverted by the order of the 31st December 1957, to the position of peon, and such an order would have been justified on the basis of sound administrative practice, if it had been made on the date when he proceeded on leave for the last time, viz., about the 8th January 1958. On the date when the strike was commenced, Kabir Ahmad was actually on leave, and to make it a grievance that he had been reverted to his substantive post of peon would in the circumstances clearly appear to be unreasonable.
The finding of the Tribunal concerning the demotion of Kabir Ahmad is stated in the following words :-
"I am inclined to hold accordingly that the reversion of Kabir was on other ground connected with Union works, and as such it is unjustified".
This conclusion was reached after the Tribunal had found---
(a) that Kabir Ahmad's reversion was not made on account of cessation of temporary work ;
(b) that it was not made on account of Kabir Ahmad's inefficiency.
(c) "But .the fact remains that Kabir Ahmad was reverted as peon only for absence without leave"-no finding was given whether the allegation of absence without leave was true.
The allegation of misconduct by being absent from duty without leave had been made in the order of reversion. The other grounds for the reversion were discounted only because they were not mentioned in that order. We can see no justification for the final conclusion of the Tribunal. The belief that the dismissal was "on other ground connected with Union works" is expressed weakly, and as a matter of inclination. This is natural, for the only evidence on which it would possibly be based was that Kabir Ahmad "was on visiting terms with (our) Association members and Secretary". That was said by Kabir Ahmad alone, and is by itself no ground whatsoever for believing that well before the strike, Kabir Ahmad was singled out for vindictive action by the Company.
As for Ejlas Miah there is clear evidence to show that he was taken back into the post vacated by Kabir Ahmad on the 8th January 1958, and that he was paid with effect from the 1st January 1958. A grievance was made regarding the termination of his services in the first demand by the Association of the 6th January 1958, and at that time it might have been thought that there was, albeit superficially, some ground for a grievance in the visible separation of Ejlas Miah from his post, although if the position had been appreciated that the reversion of Kabir Ahmad was justified on the ground of the cessation of the particular work for which he had been promoted, coupled with his incompetence for such work under normal conditions, and the several reasons which have been indicated above, there could be no real grievance at all to be made out of the termination of Ejlas' services in consequence of the reversion of Kabir Ahmad.
It seems that no reply was afforded to the Association's letter of the 6th January 1958, by the Company. On the 25th January 1958, the Association issued a formal strike notice, of 14 days' duration, stating in the letter that "all means of amicable settlement have failed" and citing as their grievances the following list viz :----
"The non-settlement of the long outstanding disputes such as Bonus, Service Rules and Regulations, Overtime for outdoor workers, Medical facilities, Re-fixation in Grades and Pay Scales, Working hours for Darwans and reinstatement of Ejlas Miah and Mr. Kabir Ahmad".
The allegation of "non-settlement" regarding the questions of bonus, service rules and regulations, overtime for outdoor workers, medical facilities and refixation of grades of pay scales was literally and legally untrue. There was in existence a settlement which contained agreements on all these points, which was binding on the Association. The reference to these matters of dispute would therefore appear to be an act of deliberate ignoring of the legally binding settlement already in existence. Such a circumstance has a strong and clear effect in law if eventually a strike actually takes place on the basis of such disputes. The Industrial Disputes Act is drafted with care to preserve to the fullest extent the right to strike which is recognised by the law as being vested in industrial workers, for employment only as an instrument for settlement of labour disputes. It is a form of direct action; which can properly be described as taking by a party of the law into its own hands. Every strike involves a breach of contract in addition to a number of other aspects e.g., insubordination, which may in themselves be sufficient to justify termination of the contract of service, within the ordinary law of master and servant. On the material side, for a running concern, a strike is in many respects a calamity. The cessation of work involves at least temporary loss of wages to the workers, but to the employer there is injury of many different kinds from the stoppage of his factory or business e.g., accumulation of over-head charges while income is reduced to nothing, loss of business, and of standing in the trade through unfavourable publicity etc. The law however does not operate against such combined action by the employees except in two very limited circumstances which are specified in section 24 of the Industrial Disputes Act. A strike in a public utility service is illegal if it is commenced or declared in contravention of the conditions of section 22. The Company in the present case is not a public utility service. In this case, the requirement of illegality in respect of strikes and lockouts, is governed by section 23, which enumerates three particular conditions of which only the third is relevant here, namely, that during the period of a settle ment such as that which was concluded on the 10th April 1957, in the present case, no workman shall go on strike in breach of contract "in respect of any of the matters covered by the settle ment". Therefore, if the strike in the present case which commenced on the 8th February 1958, and was called off on the 11th February 1958, had been "commenced or declared" only in respect of the five matters enumerated in the strike notice which were already covered by the existing settlement, it would clearly have been an illegal strike. The Industrial Tribunal has found to this effect, but he has gone on to hold that the strike was not illegal on the following grounds :-----
"But the fact remains that Ejlas Miah's case was a fresh dispute. This dispute and that about Kabir Ahmad was in existence before the strike, and so there was no legal bar to declare a strike on those disputes. It is accordingly found that the strike was not illegal under section 23 or 24 of the Industrial Disputes Act".
This passage does not deal with the remaining point of dispute raised before the Tribunal, viz., the working hours for Darwans.
On this point, the finding of the Tribunal was as follows :----
"So the question stands like this : whether the Association was justified in adopting this strike on the apparent failure of attempt of amicable settlement on the demands of working hours of Darwans and reinstatement of Ejlas Miah and Kabir Ahmad. As regards the working hours of the Darwans we have seen that the management fixed it at 8 hours per day with one day off in a week. This decision of the management was brought to the knowledge of the Association on 13th January 1958, sufficiently before strike. So the strike on that ground could not be justified."
To say that the strike on this ground was not justified does not in fact cover all the implications which arise from the specific mention in the strike notice of "working hours for Darwans" as a grievance. When the Tribunal had held that the existence of a decision on the, point had been within the knowledge of the Association from the 13th January 1958 onwards, it was his duty also to find that the addition of this item as a grievance in the strike notice was false to the knowledge of the notice givers. It would be reasonable also to conclude that it was added in order to give a colour of freshness to the motivation of the initiative which the Association was taking, and this could only have been done with an eye to the law which renders it illegal to strike in relation to matters which are already, for the time being, settled. The addition of this grievance was thus clearly to the knowledge of the Association, a dishonest and colourable act. Not only was the strike incapable of being justified on this ground, but, in view of the express mention of five matters covered by the existing settlement, which if they had been unsupported by fresh matters, would have afforded clear proof that the strike was illegal, such an addition could not have the effect of saving the strike from the taint of illegality.
The case of Ejlas Miah has been described by the Tribunal as "a fresh dispute" and as a matter which could afford justifi cation far a strike. Now, in the course of the proceedings before the Tribunal, the claim of re-instatement of Ejlas Miah was with drawn and as has been seen there is clear evidence of Mr. Driver to the effect that Ejlas Miah was taken back into service on the 8th January 1958 and bad been paid with effect from the 1st January 1958. The strike did not commence until the 8th February 1958 and it may be presumed that Ejlas Miah had received his salary for the month of January before that date. In any case, the demand in the strike notice for the reinstatement of Ejlas Miah was baseless in view of the fact that he had already been reinstated on the 8th January 1958. The question arises was this fact, within the knowledge or could it be' deemed to be within the knowledge of the Association Looked at in a different light the question may appear to be one of the possibility of justifying a strike upon alleged ignorance of certain facts which should have been within the knowledge of the strikers, or of which they could easily have acquired knowledge. But the Tribunal has regarded this matter from a third angle which appears to us novel and, upon a true appreciation of the circumstances, quite unreasonable. This is what the Tribunal has said id regard to the cases of Ejlas Miah and Kabir Ahmad on this point :----
"I am accordingly inclined to hold that the unfortunate attitude of the management in refusing to send any intimation to the workers regarding their decision of absorption of Ejlas Miah and medical leave to Kabir, is responsible for the strike on 8th February 1958. The said attitude was not only unfair as between employer and employees, but it was also provocative to some extent. I feel inclined to observe that time is already ripe for a change of outlook and attitude between employer and employees. There must grow a spirit of sympathy and co operation together with formal courteous behaviour between them if industrial prosperity and better production be the ultimate end and aim. I feel it very difficult to appreciate what loss of prestige and dignity would have been to such a big concern if a formal reply was sent to the Association after the strike notice, so that the Association might have understood the point in proper aspects directly and timely from the management".
It seems clear from the above passage that the view of the Tribunal is that out of the circumstances prevailing between the 6th January and the 8th February 1958, there had grown a duty resting upon the Company to give to the Association of their employees, who had threatened them with cessation of their business by the method of direct action, full information of the cases of two petty employees, namely, Ejlas Miah and Kabir Ahmad during that period. This principle the Tribunal has purported to draw on the basis of change of conditions of employment, to suit the modern age, and the necessity of development of "a spirit of sympathy and co-operation together with formal courteous behaviour" involving a sacrifice of all considerations of prestige and dignity particularly by big concerns such as the Company. In our opinion, the reversal of the correct position appearing from this paragraph is such that it can only be described as a special pleading of a most unusual kind. The position was not that the Company was proposing a lockout. It was not contemplating any action which was calculated to operate to the detriment of the employees or their Association. It had not threatened any peremptory action or any step which could be regarded as the taking of the law into its own hands. It was the Association on the other hand, which by its own voluntary actions had brought itself to the verge of a crisis and was contemplating action which it was aware was likely to cause very great loss in a great many respects to the Company. Again in the day-to-day management of its affairs, the Company was clearly not under obligation to keep the Association or its employees informed of any action which it might take in respect of any individual employee, whether a member of the Association or not. The facts which we have recounted above clearly show that the action taken in respect of Ejlas Miah and Kabir Ahmad, two very ordinary employees of the Company, were perfectly correct actions based on proper administrative practice, involving no loss of any vested rights of these employees, but on the other hand showing clearly at every step, a tendency to sympathetic and lenient treatment. While charging Kabir Ahmad with repeated absence from duty without permission, which he had sought subsequently to justify on the ground of illness, and had only supported with medical certificates much later and on repeated demands, the Company nevertheless did not discharge him but expressly took the lenient action of only reverting him to his former post of peon for the duties of which post his abilities were just about sufficient. Ejlas Miah could not be retained as a peon when Kabir Ahmad was being reverted to that post and consequently his services were terminated, but the Company still continued an effort to find a place for him and did so when Kabir Ahmad owing to his ill health had again to be granted leave. Is it possible to excuse the Association for remaining in deliberate ignorance of these actions which were performed well in advance of the 25th January 1958, when the strike notice was given and were well-established facts by the time the strike was commenced on the 8th February 1958 The gap between the strike notice and the commencement of the strike was itself of a fortnight, and afforded ample time for the Association to inform itself as to the true facts concerning the cases of the two men, of which they had made express grievances in their notice. We can only infer that if the Association com menced the strike on the 8th February in ignorance of the fact that Ejlas Miah and Kabir Ahmad had been justly and appropriately dealt with, such ignorance was deliberate. Between the strike notice and the strike, the matter had been investigated by the Labour Department of the Government, as is evident from the letter of the Additional Labour Commissioner dated the 6th February 1958 (Exh. C). We decline to believe that these enquiries could have been held without the knowledge of the Association, but even otherwise it is clear that if the Association needed information regarding the two alleged "victims" Ejlas Miah and Kabir Ahmad, they did not need to wait for any communication from the Company, nor did they need to make enquiries from the Labour Official or to wait for official communi cation from him. For it was easily within their power and it was an act which they could be reasonably expected to perform, to make a simple enquiry from Ejlas Miah and Kabir Ahmad themselves. If they had made such enquiry, they would have learnt that the allegation which they had made of victimisation in the strike notice in respect of these two persons was wholly false and that the whole content of that allegation had been taken away by reason of the action taken by the Company. When the Association was contemplating so severe an action as the com mencement of the strike it is not too much to expect that before taking the irrevocable step it should have kept itself informed up to the last moment as to the true facts concerning the grievances which it had put forward. For the calling of a strike is to be deemed to be a highly responsible act, carrying legal sanctions and obligations imposed by the law which grants the right to strike as an instrumentality for the resolution of disputes between organised labour and the employers. It is eminently reasonable to require that the calling of a strike, up to the point of com mencement of the strike, should be accompanied by the most careful enquiry and satisfaction that a bona fide cause of dispute actually exists. In substance and in principle, we see no difference between the case as respects the working hours of Darwans on the one side, and the cases of Ejlas Miah and Kabir Ahmad on the other: The mere fact of direct communication having been made by the Company to the Association regarding the fixation of working hours for Darwans is not in our opinion sufficient to distinguish the case on the point of knowledge possessed or deemed to be possessed by the Association on the crucial date. We are completely satisfied also that the relevant knowledge was easily available to them and must therefore be deemed to have been possessed by them when the strike notice was issued on the 25th January 1958.
For these reasons, it appears to us that the additions of the grievances regarding the working hours of Darwans and the re-instatement of Ejlas Miah and Kabir Ahmad all fall within the category of colourable pretexts added with the intention of giving the appearance of freshness to the matter when in fact the real grievances for which redress was being sought were covered wholly by the existing settlement of the 10th April 1957. In relation to the latter grievances the strike was clearly illegal and we are of the opinion that by adding three false pretexts to these grievances, no change in any legal sense was effected such as would save the initiative of the Association from being within the description of an illegal strike contained in section 24 read with section 23 (c) of the Industrial Disputes Act.
Upon the conclusions that we have reached, it follows that no case whatsoever was made out for the re-instatement of Kabir Ahmad, and secondly, that the strike was clearly an illegal strike. There is a special law applicable to the employment in question, namely, the East Bengal Shops and Establishments Act, 1951, and in considering the application of this law, the Tribunal observed that under that law, an employer "may always dismiss an employee . . , . for gross misconduct without any notice or compensation", and may "also dismiss for other grounds, but in that case notice and compensation have been provided". The reference is to section 11 of the Act, which provides that "no person employed in a shop or a commercial or industrial estab lishment . . . . . shall be dismissed or discharged" except for gross misconduct "without being given 30 days notice in writing or 30 days' wages in lieu of notice . . . . ." "Gross misconduct" for the purposes of the Act has been made the subject of a rule under section 22, being rule 6 of the Rules of 1953. Among the types of conduct falling within the category of gross misconduct one is that of "striking work or inciting to strike in contravention of the provisions of any law for the time being in force". An illegal strike would clearly fall within the category of gross miscon duct. The Tribunal had found of course that the strike was not illegal. In our view, that finding was incorrect, and we consider that the strike was clearly illegal. Therefore, under the special law, the act of the employer in dismissing those of the employees who had taken part in an illegal strike cannot legally be called in question. What action the employer should actually take in a given case is for him to decide by the exercise of a reasonable discretion. Something was said in the arguments as to discri mination having been exercised by the Company in selecting for dismissal 28 out of over 100 persons who had participated in the strike. Ten of those persons were Darwans, and in the notice of dismissal, a special ground was given for the imposition of the maximum penalty upon these persons. The relevant clause in the order of dismissal is as follows :---
"The Management has found you guilty of gross misconduct and gross neglect of duty for participating in the illegal strike. In addition you belong to that class of employees on the working of which the safety of the Company's establishments and properties entirely depends, and, as such, your participation in the illegal strike is even more reprehensible".
The remaining 18 persons who were selected for dismissal were of the office staff, and in their case, the order of dismissal while stating that they had been guilty of gross misconduct "for striking work in contravention of the provisions of the law" stated the additional ground that they had been guilty of inciting other fellow workers to strike and to continue their illegal strike. It is plain that the punishment of dismissal has not been meted out in any automatic fashion, for mere participation in the illegal strike. The great majority of the strikers were let off with a mere warning. But to those who were grievously at fault, the penalty of dismissal was applied, while at the same time stating the fault. The action taken cannot be faulted either in law or discretion. We are clearly of the opinion that the direction in the award that these dismissed persons should be reinstated cannot be supported either on the facts or on the law.
For these reasons, we allow this appeal, and set aside the award of the Tribunal in respect of the re-instatement of Kabir Ahmad as a clerk, and the re-instatement of the 28 dismissed employees. On the conclusions which we have reached regarding the conduct of the Association in commencing the strike, we consider that it is proper also that they should bear the costs of this case, and we direct accordingly.
A. H. Appeal allowed.
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