- (1.) R. R. K. Trivedi, J. The facts giving rise to the aforesaid writ petitions are that in the year 1980 workmen of M/s. Elgin Mills Co. Ltd. ; (Mill No. 2) at Kanpur, hereinafter referred to as 'mill', raised a demand for the payment of bonus for the year 1979. They claimed that they should be paid 20% bonus for pressing this demand, workers also started agitation and went on strike which continued form 16th July, 1980 to 2nd September, 1980 on which date management of the Mill declared lock out. The management took action against 81 workmen, charge-sheeted them and ul timately passed orders of dismissal dated 11th September, 1980 against them. It is stated that the then Labour Minister of State of Uttar Pradesh intervened in the matter. A meeting of the Labour union leaders and management took place on 4th October, 1980 and the dispute was ultimate ly referred to Shri S. P. Singh, the then Addi tion Labour Commissioner for deciding the dispute. This was voluntary arbitration for which parties had agreed. In pursuance of the award given by the Arbitrator on 6th October, 1980 the lock out was lifted and action against 61 workers out of 81 was taken back. These workers were such who had not taken leading part and there were no serious charges against them. The dis missal orders were withdrawn. However in respect of 20 workers it was agreed that a domestic enquiry may be initiated against them in accordance with law and they shall be placed under suspension pending en quiry. The award dated 6th October, 1980 is Annexure-2 to Civil Misc. Writ Petition No. 15035 of 1986. Against 20 workmen proceedings started by service of charge sheet. However out of 20, 5 workers tendered apology and on basis of the apol ogy the action was withdrawn against them. Two workers resigned from service, one worker did not contest the proceedings and one worker expired during this period. The management after completing the domestic enquiry passed orders of dismissal against 11 employees. These employees raised in dustrial dispute against their dismissals which were referred by the State Govern ment under Section 4-K of U. P. Industrial Disputes Act, 1947, here-in-after referred to as 'act', to the Labour Court. Out of 11 workers, it appears, references were separately made in respect of 8 workers on which basis the cases were registered before the Labour Court as Adjudication Case Nos. 51 of 1984 to 58 of 1984. All these 8 cases were consolidated and were decided by a common award by the Labour Court. By the award dated 30th April, 1986, Labour Court set aside the order of dismissal and reinstated the workmen with continuity in service and also awarded 33% of the back wages at the rate they were being paid at the time of dismissal. Aggrieved by this award the management of the Mill has filed Civil Misc. Writ Petition No. 15035 of 1986. 8 workmen feeling aggrieved by the award under which they have been given only 33% of the back wages, have filed Civil Misc. Writ Petition No. 17562 of 1986.
(2.) WITH regard to remaining three workmen, the award was given by the Labour Court on 17th July, 1986. The award was similar i. e. reinstatement of the workmen with continuity in service and with 33% of the back wages at the rate they were being paid at the time of dismissal. The management of the Mill has filed Civil Misc. Writ Petition No. 18615 of 1986 and three workmen have filed Civil Misc. Writ Peti tion No. 17559 of 1986 challenging the part of the award by which they have been given 33% of the back wages. Thus questions of facts and law involved in all the aforesaid writ petitions are common and all the four writ petitions can be decided finally by a common judgment against which learned Counsel for the parties have no objection. Civil Misc. Writ Petition No. 15035 of 1986 shall be the leading case. I have heard learned Counsel for the parties. Before dealing with the submissions made by the learned Counsel for the parties, it would be appropriate to mention that the domestic enquiry conducted by the manage ment of the Mill against the workmen was found to be unfair and against the principles of natural justice by the Labour Court on 20th August, 1985 and the management was allowed to adduce evidence to prove the misconduct of the workmen on which basis they wanted them to be dismissed from ser vice. Thereafter the management adduced oral and documentary evidence. The Labour Court examined the oral and documentary evidence and gave the im pugned awards. Sri Vijay Bahadur Singh, learned Counsel appearing for the Mill submitted that the petitioner adduced oral evidence and also filed large number of documents to prove the misconduct of the workmen. As against it the workmen adduced no evidence to controvert evidence adduced by petitioner. They did not even cross-ex amined the witnesses. The strike was declared illegal and on account of this illegal strike there was loss of production and the misconduct of the workmen was established by evidence on record. However the Labour Court committed a serious error of law in holding that the misconduct of the workmen has not been established. It was also submitted that under the Bonus Act workmen had remedy and their demand for payment of bonus at the rate 20% was whol ly unjustified. Under the Act they were en titled for maximum bonus 8. 33%. The workmen instead of firstly approaching the authority under the Bonus Act directly adopted agitational attitude causing serious loss in production and financial loss to the management. The work and produc tion in the Mill was effected for about 80 days which is inclusive of the lock out period. The Labour leaders had no courage to approach any of the Court under the Bonus Act and further they could not lead any evidence to justify their conduct. Learned Counsel has also submitted about the present position of the Mill which has already been declared as sick industry and has submitted that this aspect of the matter should also be taken into account.
(3.) SHRI K. P. Agarwal, learned Counsel appearing for the workmen in all the writ petitions, on the other hand, submitted that there was no wrong on the part of the n creating pressure on the employer to pay bonus. The arbitration proceeding were initiated on an informal reference with the agreement of the parties and it was not an arbitration under Section 5 (b) of the Act. The pressure on the employer may be created by strike and meeting. However it cannot be termed as misconduct by itself. There is no evidence that any Kind of violence took place in the Mill premises. The charges against 61 workers who were reinstated and against 20 workmen against whom domestic enquiries were initiated, were identical and the dis missal of some of the workmen was per se illegal and arbitrary and amounted to unfair labour practice. Responsibility, with regard to misconduct should have been established separately in respect of each workman and the management could not resort to dis missal like in the present case. So far as the evidence adduced by the petitioner was con cerned, it has been submitted that there was nothing to be rebutted and no adverse in ference could be drawn against the workmen on this basis. Learned Counsel has submitted that even if the charges were proved, Labour Court could interfere with the quantum of punishment and Labour Court exercised its discretion in special facts and circumstances of the case. SHRI K. P. Agarwal, learned Counsel also submitted that the Labour Court was not justified in awarding 33% of the back wages. The workmen were entitled for the entire back wages. SHRI Agarwal has also submitted that only fact which has been established by the evidence adduced by the petitioner is that the meeting were held and speeches were made and for this alone punishment of dis missal would have been too harsh and the view taken by the Labour Court directing reinstatement of the workmen does not call for any interference by this Court under Article 226 of the Constitution. Shri Agarwal learned Counsel for the respondents, in support of his submis sions, has placed reliance on following cases:- (1) India General Navigation and Railway Co. Ltd. and another v. Their Workmen, A. I. R. 1960 S. C. 219. (2) The Workmen of Mis. Firestone Tyre and Rubber Co. of India P. Ltd. v. The Management and others, AI. R. 1973 S. C. 1227 ; (3) Gujarat Steel Tubes Ltd. etc. v. Gujarat Steel Tubes Mazdoor Sabha, reported in AI. R. 1980 S. C. 1896 and (4) Scooter India Limited, Lucknow v. Labour Court, Lucknow and others, AI. R. 1989 S. C. 149.;