PETITIONER: M/S. BHARAT SUGAR MILLS LTD. Vs. RESPONDENT: <NAME> AND OTHERS DATE OF JUDGMENT: 20/09/1961 BENCH: ACT: Industrial Dispute-"Go slow" by workmen-Application for permission to dismiss-Domestic enquiry not Proper-If <ORG> can take independent evidence for finding prima facie case Mala fides and victimisation-Delay in making application-Effect of- Industrial Disputes Act , 1947 .s. 33. HEADNOTE: Certain workmen of the appellant resorted to "go slow". The appellant held, a domestic enquiry and as a result thereof decided to dismiss 21 workmen. After considerable delay it made an application under s. 33 of the Industrial Disputes Act, 1947, for permission to dismiss these workmen. Evidence was led before the <ORG> to prove the charge against the workmen. The <ORG> held that the domestic enquiry was not proper, that the appellant was guilty of mala fide conduct and victimisation, that, except in the case of one workmen, the others were not guilty of any deliberate go slow and accordingly granted permission in respect of the one workman alone. The appellant contended that the finding that the remaining 20 workmen were not guilty of deliberate go slow was perverse and that the finding in respect of mala fides and victimisation was arbitrary and erroneous. The workmen contended that once the domestic enquiry was found to be improper the <ORG> had to dismiss the application and it could not take independent evidence and arrive at a finding of its own as to the guilt of the workmen. Held, that in an application under s. 33 of the Industrial Disputes Act, 1947, when there has been no domestic enquiry or when the domestic enquiry has not been properly conducted it is the duty of the <ORG> to take evidence of both sides and to decide whether the alleged misconduct has been made out. The evidence produced before the <ORG> clearly established that 13 out of the 20 workmen were guilty of deliberate go slow. Go slow was a pernicious and dishonest practice which was a misconduct punishable with dismissal under the standing orders. Actual participation in go slow was serious misconduct and the management could not reasonably be accused of mala fides or revengefulness if it proposed punishment of dismissal for such conduct. There was delay in holding the domestic enquiry and the management showed lamentable callousness in this matter. In cases of this nature the enquiry should be held as early as possible, specially when the workmen arc put under suspension. Again, there was delay in making the application for permission to 685 dismiss. But these delays did not show that the management was guilty of mala fides or of an intention to victimise. The order of the <ORG> refusing permission to dismiss 13 of the workmen was entirely wrong and unjust and could not be allowed to stand. <CITATION> ,  Supp. 2 S. C. R. 836, <NAME> v. <ORG> 1959 L. A. C. 697 and <ORG> v. its workmen,,  1 S. C. R. 806, referred to. JUDGMENT:

CiviL APPELLATE JURISDICTION : Civil Appeal No. 252 of 1960.

Appeal by special leave from the Award dated March 6, 1958, of <ORG>, Bihar, Patna in Misc. Case No. 1 of 1959.

<NAME>, <NAME> and <NAME>, for the appellants.

<NAME>, for the respondents.

1961. September 20. The Judgment of the Court was delivered by <NAME> appellant, <ORG>, made on December 31, 1956 an application under s. 33 of the Industrial Disputes Act before <ORG>, Bihar, Patina for the dismissal of 21 workmen for misconduct in connection with "go slow" alleged to have been resorted to by the workmen of the factory from the midnight of February 12, to the February 18, 1955. The <ORG> held that actual participation in a "go slow" had been established only against one of the workmen at the <ORG> end and that the "go slow" at the later stages in which the other 20 workmen had been engaged occurred as a necessary consequence of this go slow by one workman at the <ORG> end and was not a deliberate ,go slow" by them, The <ORG> was of opinion also that the management was not acting bona fide and really was seeking to victimise, active members of the <ORG> which the employer had refused to recognise. Accordingly, it refused permission in respect of 20 of the workmen and gave permission to dismiss only <NAME> a workman at the <ORG> The correctness of this refusal is challenged before is in this appeal by special. leave-. The appellant's contention is two-fold. First it is said that the finding of the <ORG> that these workmen in respect of whom permission to dismiss was refused were not guilty of any deliberate go slow is perverse; secondly it is contended that the <ORG>'s view that the employer was guilty of mala fide conduct and victimisation of these workmen for <ORG> activities is arbitrary and erroneous.

It does not appear to have been disputed that " go slow" was actually resorted to in this factory from February 12, to February 18, 1955. It was indeed hardly open to the workmen to dispute this, after all the pomp and ceremony with which go slow" was celebrated. We find that as early as January 15, 1955, 10 demands were communicated by the <ORG> on behalf of the workmen by a letter which said that unless these demands were conceded by the January 26, 1955 the workmen world resort to "go slow" from January 30, 1955. This notice to "';.to slow appears to have been withdrawn on the 22nd January, 1955, apparently on the advice of the Assistant Commissioner of Labour, <NAME>. A further letter was issued the same day in which 5 demands were made with a request to concede these by the 6th February failing which it was said they would "resort to go slow from the February 19, 1955". The, Secretary of <ORG> to whom the Conciliation Officer wrote, that very day, wrote back on January 22, 1955, that they had not received any notice dated January 22, 1955. In reply to a further communication from the Assistant Labour Commissioner the appellant sent a telegram on February 3, 1955, regretting inability to attend the proposed conciliation meeting on February 4, 1955 as both the Secretary and the Assistant Secretary were away. Then on February 8 another telegram was sent on behalf of the management informing the Assistant Labour Commissioner that the General Secretary would be returning soon and that any date after the 11th may be fixed. Thereafter, in reply to a further communication from the Assistant Commissioner inquiring as to what date would suit the management the General Secretary <NAME> sent another telegram requesting the Assistant Labour Commissioner to fix any date before the 17th. This telegram was sent on February 11. On the next date, February 12, <NAME> sent a further telegram to the Assistant Labour Commissioner stating that he would come to <NAME> on the 15th afternoon. Before any action could however be taken by the Assistant Labour Commissioner, the workers commenced their "go slow" from the midnight of February 12.

"Go slow which a picturesque description of deliberate delaying of production by workmen pretending to be engaged in the factory is one of the most pernicious practices that discontended or disgruntled workmen sometime resort to. It would not be far wrong to call this dishonest. For, while thus delaying production and thereby reducing the output the workmen claim to have remained employed and thus to be entitled to full wages. Apart from this also, ",go slow" is likely to be much more harmful than total cessation of work by strike. For, while during a strike much of the machinery can be fully turned off, during the "go slow" the machinery is kept going on a reduced speed which is often extremely damaging to machinery parts. For all these reasons logo slow" has always been considered a serious type of misconduct. The Standing Orders which have been made under the Standing Orders Act for the appellant factory specify "go slow" as misconduct in sub-cl. (u) of cl. (1) para. M under the words : " Malingering or deliberate delaying of production and carrying out of orders." It is strange therefore to see that notice of intention to commit this misconduct was solemnly given by the <ORG> in one letter after another. Some light on the mystery is however thrown by the fact that in Bihar a <ORG> to consider and report on the question of "go slow" tactics in industries was appointed by <ORG> and the report of the <ORG> was submitted in 1951. The <ORG> made, several recommendations including one that "go slow" by workers should be treated on a par with strike. It also recommended however that workers should not resort to "go slow" without at least 7 days notice, that the notice would remain in force for 4 weeks but. that it would not be necessary to notify the exact date of starting the "'go slow". Another recommendation was that workers should not resort to "go slow" during the pendency of a conciliation proceeding but that the conciliation proceeding must be concluded within four weeks of the notice. The <ORG> went to the length of recommending that "go slow" due to mal-practices by the management would be justified. By a resolution dated December 1, 1951, <ORG> "'were pleased to accept the recommendations of the "go slow" <ORG> and expressed their "thanks to the members of the <ORG> for the well considered report." No action was however taken to delete item (u) of clause (1) of para. M of the Standing Orders and so under the Standing Orders which it may be mentioned were certified on November 7, 1951, the deliberate delaying of production continued to remain a -misconduct" under the law inspite of the bleags it received from the <ORG> and <ORG>.

As to the fact that "go slow" was resorted to in the factory from the midnight of February 12, 1955, up to the February 18, 1955, could not be and was not disputed, it becomes necessary to consider the evidence on the record to examine the conclusion reached by the <ORG> that there was no deliberate "go slow" by any of the present respondents. The charge -sheets which were served on the workmen accused them not only of actual participation in the "go slow" but also of instigating and intimidating other workmen to ",go slow". It is to be noticed however that while' ,,,inciting others to strike work" is misconduct under' the Standing Orders para M. el. sub-el. (u) incitement to deliberate delaying of production has not been specifically made a misconduct under the Standing Orders.

We shall therefore confine our attention to the appellant's case that these workmen actually participated in the "go Flow". A complaint was made on behalf of the respondents that the charges that were given to the workmen were vague. We have examined the charges and consider this complaint wholly unjiustfied. We have no hesitation however in accepting the criticism by the learned counsel for the respondents that the enquiry made by the domestic tribunal of the appellant was far from a proper enquiry, as the minimum requirements of natural justice were not satisfied. It appears that no witness was examined by the Enquiring Officer and the only person examined was the workman against whom the enquiry was being held. Reports by some officers of the company were taken into consideration but it does not appear that the contents of these reports were read out and explained to the workmen. The persons whose reports were thus considered were present at the enquiry, but even so it does not appear that the workman was given an opportunity to examine them. Indeed, as none of these persons were actually examined in the presence of the workmen the question of their cross-examination by or on behalf of the workmen did not arise. The workman thus had not only no proper chance of knowing what was being alleged against him and by whom but also no chance of testing the correctness of the allegations that were in fact made in the written report.

In view of these serious defects in the enquiry by the domestic tribunal it was not possible for <ORG> to place any reliance an the findings of that domestic tribunal in order to decide whether permission to dismiss should be given Under s. 33 of the Industrial Disputes Act. ( <CITATION> ) Evidence was however adduced by the appellant before <ORG> to make out its case that the workmen concerned were in fact guilty of the alleged misconduct. On behalf of the respondents it has been urged before us that once it is found that the enquiry by the domestic tribunal has been defective it was not open to <ORG> before which the application under section 33 is made to allow any evidence to be adduced before it. We see no force in this contention. /When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment the <ORG> has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself the <ORG>, it has been settled by a number of decisions of this <ORG>, has to accept the findings arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the <ORG> of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out.' The proper way for performing this duty where there has not been a proper enquiry by the management is, for the <ORG> to take evidence, of both sides in respect of the alleged misconduct. When such evidence is adduced before the <ORG> the management is deprived of the benefit of having the findings of the domestic tribunal being accepted as prima facie proof of the (1)  (1) S. C. R. 32.

alleged misconduct unless the finding is perverse and has to prove to the satisfaction of the <ORG> itself that the workman was guilty of the alleged misconduct. We do not think it either just to the management or indeed even fair to the workman himself that in such a case the Industrial <ORG> should refuse to take evidence and thereby drive the management to make a further application for permission after holding a proper enquiry and deprive the workman of the benefit of the <ORG> itself being satisfied on evidence adduced before it that he was guilty of the alleged misconduct.

It may be pointed out in this connection that in <CITATION> (1) the management's application under section 33 had not been preceded by any enquiry into the misconduct of the workman and that itself, it was urged on behalf of the workmen was a reason why the application should be rejected. <ORG> held that all the evidence 'which might have been taken in the enquiry by the management had been led before it and it was in full possession of the facts and no question of any prejudice to the workmen arose as it would be open to it on a review of the entire, evidence before it to decide whether the application for permission to dismiss should be granted or not. On a consideration of that evidence the <ORG> held as regards 16 of the workmen concerned that there was no evidence that they had taken part in the alleged misconduct of "'go slow" or instigation to ,,,go slow". No objection appears to have been taken either before the Appellate <ORG> or before this Court to the application being disposed of on the evidence taken before the Industrial <ORG> itself, and in, fact this Court allowed the application under section 33 in respect of all the 48 workmen on the basis of the evidence given before the Industrial <ORG>.

(1) [1959] S. C. R. Suppl. 11 p. 836.

It is worth noting that several years before this, <ORG> had in <NAME> v. <ORG> (1), laid it down that the materials on which a <ORG> acts in disposing of an, application for permission to dismiss may consist of (1) entirely the evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) that evidence and in addition thereto further evidence led before the <ORG>, or (3) evidence placed before the <ORG> for the first time in support of the charges.

It was pointed out there that the last mentioned case pre- supposed an absence of a prior enquiry by the management. It is not without significance that even though the question whether in the absence of a proper prior enquiry by the management evidence can for the first time be placed before the <ORG>-in support of the alleged misconduct had been discussed in <ORG> (1), no objection to the taking of such evidence for the first time before the <ORG> was raised before this Court on behalf of the respondent in <NAME> Case (2). Nor can we ignore the fact that for a long time now, it has been settled law that in the case of an adjudication of a dispute arising out of a dismissal of a workman by the management (as distinct from an application for permission to dismiss under s. 33 ), evidence can be adduced for the first time before the Industrial <ORG>. The important effect of the omission to hold an enquiry is merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out. This war, (1)  L. A. C., 697.

(2) [1959] S. C. R. Suppl. 11 P. 836.

recently pointed out again in the <CITATION> (1) in these words : ',if no enquiry has in fact been held by the employer; the issue about the merits of the impugned order of dismissal is at large before the <ORG> and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved......... The reasons for which it is proper for the <ORG> to take evidence itself as regards the alleged misconduct when adjudicating upon a dispute arising out of an order of dismissal which has been made by the management are equally present in the case where the management makes an application for permission to dismiss without having held a proper enquiry. In our opinion the tribunal rightly allowed the management to adduce evidence before it in support of its application for permission to dismiss even though the domestic enquiry held by it was highly defective as pointed out above.

Of the six witnesses examined on behalf of the management the important evidence as regards the participation in the "go slow" during the period February 12 to February 18 is given by <NAME>, Chief Engineer, Kanpur the chief Chemist and <NAME>, a machine man.

On February 13, 1955 the Chief Engineer submitted a report to the Secretary, <NAME> about what he had seen that very day. He referred to this report in an affidavit sworn before a Magistrate and stated that the facts stated in the report was true. In his deposition before the <ORG> he has referred to this affidavit and said that the statements made therein are correct. While a more satisfactory way of putting <NAME>'s evidence on record, would have been to record his testimony on all these matters mentioned in the affidavit and report directly, it cannot be reasonably said that the statements made in the affidavit ,and report do not amount to legal evidence on (1) [1960] (1) S.C.R. 806.

which the Tribunal could act. In this report the Chief Engineer states thus :-

"I noticed that groups of persons from the assembled crowd moved about the factory announcing the commencement of the go-slow" and actually threatened those who would not fall in line with them. I particularly noticed <NAME>, <NAME>, <NAME>, <NAME> and <NAME> and others whose name didn't remember in the crowd taking an active part Later in the report he says that:

"as a result of the instigation as aforesaid and perhaps as planned in advance, the 'go- slow' actually started with the incoming shift. The abnormally slow running of the mill Engine and the Cane Carrier came to my notice immediately. I personally checked up the stream pressure and found that it was normal. Thereupon I called <NAME>, Mill House Fitter and expressed my resentment at a low speed, after all my persuasions and directions to them not to resort to goslow. <NAME> had the impudence to tell me that it shall remain low as they had gone on go slow and the question of restoring the normal speed did not arise. Finding <NAME>'s attitude as it was, I went with the Shift Engineer Mr. <NAME> to <NAME> who was at the Mill Engine and <NAME> who was at the Cane Carrier Clutch, and asked them to restore normal speed immediately.................. They paid no heed to my orders and were determined to continue the go slow."

It is important to notice that of the persons named by this witness as having taken an active part-by which he obviously meant an active part in moving about the factory announcing the commencement of the go slow-<NAME> and <NAME> were both engaged in the Evaporator section, <NAME> being an Evaporator Cooly while <NAME> being an Evaporator Reliever; <NAME> was an Assistant Panman while <NAME> and <NAME> were Engine men, <NAME> being an Assistant Fitter and <NAME> being a Pitter. We have no hesitation in believing as correct these statements made by the Chief Engineer in his report made on February 13. There can be no doubt therefore that <NAME>, <NAME> and <NAME> actually participated in the go slow. As regards <NAME>, <NAME>, <NAME> and <NAME> and <NAME> we have to remember that it is not disputed that there was in fact a go slow in the different jobs on which these men were engaged. If they had not been proved to have taken an active part in promoting the go slow, there may have been some scope for saying that the go slow in their jobs was the consequence of the go slow at the <ORG> and not deliberate go slow on their part. When however we find that these persons were active in asking other workmen to go slow, they cannot be reasonably heard to say that the go slow in their own jobs was not deliberate on their part. The <ORG> was in our opinion clearly in error in thinking that the go slow in the jobs where these persons were engaged was merely the result of the go slow at the <ORG> end and not deliberate go slow on their part. In our opinion, the evidence of <ORG> definitely establishes that these several persons, <NAME>, <NAME> Singh, <NAME>, <NAME>, <NAME>,- <NAME> Mistry, <NAME> and <NAME> did actually participate in delaying production.

The Chief Chemist, <NAME>, submitted to the Secretary one report on February 12, 1955 and ,two more reports on February 13. In the first report he said that having received information at about 9.30 A. m. that <NAME>, Evaporatorman, was inciting persons who were doing periodical cleaning of the Evaporators that day that they should do the cleaning slowly as if the "go-slow" had already started in their case, he immediately went to the Evaporators and questioned <NAME> about his alleged conduct and that <NAME> ultimately admitted that it was true but that he had merely been saying what others had decided.

In the second report marked Ex. 4 (b) the Chief Chemist states that trouble started on the midnight of February 12 after "C" shift was over and that he noticed "<NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> among others asking other workers to stay on and see that the go slow was actually started. He says also that the noticed Kawalpati and <NAME>, Centrifugal Coolies and a few others taking a prominent part in proclaiming that go slow must be started.

In the third report the Chief Chemist stated that after 8 A. M. on February 13 he noticed <NAME> and <NAME> and <NAME>, <NAME> and <NAME> and others going round the factory and openly saying that as the go slow had started any workman who sided with the factory will be severely dealt with. We can see no reason to doubt the truth of the statements made by the Chief Chemist. Of the persons named by him, <NAME>, <NAME> and <NAME> were also named by <NAME> as we have already pointed out above. In addition to these <NAME>, <NAME>, <NAME>, <NAME> <NAME> and <NAME> must be held to have actually asked others to go slow and when this fact is taken with the admitted fact that "go slow" was actually practiced at the stages of production where these workmen were engaged there can be no escape from the conclusion that they were guilty of active participation in go slow, As regards <NAME> and <NAME> we have, apart from this evidence of the Chief Chemist that they were going round the factory saying that go slow must be continued, the evidence of <NAME> that on February 14 he found these two, not operating the machine, and sitting there on a gunny bag and sugar was falling down from the Pugmill. From this evidence of <NAME> taken with the evidence of the Chief Chemist, it appears clear beyond any reasonable doubt that these two workmen, <NAME> and <NAME> did also actively participate in "go slow".

We are therefore of opinion that the evidence adduced before the <ORG> clearly establishes that the following respondents, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> were guilty of misconduct within the meaning of paragraph M el. (1) sub-el. (u) of the Standing Orders. Of these <NAME> and <NAME> are reported to be dead.

Before however permission can be granted to dismiss them for this misconduct we have to see whether the charge of mala fide and victimisation brought against the management is true. The workmen's suggestion which found favor with the <ORG> was that it was because of the <ORG> activities of these 21 workmen that the management decided to take action against them and that the allegation that they had taken part in the go slow was merely a sham excuse. As regards the above workmen who it is established by the evidence were in fact guilty of go slow, can it be said that though the management takes action against them for this misconduct the real reason for the managements proposal is these people's <ORG> activities ? We are unable to see any. justification .for this view. If the misconduct had not been serious and still the management sought to dismiss them, taking advantage of the fact that under the Standing Orders a punishment of dismissal could be given, there might have been some scope for an argument that the apparent reason for the management's action was not the real reason. It is not possible however to consider actual participation in go slow as anything but very serious misconduct and no management can be accused reasonably of mala fide or of revengefulness if, it proposes punishment of dismissal for such conduct. The Industrial <ORG> appears to have been impressed by the fact that 13 other workmen who were suspended were pardoned and taken back while 21 ,were not allowed to join duty. It appears clear that several at least of the 13 who had been taken back were also active members of the <ORG>. There is no ground for saying therefore that the management discriminated against these 21 workmen because of the fact that they were active members of the <ORG>. It may very well be that they have been taken back as their active participation in the go slow was not established. Without knowing fully the circumstances under which those other 13 were taken back to work it is not proper to hold that there has been any discrimination against these 2 1. Learned Counsel for the respondents next contended that mala fide and victimisation were 'writ large on the conduct of the management 'in preventing the holding of a meeting for conciliation which was attempted by the Assistant <ORG> Commissioner. It is also urged that by this conduct the company provoked the workmen to resort to go slow. Even if it were' found that the company had deliberately avoided the proposed meeting there would be no ground for saying that the workmen had been "provoked" to go slow. Inspite of the recommendation of the go slow committee and the resolution of Bihar Government ,go slow" continued to be a misconduct under the Standing Orders "-and a mere refusal of the company to attend the conciliation meeting cannot be considered such provocation as would compel or justify the commission of misconduct. Nor can we find-even assuming for the present that the company did deliberately prevent the conciliation meeting before the 12th February-that this showed an intention to victimise. Before an industrial adjudication can find an employer guilty of an intention to victimise there must be reason to think that the employer was intending to punish workmen for their <ORG> activities while purporting to take action ostensibly for some other activity. It would-be unreasonable to think, that the appellant, expected that if the meeting was not held on the date as proposed the workmen were surer to start go slow and that would give the management an opportunity of proceeding against the <ORG> workers. It was not unreasonable for the management to expect better sense from workmen and to hope that they would not commit misconduct too readily. While we do not wish to say that no unfair conduct on the part of the management in negotiations over the workers' threat to go slow would ever justify a finding of mala fides on the employer's part, we must clearly say that the mere asking for adjournment of a conciliation meeting is not such conduct on which mala fides or an intention to victimise can be reasonably based. Apart from this, we are not satisfied that in the present case the management was guilty of any deliberate attempt to delay the conciliation meeting. The reasons for asking an adjournment of the meeting were clearly mentioned in the several telegrams sent by the management to the <ORG> Commissioner and there is nothing on the record to justify a conclusion that these reasons were not true or honestly given.

Our attention was drawn to the delay in holding the enquiry and the subsequent delay in filing the application for permission to dismiss.

That there has been great and indeed unusual delay is clear. The charge-sheets were served on the workmen in March 1955 and the explanations were received about the middle of March, but the domestic enquiry took place in September 1955. Trying to explain this delay of several, months, <NAME>, the General Secretary, has stated thus :-"The enquiry into the charge sheets could not be commenced before the beginning of September, 1955, because of my continued ill health which necessitated complete rest for several weeks at a time and also because of my multifarious Assignments which took me many a time to Patna and outside the State of Bihar. I could not assign the matter of holding the enquiries to other officers namely Chief Engineer or the Chief Chemist because they were themselves complainants against the workmen concerned."

We are unable to consider this explanation wholly satisfactory and are inclined to think that the management showed lamentable callousness in this matter of proceeding with the enquiry .In cases of this nature the enquiry should be held as early as possible, specially when the management takes the step of putting the workmen under suspension. No application for permission to dismiss was filed immediately. It was only in August 1956 that such an application was filed under s. 22 of the Industrial Disputes Appellate Tribunal Act before <ORG>, Calcutta. But that was rendered infructuous on account of the disposal of the matter before <ORG>. The present application was made as late as December 30, 1956, after an application by the workmen themselves under section 23 of the Industrial Disputes. Appellate Tribunal Act had been withdrawn. We do not find any satisfactory explanation for the management's delay in applying for-permission to dismiss. At the same time, it is not possible to say that these delays show even remotely that in making the application for per-

minion to dismiss the management was guilty of mala fides or an intention to victimise.

We have therefore come, to the conclusion that the <ORG>'s order in refusing permission to dismiss these workmen, viz., <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> was entirely wrong and unjust and cannot be allowed to stand. As however even though no stay of the <ORG>'s order was granted when special leave was allowed by thins <ORG> and still the workmen concerned have not been allowed to work or paid their wages the permission should not be granted to dismiss them before the date of this judgment.

As the two respondents <NAME> and <NAME> are dead, there is no question of granting permission now to dismiss them, even though on the evidence on the record, the appellant might have been entitled to permission to dismiss these, two with effect from this date, if they were living. These two will be entitled to wages till the date of their death. As regards the other respondents we are of opinion that the application was rightly refused inasmuch as the evidence adduced before <ORG> does not establish the charge of misconduct against them.

We accordingly allow the appeal in part and set aside the order of <ORG> in respect of these 13 workmen named above and order that the management is granted permission to dismiss them with effect from the date of this judgment. There will be no order as to costs. Appeal allowed in part.


JUDGMENT <NAME>, J.

1. The accused were convicted by the District Magistrate of East Khandesh under Section. 188 of the Indian Penal Code for disobedience of an order duly promulgated by the Sub-Divisional Magistrate, Erandol, under Section 144 of the Criminal Procedure Code. The only question raised on this petition is whether the order was a lawful order within the meaning of Section 144 of the Criminal Procedure Code. Two points are taken by Mr. <NAME> on behalf of the petitioners. The first is that the order does not state the material facts of the case as required by Sub section (1) of the section; and, secondly, the order is too wide and beyond the powers conferred by Sub-section (3) of Section 144 of the Code....

2. Before a Magistrate can take action under this section he must be of the opinion that immediate prevention or speedy remedy is necessary, and when he has made up his mind that it is so, he must state the material facts in the order. It will be seen that no material facts are set out in the first part of the order. It appears from the judgment of the learned District Magistrate that the order was promulgated to prevent a breach of the peace and rioting, which the authorities apprehended on account of the sentences passed by <ORG> in what is now known as the Sholapur case. That, we think, was a material fact which should have been stated in the order; and we think that this part of the order as it stands is vague and does not comply with the requirements of Section 144(1) of the Code.

3. The second point is a more substantial one. It is clear from the record that the order was promulgated under Sub-section (3) of Section 144 of the Criminal Procedure Code, and that the petitioners are not included in the persons specially named in the order, and the order would be applicable to them only as members of the public generally.

4. A careful perusal of the language of Section 144 of the Code shows that the power of a Magistrate under it is confined to the direction to a particular parson or persons to abstain from acts of a certain character, or to the public generally to abstain from similar acts "when frequenting or visiting a particular place." Sub-section (3) of the section is an exception to the general rule that the order shall be directed to a particular person. But the order can be directed to the public generally only "when frequenting or visiting a particular place", such, for instance, as a market or a park or other place within a specified boundary. There is no power to direct the public generally simplicities. This, in our opinion, is the plain meaning of Section 144 of the Code. If an authority is necessary, reference may be made to Queen-Empress v. <NAME> (1889) I.L.R. 14 Bom. 165 and Emperor v, <NAME> .

5. The order in question prohibited the public generally and certain persons named therein from taking part in the procession within the whole of the municipal limits of Erandol and all public places within such limits. In our opinion, therefore, the order does not conform to the requirements of Section 144 , Sub-section (3), of the Criminal Procedure Code , and was beyond the powers of the Sub-Divisional Magistrate, Erandol, under that section.

6. A similar point arose in In re D.V. Belvi , and we agree with the view there taken as to the scope of Section 144(3) of the Code. In that case Mr. Justice <NAME> observed as follows (p. 675):

We are also of opinion that the order being addressed to the public generally must be limited under Section 144(5) to the public when frequenting or visiting a particular place. To argue that though no such particular place is specified, all the streets in the city and cantonment of Belgaum are implied, would appear be defeat the objects of the section, prohibiting, as it does, the performance of acts, which would otherwise be lawful.

6. I think that having regard to the terms of the section, it is only when a Magistrate is of opinion that the public generally are likely to frequent or visit a particular place, i. e., a definite or specified place, and trouble is apprehended, that any order under Sub section (3) can be made. As it stands, the effect of the order would be to prohibit all processions, even of an innocent character, e. g., a marriage or a religious procession being taken out at or in any public place in Erandol. The order is not directed to the public when frequenting or visiting a particular place, and in my opinion does not comply with the requirements of Section 144(3) . The order, therefore, is illegal and beyond the powers conferred upon the Magistrate under the section.

7. Clause 2 of the order is somewhat curious, and I am not at all sure whether by the game order it was competent to the Sub-Divisional Magistrate, Erandol, to make the order contained therein. As far as I can see, it is only under Sub-section (4) of Section 144 that it is open to a Magistrate to rescind or alter any order made by him under the section, But this means that he can rescind or alter an order previously made under the section. It is doubtful if by one and the same order a Magistrate can provide for an exception to the order, of the kind set out in Clause 2 of the order. It is also doubtful whether under the section a Magistrate can delegate the power to a Police Sub-Inspector to permit the act prohibited by the order being done. In view of our conclusion in the case it is not necessary to pursue the point further.

8. In the result, we set aside the conviction and sentence, and direct the fine, if paid, to be refunded.

<NAME>, J.

9. I agree.


<NAME>, J.

The petitioners are partnership concern engaged in manufacturing of menthol and DMO and are registered with <ORG> for the same. On 12.07.1995 <ORG> inspected the premises of the petitioners and found that the petitioners were clandestinely clearing the excisable goods manufactured by them and there was excess stock of finished goods which was not accounted for in their books. The department issued notices proposing a demand of Rs. 53,55,862.15 paise as central excise duty on clearing of goods valued at Rs. 2,71,54,179.00 without paying excise duty, proposing to demand central excise duty of Rs. 33,22,722.00 on the basis of assumption of abstract of menthol produced and cleared by the petitioners during June and July, 1995 and further calling upon them to show cause why proposed penalty be not levied. <ORG> passed various orders whereby the goods worth Rs. 99,39,334.00 seized from the petitioners on 12.07.1995 were directed to be confiscated, demand of duty of Rs. 53,55,862.00 was confirmed penalty of Rs. 55,00,000/- was imposed on the petitioners and further penalty of Rs. 10 lacs each were imposed on <NAME> partner of <ORG> and on Smt. <NAME> and Smt. <NAME> partners of <ORG> and <ORG> and their units under Section 209A of the Act and a penalty of Rs. 10 lacs was imposed on one <NAME> proprietor of <ORG> under Section 209A. Against the orders passed by the Adjudicating authority the appeals were filed which were dismissed by respondent No. 1, <ORG>, New Delhi vide order dated 14.05.1999 [1999 (112) E.L.T. 84 (<ORG>)] as contained in Annexure 4 to the writ petition. Thereafter the petitioners moved various applications under Section 35C(2) of the Central Excise Act for rectification of the mistake in the order passed under Sub-section (1). These applications were originally heard by a Bench comprising of two members. There was difference of opinion between the members who passed the orders dated 27.09.1999. Thereafter the matter was referred to the President of the <ORG> who passed the order dated 25.01.2000. In view of the majority view of the <ORG> the rectification of mistake applications were rejected by the <ORG>. By filing the present writ petition the petitioners have made following prayers :-

1. To issue a writ of certiorari quashing the order dated 25.01.2000 read with order dated 27.09.1999 passed by the <ORG> on rectification of mistake applications and to quash the order dated 14.05.1999 dismissing the appeal by the respondent No. 1 filed by the petitioners.

2. To issue a writ of mandamus directing the <ORG> to decide the appeal afresh without pressing for the deposit of the adjudged dues or in the alternative to remand the matter to the Commissioner, Meerut for adjudication afresh.

2. The main ground on which the aforesaid prayers have been made is that the entire demands have been raised and confirmed against the petitioners on the basis of surmises and presumption; that they cleared the goods surreptitiously and clandestinely; that the G.Rs found on 12.07.1995 were not fake and the consignors and consignees names were there on the G.Rs. and the officers did not make any enquiry from the consignors and consignees and wrongly presumed that the goods belonging to the petitioners factory were being cleared under the cover of the said G.Rs in order to avoid payment of Central Excise duty; that the finding of the authority was that total value of the excisable goods manufactured and cleared on the basis of the G.Rs. worked out at Rs. 2,71,54,179/- on which central excise duty payable was Rs. 53,55,862/-, yet additional demand of Rs. 33,22,722/- was made separately even though the said amount was included in the demand of Rs. 53,55,862/-. The goods produced and cleared after 14.06.1995 to July, 1995 could not be covered by the G.Rs, which were seized on 12.07.1995 which pertains to the period from 14.10.1993 to 14.06.1995; that on the basis of assumptions that by processing mentha oil by freezing method 60-70 kg. of menthol is obtained and 30-40 kg. of DMO is generated as by-product is imaginary and not based on scientific method; that a specific plea was taken that the entire demand raised in the instant case was time-barred but this question has not been considered by the <ORG> while deciding the appeal and that the rectification of mistake applications have been wrongly rejected.

3. The respondents have contested the petition and in their counter affidavit they have stated that the <ORG> while dismissing the appeals have considered various circumstances holding that the three units i.e. unit of the petitioners and two alleged Trading units are being operated by the petitioners and as a matter of fact the two Trading units were non-entity; that the team visiting the premises of the petitioners on 12.07.1995 conducted physical verification of the finished goods and raw materials and the presumptions drawn on the material found during the inspection were justified. The petitioners did not submit satisfactory reply to the show cause notice and no evidence was adduced to indicate that the goods found in the premises of the petitioners belonged to some other persons. The goods found in the premises have rightly been scribed to the petitioners. The <ORG> after examining the arguments raised by the parties rightly rejected the rectification of mistake applications as being not maintainable.

4. The petitioners have filed rejoinder affidavit reiterating almost the same facts and grounds as stated in the petition.

5. <NAME>, learned Counsel for the petitioners and <NAME>, learned Counsel for the respondents have been heard.

6. So far as the rejection of the rectifications of mistake applications is concerned, I do not find any error in the order passed by the <ORG>. Section 35C(2) provides that the appellate <ORG> may, at any time within 4 years from the date of the order with a view to rectify any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendment if the mistake is brought to its notice by the Commissioner, <ORG> or the party to the appeal. In view of this provision only the mistake from the record can be rectified. The mistake that requires meticulous examination of the record and reappraisal of the material and fresh findings on such reappraisal do not amount to mistake apparent on the record. The <ORG> rightly held that none of the submissions made seeking modification/rectification of mistakes came under the category of mistakes apparent on the face of the record. The <ORG> relied upon the recent decision of <ORG> reported in AIR 1999 (SC) 1031 - <CITATION> . in which it was held that the omissions or mistakes that can be corrected in a ROM application were only of the nature of clerical or typographical errors. The <ORG> observed that the scope and meaning of the words mistake apparent from records should be glaring mistake of fact or law which should be apparent from the record. If those mistakes are to be made out by process of argument such mistakes are outside the purview of Section 35C(2) . Reference in this regard may be made to the decision of <ORG> in <CITATION> - . It would be seen that various grounds raised in the rectification of mistake applications related to factual and legal aspect which require reappraisal of evidence and this was not permissible and was not within the scope of Section 35C(2) of the <ORG> Act. Therefore, in my view, the order dated 25.01.2000 read with order dated 27.09.1999 cannot be quashed.

7. Order dated 14.05.1999 dismissing the appeal of the petitioner is challenged mainly on the ground that all the questions raised in the memo of appeal have not been dealt with or decided by the <ORG>. Such questions were also raised at the time of hearing of the rectification of the mistake application which have been enumerated in the order dated 27.09.1999. It is submitted that the <ORG> did not give any finding on the plea that the entire demand was barred by limitation; that the <ORG>s order has not taken into account the fact that out of 28,562 Kgs. of <ORG> and its derivatives, 42,843 Kgs. of <ORG> could not have been obtained and therefore, the departments allegation of suppression of production and clandestine removal was baseless; that the <ORG> has failed to consider the appellants contention about the manner of verification of stock by departmental officers inasmuch as the verification was done on the basis of assumptions instead of actual weighment; that the stocks recovered from the premises also included stocks belonging to trading units and if these had been segregated, there would have been no excess as alleged; that the principles of natural justice has been violated by the authorities inasmuch as the copies of all the statements of witnesses were not supplied to the petitioners; that as long as the goods were lying manufactured in the factory premises, no duty was payable; that the demand of Rs. 53,55,862/- cannot be confirmed without deducting the demand of Rs. 33,23,722/-. On perusal of the order dated 14.05.1999, it would be found that some of the grounds on which the order of the adjudicating authority was challenged before the Appellate <ORG> were not considered while disposing of the appeal. The question of limitation was specifically taken in ground No. 23 of the memo of appeal, copy of which is Annexure, A-3 to the writ petition. The <ORG> has not given any finding in this regard while deciding the appeal. The petitioner had also taken one of the grounds that the estimation of the stocks found in excess was made on the basis of estimation and not actual verification, this ground and its effect was also not considered by the <ORG>. Only findings which have been recorded by the <ORG> while deciding the appeal are reproduced below :-

After considering the submissions made and on perusal of the records, we find that the appeals filed by the present appellants lack merit. We find that the manufacturing firm namely, <ORG> was established in 1990 and they were engaged in the production of menthol and DMO. It consists of three partners. <ORG> <ORG> has claimed that at the time of visit of the officers on 12.07.1995 their unit was not functioning but in the adjacent premises, the distillation plants were operating on trial basis and excisable goods found in the premises were either stocks or production of <ORG> <ORG> before its closure or goods purchased by the two trading units in the course of their business. The appellants have not denied the fact that all the 3 units namely one manufacturing unit and two trading units operating from the same premises within common boundary wall and common gate were owned by the members of the same family. The defence taken by <ORG> for the presence of unaccounted quantity of mentha oil and essential oil was that their production relating to the day previous to the visit of the officers on 12.07.1995 could not be recorded due to absence of their employee incharge of recording the same in the RG1 register. As regards the further quantity found in the premises, it is claimed that these were stocks belonging to the other units and the goods were in fact manufactured goods and received from the manufacturer at Rampur and were fully duty paid. The appellants have not been able to establish this claim by proper documents. The other defiance of the <ORG> that their distillation plant had been sent for repairs outside and, therefore production had been stopped prior to the visit of the officers also does not sustain in view of their not being able to give fuller details about the repairs and their failure to inform the authorities about the transfer of the machinery, as has been observed by the Commissioner. The claim of the appellants that it was for the department to show that the appellants had manufactured and cleared goods in clandestine manner does not deserve merit since it is an admitted fact that the goods were not accounted for and no evidence of duty paying character of the goods have been brought from the manufacturer at Rampur. We find that the allegation of clandestine production against <ORG> is clearly established in the facts and circumstances of the case. In view of this the penalty on <ORG> <ORG> also appears to be fully justified. Having regard to the failure of the appellants to produce any duty paying documents and their failure to account the excisable goods for the period 1993-94 and 1994-95, the duty demand of Rs. 53,55,862/- does not suffer from any infirmity. We confirm the same as well as penalty on <NAME>, partner of <ORG> <ORG> who cannot absolve his responsibility for this deliberate act of suppression of fact. However, as regards penalties on the appellants <NAME> and Smt. <NAME>, proprietors of <ORG> Quality Chemical and <ORG> Flavour and their units, we find that their active involvement in evasion of duty has not been established. We, therefore, set aside the penalty on Smt. <NAME> and <NAME>. As regards penalty on <NAME>, proprietor of <ORG> West Roadways under Rule 209A it is seen from the statement given by him that he has admitted that he has authorised <NAME> to make use of GR Books belonging to West Roadways and he had not denied the misuse of the said GR Books by <NAME>. All the same, having regard to the overall facts and circumstances, we reduce the penalty imposed by <NAME> Tiwari from Rs. 10 lacs to Rs. 1 lac.

8. After considering the submission, on perusal of the above findings of the <ORG>, the <ORG> comes to the conclusion that all the grounds taken before the <ORG> in the memo of appeal as enumerated above have not been considered by the <ORG> while deciding the appeal. The <ORG>s order, therefore, cannot be sustained and it deserves to be quashed. It is deemed necessary to direct the <ORG> to decide the appeal afresh after considering each and every ground taken in the memo of appeal and pressed before the <ORG>.

9. The petition is, therefore, partly allowed. The order dated 14.05.1999 as contained in Annexure 4 to the writ petition is quashed and the matter is sent back to the <ORG> with the direction that it will decide the appeal afresh after hearing the learned counsel for the parties and decide the same by giving finding on each ground taken in the memo of appeal and pressed before the <ORG>. The <ORG> shall decide the appeal as expeditiously as possible.

10. No order as to costs.