Full Judgment Text
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PETITIONER:
M/S SAVITA CHEMICALS (PVT) LTD.
Vs.
RESPONDENT:
DYES & CHEMICAL WORKERS UNION & ANR.
DATE OF JUDGMENT: 11/12/1998
BENCH:
S.B.MAJMUDAR, M. JAGANNADHA RAO.
JUDGMENT:
--------
S.B. Majmudar, J.
----------------
The appellant company, on grant of leave to appeal under
Article 136 of the Constitution of India, has brought in
challenge the judgment and order of the learned Single Judge
of the High Court allowed Writ Petition filed by Respondent
No.1 Union under Article 227 of the Constitution of India
and quashed the decision of the Presiding Officer, First
Labour Court, Thane. By the said decision, the First Labour
Court, Thane, took the view on an application moved by the
appellant company that Respondent No.1 union had gone on an
illegal strike from 30th March, 1983 pursuant to the strike
notice dated 14th March, 1983. In the impugned judgment,
learned Single Judge of the High Court took the contrary
view and held that the appellant had failed to establish
that the strike in question was illegal.
In order to appreciate the grievances of the
appellant against the decision of the High Court, it will be
necessary to have a glance at the background facts.
Introductory Facts:
-------------------
The appellant is a company registered under the Companies
Act, 1956 and is carrying on the business of chemicals at
Thane in the State of Maharashtra since more than 38 years.
Respondent No.1 is a workers union registered under the
Trade Unions Act, 1926. Respondent No.1 union had submitted
a charter of demand to the appellant no 1st April, 1981.
During negotiations a settlement was arrived at before the
Conciliation Officer between the parties on 8th March, 1982.
The said settlement was valid up to December 1984. The
settlement, inter alia, amongst others, covered the
following two demands; i) Demand No.14 - Privilege Leave;
ii) Demand No.26 Medical Check-up; It is the case of the
appellant company that during the subsistence of the
aforesaid settlement, Respondent No.1 union sent a letter of
demand to the Factory Manager of the appellant company on
14th March, 1983. As per the said letter, various demands
were raised and it was submitted by Respondent No.1 union
that it would go on strike on the expiry of 14 days from the
date of service of the notice. According to Respondent
No.1, the said notice was to be considered as notice for
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going on strike. The Factory Manager of the appellant
company sent a reply to the notice of Respondent No.1 on
23rd March, 1983. Respondent No.1 union, having gone on
strike from 30th March, 1983, sent a replication on 2nd
April, 1983.
The appellant company which is governed by the Maharashtra
Recognition of Trade Unions & Prevention of Unfair Labour
Practices Act, 1971 (hereinafter referred to as the
’Maharashtra Act’) filed an application under Section 25 of
the Maharashtra Act before the Labour Court, Thane, seeking
a declaration that Respondent No.1, union had gone on an
illegal strike. In the said application, the appellant’s
case was that the said strike was illegal under Section
24(1)(i)(a) and (i) of the Maharashtra Act. The said
application was moved as per the provisions of Section 24(1)
read with Section 25(1) of the Maharashtra Act.
The Labour Court, after hearing the parties, by its
order dated 20th May, 1983 came to the conclusion that the
letter dated 14th March, 1983 was not a strike notice as
required by law and was also contrary to the provisions of
Section 24(1)(i) of the Maharashtra Act. It, therefore,
declared that the strike resorted to by the workmen and the
staff members with effect from 30th March, 1983 was illegal.
Respondent No.1 challenged the said order of the
Labour Court in the aforesaid writ petition which was
registered as Writ Petition No.2171 of 1983 in the High
Court. As noted earlier, learned single Judge of the High
Court, by his order allowed the said writ petition and set
aside the order of the Labour Court and held that the strike
was not illegal. The said decision was rendered on 27th
November, 1992. It is this decision, which is brought on
the anvil of scrutiny of this Court in this appeal.
RIVAL CONTENTIONS:
-----------------
Shri M.C. Bhandare, learned senior counsel for the
appellant contended that the Labour Court was perfectly
justified in taking the view that the impugned notice dated
14th March, 11983 was not legal and valid as it violated
provisions of Section 24(1)(a) of the Maharashtra Act as the
said notice of strike was not in the prescribed form. He
also submitted that the said notice was contrary to Rules 50
and 51 of the Labour Courts (Practice & Procedure) Rules,
1975. That the notice did not recite that Respondent No.1
union, being a recognised union, obtained vote of majority
of the members in favour of the strike before serving the
notice as required under Clause (b) of sub-section (1) of
Section 24 of the Maharashtra Act. Consequently, according
to the learned senior counsel for the appellant, strike
would become illegal also as per Section 24(1)(b) of the
Maharashtra Act. He next contended that the impugned strike
was also hit by Section 24(1)(i) of the Maharashtra Act as
it was resorted to pursuant to the said notice, during the
period in which settlement of 8th March, 1982 was in
operation and the notice amongst others was based also in
respect of two matters covered by the settlement, namely,
Demand No.14 - Privilege Leave and Demand No. 26 - Medical
Check-up, both of which were settled pursuant to the
aforesaid settlement. It was also contended that once the
Labour Court had come to the conclusion on facts on the
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relevant issue in the light of the evidence laid before it
and appreciated by it, it was not open to the High Court
under Article 227 to set aside the findings of fact when
there was no patent error reflected in the judgment of the
Labour Court. He also tried to submit that the High Court
should not have entertained the writ petition as Respondent
No.1 had a remedy of going in revision in the Industrial
Court under Section 44 of Maharashtra Act though ultimately
the said contention was not seriously pressed. Learned
senior counsel for the appellant contended that in any case
the impugned strike was clearly violative of the requisite
provisions of Section 24 of the Maharashtra Act and it was
wrongly held by the High Court as not to have resulted in an
illegal strike. It was, therefore, contended that the
decision of the learned Single Judge is required to be set
aside and the decision rendered by the Labour Court deserves
to be upheld.
Ms. Anita Shenoy, learned counsel for the Respondent, on
the other hand, submitted that the appellant company had
filed the application under Section 24 read with Section 25
of the Maharashtra Act only on the ground that the strike in
question was allegedly illegal as per the provisions of
Section 24(1)(a) meaning thereby it was alleged that the
notice was not in the prescribed form and also on the ground
of violative of Section 24(1)*i); that no case was even
alleged for voiding the notice and the ultimate strike on
the ground that provisions of Section 24(1)(b) were
violated. It was also submitted by her that the main
requirements of the prescribed notice as per Form-I read
with Rule 22 of the Rules under the Act were complied with
by the said notice. That the notice was addressed to the
authority of the company in charge of the management of the
factory at the relevant time; that it was clearly mentioned
that there were grounds indicated therein which were
compelling Respondent No.1 union to go on strike. Even the
time for going on strike was also mentioned as 14 days’
after the service of the notice’ that clause-2 of the
prescribed Form-1 could not have applied as it was not the
case of the appellant company itself before the Labour Court
that Respondent No.1 was a recognised union as per the
Maharashtra Act. Therefore, the asterisk placed against
clause 2 of Form-1 which permitted the striking off of
clause 2 when not applicable gets squarely applied to the
facts of the present case. She submitted that in order to
be a recognised union. certificate was to be issued in
favour of Respondent No.1 union, as seen from the definition
of Section 3(13) of the Maharashtra Act. That it was not
the case of the appellant that provisions of Chapter III,
especially, Sections 10 to 12 were ever complied with by
Respondent No.1 union so as to be treated as a recognised
union under the Maharashtra Act. Consequently, paragraph 2
of the prescribed Form-I of the notice did not apply to
Respondent No.1 union. Therefore, there was no occasion for
Respondent No.1 union to even whisper about obtaining vote
of majority of the members in the said notice as tried to be
submitted by learned senior counsel for the appellant. It
was contended that the notice in question substantially
complied with the requirements of the said prescribed form
of the notice. Consequently, the Labour Court was in patent
error when it took the view that Respondent No.1 had not
given strike notice in the prescribeed form and on that
score Section 24(1)(a) got attracted on the facts of the
present case. Such a patent error was rightly set aside by
the High Court under Article 227 of the Constitution of
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India. She next contended that as the appellant company did
not invoke alleged violation of Section 24(1)(b) before the
Labour Court, there was no question of examining the said
ground either by the Labour Court or by the High Court. She
submitted that the very fact that the said sub-clause (b)
was not pressed in service by the appellant company shows
that it neverr treated Respondent No.1 as a recognised
union. So far as the applicability of Section 24(1)(i) is
concerned, she submitted that the strike notice was not
given during the currency of the settlement with respect to
any of the matters covered by the settlement. It was
submitted that Demand No.14 regarding the privilege leave as
found in the settlement only granted crystalisation of the
right of the workmen represented by Respondent No.1 union
for getting privilege leave of 12 days for each completed
240 days of work per year and further privilege leave of one
day for every additional 12 days of work as provided
therein. That the dispute raised in the strike notice did
not seek, in any way, to change the basis of the said grant
of privilege leave but the grievance was entirely different
as it pertained to the proper computation of the privilege
leave as per the terms of the settlement. In a way it
amounted to calling for correct and proper implementation of
the settlement for which Respondent No.1 union could have
filed a complaint under Section 28 of the Act pertaining to
unfair labour practice on the part of the employer as found
in Schedule IV Item 9 of the Maharashtra Act. But that did
not take away the additional right of strike available to
Respondent No.1 union on behalf of its workmen. It was also
submitted that the very fact that failure to implement the
award was made by the legislature a subbject matter of the
complaint, showed that such implementation would not be
covered by the settlement. It is for the simple reason that
if it had already been covered by the settlement, even the
more drastic remedy of strike for getting the settlement
implemented would have stood barred under Section 24(1)(i).
In other words, it was contended that matters covered by the
settlement as per Section 24(1)(i) would be only those
matters which were expressly referred to in the settlement.
Computation of the benefit as per the agreed terms in tthe
settlement was not a matter which was covered by the
settlement but was a matter even if arising out of the
settlement was one which was consequent upon the settlement.
It was an independent matter for which there was no express
provision in the settlement. It was posterior to the
settlement and not embeedded therein. Consequently, Section
24(1)(i) also was not applicable to the facts of the present
case and as the Labour Court had committed a patent error in
this connection it was rightly corrected by the High Court.
Similar was her contention regarding Demand No.26 about
Medical Check-up. It was submitted that the said settlement
had nothing to do witth the prevention of discase as Demand
No.26 referred to medical treatment for the disease which
was already suffered by the workmen due to occupational
hazards. Prevention of such disease which was the subject
matter of impugned notice was anterior to the question of
medical check-up and was not covered by the terms of the
settlement. Even on that ground Section 24(1)(i) did not
get attracted. That the High Court rightly corrected the
patent error of the Labour Court in this connection. It
was, therefore, contended that the High Court, in exercise
of its powers under Article 227, was justified in
interfering with the order of the Labour Court and in
setting aside the patently erroneous order of the said
court. It was, therefore, submitted that the appeal
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deserves to be dismissed. She contended that 40 workmen who
were out of job since more than 15 years have suffered
immensely and that their services have been illegally
terminated by the appellant company. This part of the
grievance, in our view, cannot form subject matter of the
present proceedings and, therefore, whatever practice on the
part of the employer as found in Schedule IV Item 9 of the
Maharashtra Act. But that did not take away the additional
right of strike available to Respondent No.1 union on behalf
of its workmen. It was also submitted hat the very fact
that failure to implement the award was made by the
legislature a subject matter of the complaint, showed that
such implementation would not be covereed by the settlement.
It is for the simple reason that if it had already been
covered by the settlement, even the more drastic remedy of
strike for getting the settlement implemented would have
stood barred under Seection 24(1)(i). In other words, it
was contended that matters covered by the settlement as per
Section 24(1)(i) would be only those matters which were
expressly referred to in the settlement. Computation of the
benefit as per the agreed terms in the settlement was not a
matter which was covered by the settlement but was a matter
even if arising out of the settlement was one which was
consequent upon the settlement. It was an independent
matter for which there was no express provision in the
settlement. It was posterior to the settlement and not
embedded therein. Consequently, Section 24(1)(i) also was
not applicable to the facts of the present case and as the
Labour Court had committed a patent error in this connection
it was rightly corrected by the High Court. Similar was her
contention regarding Demand No.26 about Medical Check-up.
It was submitted that the said settlement had nothing to do
with the prevention of discase as Demand No.26 referred to
medical treatment for the disease which was already suffered
by the workmen due to occupational hazards. Prevention of
such disease which was the subject matter of impugned notice
was anterior to the question of medical check-up and was not
covered by the terms of the settlement. Even on that ground
Section 24(1)(i) did not get attracted. That the High Court
rightly corrected the patent error of the Labour Court in
this connection. It was, therefore, contended that the High
Court, in exercise of its powers under Article 227, was
justified in interfering with the order of the Labour Court
and in setting aside the patently erroneous order of the
said court. It was, therefore, submitted that the appeal
deserves to be dismissed. She contended that 40 workmen who
were out of job since more than 15 years have suffered
immensely and that their services have been illegally
terminated by the appellant company. This part of the
grievance, in our view, cannot form subject matter of the
present proceedings and, therefore, whatever remedies may be
available to the concerned workmen, in this connection, may
be open to them in accordance with law. It will be equally
open to the appellant company to resist the said future
proceedings in accordance with law if at all that occasion
arises. We do not express any opinion about the same. In
this case, we are concerned with the short question whether
the High Court was justified in setting aside the Labour
Court’s order declaring the strike of the workmen from 30th
March, 1983 illegal as per provisions of Section 24(1)(i)
and Section 24(1)(i) of the Maharashtra Act.
Aforesaid rival contentions give rise to the
following points for our consideration:
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i) Whether the impugned strike notice of 14th March,
1983 given by Respondent No.1 union on behalf of its members
was violative of Section 24(1)(a) of the Maharashtra Act;
ii) Whethever the impugned strike notice is violative of
provision of Section 24(1)(b) of the Maharashtra Act;
iii) Whether the impugned strike notice was hit by
Section 24(1)(i) of the Maharashtra Act;
iv) Whether the High Court, in exercise of its
jurisdiction under Article 227 of the Constitution of India,
was justified in interfering with the findings reached by
the Labour Court; and
v) What final order?
Before taking up the consideration of these aforesaid
points, it will be necessary to have a look at the relevant
statutory scheme in the light of which the controversies
between the parties will have to be resolved.
STATUTORY SCHEME:
----------------
The Maharashtra Act is enacted, amongst others, for
the recognition of trade unions for facilitating collective
bargaining for certain undertakings, to state their rights
and obligations; to confer certain powers on unrecognised
unions and to provide for declaring certain strikes and
lock-outs as illegal strikes and lock-outs, to define and
provide for the prevention of certain unfair labour
practices and to constitute courts (as independent
machinery) for carrying out the purposes of according
recognition to trade unions.
Section 3, sub-section (13) defines a recognised union
Chapter III deals with recognition of unions and lays down
that the provisions of this chapter will apply to every
undertaking, wherein fifty or more employees are employed,
or were employed on any day of the preceding twelve months;
Section 12 lays down the procedure to be followed by the
Industrial Court while granting certificate of recognition
to the applicant union. Chapter V deals with illegal strikes
and lock-outs. Section 24 covers these topics. The relevant
provisions of Section 24 read as under:
"24. Illegal strike and lock-out:- In this Act,
unless the context requires otherwise:-
(1) "illegal strike" means a strike which is
commenced or continued.
(a) without giving to the employer notice of strike
in the prescribed form, or within fourteen days of
the giving of such notice;
(b) where there is a recognised union, without
obtaining the vote of the majority of the members of
the union, in favour of the strike before the notice
of the strike is given:
(c) xxxxxx xxxxx xxxx
(d) xxxxxx xxxxx xxxx
(e) xxxxxx xxxxx xxxx
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(f) xxxxxx xxxxx xxxx
(g) xxxxxx xxxxx xxxx
(h) xxxxxx xxxxx xxxx
(i) during any period in which any settlement or
award in in operation, in respect of any of the
matters covered by the settlement or award."
(Emphasis supplied)
Section 25 deals with procedure to be followed for
getting the declaration whether strike or lock-out is
illegal. Sub-section (1) thereof which is relevant for our
purpose provides that:
"Where the employees in any undertaking have
proposed to go on strike or have commenced a strike,
the State Government or the employeer of the
undertaking may make a reference to the Labour Court
for a declaration that such strike is illegal."
Sub-section (5) of Section 25 lays down that:
"Where any strike or lock-out declared to be illegal
under this section is withdrawn within forty-eight
hours of such declaration, such strike or lock-out
shall not, for the purposes of this Act, be deemed
to be illegal under this Act."
Chapter IV deals with Unfair Labour Practices. Section 26
thereof which is the first section in that Chapter lays down
that:
"unless the context requires otherwise, ’unfair
labour practices’ mean any of the practices listed
in Schedules II, III and IV."
Section 28 prescribes the procedure for dealing with
complaints relating to unfair labour practices. Sub-section
(1) thereof provides :
"Where any person has engaged in or is engaging in
any unfair labour practice, then any union or any
employee or any employer or any Investigating
Officer may, within ninety days of the occurrence of
such unfair labour practice, file a complaint before
the Court competent to deal with such complaint
either under section 5, or as the case may be, under
section 7, of this Act:"
Schedulee IV, which is relevant for our purpose,
deals with General Unfair Labour Practices on the part of
employers. Item 9 thereof deals with failure to implement
award, settlement or agreement on the part of the employer
which would be treated as general unfair labour practice on
the part of the employers. It is in the background of the
aforesaid statutory scheme that we have to consider the
points which arise for our determination.
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Point No.1:
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The factual matrix relevant for consideration of
this point indicates, as noted earlier, that there was
settlement arrived at between the appellant company and
Respondent No.1 union on 8th March, 1982 which, amongst
others, settled demand nos. 14 and 26 regarding privilege
leave and medical check-up. We will have occasion to deal
with the terms of settlement regarding these demands a
little later when we will deal with point no.3. It is
sufficient for the present to mention that the aforesaid
settlement was for three years valid up to December, 1984.
It is during the subsistence of the aforesaid settlement
that Respondent No.1 union sent a letter of demand to the
Factory Manager of the appellant company on 14th March,
1983, as noted earlier. It will be relevant at this stage to
refer to the exact wording of the said letterr. It read as
underr:
"Ref.No.DCWU/146/1983_
Hand Delivery Dated 14-3-1983.
The Factory Manager,
Savita Chemicals P. Ltd.,
Plot No.17A, Belapur Road,
Thane.
-----
Sir,
We find that one Shri U.V. Sinkar and Shri
Durga Prasad P.S.R.K., working as chemists in your
company have been under the pretext of retrenchment
and/or slackness of work, removed by you. The ground
advanced is a cloak though factually the work under
no circumstances was reduced and there were junior
most persons continued in the employment in the
similar category.
We may also bring to your notice that ever since the
staff members have enrolled themselves as members of
our union, your management has started harassing
them and you have been demanding their resignations
from the primary membership of the union. Threats
were openly held that the union will be liquidated
by the management.
We also find that the workmen are subjected to
harassment and the workmen who have been appointed
as probationers are continued as probationers
despite the fact that the law of the land namely
Employment Standing Orders Act 1946 which becomes
applicable to your establishment does not permit
continuance of such employees as probationers for an
indifinite period. "Similarly there have been
illegal changes brought about in the matter of
computing the privilege leave." There have been
instances where the workmen under fabulous
allegations charge-sheeted and removed, and many
more are awaiting the charge-sheets. This has become
the order of the day, and the lives of the workmen
in the company also have become introlerable.
(Emphasis supplied)
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There are also difficulties and hazards emanating
from the operations and no effective steps have been
taken by your management to prevent such hazards.
It is very difficult to understand how the
management has been continuing its operations in a
crude fashion and exposing the workmen to serious
types of hazards. The process of sulphonation is
positively causing dangerous effects on the lives of
the workmen and no steps of any manner have been
taken either to modify and/or cure the processes
whereby the ingredients or hazards are reduced and
the lives become tolerable. Similarly operation
containing Polyneuclear Aromatics and Alkylate is
capable of causing cancer to the workmen. It is
rather tragic that no steps have been taken to
prevent such processes where large majority of the
workmen not only in your company but those working
surround your company who are susceptible to such
after effects are given any assurance by way of
rectifying the method and taking away the dangerous
hazards involved. Lives of the workmen are often
becoming dangerous and under no circumstances, it is
possible for the workmen, considering the total
indifference on the part of the management to
continue operation in the circumstances in which the
management wants to continue it. The workmen,
therefore, have resolved that the total attitude of
the management towards resolution of the industrial
dispute and other relevant circumstances as stated
hereinabove, which are making the lives of the
workmen very dangerous and are exposing them to the
dangers and therefore, the workmen in order to
prevent the after effects and such dangers and also
shabby treatment meted out to the workmen and also
the physical attacks lodged against the workmen
through anti-social elements employment by the
company, to protect themselves and their rights and
on that account, the workmen have decided to proceed
on strike and that being so, this notice is given to
you. The workmen therefore, want you to treat this
letter to be treated as notice of strike and it may
be noted that after the expiry of 14 days from the
date of receipt of this letter hereof, the workmen
will proceed on strike and the consequence in such
circumstances flowing there-from shall be your
responsibility which please note.
Thanking you,
Yours faithfully
Sd/ -
General Secretary
The said letter was addressed by Respondent No.1 union to
the Factory Manager of the appellant company. As seen from
this letter, the following averments 1 to 8 contained
therein had nothing to do with Section 24(1)(i) of the Act.
(1) Firstly it was mentioned that one Shri U.V.Sinkar and
shri Durga Prasad P.S.R.K., working as chemists were wrongly
retrenched. (2) Secondly the grievance of Respondent No.1
union was that the management had started harassing the
staff members who were enrolled as members of the union and
their resignations were subjected to harassment and the
workmen who had been appointed as probationers were
continued as probationers despite the fact that the law of
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the land, namely, Employment Standing Orders Act, 1946 did
not permit such continuance. Then followed the recitals
which have been strongly pressed in service by the learned
senior counsel for the appellant, in support of his
submission, which in his view made the proposed strike
illegal under the relevant provisions of Section 24. It
will, therefore, be profitable to extract the recitals in
extenso. It has been mentioned i second part of paragraph
three of the notice as under:
"Similarly there have been illegal changess brought
about in the matter of computing the privilege
leave."
(4) The rest of the paragraph dealt with different
grievances, namely, that workmen under frivolous allegations
were charge-sheeted and removed and many more were awaiting
charge-sheets. (5) Then followed the fourth grievance
regarding the difficulties and hazards emanating from the
operation of the factory and that no effective steps had
been taken by the management to prevent such hazards. It
was recited that the management had been continuing its
operations in a crude fashion and exposing the workmen to
serious types of hazards. (6) It was then mentioned that
the process of sulphonation was positively causing dangerous
effects on the lives of the workmen and no steps of any
manner had been taken either to modify and/or cure the
processes whereby the ingredients or hazards were reduced
and the lives became tolerable. (7) Similarly, operation
containing Polynuclear Aromatics and Alkylate was capable of
causing cancer to the workmen. (8) Then the grievance was
made that no steps had been taken to prevent such processes
where large majority of the workmen not only in the company
but those working in the surroundings of the company who
were susceptible to such after effects were not given any
assurance by way of rectifying the method and taking away
the dangerous hazards involved. It was then recited that
the lives of the workmen were often becoming dangerous and
under no circumstances, it was possible for the workmen,
considering the total indiffierence on the part of the
management to continue operation in the circumstances in
which the management wanted to continue the work. It was
then recited that the workmen, therefore, had resolved that
considering the total attitude of the management regarding
resolution of the industrial dispute and other relevant
circumstances as stated herein, they had decided to proceed
on strike and that being so this notice was given to the
addressee. It was then mentioned in the notice that the
workmen wanted the addressee to treat this letter as notice
of strike and it was to be noted that after the expiry of 14
days from the date of receipt of the letter, the workmen
would proceed on strike. The said letter was replied to on
behalf of the company by its Factory Manager on 23rd March,
1983 refuting the allegations made in the strike notice and
calling the representatives of the union for discussion and
settlement of the matter amicably. It is thereafter that the
members of respondent No.1 union went on strike from 30th
March, 1983 and then sent the replication through the union
on 2nd April, 1983 refuting the contents of the reply of the
managementt dated 23rd March, 1983.
In the light of the aforesaid factual matrix, first
question arises whether the impugned notice of 14th March,
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1983 fell foul on the touch-stone of Section 24(1)(a) of
thee Maharashtra Act. Learned senior counsel for the
appellant submitted that the said notice was not in the
prescribed form. For supporting this contention, he relied
upon Rule 22 framed by the State Government undr Section
61(1) of the Act which lays down that:
"the State Government may, by notification, in the
Official Gazette, and subject to the condition of
previous publication, make rules for carrying out
the purposes of this Act".
The relevant rule is found in the Maharashtra
recognition of Trade Unions & Prevention of Unfair Labour
Practices Rules, 1975. Rule 22 is found in Chapter V of the
said rules. It lays down as follows:
"22. Notice of strike :- The notice of strike under
clause (a) of sub-section (1) of section 24 shall be
in the Form I and shall be sent by registered post."
When we turn to Form No.1, we find the prescribed form
as under:
FORM - I
(See Rule 22)
Name of the Trade Union:
Name of 5 elected representatives of the workmen,
where no Trade Union exists :
Address...
Dated the... day of .... ..... 19 ,
To,
(Here mention name of the employer and full address
of the undertaking)
Dear Sir(s)/Madam,
In accordance with the provisions contained
in sub-section (1) of section 24 of the Maharashtra
Recognition of Trade Unions and Prevention of unfair
Labour Practices Act, 1971, I/We.
(Here insert name of the person(s))
hereby give you Notice that I/we propose to call a
strike of the workmen employed in your undertaking
propose to go on strike along with the other workmen
employed in yourr undertaking form the .....day of
..... 19 ..... for the reason(s) explained in the
Annexure attached hereto.
2. * This Union being a recognised Union in your
undertaking has obtained the vote of majority of the
memberrs in your undertaking in favour of the
strike, before serving this notice on you, under
clause (b) of sub-section (2) of section 24 of the
Act.
Yours faitfully
Signature
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Place....... General Secretary/Secretary,
..... ....... .......
(Here insert name of the Union)
*Strike of whichever is not applicable
Annexure
Statement of Reasons
Copy to:
(1) The Investigating Officer ......
(Here enter office address of the Investigating
Officer, for the area concerned)
(2) The Registrar, Industrial Court,
Maharashtra, Bombay.
(3) The Judge, Labour Court .... ......
(Here enter address of the Labour Court,
of the area concerned).
(4) The Commissioner of Labour, Bombay.
-----------
The learned senior counsel for the appellant relied upon
Rules 50 & 51 of the Labour Courts (Practice & Procedure)
Rules, 1975. So far as these rules are concerned, they are
framed by the Industrial Court of maharashtra in exercise of
its powers conferred under Section 44 of the Maharashtra
Act. When we turn to Section 44, we find that it deals with
powers of Industrial Court in connection with exercise of
superintendence over all Labour Courts. It lays down as
follows:
"The Industrial Court shall have superintendence
over all Labour Courts and may.
(a) call for returns;
(b) make and issue general rules and prescribe forms
for regulating the practice and procedure of such
Courts in matters not expressly provided for by this
Act, and in particular, for securing the expeditious
disposal of the cases;
(c) prescribe form in which books, entries and
accounts shall be kept by officers of any Courts;
and
(d) settle a table of fees payable for process
issued by a Labour Court or the Industrial Court."
It, therefore, becomes obvious that the Labour Courts
(Practice & procedure) Rules, 1975 are for guidance of the
Labour Courts and for regulating the practice and procedure
of these courts. Thus, Rules 50 and 51 which are part and
parcel of these rules, cannot have anything to do with the
format of the notice of strike which a union has to give to
the management as per Section 24(1)(a). Prescribed format
for the purpose of the said provision will necessarily be as
per Form-I as was laid down by Rule 22 of the Rules framed
by the State Govt. Rules, 1975 are, therefore, totally
redundant and irrelevant for resolving this controversy.
We, therefore, do not dilate on the same. however, Shri
Bhandare, learned senior counsel for the appellant, contends
that at least prescribed Form-I as per Rule 22 of the Rules
framed by the State of Maharashtra is relevant for deciding
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this controversy. To that extent he is right. Now, a mere
look at the said Form-I shows that the notice must contain,
amongst others, thee following basic requirement:
i) The name of the Trade Union giving notice, its
address and the date of the notice;
ii) The name of the employer and full address of the
undertaking for which the notice is meant;
iii) Clear indication in the notice about the call for
strike of the workmen employed in the undertaking and the
date from which the strike is to be resorted to;
iv) and the reasons for the proposed strike.
It is easy to visualise that if all the aforesaid four
requirements are fulfilled, in substance, the basic
requirements of Form-I would get satisfied. It is not as if
that the notice must be typed in the samee sequence in which
Form-I is drafted or that it must mention Section 24(1).
The latter are mere formal requirements. In substance, the
notice must fulfil the aforesaid basic requirements of the
prescribed form. If they are fulfilled, which section of
the Act applies to such notice can be easily found out by
reference to the Act. Similarly, whether notice is given by
registered post or by hand delivery is also not a basic
requirement. It refers to mode of service. In the present
case, it is not in dispute that notice was duly served on
the management. Sending of copies of notice to mentioneed
persons is also not a part of the basic requirement of the
notice. When we examine the impugned strike notice, we find
that all these four basic requirements of Form-I have been
complied with in the present case. the name and address of
the Trade Union which served the notice are clearly
mentioned, the date of the notice is also indicated, the
nature of the addressee of the notice and his address are
also mentioned, namely, it has been addressed to the Factory
Manager of the company who was in-charge of the company at
the relevant time and under whom the workmen proposing to go
on strike were actually working. It is also clearly
mentioneed as to forrm which date the strike is proposed to
be resorted to, as it is mentioned that the strike would be
resorted to on the expiry of 14 days from the date of the
receipt of the letter cum notice. It is also clearly
mentioned that the letter will be treated as notice for
going on proposed strike. Then follows the heart of the
notice, namely, reasons why the proposed strike has to be
resorted. Thus, all the basic requirements of Form-I have
been satisfied. even the Labour Court took the view that
the substance of the notice had to be seen and not its form.
Still, however, it persuaded itself to hold that the notice
was not in the prescribeed fform. The said finding of the
Labour Court was patently illegal and was rightly reversed
by tthe High Court in the impugned judgment, Learned senior
counsel for the appellant, Shri Bhandare, however, submitted
that requirement of paragraph 2 of the said Form-I was not
complied with in the present case. It is not mentioned in
the notice that the Union beeing a recognised union has
obtained the vote of majority of the members to go on
strike. It must be kept in view that this clause 2 of
Form-I being an asterisk which says that any portion which
is not applicable has to be struck off when not applicable.
It was not the case of the appellannt at any time that
Respondent no.1 Union was recognised union under the Act
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having followed the equirements and had obtained the
certificate of a recognised union under Section 12 of the
Act. On the contrary, when we turn to the application filed
by the appellant before the Labour Court, we find that it
was the case of the appellant itsef before the Labour Court
that the Union was a registered Union and claimed to
represent the employees employed by the applicant in the
said factory. It was not the case of the appellant before
the Labour Court in the application Under Section 25 that
respondent No.1 Union was a recognised union under the Act.
Not only that, the application sought to invoke only Section
24(1)(a) and Section 24(1)(i) of the Maharashtra Act and did
not invoke Section 24(1)(b) of the Act which deals with a
recognised union. It is also the case of Respondent no.1
that it is not a recognised union under the Act, Thus, it
was almost an admitted position on the record before the
Labour Court that Respondent no.1 Union was not a recognised
union under the Act. Once that conclusion is reached, it
becomes obvious that paragraph 2 of the form-I did not apply
to the facts of the present case and had to be treated to
have been struck-off for the purpose of issuing strike
notice by Respondent no.1 Union to the appellant company.
Consequently, the finding of the Labour Court that the
impugned notice was not in a prescribed form and therefore,
would result in the strike of 30th March, 1983 onwards
becoming an illegal strike being contrary to Section
24(1)(a) of the Maharashtra Act must be held to be patently
erroneous and was rightly sett aside by the High COurt in
writ jurisdication. In fact, on this aspect, two views are
not possible at all and only one view which appealed to the
High Court is the only possible and permissible view. The
view taken by the Labour COurt was clearly contrary to
evidence on record and had to be treated as perverse and
patently illegal. It must, therefore, be held that the
impugned notice of strike was not violative of the
provisions of Section 24(1)(a) of the Maharashtra Act. It
must be held that the said notice was a perfectly valid
strike notice as required by the said provision read with
Rule 22 and Form-I of the relevant M.R.T. and P.U.I.P.,
Rules, 1975. The first point is, therefore, answered in
negative, in favour of Respondent no.1 Union and against the
appellant company.
Point No.2:
This takes us to the consideration of Point No.2, It is
obvious that it was not the case of the appellant company
before the Labour Court that the impugned strike was
contrary to the provisions of Section 24(1)(b) of the Act,
In fact, as seen earlier, it was not the case of the
appellant company that Respondent no.1 Union, was a
recognised union under the Act at the relevant time when it
gave the impugned notice. COnsequently, the appellant’s
case before the Labour Court for getting the strike declared
illegal was based only on the violation of Section 24(1)(a)
of the Act. The Labour Court has also treated the
proceedings accordingly and the ultimate decision rendered
by the Labour Court is also to the effect that the strike
notice of 14th March, 1983 was no notice in law and
violative of provisions of Section 24(1)(i). In substance,
the Labour Court had no occasion to consider the question
whether it was violative also of Section 24(1)(b) of the
Act. It is also, in this connection, perttinent to note the
prayer in the application moved by the appellant before the
Labour Court under Section 25 of the Act. the said prayer
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reads as under:
"The Applicant prays that the Hon’ble Court may be
pleased to declare:
(i) That the strike resorted to by the workmen as
well as by the staff members employed in the
Applicant’s factory commencing from 30-3-83 at their
respective shift schedule timings and continued
thereafter every day in all the shifts and which is
still continuing in an illegal strike under
Sec.24(1)(a) & (i) of the MRTU & PULP Act, 1971."
It, therefore, becomes obvious that it is not open to
learned senior counsel for the appellant - Shri Bhandare to
submit that the impugned strike notice was violative of the
provision of Section 24(1)(b) of the Act. Consequently, this
point does not arise for our consideration and must be held
to be redundant and is not applicable to the facts of the
present case. It must, therefore, be held while answering
this point that the impougned strike notice cannot be said
to be violative of the provision of Section 24(1)(b) of the
Act for the aforesaid reasons.
Point No.3:
----------
So far as this point is concerned, it requires a more
closer scrutiny. As we have seen earlier, there was also a
bunding settlement between the parties in connection with
demand nos. 14 and 26. We shall first deal with settlement
on demand no.14 regarding Privilege Leave.
So far as this demand is concerned, the settlement
reads as under:
"Demand No.14 : PRIVILEGE LEAVE:
-------------------------------
The existing practice of 12 days leave for the
first 240 days worked and 1 day for every 12 days
worked beyond 240 days shall continue and in all
other respect the privisions of Factory Act and
existing rules shall apply."
A mere look at the settlement on this Item shows that it
was agreed between the parties that the then existing
practice of granting 12 days privilege leave for each
completed 240 days work per year and one day more for every
additional 12 days of work beyond 240 days was to continue
and in all other respects thee provisions of Factory Act and
existing rules were to apply. Now, the question is whether
any part of this settlement on privilege leave was sought to
be by-passed or challenged in the impugned notice so as to
get voided on the touchstone of Section 24(1)(i) of the
Act, The said provision lays down that "Illegal strike"
means a strike which is commenced or continued during any
period in which any settlement or award is in operation, in
respect of any of the matters covered by the settlement or
award. The question is whether the proposed strike, amongst
others, was concerning the grievances in connection with any
matter "covered" by the settlement. A conjoint reading of
relevant clauses of settlement on demand No.14 regarding
Privilege Leave shows that it was settled between the
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parties that during the continuation of the settlement, a
workman would be entitled to claim only 12 days for 240 days
of work and 1 day for every additional 12 days of work
beyond 240 days thereafter in a given year. It was not the
case of Respondent No.1 Union in the impugned notice of
strike that they wanted any more days of privilege leave
after 240 days of work in a year by way of grant of
privilege leave vis-avis the number of days worked during
the year. The impugned strike notice, as noted earlier,
recited an entirly different grievance, namely, that there
were illegal changes brought about in the matter of
computing privilege leave. Actual and correct computation
of privilege leave on the basis of actual days worked in a
year for concerned workers was not covereed by the terms of
the settlement. This grievance pertained to
non-implementation of the agreed settlement regarding
privilege leave and had nothing to do with the claim for any
extra privilege leave in addition to that which was agreed
to between the parties. To take an analogy, the rights
crystalised in the decree stand on an entirely different
ffooting as compared to the grievance in execution
proceedings regarding non-implementation of the settled
rights under the decree. The grievance made in the impugned
strike notice did not pertain to any modification of the
crystalised rights regarding privilege leave granted to the
workmen under the settlement but it pertained to an entirely
different grievance based on a situation which was posterior
to settlement of rights and obligations regarding privilege
leave between the parties. Thus, as seen earlier, this
grievance about non-implementation of the crystallised terms
of settlement cannot be said to be a matter "covered" by the
settlement for purposes of the difinition of "Illegal
strike" referred to above. It can be said to be amounting
to a grievance in connection with non-implementation of the
settlement in its true and correct perspective. That, of
course, would also amount to allegation of unfair labour
practice on the part of the employer as reflected by a
conjoint reading of section 26 and Schedule IV Item 9 of the
Act, as noted earlier. But the allegation of unfair labour
practice on the part of the management has nothing to do
with the question whether it also amounts to going behind
the settlement. Thus, the strike notice referred to a claim
which arose subsequent to the settlement in connection with
non-implementation of the main terms of the settlement. The
Labour Court was patently in error when it took the view
that because of the alternative remedy available to the
workmen of filing a complaint about alleged unfair labour
practice on the part of the management, they could not have
resorted to a more drastic remedy of strike under the
provisions of the Maharashtra Act. Nothing in this Act
could be relied upon to show that if any grievance of the
workmen is covered by unfair labour practice alleged against
the employer, they cannot resort to strike. However learned
senior counsel for the appellant Shri Bhandare, rightly
submitted that such a more drastic remedy was of the last
resort. He was also right when he submitted that when a less
drastic remedy was available, the workmen should have
resorted to the same for maintaining industrial peace and
production. However, that would be in the realm of trade
union policy. It may be more prudent for a union of workmen,
with a view to having industrial peace and continued
production as well as for not disrupting continuity of
employment of workmen, to resort to negotiations, and that
if needed, to go in the Labour Court with complaint under
Section 28 on the ground of unfair labour practice by the
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employer for the alleged non-implementation of the
settlement. It may also be an ideal solution of the
problems. But what is ideal may not necessarily be filed by
a more militant body of workmen. It may in the long run,
prove to be a more drastic remedy for the workmen as they
would suffer pangs of unemployment and starvation not only
for themselves but also for the members of their families.
But only because such better and more purdent remedy was
available, it cannot be said that the extreme step of strike
resorted to be the Union by not following such remedy was
per se illegal unless it fell within the fore-corners of
Section 24(1)(i) of the Maharashtra Act. It is also easy to
visualise that the same Maharashtra legislature which
enacted Section 24(1)(i) also enacted Schedule IV Item 9 by
treating it to be an unfair labour practice on the part of
the employer. The Maharashtra Act laid down two separate
provisions in connection with illegal strike as well as
unfair labour practice by the employer. What is unfair
labour practice on the part of the employer cannot be
pressed in service by the management to show that workers
making grievances regarding the same could not have resorted
to the strike in connection with the same unfair labour
practice and if they did so the strike only on that score
became an illegal strike, especially when it was not
contrary to any of the provisions of Section 24(1). In any
case, the grievance regarding non-implementation of the
settlement is not treated by the legislature to be a matter
"covered" by the settlement as both these topics are
separately dealt with it by enacting Section 24(1)(i) on the
one hand and Schedule IV Item 9 of the Act on the other.
But leaving aside these aspects of the matter, it becomes
clear that the intention of the legislature by enacting
24(1)(i) is that during any period in which any settlement
is in operation if strike is restorted to by the union or
the workmen in connection with any matter "covered" by the
settlement the strike would be illegal. Therefore, it must
be shown that the strike has been resorted to in connection
with any matter covered by the settlement. It therefore
necessarily means that the terms of the settlement, when
read, must indicate that they encompassed any matter which
is made the subject matter of the strike notice. We must see
the express terms of settlement with a view to finding out
as to which matters are covered by the settlement. This
necessarly would connote that the settlement in express
terms must refer to a matter which is subsequently made a
subject matter of notice of strike. When we turn to the
settlement of demand no. 14 regarding privilege leave, we
find that how 12 days leave for the first 240 days of work
in a year and 1 day for every additional 12 days worked
beyond 240 days worked are computed in a given year, is not
a mater which is at all indicated or mentioned in the
settlement. All that the settlement has guaranteed is the
right of the workmen to earn 12 days privilege leave for 240
days worked in a year and additional one day for every 12
days beyond 240 days worked in a year. The question
regarding the correct method of computation of the leave
under the settlement is not expressly covered by the terms
of the said settlement. Any grievance in connection with the
same therefore, has to be treated to be outside the compass
of the settlement. In this connection, it is profitable to
note that the phrase "covered by the settlement" as found in
the said clause of Section 24 is not defined by the Act nor
it is defined by the Bombay Industrial Relations Act, 1946
or by the Central Act. namely, the Industrial Disputes Act,
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1947. Definition section 3 sub-section (18) lays down as
under :
"words and expressions used in this Act and not
defined therein, but defined in the Bombay Act
shall, in relation to an industry to which the
provisions of the Bombay Act apply, have the
meanings assigned to them by the Bombay Act and in
any other case, shall have the meanings assigned to
them by the Central Act."
Bombay Act is defined as Bombay Industrial Relations Act by
section 3, sub-section (1) and the Central Act means
Industrial Disputes Act, 1947 as defined by Section 3,
sub-section (2). In any of these Acts the terms "covered"
has not been defined. We can, therefore, turn to the
general dictionary meaning of the term "covered". When we
undertake this exercise, we find the term "cover" defined by
Concise Oxford Dictionary, Seventh Edition at page 219 to
mean, amongst others "include, comprise, deal with". It is
pertinent to note that the legislature in its wisdome has
not construed a strike to be illegal if the same is resorted
to during any period of settlement which is in operation, in
respect of any of the matters "arising out of such
settlement". The term "covered" is more restrictive in
nature as compared to the term "arising out of" or
"referable to". If the phraseology employed in the said
provision was to the effect any of the matters "arising out
of or "referable to any settlement", learned senior counsel
for the appellant would have been right in his contention
that implementation of the settlement also would be a matter
"arising out of " the settlement or may be "referable to the
settlement. But these words are conspicuously absent and
only the phrase "matters covered by the settlement" has been
employed by the legislature to treat any strike regarding
such covered matters in a settlemtn to amount to an illegal
strike. The term "arising from" has also a precise meaning
as found at page 46 of the aforesaid Concise Oxford
Dictionary which states that the word "arise" menas
"originate; be born; come into notice or result (from out
of)". Question of implementation of the terms of settlement
may be said nto be a matter "arising out of" the settlement
or "referable to" the settlement but it is certainly not
"covered" by the settlement. Therefore, it is far from being
"covered" by the settlement. In Black’s Law Dictionary,
Fifth Edition, at page 99 the term "arising out of" has been
indicated to have a special meaning relating to a decision
in the case of Newman V. Bennett (Kansas Reports). It has
been mentioned in the said dictionary that the "words
"arising out of employment" refer to the origin of the cause
of the injury". Thus the term "arising out of employment" in
this case was held to refer to a grievance whose origin was
found in the employment concerned as noted in this
dictionary. Similarly, if the words "arising out of
settlement" were employed by the legislature in the
aforesaid clause, then it could have been said that any
grievance regarding non-implementation of the terms of the
settlement would have its origin in the settlement. However,
as such a pharaseology is conspicuously absent in the said
clause, it must be held that the legislature in its wisdom
wanted to incidate a situation where parties to the binding
settlement cannot resort to strike or lack out as the case
amy be, in connection with these matters which were not
expressly so covered and referred to in the settlement and
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thus matters which were expressly not so covered could be
made the subject matter of grievance by the parties
concerned during the arriving of such settlement and if a
strike is resorted to by the lunion of workmen on that
ground, it could not be said that the said strike would be
hit ny the provisions of Section 24(1)(i) of the Act. As a
result of the aforesaid conclusion, it must be held that the
impugned strike notice was not violative of Section 24(1)(i)
Act so far as the grievence regarding computation of
privilege leave was concerned. The Labour Corut had patently
erred in mis-reading the relevant provisions of the Act and
the express terms of the settlement while reaching the
conclusion that the impugned notice refers to the grievance
regarding non-implementation of the settlement terms in
concetion with privilege leave and had, therefore, violated
the aforesaid provisions of the Act. This patent error was
rightly set aside by the High Court in exercise of its
jurisdiction under Article 227.
It was further contended by learned senior counsel
for the appellant that, in any case, the impugned strike
notice was also violative of the aforesaid provisions, in
connection with the settlement regarding demand no. 26
providing for medical check-up. It, therefore, becomes
necessary to look at the terms of the settlement on the said
demand reads as under :
"Demand No. 26 : MEDICAL CHECK UP
The Company shall get at its expense all the
confirmed workmen medically examined i.e. X-ray,
blood and Urine examination and medical check up
at the beginning of the year and the reports
obtained. If during this check up any workman is
found suffering from any dements arising out of
the chemicals of gas emanating from the process
in the factory the management will bear the
medical expenses for his immediate and initial
treatment".
So far as this contention is concerned, Shri Bhandare,
learned senior counsel for the appellant is on a still
weaker footing. The settlement regarding medical check up
deals with the rights of the workmen to get medical
re-imbursement and the procedure for the medical nomination
of the workmen suffering from any ailment or disease. This
right would arise under the settlement in connection with
those workmen who have already got afflicted by occupational
ailments. This has nothing to do with the grievance found
in the impugned strike notice regarding the health hazards
suffered by the workmen and preventive measures required to
be taken by the company in this connection. This grievance
found in the notice is based on the dictum "prevention is
better than cure". The settlement regarding demand no. 26
pertaining to medical check up deals with the procedure to
be followed and the rights available to the workman after he
has suffered from occupational diseases. The strike notice
referred to an independent grievance in connection with the
situation wherein a disease on proper preventive measures
could be avoided. It also referred to various health
hazards due to the working conditions of the workmen. These
grievances are entirely foreign to the terms of the
settlement regarding medical check up. We fail to
appreciate as to how the Labour Court could persuade itself
to hold that the terms of settlement regarding demand no.
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26 were also sought to be contravened by the impugned
demands in the notice. The said finding of the Labour Court
to say least, was totally contrary to the express terms of
the settlement of demand no. 26. Such a patently erroneous
finding had to be set aside by the High Court in writ
proceedings and no fault can be found with the High Court in
undertaking such an exercise. The valiant attempt of Shri
Bhandare, learned senior counsel for the appellant, for
getting the impugned strike declared as illegal on this
ground is found to be wholly without any substance. It
must, therefore, be held that the impugned strike notice was
not violative of provisions of Section 24(1)(i) of the Act
and had nothing to do with settlement on demand nos. 14 and
26. The third point for determination is to be answered in
negative against the appellant and in favour of Respondent
no.1.
Point NO. 4.
So far as this point is concerned, placing reliance
on various decisions of this court namely, Harish Vishnu
Kamath Vs. Syed Ahmad Ishaque and Others, 1955 (1) SCR
1104, Nagendra Nath Bora & Anr. vs. The Commissioner of
Hills Division & Appeals, Assam, and Others 1958 SCR 1240
and Sadhu Ram vs. Delhi Transport Corporation, AIR 1984 SC
1467, learned senior counsel for the appellant submitted
that unless there was a patent error committed by the Labour
Court, the High Court under Article 227 could not have
interfered with the findings of the Labour Court as if it
was bearing an appeal. There cannot be any dispute on the
said settled legal position. Under Article 227 of the
Constitution of India, the High Court could not have set
aside any finding reached by the lower authorities where two
views were possible and unless those findings were found to
be patently bad and suffering from clear errors of law. As
we have already discussed earlier while considering point
nos. 1 and 3, the findings reached by the Labour Court on
the relevant terms were patently erroneous and dehors the
factual and legal position on record. The said patently
illegal findings could not have been countenanced under
Article 227 of the Constitution of Indian by the High court
and the High Court would have failed to exercise its
jurisdiction if it had not set aside such patently illegal
findings of the Labour Court. Consequently, on this point
the appellant has no case. Point No. 4 is, therefore,
answered in negative against the appellant and in favour of
the respondent.
Point No. 5:
In view of our conclusions on the aforesaid points,
the inevitable result is that this appeal fails and is
dismissed. In the facts and circumstances of the case, there
will be no orders as to costs.