Full Judgment Text
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PETITIONER:
LABOUR COMMISSIONER, MADHYA PRADESH
Vs.
RESPONDENT:
BURHANPUR TAPTI MILLS AND OTHERS
DATE OF JUDGMENT:
25/03/1964
BENCH:
GUPTA, K.C. DAS
BENCH:
GUPTA, K.C. DAS
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
CITATION:
1964 AIR 1687 1964 SCR (7) 484
ACT:
Industrial Dispute-Strike-Legality-Whether employer can
decide and take action-Jurisdiction of Labour Commissioner-
"Rendered illegal" in s. 42(1)(g) if means "held illegal"
Central Provinces and Berar Industrial Disputes and
Settlement Act, 1947 (C. P. and Berar Act 33 of 1947), ss.
16, 41 and 42(1)(g).
HEADNOTE:
An employee was summarily dismissed by the respondent
employer after holding an enquiry on the allegation that he
had instigated workers to go on an illegal strike. The
employee applied under s. 16 of Central Provinces and Berar
Industrial Disputes Settlement Act to the Labour
Commissioner, who held that authority to decide the legality
of a strike had been entrusted by s. 41 of the Act to the
State Industrial Court or the District Industrial Court and
that before a strike had been held by either of these
authorities to be illegal the employer had no right to take
any action against his workmen on his own view that a strike
was illegal and ordered the reinstatement of the employee
with full wages. The revision application by the respondent
employer to the State Industrial Court proved unsuccessful
through it disagreed with the Labour Court’s view that the
employer could not take action before a decision from the
State Industrial Court or the District Industrial Court
declaring the strike to be illegal had been obtained.
Thereafter, the employer moved the High Court under Art.
226. The High Court was of the view that though the Labour
Commissioner may not have the jurisdiction to decide the
question of illegality of a strike, it may decide the
question incidentally for the purposes mentioned in s. 16 if
in an enquiry such a question is raised, and quashed the
orders of the Labour Commissioner and the State Industrial
Court. On appeal preferred by the Labour Commissioner in
this Court.
Held: (i) The employer is free to take action against the
employee as soon as he thinks that the strike in which he
has participated comes within the provisions of s. 40 of the
Act. The phrase "rendered illegal" in s. 42(1)(g) has been
deliberately used in contradistinction to the words "held
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illegal" used in ss. 43, 44 and 45.
It would be an impossible position for industrial management
if after notice has been given of a strike or a strike ha,,,
started which the employer considers to be illegal within
the meaning of S. 4o he should be compelled to stay his
hands and wait till a State Industrial Court or a District
Industrial Court has given a declaration on the question.
The use of the word "shall" in s. 41 in connection with the
action to be taken on a reference by the State Government
and "may" in connection with the action on an application by
others in the same section compels the conclusion that on an
application by anybody other than the State Government, the
State Industrial Court or a District Industrial Court may
also refuse to take action.
485
(ii) For performing its functions under s. 16(3) of the Act
the Labour Commissioner has jurisdiction to decide the
question of legality or illegality of a strike when that
question is raised before it.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 529 of 1963.
Appeal by special leave from the judgment and order dated
September 24, 1958, of the Madhya Pradesh High Court in
Misc. Petition No. 82 of 1958.
I. N. Shroff, for the appellant.
M. C. Setalvad B. Narayanaswamy, J. B. Dadachanji, Ravinder
Narain and O. C. Mathur, for respondent No. 1.
M.S.K. Sastri and M. S. Narasimhan, for respondent No. 2.
March 25, 1964. The judgment of the Court was delivered by
DAS GUPTA, J.-Two main questions arise in this appeal. The
first is whether s. 42(1)(g) of the Central Provinces and
Berar Industrial Disputes and Settlement Act, 1947 prohibits
an employer from taking action against a workman for
participation in an illegal strike before it is so declared
under s. 41 of the Act. The second question is whether in
an application made under s. 16(3) of the Act the Labour
Commissioner has jurisdiction to decide the legality or
illegality of the strike.
On September 21, 1956 the first respondent in this appeal,
the Burhanpur Tapti Mills Ltd., served a charge-sheet on one
of the employees Sulemankhan Mullaji, who is the second res-
pondent in the appeal alleging that he had instigated
workers of the Weaving Department to go on an illegal strike
earlier that day. After holding an enquiry into the matter
the Manager came to the conclusion that the charge had been
established being of opinion that this constituted
misconduct under cl. 25(b) of the Standing Orders.
Thereafter, the Manager ordered Sulemankhan to be summarily
dismissed without notice and without compensation in lieu of
notice. Sulemankhan made an application against this order
to the Labour Commissioner, Madhya Pradesh under s. 16 of
the Central Provinces and Berar Industrial Disputes
Settlement Act, 1947. The Labour Commissioner was of
opinion that the authority to decide the legality of a
strike had been entrusted by s. 41 of the Act by the
legislature to the State Industrial Court or the District
Industrial Court. He also held that before a strike had
been held by either of these authorities to be illegal the
employer had no right to take any action against his workmen
on his own view that a strike was illegal. The Labour
Commissioner further held that there was no legal evidence
to prove the allegations against Sulemankhan and that in
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inflicting the punishment of dismissal the Manager had not
paid due regard to sub cl. 4 of cl. 26 of the Standing
Orders. Accordingly, he ordered
486
the reinstatement of Sulemankhan with full wages from the
date of dismissal to the date of reinstatement.
The revision application by the first respondent proved un-
successful. The State Industrial Court, which is the
revisional authority, disagreed with the Labour Court’s
view that the employer could not take action before a
decision from the State Industrial Court or the District
Industrial Court declaring the strike to be illegal had been
obtained. Being however of opinion that the enquiry had not
been held in accordance with the Standing Order in cl. 26(2)
and also that in awarding the punishment the Manager had not
taken into consideration the matters mentioned in the
Standing Orders in cl. 26(4), the Industrial Court concluded
that the Labour Commissioner was justified in examining the
evidence for itself. It further held that the finding of
fact given by the Labour Commissioner could not be
challenged in revision. The final conclusion of the State
Industrial Court, as already indicated, was that the order
of reinstatement made by the Labour Commissioner was fully
justified.
Against this order the employer (the first respondent) moved
the High Court of Madhya Pradesh under Art. 226 of the
Constitution. The High Court indicated its view that though
the Labour Commissioner may not have the jurisdication to
decide the question of illegality of a strike, it may decide
the question incidentally for the purposes mentioned in s.
16 of the Act if in an enquiry under s. 16 a question is
raised that the dismissal was wrongful as there was no
incitement of an illegal strike under cl. 25(b) of the
Standing Orders. After expressing this view the High Court,
however, added the words: "That aspect of the matter need
not be considered because the strike instigated here was not
held to be a legal strike." The High Court was of opinion
that the Industrial Court had fallen into an error in
thinking that the charge sheet served on the workmen was
defective. It also held that neither the Labour
Commissioner nor the State Industrial Court had any
jurisdiction to examine the findings of the domestic
tribunal as an appellate authority and to come to a contrary
conclusion on the same evidence. Accordingly, the High
Court quashed the orders of the Labour Commissioner and the
State Industrial Court.
The present appeal has been preferred by the Labour
Commissioner, Madhya Pradesh, No appeal has been preferred
by the workman himself. It is therefore unnecessary for us
to consider in this appeal the correctness or otherwise of
the High Court’s decision on the merits of the case. What
we have to decide, as already indicated is whether sec. 42
of the Central Provinces and Berar Industrial Disputes
Settlement Act, 1947
487
stood in the way of the employer taking action against a
workman for participation in an illegal strike before it had
been declared to be so under s. 41; and secondly, whether
when there has been no such decision the Labour Commissioner
has jurisdiction to decide the question of legality or
illegality of the strike in an application made to him under
s. 16 of the Act.
The relevant provisions of s. 42 which require consideration
for a decision of the first question are that: "No employer
shall dismiss, discharge, suspend or reduce any employee or
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punish him in any other manner solely by reason of the cir-
cumstance that the employee has participated in a strike
which is not "rendered illegal" under any provision of this
Act." The provisions of the Act rendering a strike illegal
are set out in s. 40. Prima facie it appears that it is only
where the strike in which an employee has participated does
not come within any of the provisions of s. 40 that the
employer is prohibited from taking action against him. The
prohibition operates only when a strike is not "rendered
illegal" under any provisions of the Act. That, it is urged
by the respondent-employer, is the same thing as saying that
the prohibition operates only where the strike is not
illegal within the meaning of the provisions of s. 40 of the
Act.
The argument on behalf of the appellant is that the words
"rendered illegal" in s. 42 (1)(g) should properly be
construed as "held illegal". It has to be noticed in this
connection that s. 41 of the Act provides a machinery under
which not only the State Government but any employer or
employee can approach the State Industrial Court or a
District Industrial Court for a decision whether a strike or
a lockout of which notice has been given or which has taken
place is illegal. According to the appellant, it is only
after on such an application the State Industrial Court or a
District Industrial Court has decided that a strike is
illegal, that the employer can take action. We are unable
to see any justification for such a construction. It is
clear to us that the phrase "rendered illegal" in s.
42(1)(g) has been deliberately used in contradistinction to
the words "held illegal" used in ss. 43, 44 and 45. Section
43 provides penalty on an employer who " declares a lockout
which is held by the State Industrial Court or the District
Industrial Court to be illegal". Section 44 provides
penalty against an employee "who goes on a strike or who
joins a strike which is held by the State Industrial Court
or the District Industrial Court to be illegal". Section 45
provides penalty for instigation or incitement to or
participation or acting in furtherance of a strike or
lockout "which is held to be illegal by the State Industrial
Court or the District Industrial Court". When the
legislature used the words "held illegal" by the State
Industrial Court or the District Industrial Court in ss. 43,
44 and 45 but used different phraseology,
488
viz., "rendered illegal" in s. 42(1‘)(g) the conclusion is
irresistible that this was done deliberately. The reason
for this is not far to seek. However, quickly the State
Industrial Court or the District Industrial Court may act on
an application under s. 41 the decision on the legality or
otherwise of a strike is bound to take a considerable time.
It would be an impossible position for industrial management
if after notice has been given of a strike or a strike has
started which the employer considers to be illegal within
the meaning of s. 40 he should be compelled to stay his hand
and wait till a State Industrial Court or a District
Industrial Court has given a declaration on the question.
It also appears clear that these authorities are not bound
to give a decision on an application by the employer.
The Section runs thus: -
Court shall, on a reference made by the State
Government, and may, on an application by any
employer or employee concerned or by a
representative of the employees concerned or
by the Labour Officer, decide whether any
strike or lockout or any change of which
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notice has been given or which has taken place
is illegal."
it has to be noticed that while on a reference by the State
Government the State Industrial Court or a District
Industrial Court "shall" decide the question of legality of
the strike or lockout, it "may" decide the question on an
application by the employer or employee or any other person
mentioned in the section. The use of the word "shall" in
connection with the action to be taken on a reference by the
State Government and "may" in connection with the action on
an application by others in the same section compels the
conclusion that on an application by anybody other than the
State Government, the State Industrial Court or a District
Industrial Court may also refuse to take action. The
suggested construction of the words "rendered illegal" as
"held illegal" might therefore have the curious result that
even though the strike is in fact illegal within the meaning
of s. 40 of the Act no action can at any time be taken
against an employee for participation in it. We have
accordingly come to the conclusion that the words "rendered
illegal" does not mean "held illegal" and the employer is
free to take action against the employee as soon as he
thinks that the strike in which he has participated comes
within the provisions of s. 40 of the Act.
When the employer takes such action against the employee by
dismissing, discharging, removing or suspending him, it will
be open to the employee to apply to the Labour Commissioner
for reinstatement and payment of compensation for loss of
489
wages. This is provided in s. 16(2) of the Act. Section
16(3) provides that if on receipt of such application the
Labour Commissioner after such enquiry as may be prescribed
finds that the dismissal, discharge, removal or suspension
was in contravention of any of the provisions of this Act or
in contravention of a Standing Order made or sanctioned
under this Act or was for a fault or misconduct committed by
the employee more than six months prior to the date of such
dismissal, discharge, removal or suspension, he may direct
reinstatement of the employee or other relief. The question
has been raised whether when the order of dismissal,
discharge, removal or suspension purports to have been made
for participation in or instigation to an illegal strike it
is open to the Labour Commissioner to decide the question of
illegality of a strike. On behalf of the appellant it has
been suggested that exclusive jurisdiction to decide the
question of legality or illegality of a strike has been
given by the Act to the two authorities, viz., the State
Industrial Court or a District Industrial Court, as
mentioned in s. 41. There is no doubt that s. 41 which has
been set out above empowers the State Industrial Court or a
District Industrial Court to decide the question of legality
of a strike on a reference by the Government, or application
by employer or employee or others mentioned in the section.
Mr. Shroff argues that it could not have been the intention
of the legislature to have two parallel bodies-the Labour
Commissioner as well as the State Industrial Court or a
District Industrial Court-having jurisdiction to decide such
a matter. For, as he points out, it may well be that while
on an application under s. 16(3) the Labour Commissioner
holds that the strike was not illegal the contrary view may
be taken by the State Industrial Court or the District
Industrial Court on an application under s. 41 or vice
versa. This argument is plausible at first sight. There
is, however, one great difficulty in accepting it. That
consists in the fact, already pointed out, that the State
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Industrial Court or a District Industrial Court is not bound
to give any decision at all on application by any party
other than the State Government. There being thus cases
where the authorities mentioned in s. 41 may refuse to
decide the question of legality or illegality of a strike,
it is not possible to say that exclusive jurisdiction is
given by s. 41 to these authorities to decide the question
of legality or illegality of a strike. It is reasonable to
held therefore that for performing its functions under s.
16(3) of the Act the Labour Commissioner has jurisdiction to
decide the question of legality or illegality of a strike
when that question is raised before it.
The appeal is accordingly dismissed. No order as to costs.
Appeal dismissed.
490