Full Judgment Text
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PETITIONER:
SYNDICATE BANK
Vs.
RESPONDENT:
K.UMESH NAYAK
DATE OF JUDGMENT19/03/1994
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
KULDIP SINGH (J)
MOHAN, S. (J)
RAY, G.N. (J)
SINGH N.P. (J)
CITATION:
1995 AIR 319 1994 SCC (5) 572
JT 1994 (5) 647 1994 SCALE (4)68
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
P.B. SAWANT, J.- These appeals have been referred to the
Constitution Bench, in view of the apparent conflict of
opinions expressed in three decisions of this Court a
three-Judge Bench decision in Churakulam Tea Estate (P) Ltd.
v. Workmen1 and a two-Judge Bench decision in Crompton
Greaves Ltd. v. Workmen2 on the one hand, and a two-Judge
Bench decision in Bank of India v. TS. Kelawala3 on the
other. The question is whether workmen who proceed on
strike, whether legal or illegal, are entitled to wages for
the period of strike? In the first two cases, viz.,
Churakulam Tea Estate1 and Crompton Greaves2, the view taken
is that the strike must be both legal and justified to
entitle the workmen to the wages for the period of strike
whereas the latter decision in TS. Kelawala3 has taken the
view that whether the strike is legal or illegal, the
employees are not entitled to wages for the period of
strike. To keep the record straight, it must be mentioned
at the very outset that in the latter case, viz., TS.
Kelawala3 the question
+ See Record of Proceedings : State Bank of India v. State
Bank Staff Union, 1992 Supp (3) SCC 99
1 (1969) 1 SCR 931 AIR 1969 SC 998:(1969) 2 LLJ 407
2 (1978) 3 SCC 155 1978 SCC (L&S) 447
3 (1990) 4 SCC 744: 1991 SCC (L&S) 170: (1991) 15 ATC 747
578
whether the strike was justified or not, was not raised and,
therefore, the further question whether the employees were
entitled to wages if the strike is justified, was neither
discussed nor answered. Secondly , the first two decisions,
viz., Churakulam Tea Estate1 and Crompton Greaves2 were not
cited at the Bar while deciding the said case and hence
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there was no occasion to consider the said decisions there.
The decisions were not cited probably because the question
of the justifiability or otherwise of the strike did not
fall for consideration. It is, however, apparent from the
earlier two decisions, viz., Churakulam Tea Estate1 and
Crompton GreaveS2 that the view taken there is not that the
employees are entitled to wages for the strike period merely
because the strike is legal. The view is that for Such
entitlement the strike has both to be legal and justified.
In other words, if the strike is illegal but justified or if
the strike is legal but unjustified, the employees would not
be entitled to the wages for the strike period. Since the
question whether the employees are entitled to wages, if the
strike is justified, did not fall for consideration in the
latter case, viz., in T.S. Kelawala3, there is, as stated in
the beginning, only an apparent conflict in the decisions.
2. Before we deal with the question, it is necessary to
refer to the facts in the individual appeals.
CA No. 2710 of 1991
3. On 10-4-1989 a memorandum of settlement was signed by the
Indian Banks’ Association and the All Indian Bank Employees’
Unions including the National Confederation of Bank
Employees as the fifth bipartite settlement. The appellant-
Bank and the respondent-State Bank Staff Union through their
respective federations were bound by the said settlement.
In terms of clauses 8(d) and 25 of the memorandum of the
said settlement, the appellant-Bank and the respondent-Staff
Union had to discuss and settle certain service conditions.
Pursuant to these discussions, three settlements were
entered into between the parties on 9-6-1989. These
settlements were under Section 2(p) read with Section 18(1)
of the Industrial Disputes Act, 1947 (hereinafter referred
to as the ’Act’). Under these settlements, the employees of
the appellant-Bank were entitled to certain advantages over
and above those provided under the All India Bipartite
Settlement of 10-4-1989. The said benefits were to be given
to the employees retrospectively with effect from 1-11-1989.
It appears that the appellant Bank did not immediately
implement the said settlement. Hence, the employees’
Federation sent telex message to the appellant-Bank on 22-6-
1989 calling upon it to implement the same without further
loss of time. The message also stated that the employees
would be compelled to launch agitation for implementation of
the settlement as a consequence of which the working of the
Bank and the service to the customers would be affected. In
response to this, the Bank in its reply dated 27-6-1989
stated that it was required to obtain the Government’s
approval for granting the said extra benefits and that it
was making efforts to obtain the Government’s approval as
soon as possible. Hence the employees’ Federation should,
in the meanwhile, bear it with. On 24-7-1989 the Employees’
Federation again
579
requested the Bank by telex of even date to implement the
said settlement forthwith, this time, warning the Bank that
in case of its failure to do so, the employees would observe
a day’s token strike after 8-8-1989. The Bank’s response to
this message was the same as on the earlier occasion. On
18-8-1989, the employees’ Federation wrote to the Bank that
the settlements signed were without any precondition that
they were to be cleared by the Government and hence the Bank
should implement the settlement without awaiting the
Government’s permission. The Federation also, on the same
day, wrote to the Bank calling its attention to the
provisions of Rule 58.4 of the Industrial Disputes (Central)
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Rules, 1957 (the ’Rules’) and requesting it to forthwith
forward copies of the settlements to the functionaries
mentioned in the said rule. By its reply of 23-8-1989 the
Bank once again repeated its earlier stand that the Bank is
required to obtain Government’s approval for granting the
said extra benefits and it was vigorously pursuing the
matter with the Government for the purpose. It also
informed the Federation that the Government was actively
considering the proposal and an amicable solution would soon
be reached and made a request to the employees’ Federation
to exercise restraint and bear with it so that their efforts
with the Government may not be adversely affected. By
another letter of the same date, the Bank informed the
Federation that they would forward copies of the agreements
in question to the authorities concerned as soon as the
Government’s approval regarding implementation of the
agreement was received. The Federation by the letter of
1-9-1989 complained to the Bank that the Bank had been
indifferent in complying with the requirements of the said
Rule 58.4 and hence the Federation itself had sent copies of
the settlements to the authorities concerned, as required by
the said rule.
4. On the same day, i.e., 1-9-1989 the Federation issued a
notice of strike demanding immediate implementation of all
agreements/ understandings reached between the parties on
10-4-1989 and 9-6-1989 and the payment of arrears of pay and
allowances pursuant to them. As per the notice, the strike
was proposed to be held on three different days beginning
from 18-9-1989. At this stage, the Deputy Chief Labour
Commissioner and Conciliation Officer (Central), Bombay
wrote both to the Bank and the Federation stating that he
had received information that the workmen in the Bank
through the employees’ Federation had given a strike call
for 18-9-1989. No formal strike notice in terms of Section
22 of the Act had, however, been received by him. He
further informed that he would be holding conciliation
proceedings under Section 12 of the Act in the office of the
Regional Labour Commissioner, Bombay on 14-9-1989 and
requested both to make it convenient to attend the same
along with a statement of the case in terms of Rule 41 (a)
of the Rules.
5. The conciliation proceedings were held on 14-9-1989 and
thereafter on 23-9-1989. On the latter date, the employees’
Federation categorically stated that no dispute as such
existed. The question was only of implementation of the
agreements/understandings reached between the parties on 10-
4-1989 and 9-6-1989. However, the Federation agreed to
desist
580
from direct action if the Bank would give in writing that
within a fixed time they will implement the
agreements/understandings and pay the arrears of wages etc.
under them. The Bank’s representatives stated that the Bank
had to obtain prior approval of the Government for
implementation of the settlements and as they were the
matters with the Government for obtaining its concurrence,
the employees should not resort to strike in the larger
interests of the community. He also pleaded for some more
time to examine the feasibility of resolving the matter
satisfactorily. The conciliation proceedings were
thereafter adjourned to 26-9-1989. On this date, the Bank’s
representatives informed that the Government’s approval had
not till then been obtained, and prayed for time till 15-10-
1989. The next meeting was held on 27-9-1989. The
Conciliation Officer found that there was no meeting ground
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and no settlement could be arrived at. However, he kept the
conciliation proceedings alive by stating that in order to
explore the possibility of bringing about an understanding
in tile matter, he would further hold discussions on 6-10-
1989.
6. On 1-10-1989, the Employees’ Federation gave another
notice of strike stating that the employees would strike
work on 16-10-1989 to protest against the inaction of the
Bank in implementing the said agreements/settlements validly
arrived at between the parties. In the meeting held on
6-10-1989, the Conciliation Officer discussed the notice of
strike. It appears that in the meanwhile on 3-10-1989 the
employees’ Federation had filed Writ Petition No., 13764 of
1989 in the High Court for a writ of mandamus to the Bank to
implement the three settlements dated 9-6-1989. In that
petition, the Federation had obtained an order of interim
injunction on 6-10-1989 restraining the Bank from giving
effect to the earlier settlement dated 10-4-1989 and
directing it first to implement the settlements dated 9-6-
1989. It appears further that the employees had in the
meanwhile, disrupted normal work in the Bank and had
resorted to gherao. The Bank brought these facts, viz.,
filing of the writ petition and the interim order passed
therein as well as the disruption of the normal work and
resort to gheraos by the employees, to the notice of the
Conciliation Officer. The meeting before the Conciliation
Officer which was fixed on 13-10-1989 was adjourned to
17-10-1989 on which date, it was found that there was no
progress in the situation. It was on this date that the
employees’ Federation gave a letter to the Conciliation
Officer requesting him to treat the conciliation proceedings
as closed. However, even thereafter, the Conciliation
Officer decided to keep the conciliation proceedings open to
explore the possibility of resolving the matter amicably.
7. On 12-10-1989 the Bank issued a circular stating therein
that if the employees went ahead with the strike on 16-10-
1989, the Management of the Bank would take necessary steps
to safeguard the interests of the Bank and would, deduct the
salary for the days the employees would be on strike, on the
principle of "no work, no pay". In spite of the circular,
the employees went on strike on 16-10-1989 and filed a writ
petition on 7-11-1989 to quash
581
the circular of 12-10-1989 and to direct the Bank not to
make any deduction of salary for the day of the strike.
8. The said writ petition was admitted on 8-11-1989 and an
interim injunction was given by the High Court restraining
the Bank from deducting the salary of the employees for 16-
10-1989.
9. Before the High Court, it was not disputed that the Bank
was a public utility service and as such Section 22 of the
Act applied. It was the contention of the Bank that since
under the provisions of sub-section (1)(d) of the said
Section 22, the employees were prohibited from resorting to
strike during the pendency of the conciliation proceedings
and for seven days after the conclusion of such proceedings,
and since admittedly the conciliation proceedings were
pending to resolve an Industrial dispute between the
parties, the strike in question was illegal. The industrial
dispute had arisen because while the Bank was required to
take the approval of the Central Government for the
settlements in question, the contention of the employees was
that no such approval was necessary and there was no such
condition incorporated in the settlements. This being an
industrial dispute within the meaning of the Act, the
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conciliation proceedings were validly pending on the date of
the strike. As against this, the contention on behalf of
the employees was that there could be no valid conciliation
proceedings as there was no industrial dispute. The
settlements were already arrived at between the parties
solemnly and there could be no further industrial dispute
with regard to their implementation. Hence, the
conciliation proceedings were non est. The provisions of
Section 22(1)(d) did not, therefore, come into play.
10. The learned Single Judge upheld the contention of the
Bank and held that the strike was illegal, and relying upon
the decision of this Court in T.S. Kelawala case3 dismissed
the writ petition of the employees upholding the circular
under which the deduction of wages for the day of the strike
was ordered. Against the said decision, the employees’
Federation preferred Letters Patent Appeal before the
Division Bench of the High Court and the Division Bench by
its impugned judgment reversed the decision of the learned
Single Judge by accepting the contention of the employees
and negativing that of the Bank. The Division Bench in
substance, held that the approval of the Central Government
as a condition precedent to their implementation was not
incorporated in the settlements nor was such approval
necessary. Hence, there was no valid industrial dispute for
which the conciliation proceedings could be held. Since the
conciliation proceedings were invalid, the provisions of
Section 22(1)(d) did not apply. The strike was, therefore,
not illegal. The Court also held that the strike was, in
the circumstances, justified since it was the Bank
Management’s unjustified attitude in not implementing the
settlements, which was responsible for the strike. The
Bench then relied upon two decisions of this Court in
Churakulam Tea Estate1 and Crompton Greaves2 cases and held
that since the strike was legal and justified, no deduction
of wages for the
582
strike day could be made from the salaries of the employees.
The Bench thus allowed the appeal and quashed the circular
of the 12-10-1989.
11. Since the matter has been referred to the larger bench
on account of the seeming difference of opinion expressed in
TS. Kelawala3 and the earlier decisions in Churakulam Tea
Estate1 and Crompton Greaves2, we will first discuss the
facts and the view taken in the earlier two decisions.
12. In Churakulam Tea Estate1 which is a decision of three
learned Judges, the facts were that the appellant-Tea Estate
which was a member of the Planter’s Association of Kerala
(South India), from time to time since 1946, used to enter
into agreements with the representatives of the workmen, for
payment of bonus. In respect of the years 1957, 1958 and
1959, there was a settlement dated 25-1-1960 between the
Managements of the various plantations and their workers
relating to payment of bonus. The agreement provided that
it would not apply to the appellant-Tea Estate since ’it had
not earned any profit during the said years. On the round
that it was not a party to the agreement in question, the
appellant declined to pay any bonus for the said three
years. The workmen started agitation claiming bonus. The
conciliation proceedings in that regard failed. All 27
workers in the appellant’s factory struck work on the
afternoon of 30-11-1961. The Management declined to pay
wages for the day of the strike to the said factory workers.
The Management also laid off without compensation all the
workers of the estate from 1-12-1961 to 8-12-1961. By its
order dated 24-5-1962, the State Government referred to the
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Industrial Tribunal three questions for adjudication one of
which was whether the factory workmen were entitled to wages
for the day of the strike.
13. The Tribunal took the view that the strike was both
legal and justified and hence directed the appellant to pay
wages. This Court noted that at the relevant time,
conciliation proceedings relating to the claim for bonus had
failed and the question of referring the dispute for
adjudication to the Tribunal was under consideration of the
Government. The Labour Minister had called for a conference
of the representatives of the Management and workmen and the
conference had been fixed on 23-11-1961. The
representatives of the workmen attended the conference,
while the Management boycotted the same. It was the case of
the workmen that it was to protest against the recalcitrant
attitude of the Management in not attending the conference
that the workers had gone on strike from 1 p.m. on the day
in question. On behalf of the Management, the provisions of
Section 23(a) of the Act were pressed into service to
contend that the strike resorted to by the factory workers
was illegal. The said provisions read as follows:
"23. No workman who is employed in any
industrial establishment shall go on strike in
breach of contract and no employer of any such
workman shall declare a lockout-
583
(a) during the pendency of conciliation proceedings before
a Board and seven days after the conclusion of such
proceedings;
"
This Court noted that there were no conciliation proceedings
pending on 30-11-1961 when the factory workers resorted to
strike and hence the strike was not hit by the aforesaid
provision. The Court further observed that if the strike
was hit by Section 23(a), it would be illegal under Section
24(1)(i) of the Act. Since, however, it was not so hit, it
followed that the strike in this case could not be
considered to be illegal. We may quote the exact
observations of the Court which are as follows:
"Admittedly there were no conciliation
proceedings pending before such a Board on 30-
11-1961, the day on which the factory workers
went on strike and hence the strike does not
come under Section 23(a). No doubt if the
strike, in this case, is hit by Section 23(a),
it will be illegal under Section 24(1)(i) of
the Act; but we have already held that it does
not come under Section 23(a) of the Act. It
follows that the strike, in this case, cannot
be considered to be illegal."
Alternatively, it was contended on behalf of the Management
that in any event, the strike in question was thoroughly
unjustified. It was the Management’s case that it had
participated in the conciliation proceedings and when those
proceedings failed, the question of referring the dispute
was pending before the Government. The workmen could have
made a request to the Government to refer the dispute for
adjudication and, therefore, the strike could not be
justified. Support for this was also sought by the
Management from the observations made by this Court in
Chandra alai Estate Emakulam v. Workmen. In that case, this
Court had deprecated the conduct of workmen going on strike
without waiting for a reasonable time to know the result of
the report of the Conciliation Officer. This Court held
that the said decision did not support the Management since
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the strike was not directly in connection with the demand
for bonus but was as a protest against the unreasonable
attitude of the Management in boycotting the conference held
on 23-11-1961 by the Labour Minister of the State. Hence,
this Court held that the strike was not unjustified. In
view of the fact that there was no breach of Section 23(a)
and in view also of the fact that in the aforesaid
circumstances, the strike was not unjustified, the Court
held that the factory workers were entitled for wages for
that day and the Tribunal’s award in that behalf was
justified.
14. In Crompton Greaves Ltd.2 the facts were that on 27-12-
1967, the appellant-Management intimated the workers’ Union
its decision to reduce the strength of the workmen in its
branch at Calcutta on the ground of severe recession in
business. Apprehending mass retrenchment of the workmen,
the Union sought the intervention of the Minister in charge
of Labour and the Labour Commissioner, in the matter.
Thereupon, the Assistant Labour
4 (1960) 3 SCR 451 : AIR 1960 SC 902 :(1960) 2 LLJ 243
584
Commissioner arranged a joint conference of the
representatives of the Union and of the Company in his
office, with a view to explore the avenues for an amicable
settlement. Two conferences were accordingly held on 5-1-
1968 and 9-1-1968 in which both the parties participated.
As a result of these conferences, the Company agreed to hold
talks with the representatives of the Union at its Calcutta
office on the morning of 10-1 - 1968. The talk did take
place but no agreement could be arrived at. The Assistant
Labour Commissioner continued to use his good offices to
bring about an amicable settlement through another Joint
conference which was scheduled for 12-1-1968. On the
afternoon of 10- 1- 1968, the Company without informing the
Labour Commissioner that it was proceeding to implement its
proposed scheme of retrenchment, put up a notice of
retrenching 93 of the workmen in its Calcutta Office.
Treating this step as a serious one demanding urgent
attention and immediate action, the workmen resorted to
strike w.e.f. 11-1-1968 after giving notice to the appellant
and the Labour Directorate and continued the same up to
26-6-1968. In the meantime, the industrial dispute in
relation to the retrenchment of the workmen was referred by
the State Government to the Industrial Tribunal on 1-3-1968.
By a subsequent order dated 13-12-1968, the State Government
also referred the issue of the workmen’s entitlement to
wages for the strike period, for adjudication to the
Industrial Tribunal. The Industrial Tribunal accepted the
workmen’s demand for wages for the period from 11-1-1968 to
the end of February 1968 but rejected their demand for the
remaining period of the strike observing that "the redress
for retrenchment having been sought by the Union itself
through the Tribunal, there remained no justification for
the workmen to continue the strike".
15. In the appeal filed by the Management against the award
of the Tribunal in this Court, the only question that fell
for determination was whether the award of the Tribunal
granting the striking workmen wages for the period from
11-1-1968 to 29-2-1968 was valid. In paragraph 4 of the
judgment, this Court observed as follows: (SCC pp. 157-58)
"4. It is well settled that in order to
entitle the workmen to wages for the period of
strike, the strike should be legal as well as
justified. A strike is legal if it does not
violate any provision of the statute. Again,
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a strike cannot be said to be unjustified
unless the reasons for it are entirely
perverse or unreasonable. Whether a
particular strike was justified or not is a
question of fact which has to be judged in the
light of the facts and circumstances of each
case. It is also well settled that the use of
force or violence or acts of sabotage resorted
to by the workmen during a strike disentitles
them to wages for the strike period.
After observing thus, the Court formulated the following two
questions, viz., (1) whether the strike in question was
illegal or unjustified? and (2) whether the workmen resorted
to force or violence during the said period, that is, 11-1-
1968 to 29-2-1968. While answering the first question, the
Court pointed out that no specific provision of law has been
brought to its notice
585
which rendered the strike illegal during the period under
consideration. The strike could also not be said to be
unjustified as before the conclusion of the talks for
conciliation which were going on through the instrumentality
of the Assistant Labour Commissioner, the Company had
retrenched as many as 93 of its workmen without even
intimating the Labour Commissioner that it was carrying out
its proposed plan of effecting retrenchment of the workmen.
Hence, the Court answered the first question in the
negative. In other words, the Court held that the strike
was neither illegal nor unjustified. On the second question
also, the Court held that there was no cogent and
disinterested evidence to substantiate the charge that the
striking workmen had resorted to force or violence. That
was also the finding of the Tribunal and hence the Court
held that the wages for the strike period could not be
denied to the workmen on that ground as well.
16. It will thus be apparent from this decision that on the
facts, it was established that there was neither a violation
of a provision of any statute to render the strike illegal
nor in the circumstances it could be held that the strike
was unjustified. On the other hand, it was the Management,
by taking a precipitatory action while the conciliation
proceedings were still pending, which had given a cause to
the workmen to go on strike.
17. We may now refer to the other relevant decisions on the
subject.
18. In Kairbetta Estate, Kotagiri v. Rajamanickam5, this
Court observed as follows:
"Just as a strike is a weapon available to the
employees for enforcing their industrial
demands, a lockout is a weapon available to
the employer to persuade by a coercive process
the employees to see his point of view and to
accept his demands. In the struggle between
capital and labour, the weapon of strike Is
available to labour and is often used by it,
so is the weapon of lockout available to the
employer and can be used by him. The use of
both the weapons by the respective parties
Must, however, be subject to the relevant
provisions of the Act. Chapter V which deals
with strikes and lockouts clearly brings out
the antithesis between the two weapons and the
limitations subject to which both of them must
be exercised."
19. In Chandra malai Fstate4 the facts were that on 9-8-
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1955, the workers’ Union submitted to the Management a
charter of fifteen demands. Though the Management agreed to
fulfil some of the demands, the principal demands remained
unsatisfied. On 29-8-1955, the Labour Officer, Trichur, who
had in the meantime been apprised of the situation both by
the Management and the workers’ Union, advised mutual
negotiations between the representatives of the Management
and the workers. Ultimately, the matter was recommended by
the Labour Officer to the Conciliation Officer, Trichur for
conciliation. The Conciliation Officer’s efforts proved ill
vain. The last meeting for conciliation was held on 30-11-
1955. On the following
5 (1960) 3 SCR 371 : AIR 1960 SC 893 :(1960) 2 LLJ 275
586
day, the Union gave a strike notice and the workmen went on
strike w.e.f. 9-12-1955. The strike ended on 5-1-1956.
Prior to this, on 5-1-1956, the Government had referred the
dispute with regard to five of the demands for adjudication
to the Industrial Tribunal, Trivandrum. Thereafter, by its
order dated 11-6-1956, the dispute was withdrawn from the
Trivandrum Tribunal and referred to the Industrial Tribunal,
Ernakulam. By its award dated 19-10-1957, the Tribunal
granted all the demands of the workmen. The appeal before
this Court was filed by the Management on three of the
demands. One of the issues was: "Are the workers entitled
to get wages for the period of the strike?". On this issue,
before the Tribunal, the workmen had pleaded that the strike
was justified while the Management contended that strike was
both illegal and unjustified. The Tribunal had recorded a
finding that both the parties were to blame for the strike
and ordered the Management to pay the workers 50% of their
total emoluments for the strike period.
20. This Court while dealing with the said question, held
that it was clear that on 30-11-1955, the Union knew that
the conciliation attempts had failed and the next step would
be the report by the Conciliation Officer to the Government.
It would, therefore, have been proper and reasonable for the
workers’ Union to address the Government and request that a
reference be made to the Industrial Tribunal. The Union did
not choose to wait and after giving notice to the Management
on 1-12-1955 that it had decided to strike work from 9-12-
1955, actually started the strike from that date. The Court
also held that there was nothing in the nature of the
demands made by the Union to justify the hasty action. The
Court then observed as under :
"The main demands of the Union were about the
cumbly allowance and the price of rice. As
regards the cumbly allowance they had said
nothing since 1949 when it was first stopped
till the Union raised it on 9-8-1955. The
grievance for collection of excess price of
rice was more recent but even so it was not of
such an urgent nature that the interests of
labour would have suffered irreparably if the
procedure prescribed by law for settlement of
such disputes through Industrial Tribunals was
resorted to. After all it is not the employer
only who suffers if production is stopped by
strikes. While on the one hand it has to be
remembered that strike is a legitimate and
sometimes unavoidable weapon in the hands of
labour it is equally important to remember
that indiscriminate and hasty use of this
weapon should not be encouraged. It will not
be right for labour to think that for any kind
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of demand a strike can be commenced with
impunity without exhausting reasonable avenues
for peaceful achievement of their objects.
There may be cases where the demand is of such
an urgent and serious nature that it would not
be reasonable to expect labour to wait till
after asking the Government to make a
reference. In such cases, strike even before
such a request has been made may well be
justified. The present is not however one of
such cases. In our opinion the workmen might
well have waited for some time
587
after conciliation efforts failed before
starting a strike and in the meantime to have
asked the Government to make a reference.
They did not wait at all. The conciliation
efforts failed on 30-11-1955, and on the very
next day the Union made its decision on strike
and sent the notice of the intended strike
from the 9-12-1955, and on the 9-12-1955, the
workmen actually struck work. The Government
appear to have acted quickly and referred the
dispute on 3-1-1956. It was after this that
the strike was called off. We are unable to
see how the strike in such circumstances could
be held to be justified."
21. In India General Navigation and Railway Co. Ltd. v.
Workmen6 this Court while dealing with the issues raised
there, observed as follows:
"In the first place, it is a little difficult
to understand how a strike in respect of a
public utility service, which is clearly,
illegal, could at the same time be
characterised as ’perfectly justified’. These
two conclusions cannot in law coexist. The law
has made a distinction between a strike
which is illegal and one which is not, but it
has not made any distinction between an
illegal strike which may be said to be
justifiable and one which is not justifiable.
This distinction is not warranted by the Act,
and is wholly misconceived, specially in the
case of employees in a public utility service.
Every one participating in an illegal strike,
is liable to be dealt with departmentally, of
course, subject to the action of the
Department being questioned before an
Industrial Tribunal, but it is not
permissible to characterise an illegal strike
as justifiable. The only question of
practical importance which may arise in the
case of an illegal strike, would be the kind
or quantum of punishment, and that, of
course, has to be modulated in accordance with
the facts and circumstances of each case.
Therefore, the tendency to condone what
has been declared to be illegal by statute,
must be deprecated, and it must be clearly
understood by those who take part in an
illegal strike that thereby they make
themselves liable to be dealt with by their
employers. There may be reasons for
distinguishing the case of those who may have
acted as mere dumb driven cattle from those
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who have taken an active part in fomenting the
trouble and instigating workmen to join such a
strike, or have taken recourse to violence."
22. We may now refer to the decision of this Court in the
TS. Kelawala case3 where allegedly a different view has
been taken from the one taken in the aforesaid earlier
decisions and in particular in Churakulam Tea Estate1 and
Crompton Greaves2 cases.
23. The facts in the case were that some demands for wage
revision made by the employees of all the banks were
pending at the relevant time and in support of the
said demands, the All India Bank Employees Association,
gave a call for a countrywide strike. The appellant-Bank
issued a circular on 23-9-1977 to all its branch
managers and agents to deduct wages of the employees
who participate in the strike for the days they go on
6 (1960) 2 SCR 1 AIR 1960 SC 219 :(1960) 1 LLJ 13
590
employees of the other Banks. Admittedly, the employees
struck work when the conciliation proceedings were still
pending. Further, the question whether the implementation
of the said agreements was of such an urgent nature as could
not have waited the outcome of the conciliation proceedings
and if necessary, of the adjudication proceedings under the
Act, was also a matter which had to be decided by the
industrial adjudicator to determine the justifiability or
unjustifiability of the strike.
27.It has to be remembered in this connection that a strike
may be illegal if it contravenes the provisions of Sections
22, 23 or 24 of the Act or of any other law or of the terms
of employment depending upon the facts of each case.
Similarly, a strike may be justified or unjustified
depending upon several factors such as the service
conditions of the workmen, the nature of demands of the
workmen, the cause which led to the strike, the urgency of
the cause or the demands of the workmen, the reason for not
resorting to the dispute resolving machinery provided by the
Act or the contract of employment or the service rules and
regulations etc. An enquiry into these issues is
essentially an enquiry into the facts which in some cases
may require taking of oral and documentary evidence. Hence
such an enquiry has to be conducted by the machinery which
is primarily invested with the jurisdiction and duty to
investigate and resolve the dispute. The machinery has to
come to its findings on the said issue by examining all the
pros and cons of the dispute as any other dispute between
the employer and the employee.
28.Shri Garg appearing for the employees did not dispute the
proposition of law that notwithstanding the fact that the
strike is legal, unless it is justified, the employees
cannot claim wages for the strike period. However, he
contended that on the facts of the present case, the strike
was both legal and justified. We do not propose to decide
the said issues since the proper forum for the decision on
the said issues in the present case is the adjudicator under
the Act.
29.The strike as a weapon was evolved by the workers as a
form of direct action during their long struggle with the
employers. It is essentially a weapon of last resort being
an abnormal aspect of the employer-employee relationship and
involves withdrawal of labour disrupting production,
services and the running of the enterprise. It is abuse by
the labour of their economic power to bring the employer to
see and meet their viewpoint over the dispute between them.
In addition to the total cessation of work, it takes various
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forms such as working to rule, go slow, refusal to work
overtime when it is compulsory and a part of the contract of
employment, "irritation strike" or staying at work but
deliberately doing everything wrong, "running-sore strike",
i.e., disobeying the lawful orders, sit-down, stay-in and
lie down strike etc. etc. The cessation or stoppage of work
whether by the employees or by the employer is detrimental
to the production and economy and to the well-being of the
society as a whole. It is for this reason that the
industrial legislation while not denying the right of
workmen to strike, has tried to regulate it along, with the
right of the employer to lockout and has
591
also provided a machinery for peaceful investigation,
settlement, arbitration and adjudication of the disputes
between them. Where such industrial legislation is not
applicable, the contract of employment and the service rules
and regulations many times, provide for a suitable machinery
for resolution of the disputes. When the law or the
contract of employment or the service rules provide for a
machinery to resolve the dispute, resort to strike or
lockout as a direct action is prima facie unjustified. This
is, particularly so when the provisions of the law or of the
contract or of the service rules in that behalf are
breached. For then, the action is also illegal.
30.The question whether a strike or lockout is legal or
illegal does not present much difficulty for resolution
since all that is required to be examined to answer the
question is whether there has been a breach of the relevant
provisions. However, whether the action is justified or
unjustified has to be examined by taking into consideration
various factors some of which are indicated earlier. In
almost all such cases, the prominent question that arises is
whether the dispute was of such a nature that its solution
could not brook delay and await resolution by the mechanism
provided under the law or the contract or the service rules.
The strike or lockout is not to be resorted to because the
party concerned has a superior bargaining power or the
requisite economic muscle to compel the other party to
accept its demand. Such indiscriminate use of power is
nothing but assertion of the rule of "might is right". Its
consequences are lawlessness, anarchy and chaos in the
economic activities which are most vital and fundamental to
the survival of the society. Such action, when the legal
machinery is available to resolve the dispute, may be hard
to justify. This will be particularly so when it is
resorted to by the section of the society which can well
await the resolution of the dispute by the machinery
provided for the same. The strike or lockout as a weapon
has to be used sparingly for redressal of urgent and
pressing grievances when no means are available or when
available means have failed, to resolve it. It has to be
resorted to, compel the other party to the dispute to see
the justness of the demand. It is not to be utilised to
work hardship to the society at large so as to strengthen
the bargaining power. It is for this reason that industrial
legislation such as the Act places additional restrictions
on strikes and lockouts in public utility services.
31.With the emergence of the organised labour, particularly
in public undertakings and public utility services, the old
balance of economic power between the management and the
workmen has undergone a qualitative change in such
undertakings. Today, the organised labour in these
institutions has acquired even the power of holding the
society at large to ransom, by withholding labour and
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thereby compelling the managements to give in on their
demands whether reasonable or unreasonable. What is
forgotten many times, is that as against the employment and
the service conditions available to the organised labour in
these undertakings, there are millions who are either
unemployed, underemployed or employed on less than
statutorily minimum remuneration. The employment that
workmen get and the profits that the employers earn are both
generated by the utilisation
592
of the resources of the society in one form or the other
whether it is land, water, electricity or money which flows
either as share capital, loans from financial institutions
or subsidies and exemptions from the Governments. The
resources are to be used for the well-being of all by
generating more employment and production and ensuring
equitable distribution. They are not meant to be used for
providing employment, better service conditions and profits
only for some. In this task, both the capital and the
labour are to act as the trustees of the said resources on
behalf of the society and use them as such. They are not to
be wasted or frittered away by strikes and lockouts. Every
dispute between the employer and the employee has,
therefore, to take into consideration the third dimension,
viz., the interests of the society as a whole, particularly
the interest of those who are deprived of their legitimate
basic economic rights and are more unfortunate than those in
employment and management. The justness or otherwise of the
action of the employer or the employee has, therefore, to be
examined also on the anvil of the interests of the society
which such action tends to affect. This is true of the
action in both public and private sector. But more
imperatively so in the public sector. The management in the
public sector is not the capitalist and the labour an
exploited lot. Both are paid employees and owe their
existence to the direct investment of public funds. Both
are expected to represent public interests directly and have
to promote them.
32.We are, therefore, more than satisfied that the High
Court in the present case had erred in recording its
findings on both the counts, viz., the legality and
justifiability, by assuming jurisdiction which was properly
vested in the industrial adjudicator. The impugned order of
the High Court has, therefore, to be set aside.
33.Hence we allow the appeal. Since the dispute has been
pending since 1989, by exercising our power under Article
142 of the Constitution, we direct the Central Government to
refer the dispute with regard to the deduction of wages for
adjudication to the appropriate authority under the Act
within eight weeks from today. The appeal is allowed
accordingly with no order as to costs.
CA No. 2689 of 1989 and CA Nos. 2690-92 of 1989
34.In these two matters, arising out of a common Judgment of
the High Court, the question involved was materially
different, viz., whether when the employees struck work only
for some hours of the day, their salary for the whole day
could be deducted. As in the case of TS. Kelawala3, in
this case also the question whether the strike was justified
or not was not raised. No argument has also been advanced
on behalf of the employees before us on the said issue. In
the circumstances, the law laid down by this Court in TS.
Kelawala , with which we concur, will be applicable. The
wages of the employees for the whole day in question, i.e.,
29-12-1977 are liable to be deducted. The appeals are,
therefore, allowed and the impugned decision of the High
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Court is set aside. There will, however, be no order as to
costs.
607