Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
BALLARPUR COLLIERIES CO.
Vs.
RESPONDENT:
THE PRESIDING OFFICEIR, C.G.I.T. DHANBAD AND ANR.
DATE OF JUDGMENT14/03/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
VAIDYIALINGAM, C.A.
CITATION:
1972 AIR 1216 1972 SCR (3) 805
1972 SCC (2) 27
CITATOR INFO :
RF 1975 SC1660 (5)
ACT:
Industrial Disputes Act, 1947--S. 23(b) and S. 23(c)--During pen-
dency of proceedings before Tribunal and during a settlement
workers struck--Whether S. 23(b) or S. 23(c) is attracted.
HEADNOTE:
In 1956 the "Majumdar Award" was published and to this Award the
appellant was also a party. In January/February, 1960 the
workers of the appellant Colliery had gone on strike. The
efforts of the management failed to persuade the workers to
resume duty. On the intervention of the Regional Labour
Commissioner (C), Bombay, the matter was resolved as a result of
which the workers resumed their duty and also got their dues
etc., from the management. in the report of what had transpired
during the negotiations (Ex.D) it was stated, inter alia, that
the Regional Commissioner had also been assured by the workers
that they would see that "such strikes are not resorted to in
future and would adopt all constitutional means to get their
grievances redressed". Later, due to certain difficulties in
interpreting the terms of the Majumdar Award, the Central
Government, under s. 36A of the Industrial Disputes Act, 1947,
referred to Shri Palit, the Chairman of the Central Government
Industrial Tribunal, Dhanbad, the necessary question seeking
interpretation of certain provisions of the said Award. This
reference is dated May 23, 1960.
In the Award given by Shri Palit it was mentioned that all the
parties who were impleaded in the Majumdar Award’ would be bound
by the later Award.
During the pendency of the proceedings before Shri Palit, the
workers of the appellant went on strike from October, 4, 1960,
the cause for the strike being dismissal of 6 workmen. No notice
of the strike, as required by Standing Order-no. 32, was given.
The appellant, therefore filed an application before the Regional
Labour Commissioner (Central) on October 31, 1960 for a
declaration that the strike was illegal. The Regional
Commissioner held the strike to be legal and an appeal to the
industrial Tribunal by the appellant also failed. Thereafter,
the appellant filed a writ petition before the High Court but it
was dismissed. On appeal to this Court, two main points were
raised by the appellant : (1) that the strike took place during
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
the pendency of the reference before Shri Palit and therefore
tinder cl. (b) of s. 23 of the Industrial Disputes Act, the
strike was illegal; (2) in any case, the,, strike took place
during the pendency of the settlement effected by. the Regional
Commissioner, Bombay and, there fore, under cl. (c) of s. 23 of
the Industrial Disputes Act, the strike Was illegal.
Allowing the appeal,
HELD : (i) The legal effect of reference under s. 36A of the
Industrial Disputes Act is to reopen the earlier reference
terminating. in the Majumdar Award, though only for the limited
purpose of the intepretation of the provisions of the award in
respect of the difficulties or doubts giving rise, to the
reference. Since the applicant it was a party to the Palit
Award, its application to withdraw and its no--participation in
the proceedings notwithstanding, s. 21(b) of the Industrial
Disputes Act was attracted and the strike was illegal. [813 E]
806
Workmen of the Motor Industries Co. Ltd. v. Management of Motor
Industries Co. Ltd. [1970] 1 S.C.R. 304 and Hochtief Gammon v.
Industrial Tribunal, Bhubaneshwar [1964] 7 S.C.R. 596, referred
to.
(ii) The assurance of the workers to the Commissioner that they
would not resort to such strikes in future and that they would
adopt all constitutional means to get their grievances redressed,
neither amounted to a contract nor was it a matter covered by the
said settlement with the Regional Labour Commissioner.
Therefore, s. 23(c) was not attracted in the facts and
circumstances of the present case. In order to be hit by s.
23(c) the strike must be in breach of contract in respect of a
matter covered by a settlement which is in operation at the time
of the strike. [811 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : C.A. No. 876 of 1968.
Appeal by special leave from the judgment and order dated October
28, 1965 of the Patna High Court in M.J.C. No. 721 of 1962.
M. N. Phadke and Bhuvnesh Kumari, for the appellant.
The Judgment of the Court was delivered by
Dua, L Facts giving rise to this appeal by special leave may
briefly be stated :
On May 18, 1956 an award was made by Shri Majumdar, which is
popularly known as the Majumdar Award. On May 23, 1960 the
Central Government, in exercise of the power conferred by s. 36A
of the Industrial Disputes Act, 14 of 1947 (hereinafter called
the Act) referred to Shri G. Palit, Chairman, Central Government
Industrial Tribunal, Dhanbad the question
"Whether ’traffic’ is to be placed in Grade 11 of
the clerical service in terms of the said Award the
award being the award of the All India Industrial
Tribunal (Colliery Disputes) published in the
Gazette of India Extraordinary Part 11, Section 3
dated the 26th May, 1956 (S.R.O. No.1224 dated
18-5-56).
’Traffics’ are a category of clerical staff covered
’by the award of the All India Industrial Tribunal
(Colliery Disputes), popularly known as the
’Majumdar Award’,. and it appears that in the
opinion of the Government a difficulty or doubt had
arisen with regard to the interpretation of the
provisions of the said award in so far
as it related
to the scale of pay etc. for ’Traffics, and accord-
ingly, the question had been referred for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
interpretation to the Dhanbad Central Government
Industrial Tribunal, then presided over by Shri G.
Palit. This order of the Central Government gave,
rise to Reference No. 27 of 1960."
During the course of the hearing of this reference some colliery
owners, including the appellant Ballarpur Collieries Co., which
is a private partnership, in whose collieries there were no
workmen
807
with the designation of ’Traffic’, wanted to be excluded from the
reference altogether on the ground that they were not interested
in the dispute pending before the Tribunal presided over by Shri
Palit. The appellant presented an application in August, 1960
stating
"So far as the petitioner is concerned this dispute
does not concern these collieries because they have
not got any traffic in employees coming under this
category. As such the presence of the petitioner
before this Tribunal is not necessary."
It appears that the Tribunal did not record any express order
either permitting the appellant to withdraw from the dispute or
declining such permission. The Appellant, however, did not take
part in the proceedings thereafter and the workers of the
appellant’s colliery also did not take any steps to participate
therein. In the Award given by Shri Palit known as ’Palit’s
Award’ which was published in the Gazette of India on November
22, 1960, it is not disputed that the case of these collieries as
well, including the appellant’s colliery at Ballarpur where the
workmen described as ’Traffic’ did not exist for the time being,
was dealt with. Reference to the application presented by the
appellant and other colliery owners, was made in the Award in the
following terms .
"Then with reference to the contention of some of
the collieries that where the workmen designated as
’traffic’ do not occur, their names should be
omitted from the present reference under section
18(3) of the Industrial Disputes Act, 1947. But
this section has been wrongly invoked here. In the
present case I have not summoned them in pursuance
of the said section. So the question does not
arise whether they were so summoned without proper
cause. They have been summoned in the present case
because they were parties to the original award. I
have to summon all the parties :,who were impleaded
in the original coal Award. So this contention is
over ruled. In an omnibus or industrywise
reference it is not necessary that the dispute must
relate, to each one of them or the cause of action
must exist in all cases. Even if the dispute is
not there but they are made parties in the
reference, all that may be said is that they are
under no obligation to implement the Award. But
the award will be binding on all of them all the
same. So I am unable to exclude them." .
During the pendency of the proceedings before Shri Palit the
worker,, of the appellant’s colliery went on strike from October
4, 1960, the cause for the strike being dismissal of six workmen.
No notice was given of the strike though, according to the
judgment
808
of the High Court under appeal under standing Order No. 32 of the
Standing Orders approved by the Statutory Authority, the workmen
were bound to give 14 days notice before going on strike. The
appellant, . therefore, filed an application, before the Regional
Labour Commissioner (Central)’, on October 31, 1960, in pursuance
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
of Paragraph 8(1) of the Coal Mines Bonus Scheme for a
declaration that the strike was illegal. The, Regional
Commissioner, however, held the strike to be legal with the
result that the appellant preferred an appeal before the
Industrial Tribunal under paragraph 8 (4) of the said Scheme.
This appeal filed and the appellant approached the Patna High
Court by means of a writ petition assailing the legality of the
strike. The following three points were raised by the appellant
in challenging the strike ’before the High ,Court
(1) The strike took place during the pendency of
Reference No. 27 of 1960 before Shri Palit, and
consequently clause (b) of section 23 would apply.
(2) The strike took place during the pendency of
the settlement effected by the Regional Labour Com-
missioner, Bombay, while settling the dispute which
arose out of the strike in January/February 1960
and consequently clause (c) of section 23 of the
Act would apply.
(3) In any view of the case, as the Labourers
resorted to strike without giving due notice as
required by Standing Order No. 32, the strike was
in breach of a contract between the employer and
its workmen and was, therefore, illegal.
The High Court did not agree with the appellant’s contentions and
dismissed the writ ’petition.
Before us the same three points were raised by Shri Phadke,
learned counsel for the appellant. The third point was very
fairly not pressed by shri Phadke because mere, breach- of a
Standing Order could not render the strike illegal under ss. 23
and 24 of the Act. Only the first two points were pressed. In
so far as s.23(c) is concerned Shri Phadke made a reference to
the settlement, a copy of which was annexed with the writ
petition in the High Court. It appears that the workers of the
appellant’s colliery had gone on strike in the months of
January/February, 1960 and efforts of the management had failed
to persuade the workers to resume duty. The Regional Labour
Commissioner (C) Bombay, thereupon wrote D.O. letter dated
February 4, 1960 to Shri Haldulkar, President of the workers
Union, in reply to the said president,s telegram of the same
date, in which the Labour Commissioner had stated that he was
going to visit Nagpur on February 9, 1960 and would
809
look into the matter. The Regional Labour Commissioner had in
that letter requested Shri Haldulkar to make it convenient to see
him at the office of the Conciliation Officer at Nagpur. The
Regional Labour Commissioner then used his good offices in
getting the matter resolved as a result of which the workers
resumed their duty and got their dues etc., from the management.
The report 3 of what transpired at the time of the visit of the
Regional Labour Commissioner was recorded in ’annexure D’ annexed
to the writ petition filed in the High Court. It appears from
"annexure D" that after discussing the matter with the appellant
and the workmen, the Regional Labour Commissioner induced both
sides to adopt a reasonable attitude and the strike was called
off. The relevant portion of annexure ’D’ may here be reproduced
It was on 10th February, 1960, that I visited
Chanda and had talks with Shri Zallaram, Vice-
President of the Union and other important workers
of the Colliey. A representative of the Management
Shri S. V. Kanade, Personnel Officer was also
present at the time of discussion. I impressed
upon the Union Officials and the workers that going
on strike Would not solve their problems but would
on the other hand create complications and bitter
relations between the Management and the workers.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
I also emphasised upon the Management that they
should also see that the grievance of the workers
were not allowed to accumulate and full justice was
given to them. Considerable discussions continued
on this issue and I asked the Union Officials that
they would withdraw the strike immediately so that
the relations between workers and management could
he restored to normalcy...... The Union thereupon
stated that owing to the strike the workers were
likely to lose their bonus and continuity of
service for purposes of annual leave. I told them
that I would take up the matter with the Management
provided they call off the strike first to which
they agreed. I was also assured,the they-would see
that such strikes are not’ resorted to in future
and, would adopt all constitutional means to get
their grievances redressed.
I saw Shri Jamnadas Daga this morning on my return
from Chanda and informed him of the discussion
which had transpired at Chanda. He agreed to
consider the matter favourly ;when I informed him
that the workers had already agreed to call off the
strike on the 10th
810
February, 1960 the Management agreed to the following :
(i) that the 3 suspended workers would be allowed
to join their duties within a period of 24 hours to
48 hours and possibly within 24 hours after the
resumption of work.
(ii) that the workers will not be deprived of the
Annual leave under the Mines Act 52 with wages on
account of this stoppage of work it they are
otherwise eligible.
iii) That although the strikers are not entitled
to bonus as a special case, which will not form a
precedent, the Management has agreed to reduce the
qualifying period from 65 to 60 attendances to 50
and 45 attendances in the quarter ending March,
1960 only. As regards the amount of bonus it would
be calculated at one-sixth of the earned basic wage
instead of one-third normally paid under the Bonus
Scheme,.
(iv) Workers who have left the colliery for their
homes, would be allowed to join their duties within
a period of 15 days from the resumption of work."
According to Shri Phadke this report embodies a settlement
between the appellant and the workmen and the assurance given by
the workmen not to resort ’to strike but to adopt constitutional
means for getting their grievances redressed being one of the
matters covered by the settlement, s. 23 (c) of the Act was
attracted rendering the strike illegal.
Let us see if S. 23 supports this submission. That section reads
"23 General prohibition of strikes and lockouts;
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-
(a) during the pendency of conciliation
proceedings before a Board and even days after the
conclusion of such proceedings;
(b) during the pendency of proceedings before
a Labour Court, Tribunal , or National Tribunal
and, two months, after the conclusion of such
proceeding
(b) during the pendency of arbitration proceedings
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
before an arbitrator and two months after the
conclusion of such proceedings, where a notifica-
tion has been issued under sub-section (3A) of
secticon; or
(c) during any period in which a settlement or
award is in operation, in respect of any of the
matters covered by the settlement of award."
In support of his contention Shri Phadke relied upon a recent
decision of this Court in Workmen of the Motor Industries Co.
Ltd. v. Management of Motor Industries Co Ltd.
Bangalore(1)_specific reliance being placed on the following
passage at pp. 310-311
"Read in the context of the other provisions of
Part I of the settlement of which it is part, cl. 5
was intended to prohibit (a) direct action without
notice ’by or at the instance of the association,
and (b) strikes by workmen themselves without the
approval of the association. The words ’in no
case’ used in the clause emphasise that direct
action by either party without notice should not be
resorted to for any reason whatsoever. There, can
be no doubt that the settlement was on as defined
by s. 2(p) of the Industrial Disputes Act and was
binding on the workmen under S. 18(3) of the Act
until it was validly terminated and was in force
when he said strike took place. The strike was a
lightning one, was resorted to without notice and
was not at the call of the association and was,
therefore, in breach of cl. 5."
In this Judgment reference was also made to an earlier unreported
decision of this Court in Tata Engineering & Locomative Co. Ltd.
v. C. B. Mitter(2) in support of the conclusion arrived at
therein. In our opinion, it is difficult to hold that in the
circumstances of the present case the assurance stated to have
been given by the workmen to the Regional Labour Commissioner
that they (the workmen) would see that they do not resort to such
strikes in future and that they’ adopt all constitution of means
to get their grievances redressed amount to a term of the
settlement, breach of which would attract Cl. (c) (A S. 23 of the
Act. In order to ’be hit by S. 23 (c) the strike must be in
breach of contract in respect of a matter covered by the
settlement which is in operation at the time of the strike. The,
assurance referred to in the Regional Labour Commissioner’s
report neither amounts to a contract nor is it a matter covered
by the aforesaid settlement.
This contention, the herefore must fail.
(1) [1970] 1 S.C.R. 304.
(2) C.A. No. 633 of 1963 d/2.4.1964.
812
The appellants learned counsel next submitted that the present
case clearly fell within s. 23 (b). The High Court decided this
point against the appellant principal on the ground that during
the pendency of reference No. 27 of 1960 the appellant had
applied before Shri Palit in August, 1960 to be discharged from
the proceedings on the ground that the dispute pending in that
Tribunal did not concern the appellant’s collieries. After the
application the appellant took no part in the proceedings and as
appeared from the judgment of the appellate authority the workmen
also had not taken any steps in the said reference,. . The
appellant and the workmen having not taken part in the reference
pending before Shri Palit the High Court felt that they were not
parties to those proceedings though in the opinion of the, High
Court the appellant and the workmen were bound by the decision in
those proceedings. On this reasoning s. 23 (D)) was also ruled
out by the High Court and the writ petition was dismissed on, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
ground that there was no error apparent on the face of the record
because there was no statutory provision dealing with the
circumstances like the present. Reference was made by the High
Court to, a decision of this Court in Hochtief Gammon v.
Industrial Tribunal, Bhubaneshwar(1) a case in which s. 18 (3)
(b) of the Act had come up for construction. But that decision
was considered to be unhelpful because, according .to the High
Court-. Shri Palit’s Tribunal had not summoned the /appellant
under s. 18 (3) (b) but had called the appellant because the
Ballarpur Collieries Company was one of the original parties to
the award known as Majumdar Award. The High Court, however,
inferred from the following observation in the Palit Award
"In an omnibus or industrywise reference it is not
necessary that the dispute must relate to each one
of them or the cause of action must exist in all
cases."
that there was no dispute between the appellant and its workmen
pending before Shri Palit’s Tribunal.
This view of the High Court was seriously assailed before us by
Shri Phadke. According to him the reference under s. 36A of, the
Act requiring consideration of any provision of an earlier award
or settlement must relate back to the earlier reference
culminating in the award or settlement. and, therefore, if the
appellant was a party to the original reference which resulted in
the ’Majumdar Award , then the appellant must necessarily be
considered to be a party to the later reference of which Shri
Palit, was, seized. And if that be so, then, the appellant in
Shri Phadke’s, submission,, must be considered to be- a party: to
the reference under S. 3 6A, notwithstanding its desire not to
take part in. those proceedings or even an express application by
it to that tribunal for permission to withdraw therefrom.
(1) [1964] 7 S.C.R. 596.
813
In our view, there is force in Shri Phadke’s submission and the
High Court was wrong in holding that S. 23 (b) is inapplicable to
the present case. Section 36A provides :
"36A Power to remove difficulties
(1) If in the opinion of the appropriate
Government, any difficulty or doubt arises as to
the interpretation of any provision of an award or
settlement, it may refer the question to such
labour Court, Tribunal or National Tribunal as it
may think fit.
(2) The Labour Court, Tribunal or, National
Tribunal to which such question is referred shall,
after giving the parties an opportunity of being
heard, decide such question and its decision shall
be final and binding on all such parties."
Now, quite clearly proceedings for removing difficulties or
doubts arising as to the interpretation of any provision of the
Majumdar Award must be construed to have the effect of reviving
those earlier proceedings for the limited purpose of considering
the removal of such difficulty or doubt. If- is only by
virtually reopening the proceedings of the earlier reference that
the purpose and object of correct interpretation of that Award
and of the removal of difficulties or doubts arising therefrom
could be achieved. The legal effect of reference under S. 36 A
must, therefore, in our opinion be to reopen the earlier
reference proceedings which terminated in the Majumdar Award,
though only for the limited purpose of the interpretation of the
provisions of that Award in respect of such difficulties or
doubts as required removal. Now, it that be the scope of s. 36A
of the Act then there can be little doubt that all parties to the
original reference which resulted in the Majumdar Award must as a
matter of law be deemed necessarily to be parties to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
proceedings to the reference under S. 36A as well. This seems to
us to be implicit in the very scheme and object of this section
as would be clear from the fact that the decision of the
question, referred under this section has been rendered final and
binding on all parties who have been given an opportunity of
being heard. This does not contemplate consideration of the
question whether. any party was in- fact feeling interested in
the particular subject matter of difficulty or doubt. In this
connection it has to be borne in mind that proceedings or
industrial adjudication are not considered as proceedings purely
between two private parties having no impact on the industry as
such. Such proceedings involve larger public’ interest in which
the industry as such (including the employer and the labour is
vitally interested. The scheme of the law of industrial
adjudication designed to promote industrial peace and harmony so
as to increase production and help the growth and
6-L1061Sup.CI
814
progress of national economy has to be considered in the back-
ground of our constitutional. set up according to which the State
has to strive to secure and effectively protect a social order in
which social, economic and political justice must inform all
institutions of national life and the material resources of the
community are so distributed as best to subserve the common good.
The appellant could not therefore, by merely expressing its
desire even if that desire is expressed by presenting a formal
application to withdraw from the proceedings, cease to be a party
to those proceedings so as to avoid the legal consequences which,
according to legislative intendment, flow by reason of the
pendency of those proceedings. The appellant, in our opinion,
must therefore be held to have continued to remain party to the
reference before the Tribunal presided over by Shri Palit, its
application to withdraw and its nonparticipation in the
proceedings notwithstanding. Even nonparticipation of workmen
would not change the legal position. Once it is held that the
appellant was a party to those proceedings then there can be no
difficulty in holding that s. 23 (b) would be attracted to those
proceedings and if that sub-section is attracted then obviously
the strike has to be held to be illegal. The reference (No. 27
of 1960) it may be recalled, was made in May, 1960, and the Award
was published on November 22, 1960: the workmen went on strike on
October 4, 1960 which was clearly during the pendency of those
proceedings. We are, therefore, of the view that the impugned
strike was illegal and the High Court, speaking with respect, was
not right in holding to the contrary. The appeal is accordingly
allowed and reversing the judgment of the High Court we quash the
order of the Central Government Industrial Tribunal dated April
16, 1960 as also the order of the Regional Labour Commissioner
(Central) Bombay dated November 19, 1960 which had held the
strike of the workmen not to be illegal. Reversing all these
orders we hold that the workmen’s strike was illegal being in
violation of S. 23 (b) of the Act. The appeal is accordingly
allowed and the workmen’s strike held illegal. If is unfortunate
that the respondents are not represented before us in spite of
service and we, therefore, did not have the benefit of their
assistance. As there is no representation an behalf of the
respondents Owe will be no order as to costs.
Appeal allowed.
815