SYNDICATE BANK AND ANR. ETC. ETC.

v.

SH. K. UMESH NAYAK. ETC. ETC.

SEPTEMBER 13, 1994

KULDIP SINGH, P.B. SAWANT, S. MOHAN, G.N. RAY

AND N.P. SINGH, JJ.]

A

B

Labour Law--lndustrial Disputes Act, 1947, Ss. 22, 23 and 24-

Worker's entitlement to wages during strike period-Held, a/finning the view

in T.S. Kelavala's case, to be entitled to wages for the strike-period, strike has C

to be both legal and justified.

Labour Law--lndustrial Disputes

Act 1947,

Ss. 22, 23 and 24-High

Court in writ jurisdiction holding strike to be legal and justified-Held, these

were issued to be decided by the industrial adjudicator under the Act and the D

High Court exceeded its jurisdiction-Constitution of India, Article 226.

In the Appeal by the State Bank of India the facts were that there

were three settlements entered into in June, 1989 ·between the Appellant

and the Respondnet staff union under which the employees were entitled E

to certain advantages over and above those under an earlier All India

Bipartite Settlement. The Appellant

did not immediately implement the settlementS stating that Government's approval was required. The stand

of the Respondent union was that the settlements were signed without any

such pre-condition

and should be implemented forthwith. They gave notice

on September 1, 1989

that they would strike work on three different

days F

beginning September 18. In the conciliation proceedings that ensued the

employees maintained

that there was no dispute as such and that the only

issue was of implementation of the settlements. The proceedings remaining

inconclusive were adjourned to October

6, 1989.

On October 1, 1989 the Respondent.gave a further notice of a strike G

on October 16. The Appellant on October 12, 1989 issued a circular stating

that it would deduct the salary for the days the employees would be on

strike. The conciliation officer meanwhile adjourned the proceedings to

October 17. The employees went on strike on October 16, 1989

and

chal·

lenged the Appellant's circular in a writ petition in the High Court. H

491

A

B

c

492 SUPREME COURT REPORTS [1994] SUPP.. 3 S.C.R.

Relying on the decision of this court in Bank of India v. T.S. Kelavala,

(1990) 4 sec 744 which held that full day's wages could be deducted even

if the strike were legal and only for a part of the day, the Single Judge of

the High Court upheld the Appellant's circular

and dismissed the writ

petition. The Division Bench allowed the Respondent union's appeal

hold­

ing that there was no industrial dispute for which conciliation proceedings

could be held. Accordingly, the strike was not illegal

and in the

circumstan­

ces was also justified. There could be no deduction of wages for the strike

period as held by this court in

Management of Churakulam Tea Estate

(P)

Ltd. v. The Workmen and Anr., (1969) 1 SCR 931 and Crompton Greaves

Ltd.

v. Its Workmen, (1978] 3

SCC 155.

In the appeals by Syndicate Bank and Canara Bank, the only issue

was whether when the employees

struck work only for some hours of the

day, their salary for the whole day could be deducted.

On an apparent conflict of opinions expressed in the ,decisions in

D Churakulam Tea Estate and Crompton Greaves on the one hand and

T.S.Kelavala on the other, the Appeals were referred to a Constitution

Bench.

Allowing the appeals, this Court

E HELD : 1. To be entitled to the wages for the strike-period, the strike

has

to be both legal and justified. There is nothing in the decisions in

Churakulam Tea Estate and Crompton Greaves .cases which is contrary to

the

view taken in T.S. Kelavala.

[507-H, 508-A]

F Management of Churakulam Tea Estate (P) Ltd. v. The Workmen &

Anr., (1969] 1 SCR 931 and Crompton Greaves Ltd. v. Its Workmen, (1978]

3 sec 155, explained.

G

H

Bank of India v. T.S. Kelavala, (1990] 4 SCC 744, affirmed and

explained.

Management of Chandramalai Estate, Emakulam v. Its workmen &

Anr., [1960] 3 SCR 451; Management of Karibetta Estate, Kotagiri, v.

Rajamanickam and Others, (1960] 3 SCR 371 and India General Navigation

and Railway

Co. Ltd. v. Their Workmen,

[1960] 2 SCR 1, referred to.

2. Whether the strike was legal

or illegal and justified or unjustified,

SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.] 493

were issues which fell for decision within the exclusive domain of the A

industrial adjudicator under the Act. The High Court erred in recording

its findings on the legality and justifiability. An enquiry into these issues

is essentially an enquiry into the facts which may require the taking of oral

and documentary evidence.

(508-G, 509-F, 512-C]

3. The law laid down in

T.S. Kelavala will apply in the appeals by B

Syndicate Bank and Canara Bank and wages of the employees for the

whole day would be deducted. (512-G]

CIVIL

APPELLATE JURISDICTION: Civil Appeal No. 2689 of

'

1989 etc. etc.

From the Judgment and Order dated 26.9.88 of the Madras High

Court in W.A.

No. 26 of 1981.

Ms. Madhu Moolchandani for the Appellants.

c

Vijay Kumar Verma, Harinder Mohan

Singh, S.R. Bhat, A.V. Ran- D

gam and Ambrish Kumar for the Respondents.

The Judgment of the Court

was delivered by

SAWANT, J. These appeals have been referred to the Constitution

Bench

in view of the apparent conflict of opinions expressed in three E

decisions of this Court - a three-Judge Bench decision in Management of

Churakulam Tea Estage (P) Ltd. v. The Workmen &Anr., [1969]

1SCR931

and a two-Judge Bench decion in Crompton Greaves Ltd. v. Its Workmen,

[1978] 3 SCR 155 on the one hand, and a two-Judge Bench decision in

Bank of India v. T.S. Kelawala & Ors., [1990] 4 SCC 744 on the other. The F

question is whether workmen who proceed on strike, wh.ether legal or

illega~ are entitled to wages for the period of strike? In the first two cases,

viz., Churakulam Tea Estate and Crompton Greaves (supra), 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

T.S. G

Kelawala (supra) 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

th~ very outset that in

the latter case,

viz., T.S. Kelawala (supra) the question 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 H

494 SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R..

A neither discussed nor answered. Secondly, the first two decisions, viz.,

~hurakulam Tea Esatate and Crompton Greaves (supra) were not cited at

the Bar

while deciding the said case and hence 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

B

fall for consideration. It is, however, apparent from the earlier two

decisions, viz., Churakulam Tea Estate and Crompton Greaves (supra) that

the

view taken there is not that the employees are entitled to wages for. the

strike-period merely because the stirke

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

C 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

justifiec!, did not fall for consideration in the latter case, viz., in T.S.

Kelawala, there is, as stated in the beginning, only an apparent

cm?flict in

the dections.

D

E

F

2. Before we deal with the question, it is necessary to refer to the

facts in the individual appeals.

CA. No. 2710 of 1991.

On 10th April, 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 9th June,

1989.

These settlements were under Section 2 (p) read with Section 18 (1) of the

G 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 10th April, 1989. The said benefits were to be given

to the employees retrospectively with effect from 1st November,

1989. It

appears that the

appeallant~Bank did not immediately implement the said

H settlement. Hence, the employees' Federation sent telex message to the

-

;

-

SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.) 495

appellant-Bank on 22nd June, 1989 calling upon it to implement the same A

withut further loss of time. The message also stated that the employees

would be compelled to launch agitation for implementation of the settle­

ment

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 27th June,

1989 stated that it was required to obtain the B

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 24th July, 1989, the employees' Federation again 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 C

observe a day's token strike after 8th August, 1989. The Bank's response

to this message

was the same as on the earlier occasion. On 18th August,

1989, the employees' Federation wrote to the Bank that the settlements

signed were without

.any pre-condition that they were to be cleared by the

Government and hence the Bank should implement the settlement without

D

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) Rules,

1957 (the 'Rules') and request-

ing it to forthwith forward copies of the settlements to the functionaries

mentioned in the said Rule.

By its reply of 23rd August, 1989, the Bank

once again repeated its earlier stand that the Bank is required to obtain

E

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

p

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 concerned

authorities

as soon as the Government's approval regarding implementa-

tion of the agreement

was received. The Federation by the letter of 1st

September,

1989 complained to the Bank that the Bank had been indif- G

ferent in complying with the requirements of the said Rule 58.4 and hence

the Federation itself had sent copies of the settlements to the concerned

authorities,

as required by the said Rule.

3. On the same day, i.e., 1st September, 1989 the Federation issued H

496 · SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.

A a notice of strike demanding immediate implementation of all agree­

ments/understadings reached between the parties on 10th April, 1989 ·and

9th June, 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 18th September,

1989. At this stage, the

B

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 18th September, 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

C proceedings under Section 12 of the Act in the office of the Regional

Labour Commissioner,

Bembay on 14th September, 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.

The conciliation proceedings were held on 14th September,

1989 and

D thereafter on 23rd September, 1989.

On the latter date, the employees'

Federation categorically stated that no dispute as such existed. The ques­

tion was only of implementation

of the agreements/understandings reached

between the parties on

10th April, 1989 and 9th June, 1989. However, the

·Federation agreed to desist from direct action if the Bank would give in

E writing that within a fixed time they will implement the agreements/under­

standings 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

F pleaded for some more time to examine the feasibility of resolving the

matter satisfactorily. The conciliation proceedings were thereafter ad­

journed to 26th Septmeber,

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 15th

October, 1989. The next meeting was held on

G 27th. September, 1989. The Conciliation Officer found that there was no

meeting ground 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 the matter, he would

further hold discussions

on 6th

October, 1989.

H 4. On 1st October, 1989, the employees' Federation gave another

SYNDICATE BANK v. K.U.NAYAK[SAWANT,J.] 497

notice of strike stating that the employees would strike work on 16th A

October, 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 6th October, 1989, the Conciliation Officer discussed

-

the notice of strike. It appears that~ the meanwhile on 3rd October, 1989

the employees' Federation had filed Writ Petition No. 13764of1989 in the

B

High Court for a writ of mandamus to the Bank to implement the three

settlements dated 9th June,

1989. In that petition, the Federation had

obtained an order of interim injunction on 6th

October, 1989 restraining

, ...

the Bank from giving effect to the earlier settlement dated 10th April, 1989

and directing it first to implement the settlements dated 9th June, 1989. It

appears, further that the employees had in the meanw~, disrupted c

normal work in the Bank and had resorted to gherao. Th ank 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 13th October, 1989 was

D

adjourned to 17th October, 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 Con-

ciliation Officer decided to keep the conciliation proceedings open to

explore the possibility of resolving the matter amicably.

E

On 12th October, 1989, the Bank issued a circular stating therein that

if the employees went ahead with the strike on 16th October, 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

F

employees would be on strike, on the principle of "i;i.o work, no pay". In

spite of the circular, the employees went on strike on 16th' October, 1989

.,

and filed a writ petition on 7th November, 1989 to quash the circular of

12th October, 1989 and to direct the Bank not to make any deduction of

salary for the day of the strike.

G

The said .writ petition was admitted on 8th November, 1989 and an

interim

iitjuction was given by the High Court restraining the Bank from

deducting the salary of the employees for 16th October;1989.

Before the High Court, it was not disputed that the Bank was a public H

498 SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.

A 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

(l)(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

B 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

C industrial dispute within the meaning of the Act, the conciliation proceed­

ings 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

D no further industrial dispute with regard to their inplementation. Hence,

the conciliation proceedings were

non est. The

provis~ons of Section

22(1)(d) did not, therefore, come into play.

The learned Single Judge upheld the contention of the Bank and held

that the strike wa5 illegal, and relying upon the decision of this Court in

E T.S. · J(elawala's case (supra), 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' Federa­

tion preferred Letters Patent Appeal before the Division Bench of the

High Court and the Division Bench by its impugned judgment reversed the

F decision of the learned Single Judge by accepting the contention of the

employees and negativing that of the Bank. The Division Bench in sub­

stan~, held that the approval of the Central GovefiltI\ent 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

G 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

H decisions of

thi.S Court in Churakulam Tea Estate and Crompton Greaves

-

SYNDICAIBBANK v. K.U.NAYAK[SAWANT,J.) 499

cases (supra) and held that since the strike was legal and justified, no A

d~duction of wages for the strike day could be made from the salaries of

the employees. The Bench thus allowed the appeal and quashed the

circular of the 12th October,

1989.

Since the matter has been referred to the larger bench on account

of the seeming difference of opinion expressed in

T.S. Kelawala (supra) B

and the earlier decisions in Churakulam Tea Estate and Crompton Greaves

(supra), we will first discuss the facts and the view taken in the earlier two

decisions.

In

Churakulam Tea Estate (supra), which is a decision of three C

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 payemnt of bonus.

In respect for the years, 1957, 1958

and 1959, there was a settlement dated 25th January,

1960 between the D

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 ground 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

E

that regard failed. All 27 workers in the appellant's factory struck work on

the afternoon of

30th November, 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 1st

December,

1961 to 8th December, 1961. By its order dated 24th May, 1962, p

·

the State Government referred to the Industrial Tribunal three questions

for adjudication one of which was whether the factory workmen were

entitled to wages for the day of the strike.

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

G

the relevant

time, conciliation proceedings relating to the claim for bonus

had failed and the question of referring the dispute fot 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 23rd November,

1961. The H

500 SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.

A 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 hehalf of the management, the provisions of

Section 23 (a) of the Act were pressed into service to contend that the

B strike resorted to by the factory workers was illegal. The said provisions

c

D

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

lock-outc

(a) during the pendency of conciliation proceedings before a

Board seven days after the conclusion of such proceedings;

x x x x x x x x x x x x x x x x x x

I

This Court noted there were no conciliation proceedings pending on

30th November,-1961 when the factory workers resorted to strike and hence

the strike was not hit by the aforesaid provision. The Court further ob­

served that if the strike was hit by Section 23(a), it would be illegal under

E 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

~e as follows:

" ........ Admittedly there were

no conciliation proceedings pending

before such a Board

on November

30, 1961, the day on which the ·

F factory workers went on strike and hence the strike does not come

under s.23(a). No ·doubt

if the strike, in this case, is hit by s.23(a),

it

Will be illegal under s.24(1)(i) of the Act; but we have already

held that

it does not come under s.23(a) of the Act. It follows that

the strike, in

this case, cannot be considered to be illegal."

G 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

H request to. the Government to refer the dispute for adjudication and,

SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.] 501

therefore, the strike could not be justified. Support for this was also sought A

by the management from the observations made by this Court in Manage­

ment of Chandramalai Estate, Emakulam v. Its ·workmen and Anr., (1960) 3

SCR 451. 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 B

decision did not support the Management since the strike was not directly

in conne¢on with the demand for bonlis but was as a protest against the

unreasonable attitude

of the management in boycotting the conference held

on 23rd November, 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 C

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.

In Crompton Greaves Ltd. (supra}, the facts were that on 27th D

December, 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 Commissioner arranged a joint con-

E

ference 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 5th and 9th January, 1968 in which

both the parties participated. As a result of these conferences, the

Com­

pany agreed to hold talks with the representatives of the Union at its F

Calcutta office on the morning of 10th January, 1968. The talk did take

place but no agreement could

be arrived at. The Assistant Labour

Com­

missioner continued to use his good offices to bring about an amicable

settlement through another joint conference which was scheduled for 12th

January, 1968. On the after-noon of 10th January, 1968, the Company

without informing the Labour Commissioner that it was proceedings to

G

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. 11th January, 1968

after giving notice to

the appellant and the Labour Directorate and continued the same upto H

. 502 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.

A 26th June, 1968. In the meantime, the industrial dispute in relation to the

B

c

· retrenchment of the workmen was referred by the State Government to the

Industrial Tribunal

on 1st March, 1968.

By a subsequent order dated 13th

December,

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 11th January, 1968 to the end of

February, 1%8 but rejected their demand for the remaining period of the

strike observing that "the redress for retrenchment having

been sought by

the

Ullion itself through the Tribunal, there remained no justification for

the workmen to continue the strike."

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 11th January,

1968 was valid. In paragraph 4 of the

D judgment, this Court observed as follows :

"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, a strike cannot

be said to be unjustified unless the

E 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 violance or acts

of sabotage resorted to by the workmen during a strike disentitled

p them to wages for the strike period.

After observing thus, the Court formulated the following two

ques­

tions, 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 i.e., 11th January, 1968 to 29th February, 1968? While answering the

G first question, the Court pointed out that no specific provision of law has

been brought to its notice which rendered the strike illegal during the

period under consideration. The strike could also not be said to

be

unjus­

tified as before the conclusion of the talks for conciliation which were going

on through the instrumentality

of the Assistant Labour Commissioner, the

H Company had retrenched as many as 93 of its workmen without even

SYNDICATE BANK v. K.U.NAYAK[SAWANT,J.) 503

'intimating the Labour Commissioner that it was carrying out its proposed A

plan of effecting retrenchment ot 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 substan-

tiate the charge that the striking workmen had resorted to force

or B

violecne. 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.

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

C

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.

5. We may now refer to

the other relevant decision on the subject. D

In Management of Kairbetta Estate, Kntagiri v. Rajamanickarti and

others, (1960) 3 SCR 371, this Court observed as follows:

" ........ Just as a strike is a weapon available to the employees for E

enforcing their industrial demands, a lock-out 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 lock-out 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 lock-outs clearly brings out the antithesis between the two

weapons and the limitations subject to which both of them must

be exercised. n

In Chandramalai Estate (supra), the facts were that on 9th August,

1955, the workers'

Union submitted to the mangement a charter of fifteen

demands. Though the Managment agreed to

fulfil some of the demands,

F

G

the principal demands remained unsatisfied.

On 29th August, 1955, the

Labour Officer, Trichur, who had in the meantime been apprised of the

H

504 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.

A situation both by the management and the workers' Union, advised mutal

negotiations between the representatives

of the management and the

workers.

Ultiniately, the matter was recotftmended by the Labour Officer

. to the Conciliation Officer, Trichur for conciliation. The Conciliation

Officer's efforts proved in vain. The last meeting for conciliation was held

B on

30th November, 1955. On the following day, the Union gave a strike

notice and the workmen went

on strike w.e.f. 9th December, 1955. The

strike

end~d on 5th January, 1956. Prior to this, on 5th January, 1956, the

Government h.ad referred the dispute with regard to five of the demands

for adjudication to the Industrial Tnbunal, Trivandrum. Thereafter, by its

order dated 11th June, 1956, the dispute was withdrawn from the

C Trivandrum Tribunal and referred to the Industrial, Emakulam. By its

award dated 19th October,

1957, the Tnbunal 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

D Tnbunal, 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.

E This Court while dealing with the said question, held that it was clear

that on

30th November, 1955, the Union knew that the conciliation at­

tempts 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'

upion to address the Government and request

p that a reference be made to the Industrial Tribunal. The union did not

choose to wait and after

giving notice to the management on 1st December,

1955 that it had decided to strike work from 9th December, 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

G

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

thay had said nothing since

1949 when it was first stopped till the

Union raised it on August 9, 1955. The grievance for collection of

H excess price of rice was more recent but even so it was not of such

SYNDICATEBANK v. K.U.NAYAK[SAWANT,J.] 505

an urgent nature that the interest of labour would have suffered A

irreparably if the procedure prescri~ed 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 topped

by strikes. While on the one hand, it has to be remembered that

strike is a legitimate and sometimes unavoidable weapon

in the B

hands of labour it is equally important to remember that indis­

criminate and hasty use of

this weapon should not be encouraged.

It

will not be right for labour to think that for any kind 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

C

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, stirke 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 after

D

conciliation efforts failed before starting a strike and in the mean­

time to have asked the Government to make a reference. They did

not wait at all. The conciliation efforts failed on November

30,

1955, and on the very next day the Union made its decision on

strike and sent the notice of the intended strike from the 9th

December,

1955, and on the 9th December, 1955, the workmen E

actually struck work. The Government appear to have acted quick-

ly and referred the dispute on January 3, 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."

In

India General Navigation and Railway

Co. Ltd. v. Their Workmen,

(1960] 2 SCR 1 this Court while dealing with the issues raised there,

observed

as follows:

F

" ....... .In the first place, it is a little difficult to understand how a G

strike in respect ?f a public utility service, which clearly, illegal,

could at the same time be characterized

as "perfectly justified".

These

two conclusions cannot in law co-exist. 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

H

A

B

c

D

E

506 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.

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 per­

missible to characterize 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. con­

done 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 who have taken an active part in fomenting

the trouble

and instigating

workmen to join such a strike, or have

taken recourse to violence."

We may now refer to the decision of

this Court in the T.S. &lawala

case (supra) where allegedly a different view has been taken from the one

taken

in the aforesaid earlier decisions and in particular in Churakulam

Tea Estate

and Crompton Greaves cases (supra).

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 country-wide strike.

The appellant-Bank issued a circular

F on 23rd September, 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 strike. The employees'

Union gave a call for a four-hour-strike on 29th

December, 1977. Hence, the Bank

on 27th December, 1977 issued a

circular warning the employees that they would

be committing a breach of

their contract of service if they participated in the strike and that

they

G would not be entitled to draw the salary for the full day if they do so and

consequently they need not report for 'work for the rest of the working

hours

of that day. Notwithstanding it, the employees went on four-hour­

strike from the beginning

of the working hours on 29th December, 1977.

There was no dispute that banking hours for the public covered the said

H four hours. The employees, however, resumed work on that day after the

SYNDICA1EBANK. v. KU.NAYAK(SAWANT,J.) 507

strike hours and the Bank did not prevent them from doing so. On 16th A

January, 1978, the Bank issued a circular directing its managers and agents

to deduct the full day's salary of those of the employees who had par­

ticipated in the strike. The employees' union filed a writ petition in the

High Court for quashing the circular. The petition was allowed. The Bank's

Letters Patent

Appeal in the High Court also came to be dismissed. The B

Bank preferred an appeal against the said decision of the High Court.

On

these facts, the only questions relevant for our present purpose which were

raised in the case before the High Court as well as

in this Court were

whether the Bank was entitled to

deduct wages of workmen for the period

of strike and further whether the Bank was entitled to deduct wages for

the whole day

or pro rata only for the hours for which the employees had c

struck work. The incidental questions were whether the contract of employ­

ment was divisible and whether when the service rules and the regulations

did not provide for deduction of wages, the Bank could do so by an

administrative circular. We are not concerned with the incidental questions

in this

case, What is necessary to remember is the question whether the D

strike was legal or illegal and whether it was justified or unjustified was not

raised either before the High Court or in this Court. The only question

debated was whether, even assuming that the strike was legal, the Bank was

entitled to

deduct wages as it purported to do under the circular in

question. It is while answering this question that this Court held that the

legality

or illegality of the strike had nothing to do with the liability for the E

deduction

nf the wages. Even if the strike is legal, it does not save the

workers from losing the. salary for the

period of the strike. It only saves

them from disciplinary action, since the

Act impliedly recognises the right

to strike as a legitimate weapon in the hands of

th~ workmen. However,

this weapon is circumscribed by the provisions

of the Act and the striking F

of work in contravention of the said provision makes it illegal. The illegal

strike

is a misconduct which invites disciplinary action while the legal strike

does

not do so. However, both legal as well as illegal strike invite deduction

of wages

on the principle that whoever voluntarily refrains from doing work

when

it is offered to him, is not entitled for payment for work he has not

done. In other words, the Court upheld the dictum 'no work no pay'.

Since G

it was not the case of the employees that the strike was justified, neither

arguments were advanced

on. that basis nor were the aforesaid earlier

decisions cited before the Court.

6. There is, therefore, nothing in the decisions of this Court in H

508 SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.

A Churakulam Tea Estate and Cromption Greaves eases (supra) or the other

earlier decisions . cited above which is contrary to the view taken

in T.S.

Kelawala. What is held in the said decisions is that to entitle the workmen

to the wages for the

strike"period, the strike has both to be legal and

justified In other words, if the strike is only legal but not justified or if the

strike is illegal though justified, the workers are not entitled to the wages

B for the strike-period. In fact, in India General Navigation case (supra), the

Court has taken the view that a strike which is illegal cannot, at the same

time

be

justifiable. According to ~t view, in all cases of illegal strike, the

employer is entitled to deduct wages for the period of strike and also to

tilke disdplinary action. This is particularly so in public utility services.

c

7. We, therefore, hold endorsing the view taken in T.S. Kelawala that

the worker are not entitled to wages for the strike-period even if the strike

is legal.

To be entitled to the wages for the strike-period, the strike

has to

be both legal and justified. Whether the strike is legal or justified are

D questions of fact to be decided on the evidence on record. Under the Act,

the question has to

be decided by the industrial adjudicator, it being an

industrial dispute within the meaning of the Act.

8.

In the present case, the High Court relying on Churakulam Tea

Estate

and Crompton Greaves cases, has held that the strike was both legal

• E and justified. It was legal according to the High Court because the refer·

ence to the conciliation proceedings was itself illegal and, therefore, in the

eye

of the law, no conciliation proceedings were pending when the

employees struck work. The strike was, further justified according to the

. High Court because the Bank

had taken a recalcitrant attitude and had

llisisted upon obtaining the approval of the Central Government for the

F implementation of the agreements in question, when no such approval was

either stipulated

in the agreements or required by law. We are afraid that the High Court has exceeded its jurisdiction in recording the said findings.

It is the ~ustrial adjudicator who had the primary jurisdiction to give its

findings on

both the said issues.

Whether the strike was legal or illegal and

G justified or unjustified, were issues which fell for decision within the

exclusive domain of the industrial adjudicator under the Act and it was not

primarily for the High Court to give its findings on the said issues. The said

issues

had to be decided by taking the necessary evidence on the subject.

We find nothing in the decision of the High Court to enlighten us as to

whether notwithstanding the fact that the agreements in question

had not

H stipulated that their implementation was dependent upon the approval of

SYNDICAIBBANK v. K.U.NAYAK(SAWANT,J.) 509

the Central Government; in fact, the Bank was not duty bound in law to A

take such approval. lf it was obligatory for the bank to do so, then it

mattered very little whether the agreements in question incorporated such

a stipulation or not.

If the approval was necessary, then there did exist a

valid industrial dispute between the

~arties and the conciliation proceed-

ings could not be said to

be illegal. It must be noted in this connection that

the said agreements provided for benefits over and above the benefits

B

which were available to the employees of the other Banks. Admittedly, the

employees struck work when the conciliation proceedings were still pend-

ing. Further, the question

wheth~r the implementation of the said agree­

ments

was of such an urgent nature as could not have waited the outcome

of the conciliation proceedings and

if necessary, of the adjudication C

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.

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 D

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 casue

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

E

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

F

has to come to its findings on the said issue by exami11ing

ajl the pros and

cons of the dispute as any other dispute between the employer and the

employee.

Shri Garg· appearing for the employees did not dispute the proposi-

Lion of law that notwithstanding the fact that the strike is legal, unless it is G

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.

H

A

B

510 SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.

9. 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 a use by the

labour

of their economic power to bring the employer to see and meet their

view-point over the dispute between them.

In addition to the total cessation

of work, it takes various forms such as working to rule, go slow, refusal to

work over time 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,

C 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 industriai legislation while not denying the right

of workmen to strike, has tried to regulate it along with the right of the

D employer to lock-out and has also provided a machinery for peaceful

investigation, settlement, arbitration and adjudication

of the disputes be­

tween them. Where such

llidustrial legislation is not applicable, the con­

tract

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

E machinery to resolve the dispute, resort to strike or lock-out as a direct

action is

prim a f acie unjustified. This is, particularly so when the provisions

of the law

or of the contract or of the

servi~ rules in that behalf are

breached. For then, the action

is also illegal.

F The question

whethe! a strike or lock-out 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 ques-

G tion that arises is whether the dispute was of such a nature that its solution

could not brook delay and await resolution by the machanism provided

under the law or the contract or the service rules.

The

1stike or lock-out is

not to be resorted to because the concerned party has a superior bargaining

power

or the requisite economic muscle to compel the other party to

H accept its demand.

Such indiscriminate use of power is nothing but asser-

SYNDICATE BANK v. KU.NAYAK[SAWANT,J.] 511

tion of the rule of "might is right". Its consequences are lawlessness, anarchy A

and chaos in the ecomic 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 lock-out 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,

to compel the other party to the dispute to see the justness of the demand.

B

It is not to be utilised to work Jiardship to the society· at large so as to

strengthen the bargaining power. It

is for this reason that industrial legis- C

lation.such as the Act places additional restrictions on strikes and lock-outs

in public utility services.

With the emergence of the

·organised labour, particularly in public

undertaking'! and public utility services, the old balance of economic power D

between the management and the workmen has undergone a qualitative

change in such undertakings. Today, the organised labour in these institu­

tions has acquired even the power of holding the society at large to ransom,

by withholding labour and 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 E

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 of

the resources of the society in one form or the other whether it

is land, F

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

~mployment, better service conditions G

and profits only f ~r 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 fo be wasted or frittered away by strikes and

lock"outs. 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

H

512 SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.

A 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

B

imperatively so in the public sector. The management in the public sector

is not a 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 .

. 10. We are, t~erefore, more than satisfied that the High Court in the

C presect case had erred in recording its findings on both the counts, viz.,

the legality and justifiability, by assu~g jurisdiction which was properly

vested in the industrial adjudicator. The impugned order

of the High Court

has, therefore, to

be set aside.

11. Hence we allow the appeal. Smee the dispute has been pending

D 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.

E

CA. No. 2689

OF 19.89 & CA. Nos. 2690-92 of 1989.

12. 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

F salary for the whole day could be deducted. As in the case of

T.S. Kelawala

(supra), 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

T.S. Kelawala, with which we concur, will be

G applicable. The wages of the employees•for the whole day in question, i.e.,

29th December,

1977 are liable to be deducted. The appeals are, therefore,

allowed

and the impugned decision of the High Court is set aside. There

will, however, be no order as to costs. S.M. Appeals allowed.