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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

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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

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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