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Full Case Details
DR. ARIJIT PASAYAT, J. – Challenge in this appeal is to the order passed by a Division
Bench of the Madras High Court dismissing the writ appeals filed by the appellant.
Background facts as projected by the appellant are as follows:
Respondents 2 to 23 went on illegal strike from 8-11-1990. Respondent 15 and one S.L.
Sundaram who had died in the meantime were the first to strike work in the blow room
resulting in the stoppage of entire operation of the appellant’s textile mills. Other workmen
followed. All the fifty-five workers who resorted to strike were suspended. Even after their
suspension, Respondents 2 to 17 remained in the premises causing obstruction. All the fiftyfive workers were charged for misconduct. Out of them thirty-four apologised and they were
taken back into service. But subsequently, three more also apologised and they too were
allowed to join duty. Respondents 2 to 23, however, did not relent.
- On 14-3-1991 the General Secretary of the Tamil Nadu Panchalai Workers’ Union
served a strike notice on the management purportedly under Section 22(1) of the Industrial
Disputes Act, 1947 (“the Act”) stating that “strike would commence on or after 24-3-1991”
and on 8th and 24th April and 13-5-1991. Respondents 2 to 23 were dismissed from service
after holding a disciplinary enquiry. The petitions were filed under Section 2-A of the Act for
reinstatement with back wages and continuity of service. The Labour Court by its award dated
24-1-1994 held that the strike was illegal. However, in purported exercise of powers under
Section 11-A of the Act the Labour Court substituted the punishment of dismissal by order of
discharge and awarded compensation of Rs 50,000 to each workman. - The award was challenged by the appellant as well as the workmen before the High
Court. On 5-8-2000 a learned Single Judge of the High Court allowed Writ Petition No. 8389
of 1995 filed by Respondents 2 to 23 on the ground of non-compliance with Section 33(2)(b)
of the Act and directed reinstatement of the workmen with full back wages and continuity of
service. He took the view that a copy of the strike notice dated 14-3-1991 was sent to the
Conciliation Officer and, therefore, conciliation proceedings were pending on the date of
dismissal and since the dismissal was without the approval of the Conciliation Officer in
terms of Section 33 of the Act the same was illegal. Reliance was placed on a decision of this
Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma [(2002) 2
SCC 244]. - The appellant’s Writ Petition No. 10239 of 1999 against the alteration of punishment
was dismissed. On 30-12-2003 by the impugned judgment a Division Bench of the High
Court dismissed the writ appeals holding that the judgment of this Court did not make any
distinction between the proceeding pending before the Conciliation Officer and those pending
before an Industrial Tribunal. - On 21-2-2004 the special leave petitions were filed and when the matter came up for
hearing on 20-3-2006 after notice, a Bench of this Court suggested certain terms for amicable
settlement as set out in the order of the said date. The appellant agreed to the terms proposed,
but Respondents 2 to 23 did not agree.
157 - The basic stand of the appellant is as follows:
The High Court failed to appreciate that in the absence of a valid notice of strike in terms
of Section 22(1) there can be no commencement of conciliation proceedings in terms of
Section 20(1) of the Act. Section 22(1) prohibits a strike in a public utility service, in breach
of contract, without giving to the employer advance notice of six weeks. It prohibits strike (a)
within the notice period of six weeks, (b) within fourteen days of giving such notice, (c)
before the expiry of the date of strike specified in such a notice, (d) during the pendency of
any conciliation proceedings before a Conciliation Officer and seven days after the conclusion
of such proceedings. The strike notice issued on 14-3-1991 stating that the strike will
commence on or after 24-3-1991 i.e. (just ten days’ notice) does not satisfy the requirement of
advance notice stipulated under Section 22(1). Therefore, it is not a valid notice.
Consequently, in the eye of the law there was no commencement of conciliation proceedings
as a result of the said notice. - On the dates of dismissal of workmen no conciliation proceeding was pending in the
eye of the law. Unless a conciliation proceeding was pending at the time of dismissal of
workmen, Section 33 will not be attracted and there is no question of seeking permission of
the Conciliation Officer in such a case. - The High Court failed to appreciate that in terms of Section 33-A for not obtaining
permission of the Conciliation Officer under Section 33, the only legal consequence provided
is that the Conciliation Officer shall take the complaint of contravention of the provisions of
Section 33 into account in mediating in and promoting the settlement of such industrial
dispute. Therefore, the order of dismissal in any event was not illegal. There was no
complaint made to the Conciliation Officer in this case. - The Conciliation Officer, unlike the Labour Court or an Industrial Tribunal, has no
power of adjudication. Therefore, he cannot set aside the order of dismissal. The dismissal
remains valid. - The stand of Respondents 2 to 23 on the other hand is that the appellant did not raise
the plea that there was no conciliation proceeding pending at the time of dismissal of the
workmen. It is stated that there was deemed conciliation. Before the learned Single Judge the
primary issue revolved around the question as to whether any notice of conciliation had been
issued by the Conciliation Officer and, therefore, there was pendency of conciliation
proceeding. The learned Single Judge held against the appellant relying on a decision of this
Court in Lokmat Newspapers (P) Ltd. v. Shankarprasad [(1999) 6 SCC 275] holding that
once strike notice is issued under Section 22 of the Act, conciliation proceeding is deemed to
have been commenced and no further notice from the Conciliation Officer is necessary. - The stand that the notice of strike does not meet the requirements of Section 22 of the
Act is also not tenable. Section 22(1)(d) of the Act provides that no person employed in a
public utility service shall go on strike in breach of contract during the pendency of any
conciliation proceedings before the Conciliation Officer and seven days after the conclusion
of the proceedings. The Conciliation Officer shall hold the conciliation proceedings when
notice under Section 22 of the Act has been given.
158 - Under Section 12(3) if a settlement is arrived at during conciliation proceedings, a
report is to be sent by the Conciliation Officer to the Government together with the
settlement. If no settlement is arrived at the Conciliation Officer has to send the failure report
under Section 12(4) of the Act and the Government has to refer the dispute under Section
12(5). Unlike in the case of non-public utility service, the concept of deemed conciliation has
been statutorily provided in the case of public utility service so that workmen did not go on
strike during pendency of the conciliation proceedings. When a strike notice under Section 22
of the Act has been given the Conciliation Officer is mandatorily required to hold the
conciliation proceedings under Section 20(1) of the Act. - The purpose of providing for deemed conciliation is to prevent dislocation of public
utility service. The object of enacting clauses (a) and (b) of Section 22(1) is for the purpose of
ensuring that workers do not rush into strike and give a chance to the Conciliation Officer to
resolve the dispute. - It is therefore clear that there was a deemed conciliation proceeding when the notice
under Section 22 in Form ‘O’ of the Tamil Nadu Industrial Disputes Rules, 1958 (in short
“the Rules”) has been issued. Several alternatives are provided in Section 22(1) and clauses
(a) to (d) are the alternatives which is clear from the use of the expression “or”. As such the
time-limit set out in either one of clause (a) or (b) would therefore have to be read
disjunctively which is clear from clause (c) which provides that strike shall not be undertaken
“before the expiry of the date of strike specified in any such notice as aforesaid”. It is further
submitted that decision in Jaipur Zila case has full application. - A few facts which have relevance need to be noted. The notice was given about the
proposed strike after the strike. Undisputedly, the workers resorted to strike on 8-11-1990.
The notice was given on 14-3-1991. Different stages enumerated by Section 22(1) are as
follows:
(i) advance notice of six weeks;
(ii) fourteen days given to the employer to consider the notice;
(iii) the workmen giving the notice cannot go on strike before the indicated date of
strike;
(iv) pendency of any conciliation proceedings. - In this case no conciliation proceedings were pending under sub-section (4). Subsection (4) of Section 22 states that the notice of strike referred to in sub-section (1) has to be
given in such manner as may be prescribed. The Central Rule 71 prescribes the manner in
which the notice has to be given and the notice is in Form ‘L’. The notice as mandated under
Section 22 has to be given to the employer. - Learned counsel for the respondent relied on Section 20 which deals with
commencement and conclusion of proceedings. According to the High Court the conciliation
proceeding is deemed to have been commenced on the date on which the notice of strike
under Section 22 is received by the Conciliation Officer. - The High Court seems to have lost sight of the crucial words “notice of strike or
lockout under Section 22”. Section 22 presupposes a notice before the workmen resorted to
strike. The notice has to be given to the employer. Sub-section (6) of Section 22 also has
159
relevance because within a particular time period after receipt of the notice under sub-section
(1) he shall report to the appropriate Government or to such authority as the Government may
prescribe. - The stand of the respondents is that simultaneously notice is required to be given to
the Conciliation Officer in Form ‘L’ and, therefore, Section 20 has full application. This plea
is clearly untenable because Form ‘L’ refers to Rule 71 and not Section 22. There is nothing
in Section 22 which requires giving of intimation or copy of the notice under Section 22 to the
Conciliation Officer. At the stage of notice under Section 22 there is no dispute. - The date of notice is 14-3-1991 and the proposed strike was on 24-3-1991. Therefore,
on the face of it, it cannot be treated to be a notice as contemplated under Section 22(1)(a).
The notice in question reads as follows:
“By Registered Post
The strike notice issued by the employees under Rule 59(1)
From:
The General Secretary,
Tamil Nadu Panchalal Workers’ Union,
39, 11th Cross Road,
Tatabath,
Coimbatore 12
To:
The Management,
Essorpe Mills,
Saravanampatti (Post),
Coimbatore 35.
Sir,
We have decided to strike work at Essorpe Mills, Saravanampatti Post, Coimbatore.
Therefore, we are giving advance notice of strike under the provisions of Section 22(1) of
the Industrial Disputes Act, 1947 (Central Act 14 of 1947). We would inform you as per
Section 22(1)(c) that the strike will commence on or after 24-3-1991.
We have enclosed our demands under Rule 29 of the Chennai Industrial Disputes
Rules, 1958.
Always in service to the nation
sd/-
K. Palanichamy
The General Secretary,
Tamil Nadu Panchalal Workers’Union
Copy to: - Commissioner of Labour, Chennai
- Addl. Commissioner of Labour, Coimbatore
- Deputy Commissioner of Labour, Coimbatore
160 - Asstt. Commissioner of Labour (Conciliation-2), Coimbatore …….
- In the notice it is stated that the strike will commence on or after 24-3-1991.
Obviously, six weeks’ time before the date of strike was not given. In this case the date of
notice is 14-3-1991 and the proposed strike was on or after 24-3-1991. The inevitable
conclusion is that the notice cannot be treated to be one under Section 22. Jaipur Zila case has
no application if the notice given is not in accordance with law. If no notice is given to the
employer, the effect of it is that he is not aware of the proceedings. Obviously, the
conciliation proceedings must be one meeting the requirements of law. Here, no notice in
terms of Section 22 of the Act was there. - Somewhat unacceptable plea has been taken by Respondents 2 to 23 that in terms of
Section 22(1)(b) after fourteen days of giving the notice, the workmen can go on strike. If this
plea is accepted six weeks’ time stipulated in Section 22(1)(a) becomes redundant. The
expression “giving such notice” as appearing in Section 22(1)(b) refers to the notice under
Section 22(1)(a). Obviously, therefore, the workmen cannot go on strike within six weeks’
notice in terms of Section 22(1)(a) and fourteen days thereafter in terms of Section 22(1)(b). - The expression “such notice” refers to six weeks’ advance notice. Earlier illegal strike
is not remedied by a subsequent strike as provided in Section 22. If such stand is accepted it
will go against the requirement of Section 22 which aims at stalling action for illegal strike. - Above being the position, the judgments of the learned Single Judge as well as that of
the Division Bench cannot be sustained and deserve to be set aside which we direct.
Notwithstanding the same the fair approach indicated by the appellant by accepting the
decision of this Court by order dated 20-3-2006 can be given effect to. It is open to
Respondents 2 to 23 or any of them to comply with the terms indicated. - The appeal is allowed to the extent indicated above.
