INDUSTRIAL DISPUTES ACT, 1947: STRIKES AND LOCKOUTS

Presented by: Group 1 Russel Nayyar Kanika Monga Anu Lall Manika Dhamija Shweta Dahiya Roopali Gandhi

PRESENTED BY: ROOPALI GANDHI

Case laws

Central bank of India v. Sisir Kumar Shaw Appellant: bank Sisir Kumar claimed that he was entitled to the special allowance fixed for special assistants according to the settlement agreement. the court allowed the respondents application filed under section 33-C (2) of IDA. The court interpreted the terms of the agreement and the appeal was dismissed.

State bank of Bikaner and Jaipur v. R.L. Khandelwal

Supreme court gave a judgment that a workman cannot put forward a claim in an application under Section 33-C (2) in respect to a matter which is not based on an existing right.

P. K. Singh v. The presiding officers

C grade fitters of small army factory filed application under this section claiming wages at par with B grade fitters on the ground that they were doing the same duties as B grade fitters. Labour court dismissed the application. Supreme court later said that by merely doing the same kind of work C grade fitter workman will not be entitled to claim the wages of B grade fitter. As it involves promotion on the basis of performance and various tests.

SYNDICATE BANK V. K.UMESH NAYAK ON 19 MARCH, 1994

PETITIONER:SYNDICATE BANK RESPONDENT: K.UMESH NAYAK

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. Workmen a two-Judge Bench decision in Crompton Greaves Ltd. v. Workmen, a two-Judge Bench decision in Bank of India v. TS. Kelawala.

The question is whether workmen who proceed on strike, whether legal or illegal, are entitled to wages for the period of strike. Churakulam Tea Estate and Crompton Greaves, 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 Decision in TS. Kelawala has taken the view that whether the strike is legal or illegal, the employees are not entitled to wages for the period of strike.

It must be mentioned at the very outset that in the latter case, viz., TS. Kelawala3 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 neither discussed nor answered.

Case Facts

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. Further, three settlements were entered into between the parties on 9-6-1989.

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 appellant Bank did not immediately implement the said settlement.

Hence, the employees' Federation sent a 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. In response to this, the Bank in its reply dated 27-61989 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.

On 24-7-1989 the Employees' Federation again requested the Bank to implement the said settlement, 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. Again banks response was similar. 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.

On 1-9-1989 the Federation issued a notice of strike demanding immediate implementation of all agreements reached between the parties and the payment of arrears of pay and allowances. The Labour Commissioner and Conciliation Officer said that he did not receive a formal notice of strike. 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.

Conciliation Proceedings

the employees' Federation stated that no dispute as such existed. The question was only of implementation of the agreements between the parties. the Federation agreed to desist from direct action if the Bank would give in writing that within a fixed time they will implement the agreements and pay the arrears of wages etc. under them Bank again stated same thing regarding approval of the agreement from the government. Bank also pleaded for some more time for the approval.

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. 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 agreements validly arrived at between the parties.

Writ petition

Meanwhile on 3-10-1989 the employees' Federation had filed Writ Petition in the High Court for a writ 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

The employees had in the meanwhile, disrupted normal work in the Bank and had resorted to gherao. Bank gave the notice to the conciliation officer regarding the same. Federation gave a letter to the Conciliation Officer requesting him to treat the conciliation proceedings as closed. Even thereafter, the Conciliation Officer decided to keep the conciliation proceedings open to explore the possibility of resolving the matter amicably.

On 12-10-1989 the Bank issued a circular stating that if the employees went ahead with the strike the Management of the Bank would take 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 the circular of 12-10-1989 and to direct the Bank not to make any deduction of salary for the day of the strike. The 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.

High courts Judgment

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. This judgment was given by Single Judge.

Division bench

Federation filed an 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 negativ-ing that of the Bank. 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.

So, no conciliation proceedings could be held. The provisions of Section 22(1)(d) did not apply. The strike was, therefore, not illegal. The Court also held that the strike was, justified since it was the Bank Management's unjustified attitude in not implementing the settlements, which was responsible for the strike.

Supreme courts judgment

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.

Further Supreme court added that

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. 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 essential. And documentary evidence should be there. 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. 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.

Key Learning

Whether the strike is legal or illegal, the workers are liable to lose wages for the period of the strike.

PRESENTED BY: SHWETA DAHIYA

STATE BANK OF INDIA AND OTHERS V. STATE BANK STAFF UNION

State Bank of India and others v. State Bank Staff Union

The dispute was with regard to the deduction of wages for strike period. There was a settlement between various unions and management of nationalized banks on April10, 1989 regarding revised wage scales. The management of State Bank of India and its Award Staff represented by the recognized Federation entered into 3 settlements on June 9, 1989, one of which related to wage scale revision of award staff. It was an improvement of the settlement obtained at industrial level. After due notice on October 1, 1989, the Award Staff resorted to strike on October 16, 1989, on the ground that management of the bank declined to implement the said settlement.

The bank being the public utility concern, the Chief Labour Commissioner initiated conciliation proceedings. The management did not forward the settlement to the statutory functionaries taking a stand at the conciliation that though they have signed the settlement, they were waiting for the Central Governments approval. However, the contention of the workers was that the requirement of approval of the Central Government was not a condition specified in the settlement. The management issued a circular on October 12 that if they resorted to strike , the bank would deduct salary for the period of strike on the principle No Work, No Pay.

In spite of the circular, the employees went on a strike and filed a writ petition to quash the circular directing the bank not to deduct salary. The learned single judge upheld the contention of the bank, that strike during the pendency of conciliation proceedings, was illegal. The Employees Federation preferred appeal before the division bench which reversed the judgment of the single judge accepting the contention of the employees that the settlements were already arrived at between the parties and there could be no further industrial dispute with regard to their implementation.

Division Bench Judgment

The Division Bench held that the approval of Central Government as a condition precedent to their implementation was not incorporated in the settlements and nor was such approval necessary. Therefore, there was no valid industrial dispute for which conciliation proceedings could be held. Since the conciliation proceedings were invalid, the provisions of section 22(1) did not apply. Hence, the strike was not illegal. The strike was in the given circumstances, justified since it was bank Managements unjustified attitude in implementing the settlements, which was responsible for the strike. The Bench held that since the strike was legal and justified, no deduction of wages could be made.

Supreme Court Judgment

Considered all earlier relevant decisions. The Supreme Court held that workers were not entitled to wages for the strike period even if the strike was legal. Whether the strike is legal or justified are the questions of fact to be decided on the evidence on record. Under the act, the question is to be decided by the industrial adjudicator, it being an industrial dispute. Consequently, the order of the High Court was set aside and appeal was allowed directing the Central Government to refer the dispute regarding deduction of wages to proper authority for adjudication as High Court had no power to sit in judgment assuming power and jurisdiction of an industrial adjudicator.

The current judicial view is that whether the strike is legal or illegal, the workers are liable to lose wages for the period of the strike.

PRESENTED BY: RUSSEL NAYYAR

Buckingham and Carnatic Company Ltd v. Workers of the Buckingham and Carnatic Co. Ltd

1st November 1948, night shift operatives of carding and spinning dept of the Carnatic mills stopped work. On 3rd Nov, management had put up a notice that the stoppage of work on 1st nov was an illegal strike and break in service within the meaning of the Factories Act. Workers who participated would not be entitled to holidays with pay as provided by the Act. This position, not accepted by the Madras Labour Union. Madras Govt referred the dispute along with other disputed to the industrial tribunal, Madras. No notice given (public utility services), so little doubt that the strike was legal as per provisions under the ID Act.

So, under section 49 (B) (1) of the Factories Act workers who participated in the strike would deprived of only half their paid holidays. The mill as well as the union appealed against this decision to the Labour appellate Tribunal. The Tribunal upheld the contention of the mills that adjudicator had no power to interfere with and revise the discretion of the management under factories act. Labour Appellate Tribunal upheld the contention of the union. Saying that the incident was not a strike and dint cause any interruption in workers service. However, the appeal by special leave was filed in the Supreme Court against the decision of the Labour Appellate Tribunal of India at Calcutta. Supreme court upheld the decision taken by the tribunal.

Model Mills v. Dharam Das

Management asked 2 workers to work on a calendar machine instead of three. Workers requested to depute 3 people, management refused to depute 3. The workers refused to work. It was held that this was a strike due to an industrial matter. Since the strike is a weapon to be used by the workers for pressing their demands so in order for a stoppage may amount to strike there must be dispute or demands for which the workers are pressing. If there is stoppage of work for any other reason or natural events such as breakdown of machinery, shortage of power, or raw materials etc.

Mineral Miners Union v. kendramukh Iron Ore Co. Ltd

Union issued a notice of strike on 1st September1984 intimating its intention to go on one day token strike anyday after 20th September1984. Conciliation proceedings commenced and took place in terms of section 20(1) of the ID Act 1947on 19th Sept. On October 1st 1984 conciliation failed and report about failure of conciliation was submitted to the state govt on 12th october 1984. Parties were informed about failure on 9th Nov. The members went on a strike on Dec 10. The management told the union that the workmem are not entitled to wages from 10th dec and therefore were deducting 8 days wages under sec 9(2) of the payment of wages act for the workmen having gone on illegal strike. Union filed a writ petition against the management.

PRESENTED BY: KANIKA MONGA

WORKMEN OF MEENAKSHI MILLS V. MEENAKSHI MILLS LTD., (1992)(SC)

The validity of Section 25-N in Chapter V-B of the Industrial Disputes Act, 1947, inserted by the Amendment Act, 1976, prescribing conditions precedent for retrenchment of workmen in an industrial establishment, was challenged before various High Courts. There was difference of opinion amongst the High Courts. While one High Court upheld the validity of the Section, two other High Courts held the Section to be violative of the right guaranteed under Article 19(1) (g) of the Constitution imposing unreasonable restrictions on the right of the employer to retrench workmen, and invalid. The correctness of the decisions of these two High Court was challenged in the appeals and Writ Petitions filed before this Court.

On behalf of the workmen, it was contended that the right to retrench the workmen could only be regarded as a peripheral or concomitant right which facilitated the exercise of the right to carry on business but it could not be treated as an integral part of the right to carry on business; that the employers in the instant cases were all companies registered under the Companies Act, 1956;

and a company, being an artificial person, was not a citizen and it could not claim the fundamental rights guaranteed to citizens under Article 19 of the Constitution; that the shareholder of a limited company could not be permitted to challenge the validity of Section 25-N

On behalf of the employers it was submitted that the right of the employer to carry on any business guaranteed under Article 19(1)(g) included the right to organise the business in a way that it was most beneficial for him and, if necessary, this may be achieved by limiting the labour force employed in the establishment and, therefore, the right to retrench workmen was an integral part of the right to carry on the business, and stood on a higher footing than the right to close the business because in the case of retrenchment, the business was continuing and only a part of labour force was dispensed with;

HELD : 1. Section 25-N of the Industrial Disputes Act, 1947, did not suffer from the vice of unconstitutionality on the ground that it was violative of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution and was not saved by Article 19(6) of the Constitution. [464 E] Excel Wear etc. v. Union of India and Ors., [1979] 1 SCR 1009 distinguished.

2.1 The object underlying the enactment of section 25- N, by introducing prior scrutiny of the reasons for retrenchment is to prevent avoidable hardship to the employees resulting from retrenchment by protecting existing employment and check the growth of unemployment which would otherwise be the consequence of retrenchment in industrial establishments employing large number of workmen. 2.2. Ordinarily any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest. A restriction imposed on the employer's right to terminate the service of an employee is not alien to the Constitutional scheme which that the employer's right is not absolute.

The expression interests of workers, covers the interests of all the workers employed in the establishment, including not only the workers who are proposed to be retrenched but also the workers who are to be retained. It would be in the interests of the workers as a whole that the industrial establishment in which they are employed continues to run in good health because sickness leading to closure of the establishment would result in unemployment for all of them

Restrictions imposed by the Legislature in inserting section 25N to the Act, are regarded to be reasonable and in public interest under Article 19(1)(g) of the Constitution of India.

Ex-Capt. Harish Uppal vs Union Of India & Anr on 17 December, 2002

There is no fundamental right to go on strike

The court (Constitution Bench) held that lawyers have no rights to go on strike or give a call for boycott and they cannot even go for a token strike. The court has specifically observed that for just or unjust cause, strike cannot be justified in the present-day situation.

PRESENTED BY: ANU LALL

Case Examples

Kamal Kishore Lakshman v The Management of Pan American World Airways Incorporated SC (1987)

It was held that termination on the grounds of loss of confidence would not amount to retrenchment as defined in Section 2 (oo) of the Act

Baba Saheb Devgonda Patil v. Managing Director , Shri Panchgonda Sahkari sakhar Karkhana Ltd (1988) II LLJ 413 Bom

Voluntary retirement of workmen deletion of name from the rolls cannot be considered or held to attract S.25 F of the Act.

Binoy Kumar Chatterji v. Jugantar Ltd. (1981)II LLJ 8 (SC) For retirement on reaching superannuation age:

Contract must have a stipulation on the point of retirement Stipulation with regard to the age of superannuation.

Anand Bihari and others v. Rajasthan State Transport Corporation AIR 1991 SC 1003

The termination of service must not fall in the exclusion clause .

Case Laws

G. Yadi Reddy v Brook Bond India ltd, 1994

In

the completion of the period under subsection(2), of Section 25B, Sundays and holidays should not be taken into account.

Management of Standard Motors Products of India v. Shri A. Parthsarthy

Supreme

Court has held that if the workmen had worked for 240 days during the period of 12 months preceding the date of closure, excluding the period of illegal strikes he will be deemed to be in continuous service in accordance with section 25B.

Life Insurance Corporation of India v. Rajiv Kumar Shrivastva, 1994

Termination

does not account for retrenchment and therefore provisions of section 25F are not attracted.

State of Rajasthan v. Miss Usha Lokhwani, 1994

The

provisions of Section 25F are couched in mandatory form, and non compliance wherewith has the result of rendering the order of retrenchment void ab initio(at the very beginning) or non est(non existent).

Workmen of Bangalore Woolen, Cotton and Silk Mills Co. Ltd. V. The management of Bangalore Woolen, Cotton and Silk Mills Co. Ltd.
The

service cannot said to be terminated unless it is capable of being continued. If it is not capable of being continued , in the same manner in which it had been going on, and therefore brought to an end, that is not the termination of the service.

Savani Transport(Pvt) Ltd. V. Savani Transport Employees Association

Partial

closure of an establishment or undertaking is allowed.

Savani Transport(Pvt) Ltd. V. Savani Transport Employees Association

The

industrial tribunal has no power to enquire into the motives of closure in order to find out whether the closure in order to find out whether the closure is justified or not when indiscipline is established.

Baba Saheb Devgonda Patil v. Managing Director, Shri Panchgonda Sahkari Sarkar Karkhana Ltd.
An

employee remained absent for about 3 years without any justification Employer stuck off the name of the workman from the rolls.

Was section 25-F applicable ?

The

period of abandonment was 3 years without any justification Voluntarily by the workman Hence, Deletion of the name cannot be considered to attract Section 25-F