Management, Essorpe Mills Ltd Vs. Presiding Officer, Labour Court and Ors  INSC 582 (4 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
CIVIL APPEAL NO. 2567 OF 2006 Dr. ARIJIT PASAYAT, J
1. 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.
2. Background facts as projected by the appellant are as follows:
Respondents 2 to 23 went on illegal strike from 8.11.1990. Respondent No.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 55 workers who
resorted to strike were suspended. Even after their suspension, respondents 2
to 17 remained in the premises causing obstruction. All the 55 workers were
charged for mis-conduct. Out of them 34 apologized and they were taken back
into service. But subsequently, three more also apologized and they too were
allowed to join duty. The 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 (in short the 'Act') stating that "strike
would commence on or after 24.3.1991" and on 8th and 24th April and 13th
May, 1991 the respondents 2 to 23 were dismissed from service after holding a
disciplinary enquiry. Petitions were filed under Section 2-A of the Act for
re-instatement 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 the
Writ Petition No.8389 of 1995 filed by the respondents 2 to 23 on the ground of
non compliance of Section 33 (2)(b) of the Act and directed re-instatement 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.
3. 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 said date. The
appellant agreed to the terms proposed, but the respondents 2 to 23 did not
4. 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 14 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 10 days notice) does not satisfy the requirement of advance notice
stipulated u/s 22 (1). Therefore, it is not a valid notice. Consequently, in
the eye of law there was no commencement of conciliation proceedings as a
result of the said notice.
5. On the dates of dismissal of workmen no conciliation proceeding was
pending in the eye of 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.
6. 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.
7. 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.
8. Stand of the 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
Before a learned Single Judge the primary issue revolved on the question as
to whether any notice of conciliation had been issued by the Conciliation
Officer and, therefore, there was pendency of conciliation proceeding. Learned
Single Judge held against the appellant relying on a decision of this Court in
Lokmat Newspapers Pvt. Ltd. vs. 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.
9. 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 7 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. 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 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 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.
10. The purpose of providing for deemed conciliation is to prevent
dis-location of public utility service. The object of enacting sub-sections (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
11. 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 sub-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 the clauses (a) or (b) would
therefore have to be read disjunctively which is clear from sub- 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's case (supra) has full
12. 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:
Advance notice of 6 weeks.
14 days given to the employer to
consider the notice;
the workmen giving the notice cannot
go on strike before the indicated date of strike;
Pendency of any conciliation proceedings.
13. In this case no conciliation proceedings were pending under sub-section
(4). Sub-section (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.
14. 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.
15. The High Court seems to have lost sight of the crucial words
"notice of strike or lock out under Section 22". Section 22 pre-supposes
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 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.
16. 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.
17. 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, Saravanapatti (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
No.14 of 1947). We would inform you as per Section 22(1)(c) that the strike
will commence on or after 24th March, 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
Asstt. Commissioner of Labour (Conciliation-2),Coimbatore
The Commissioner of Police, Coimbatore
The Collector, Coimbatore
The Commissioner cum Secretary, Labour and Recuirtment Board, Fort. St.
George, Chennai 8. The Inspector of Factories, Coimbatore"
18. 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 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's case (supra) 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.
19. Somewhat unacceptable plea has been taken by the respondents 2 to 23
that in terms of Section 22(1)(b) after 14 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 14 days thereafter in terms
of Section 22(1)(b).
20. The expression "such notice" refers to 6 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.
21. Above being the position, the judgments of 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
22. The appeal is allowed to the extent indicated above. There will be no
order as to costs.