Buckingham and Carnatic Co. Ltd. Vs.
Workers of The Buckingham and Carnatic Co. Ltd.  INSC 63 (2 December
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN
BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 47 1953 SCR 219
CITATOR INFO :
F 1957 SC 82 (12) D 1961 SC1567 (4) RF 1981
SC 340 (14)
Indian Factories Act (XXV of 1934), s.
49-B-Industrial Disputes Act (XIV of 1947), s. 2 (q)-Employees stopping work
for a few hours by concerted action-Whether "strike"Continuity of service,
whether interrupted-Loss of right to holidays with pay.
Where the night-shift operatives of a
department of a textile mills stopped work from about 4 p.m. up to about 8 p.m.
on a certain day, the apparent cause of the strike being that the management of
the mills had expressed its inability to comply with the request of the workers
to declare the forenoon of that day as a holiday for solar eclipse, and it was
found that the stoppage of work was the result of concerted action:
Held (i) that the stoppage of work fell
within the definition of a "strike" in s. 2 (q) of the Industrial Disputes
(ii) that the strike was an illegal strike as
the textile mills was a public utility industry and no notice had been given to
the management, even though the refusal to work continued only for a few hours;
and (iii) that the continuity of service of the workers was interrupted by this
illegal strike and they were not entitled to claim holidays with pay under S.
49-B (1) of the Indian Factories Act, 1934.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 89 of 1952. Appeal by 'special leave from the Judgment dated June 27, 1951,
of the Labour Appellate Tribunal of India at Calcutta in Appeals Nos. 94 and
142 of 1950 arising out of the Award of the Second Industrial Tribunal, Madras
(published in the Fort St. George Gazette, Madras, dated October 3, (1950).
N. C. Chatterjee (S. N. Mukherjee, with him)
for the appellant.
S. C. C. Anthoni Pillai (President, Madras
Labour Union) for the respondents.
1952. December 2. The Judgment of the Court
Was delivered by MAHAJAN J.
220 MAHAJAN J.-This is an appeal by special
leave from a decision dated 27th June, 1951, of the Labour Appellate Tribunal
of India at Calcutta in appeals Nos. 94 and 142 of 1950, arising out of the
award of the Second Industrial Tribunal, Madras.
The relevant facts and circumstances giving
rise to the appeal are as follows: On 1st November, 1948, 859 night shift
operatives of the carding and spinning department of the Carnatic Mills stopped
work, some at 4 p.m., some at 430 p.m. and some at 5 p.m. The stoppage ended at
8 p.m. in both the departments. By 10 p.m, the strike ended completely. The
apparent cause for the strike was that the management of the Mills had
expressed its inability to comply with the request of the workers to declare
the forenoon of the 1st November, 1948, as a holiday for solar eclipse. On the
3rd November, 1948, the management put up a notice that the stoppage of work on
the 1st November amounted to an illegal strike and a break in service within
the meaning of the Factories Act (XXV of 1934) and that the management had decided
that the workers who had participated in the said strike would not be entitled
to holidays with pay as provided by the Act. This position was not accepted by
the Madras Labour Union. The Madras Government by an order dated the 11th July, 1949, made under section 10(1) (c) of the Industrial Disputes Act (XIV of
1947), referred this dispute along with certain other disputes to the
Industrial Tribunal, Madras. The adjudicator gave the award which was published
in the Gazette on 12th October, 1950.
By his award the adjudicator found that there
could be little doubt that the stoppage of work by the night shift workers on
the night of the last November,, 1948, was a strike, that it was an illegal
strike, since the textile industry is notified as a public utility industry and
there could be no legal strike without a proper issue of notice in the terms
prescribed by the Industrial Disputes Act. No such notice had been given. In
view of this finding he upheld the view of the management that the continuity
of service of the workers was broken by the interruption 221 caused by the
illegal strike and that as a consequence the workers who participated in such
strike were not entitled to annual holidays with pay under section 49-B (1) of
the Factories Act. He, however, considered that the total deprivation of leave
with pay ordered by the management was a severe punishment and on the
assumption that he had power to scrutinize the exercise of the discretion by
the management in awarding punishment, reduced the punishment by 50 per cent
and held that the workers would be deprived of only half their holidays with
pay. The decision of the management was varied to this extent.
The Mills as well as the-Union appealed
against this decision to the Labour Appellate Tribunal. That Tribunal upheld
the contention of the Mills that the adjudicator had no power to interfere with
and revise the, discretion of the management exercised by it under section 49-B
(1). It also upheld the contention of the Union that what happened on the night
of the 1st November did not amount to a strike and did not cause any
interruption in the workers' service. This is what the Tribunal said:"It
would be absurd to hold that non-permitted absence from work even for half an
hour or less in the course of a working day would be regarded as interruption
of service of a workman for the purpose of the said section. We are inclined to
hold that the stoppage of Work for the period for about 2 to 4 hours in the
circumstances of the case is not to be regarded as a strike so as to amount to
a break in the continuity of service of the workman concerned." In the
result the appeal of the Union on this point was allowed and it was ordered
that holidays at full rates as provided for in section 49-A of the Factories
Act will have to be calculated in respect of the operatives concerned on the
footing that there was no break in the continuity of their service by the
stoppage of work on 1st November, 1948.
In this appeal it was contended on behalf of
the Mills that on a proper construction of section 49-B (1) 29 222 of the
Factories Act: (XXV of 1934) the management was right in its decision that the
continuity of service was broken by the interruption caused by the illegal
strike and that the workers were not entitled to annual holidays with pay under
the said section inasmuch as they would not have completed a period of twelve
months' continuous service in the factory, and that the non-permitted absence as
a result of concerted refusal to work even for 2 to 4 hours in the course of a
working day amounts to an illegal strike and consequently an interruption of
service of a workman for the purpose of section 49-B.
In our judgment, this contention is well founded.
Section 49-B provides"Every worker who has completed a period of twelve
months continuous service in a factory shall be allowed, during the subsequent
period of twelve months, holidays for a period of ten, or, if a child, fourteen
'Consecutive days, inclusive of the day or days, if any, on which he is
entitled to a holiday under subsection (1) of section 35......"
"Explanation.-A worker shall be deemed to have completed a period of
twelve months continuous service in a factory notwithstanding any interruption
in service during those twelve months brought about by sickness', accident or
authorized leave not exceeding ninety days in the aggregate for all three or by
a lookout, or by a strike which is not an illegal strike, or by intermittent
periods of involuntary unemployment not exceeding thirty
It is clear that the benefit of this section
is not available in cases where the interruption in service is brought about by
an illegal strike. Section 2 q ) of the Industrial, Disputes Act (Act XIV of
1947) defines "strike" as meaning"a cessation of work by a body
of persons employed in any industry acting in combination, or a concerted
refusal, or a refusal under a common understanding, of any number of persons
who are or have 223 been so employed to continue to work or to accept
The adjudicator found on the evidence and
circumstances of the case that there was concert and combination of the workers
in stopping and :refusing resume work on the night of the 1st November' He
observed that the fact that a very large number of leave applications was put
in for various reasons pointed to the concerted action and that the application
given by the workers and their representatives also indicated that they were
acting in combination both in striking and refusing to go back to work on the
ground that they were entitled to leave for the night shift whenever a half a
day's leave was granted to the day shift workers. He further hold that the
refusal of the workers to resume work in spite of the attempts made by the
officers and their own Madras Labour Union representatives indicated that they
were not as a body prepared to resume work unless their demand was conceded.
In our opinion, the conclusion reached by the
adjudicator was clearly right and the conclusion cannot be avoided that the
workers 'were acting in concert. That being so, the action of the workers on
the night of the 1st November clearly fell within the definition of the
expression "strike" in section 2(q) of the Industrial Disputes Act.
We have not been able to appreciate the view expressed by the Appellate
Tribunal that stoppage of work for a period of two to four hours and such
non-permitted absence from work cannot be regarded as strike. Before the
adjudicator the only point raised by the Union was that it was a spontaneous
and lightning strike but it was not said by them that stoppage of work did not
fall within the definition of "'strike" as given in the Act. It
cannot be disputed -that there was a cessation of work by a body of persons
employed in the Mills and that they were acting in combination and their
refusal to go back to work was concerted. All the necessary ingredients,.
therefore, of the definition exist in the present case and the stoppage of work
on 1st November, 224 1948, amounted to a strike. It was not a case of an
individual worker's failure to turn up for work. It was a concerted action on
the part of a large number of workers.
The Appellate Tribunal was thus in error in
not regarding it as a strike and it had no discretion not to regard what in law
was a strike as not amounting to a strike. If it cannot be denied that the
stoppage of work on 1st November, 1948, amounted to a strike, then it was
certainly an illegal strike because no notice had been given to the management,
the Mills being a public utility industry.
It was contended by the President of the
Union, who argued the case on behalf of the workers, that the Factories Act had
no application to this case, because by a notification of the Government of
Madras dated 23rd August, 1946, the Buckingham an Carnatic Mills had been
exempted from the provisions of Chapter IV-A of the Act and the provisions of
sections 49-A and 49-'B were not therefore attracted to it and that no
substantial question of law in respect to the construction of the section fell
to be decided by this Court and that being so, this Court should not entertain
this appeal under article 136 of the Constitution. This contention has no
validity. The Mills were granted exemption from the provisions of Chapter IV-A
of the Factories Act because their leave rules were in accordance with the
provisions of Chapter IV-A of the Factories Act.
These rules being in similar terms, the
decision of the matter depends on the construction of the rules and this involves
a substantial question of law.
Reliance was next placed on section 49-A of
the Factories Act which provides that the provisions of the new Act would not operate
to the prejudice of any rights which the workers were entitled to under the'
earlier rules and it was argued that under the leave rules of the Mills which
prevailed prior to the coming into force of the Factories Act, the workers were
entitled to privilege leave and there was no provision in those rules similar
to the one that has been made in section 49-B or in the new rules and that the
Mills 225 had no right to deprive them of leave by reason of the strike. This
contention cannot be sustained because section 49-A (2) of the Factories Act
has no application to the case of the Carnatic Mills in view of the
notification' dated 23rd August, 1946.
Lastly, it was urged that the stoppage of
work on 1st November, 1948, was not a concerted action -on the part of the
workers and that several workers in their own individual capacity wanted leave
on that date. In our opinion, in view of the facts and circumstances detailed
in the adjudicator's award this contention cannot be seriously considered. We
concur in the view of the facts taken by the adjudicator that the action of the
859 workers on the night of 1st November, 1948, fell within the definition of
the word "strike" as given in section 2(q) of the Industrial Disputes
Act and it was an illegal strike and the workers thus lost the benefit of
holidays that they would have otherwise got under the rules.
The learned counsel for the appellant
undertook on behalf of the management ex gratia that it would condone the
default of the workers on 1st November, 1948, and the cessation of work on that
night would not be treated as depriving them of the holidays under the rules and
we appreciate -the spirit in which this undertaking was given and hope that the
workers would also take it in that spirit.
The result is that the appeal is allowed, and
the decision of the Labour Appellate Tribunal on this point is set aside.
In the circumstances of this case we make no
order as to costs.
Agent for the appellant: S. P. Varma.