Raja Bahadur Motilal Poona Mills Vs.
Tukaram Piraji Masale  INSC 63 (31 October 1956)
MENON, P. GOVINDA BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA DAS, S.K. CITATION:
1957 AIR 73 1956 SCR 939
Industrial Dispute-Strike-Change in the
existing system of working-Workers objecting as illegal change and going on
strike--Strike, whether illegal-Bombay Industrial Relations Act, 1946 (Bom. XI
of 1947), s. 97(1)(c).
By s. 97(1)(c) of the Bombay Industrial Relations
"A strike shall be illegal if it is
commenced or continued only for the reason that the employer has not carried
out the provisions of any standing order or has made an illegal change".
The management of the appellant Mill desiring
to make a change in the existing system of working started making an experiment
by asking a few workmen who had volunteered to work at the rate of four looms
to a weaver for a period of two months. The other workers objected that this
was an illegal change on the ground that the management could not legally
introduce any change without first going through the procedure prescribed by
the Act, and went on strike. The question was whether the strike was illegal.
Held, that as the workmen had gone on strike
only for the reason that the change or experiment made by the appellant was an
illegal change, their action came within the express terms of B. 97(1)(c) of
the Act and the strike was illegal.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 323 of 1955.
Appeal from the judgment and order dated July
2, 1953 of the Bombay High Court in Special Civil Application No. 159 of 1953.
R. J. Kolah and A. C. Dave, for the
H. R. Gokhale, K. R. Chaudhury and M. R.
Rangaswamy, for respondent No. 2.
1956. October 31. The Judgment of the Court
was delivered by GOVINDA MENON J.-On July 20, 1954, the High Court of
Judicature at Bombay granted a certificate of fitness under Art. 133(1) (c) of
the Constitution 940 that the judgment of that court dated July 2, 1953, passed
in Special Civil Application No. 159 of 1953, was a fit one for appeal to the
Supreme Court as it involved a substantial question of law, and it is in
pursuance of such certification that the above appeal is now before this court.
A brief resume of the facts and circumstances, which led to the application for
a writ of certiorari in the High Court, becomes necessary for a correct
appreciation of the question of law involved and may, therefore, be shortly
The appellant which may hereafter, for the
purpose of convenience, be called "The Mill", is a limited company
owning and possessing a Cotton Textile Spinning and Weaving Mill situated in
Poona, employing a large number of workmen who have a union of theirs. The
first respondent is a workman employed by the Mill and the second respondent is
the Poona Girni Kamagar Union of which the first respondent is a member.
Respondents 3 to 5 were formally added as parties in the first in-stance, but
their names were struck off as unnecessary at the time of the hearing.
The appellant was running 580 looms, for
working which one weaver had been allotted at the rate of two looms; and when
things were in that state on August 29, 1951, the Management issued a notice to
the effect that from September 1, 1951, it was desired to carry on an
experiment of four looms to a weaver for a period of 2 months, on 16 looms. If
at the end of that period or before the expiry of the same it was found that
the working was successful, the Management would introduce the scheme after
giving the notice of change required under the Act. The object of this notice
was ostensibly to introduce rationalization or rather efficiency system of
work, if and when the suggested experiment proved successful. As a result of
this notice on September 4, 1951, the Secretary of the Union wrote to the
Manager of the appellant Mill intimating that under the Bombay Industrial
Relations Act the Management could not legally introduce any change in the
existing system ,of working without first giving notice of the change 941 in
the prescribed form to the representatives of the Union and workers and without
going through the other procedure prescribed by the Act; and the Management
were further informed that if they insisted in carrying on the change illegally,
the workmen would be free to move the proper courts. The notice also stated
that the introduction of the new system would affect the workers' wages and
cause great hardship; and that if anything untoward happened, the blame would
be wholly on the management, as it would be impossible for the Union to control
the workers in the matter.
Four workers volunteered to work the
experiment and started working accordingly on the 16 looms on September 6,
1951, whereupon the other workmen raised an objection and the four loyal
workmen were prevented from continuing with the experimental work.But the
Management did not withdraw the notice and none except the 4, was required by
the Management to take part in the experiment. The second shift among the
workmen also refused to work with the result that there was a complete strike
in the Mills between the 6th and the 26th of September, 1951.
On September 10, 1951 the appellant filed an
application under sections 78 and 97 of the Bombay Industrial Relations Act,
1946 (Bom. XI of 1947), praying that the strike resorted to by the weavers
working on both the shifts commencing on September 6, 1951, and continuing till
the presentation of the application be declared illegal being in contravention
of the provisions of the said Act. On September 16, 1951 the Vice-President of
the Mill Mazdoor Sabha filed a written statement in answer to the above complaint
stating that the workers did not strike work in contravention of the Bombay
Industrial Relations Act and that the weavers never refused to do their proper
and usual work but refused only to do the illegal work insisted on them by the
employers; in other words, they were agreeable to have two looms per weaver and
not to work the attempted experiment. Within three days of the filing of the
above written 942 statement, two of the workers filed an application under
sections 78 and 98 of the Bombay Industrial Relations Act before the same
Labour Court against the Management praying for a declaration that the action
of the Management had resulted in an illegal lockout in contravention of the
Act, and, therefore, the Management should be ordered to withdraw the said
illegal change. The appellant filed a written statement countering the
allegations contained in the application for the declaration of an illegal
lockout and 'stated that their action was not in contravention of the Bombay
Industrial Relations Act, as it did not constitute an illegal change.
The Labour Court at Bombay heard both the
applications together and by a combined order dated September 26, 1951, held
that since the Management had not compelled any one to accept any work, their
action could not be-considered an illegal lockout. At the same time, it held
that the workers did not create a situation amounting to an illegal strike.
The result of these findings was the negation
of the grant of the prayers contained in the respective applications, but in
addition, the court declared that the action of the Management was an illegal
change and, therefore, the notice whereby the experiment was attempted to be
tried, should be withdrawn.
The workers were content with the outcome of
their application but the Management having been aggrieved by the declaration
that their action amounted to an 'illegal change' filed an appeal before the
Labour Appellate Tribunal at Bombay (Appeal No. 293 of 1951) upon which the
learned Judges of the Labour Appellate Tribunal took the view that the strike
by the workmen was illegal. They also concluded that there was no lockout on
the part of the Management.
That being the case, the order of the Labour
Court declaring that there was an illegal change was set aside with the
declaration that the strike in question was illegal with the necessary
I In order to get the said order of the Labour
Appellate Tribunal quashed, an application for a writ 943 of certiorari under
Arts. 226 and 227 of the Constitution was filed by the two of the workers
before the High Court of Bombay where Chagla C.J. and Dixit J., took the view
that since the decision of the Appellate Tribunal was erroneous, the same
should be quashed, with the result that the decision of the Labour Court was
upheld. It is this judgment that is under appeal before us as a result of the
certificate granted by the High Court of Bombay.
A reading of the relevant portions of the
statute is necessary to find out whether the order appealed against is
justified or not. The Bombay Industrial Relations Act, 1946 was enacted to
regulate the relations of employer and employees, to make provisions for the
settlement of industrial disputes and to provide for certain other purposes.
This statute repealed the Bombay Trade 'Disputes Conciliation Act, 1934 and the
Bombay Industrial Disputes Act, 1938. Section 3(8) defines "change"
as meaning an alteration in an industrial matter and sub-s. (15) contains a
definition of 'illegal change' as meaning an illegal change within the meaning
of sub-ss. (4) & (5) of s. 46 which are in the following terms:"(1)
(4)Any change made in contravention of the
provisions of sub-sections (1), (2) and (3) shall be illegal.
(5)Failure to carry out the terms of any
settlement, award (registered agreement or effective order or decision of a
Wage Board), (a Labour Court or the Industrial Court affecting, industrial
matters) shall be deemed to be an illegal change".
Section 42 which speaks of change may also be
quoted so far as it is relevant for our purpose:
"(I) Any employer intending to effect
any change in respect of an industrial matter specified in Schedule II shall
give notice of such -intention in the prescribed form to the representative of
employees. He shall send a copy of such notice to the Chief Conciliator, the
Conciliator for the industry concerned for the 944 local area, the Registrar,
the Labour Officer and such other person as may be prescribed: He shall also
affix a copy of such notice at a conspicuous place on the premises where the
employees affected by the change are employed for work and at such other place
as way be directed by the Chief Conciliator in any particular case.
"Industrial matter' has also been
defined in the Act in s. 3(18) in the following words:
"Industrial matter' means any matter
relating to employment, work, wages, hours of work, privileges, rights or
duties of employers or employees, or the mode, terms and conditions of
employment, and includes:(a)all matters pertaining to the relationship between
employers and employees, or to the dismissal or nonemployment of any person;
( b) all matters pertaining to the
demarcation of functions of any employees or classes of employees;
(c) all matters pertaining to any right or
claim under or in respect of or concerning a registered agreement or a
submission, settlement or award made under this Act;
(d)all questions of what is fair and right in
relation to anyindustrial matter having regard to the interest of the person
immediately concerned and of the community as a whole;".
Schedule II, para 4 mentions
"rationalization or other efficiency system of work" and therefore
when any such rationalization is introduced, it is obligatory upon the employer
to give notice of such an intention in the prescribed form to the
representatives of the employees. We may also refer to s. 3(35-A) defining
'stoppage' in the following terms:" Stoppage' means a total or partial
cessation of work by the employee in an industry acting in combination or a
concerted refusal or a refusal under a common understanding of employees to,
continue to work or to accept work, whether such cessation or refusal is or is
not in consequence of an industrial dispute;".
945 Sub-section (36) defines 'strike' as
follows:" 'Strike' means a total or partial cessation of work by the
employees in an industry acting in combination or a concerted refusal or a
refusal under a common understanding of employees to continue to work or to
accept work, where such cessation or refusal is in consequence of an industrial
Chapter XIV of the statute concerns itself
with illegal strikes and lockouts of which s. 97 deals with illegal strikes,
whereas s. 98 deals with an illegal lockout.
According to s. 97(1)(c), a strike shall be
illegal if it is commenced or continued only for the reason that the employer
has not carried out the provisions of any standing order or made "an
In considering whether the strike in question
the learned Judges of the High Court have
expressed the opinion that there is a common law right for an employee to stop
work and that it is only by statutory prohibition that certain strikes have
been made illegal in the interest of labour relations. In the present case
since there had been no 'illegal change" effected by the employer, the
High Court took the view that on the very finding of the Appellate Tribunal
that the change was a legal change, the strike in question did not come within
the ambit of s. 97.
Learned counsel for the appellant has pressed
two arguments before us with regard to the construction of s. 97 (1) (e) of the
Bombay Industrial Relations Act., 1946. His first argument is that the High
Court was in error when it held that there was any such right as a common law
right of an employee to go on strike and s. 97 constituted an inroad on that
right. Learned counsel has submitted that under s. 97 (f) (c) a strike shall be
illegal if it is commenced or continued only for the reason that the employer
has not carried out the provisions of any standing order or has made an illegal
change; if a strike is illegal when it is commenced or continued only for the
reason that the employer has made an illegal change, a fortiori it must be
illegal when it is commenced or continued for a legal change. The contention of
learned counsel is 128 946 that by necessary implication cl. (c) condemns a
strike which is commenced or continued for a change which is not illegal. The
second argument of learned counsel is that the true scope and effect of cl. (c)
is this: the word 'only' -occurring in the clause goes with the word 'reason'
and if the strike is commenced or continued for the only reason that the
employer has made an illegal change, it shall be illegal. The test is not
whether there was a legal or illegal change in fact but what was the reason for
which the employees went on strike, and if the employees. commenced or
continued a strike only for the reason that the employer had made an illegal
change, the strike would be illegal within the express terms of the clause.
In our opinion it is unnecessary to decide in
this case whether the first argument of learned counsel for the appellant is
correct or not; because we are I clearly of the opinion that the second
argument with regard to the construction of s. 97 (1) (c) is correct and should
prevail.. In this case the workmen themselves came to court with the plea that
the action of the employer amounted to an illegal change. In their application
to the Labour Court, they said: "That for the above-mentioned reasons it
is prayed that this Honourable Court be pleased to declare the said lockout by
the opponent Mills as illegal being in contravention of the Bombay Industrial
Relations Act, and the opponent be ordered to withdraw the said illegal
It is obvious, therefore, that the workmen in
this case struck work only for the reason that the change or experiment made by
the appellant employer was an illegal change. The action of the workmen,
therefore, came within the express terms of s. 97 (1) (c) of the Act. The
learned Chief Justice did not consider this aspect of the case, and reached a
conclusion with regard to the legality of the strike on a reasoning which did
not give full effect to the words used in s.97(1)(c). In our view,the true test
was to find out the reason for which the strike was commenced or continued, and
it was unnecessary to consider or decide whether there was a common law right
of the workmen to go on strike or whether the work947 -men had the right to go
on strike as a means of collective bargaining against a change which they did
Mr. Gokhale appearing for the workmen has
taken us through the different provisions of the Bombay Industrial Relations
Act, 1946, and has contended that the workmen have the right to go on strike as
a means of collective bargaining against any measure adopted by the employer
which the workmen may consider to be detrimental to their interests, provided
the strike does not come within the prohibited ambit of s. 97.
Even assuming that Mr. Gokhale is right in
his contention, it is clear to us that if the workmen commence or continue a
strike for the only reason that the employer has made an illegal change, they
come within the express terms of s. 97 (1) (c). It is immaterial whether the
change is subsequently found by the Labour Court to be a legal change.
It is worthy of note that there is a separate
provision for imposing a penalty on an employer who makes an illegal change.
The relevant consideration, however, with regard to s. 97 (1) (c) is the reason
for which the strike is commenced or continued. That reason in this particular
case is clear enough. The workmen themselves said that they commenced and
continued the strike because the employer had made an illegal change. That
being the position, the strike was illegal within the express terms of s.
97(1)(c) of the Act.
We are, therefore, of the opinion that, on a
proper interpretation of s. 97(1) (c) of the -Act, the strike which was
commenced and continued from September 6, to September 26, 1951, was clearly
The appeal is, accordingly, allowed and the
order of the High Court dated July 2, 1953, is set aside. The result,
therefore, is that the order of the Labour Appellate Court dated September 4,
1952, stands, with the declaration that the strike in question was illegal with
its usual consequences.
In this case, the appellant had agreed, while
asking for a certificate from the Bombay High Court for leave to appeal to the
Supreme Court, to pay the taxed costs of the respondents in one set. Learned
948 counsel for the appellant himself has drawn our attention to the agreement.
In view of that it is not necessary for us to decide in this case whether it
was open to the Bombay High Court to pass any order about costs in this Court
while granting a certificate of fitness under Art. 133(1) (c) of the
Constitution, and we direct that the appellant should pay to the respondents
the costs of this appeal in one set and bear its own costs thereof.