The Statesman Ltd. Vs. Their Workmen
[1976] INSC 9 (22 January 1976)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
GUPTA, A.C.
UNTWALIA, N.L.
CITATION: 1976 AIR 758 1976 SCR (3) 228 1976
SCC (2) 223
CITATOR INFO :
R 1977 SC2031 (2) RF 1992 SC 504 (35)
ACT:
Industrial Dispute-Illegal strike followed by
lock-out- Lock-out not lifted despite the workers conciliatory attitude Payment
of half wages during strike period-If reasonable.
Constitution of India 1950-Article 136-When
the Court would interfere.
HEADNOTE:
Even when a bonus dispute was pending
adjudication before the Industrial Tribunal, the workmen of the appellant
resorted to rude tactics to press their earlier charter of demands, which took
the turn of an illegal and disorderly strike. The management declared a
lockout. On the day following the declaration of lockout, the workmen requested
the management to lift the lockout preferring peaceful resumption of work and
asking for an interim relief on their economic demands. The management did not
agree to lift the lockout. Eventually however, The lockout was lifted and the
strike called off. On the question of wages during the strike period, the
Industrial Tribunal, apportioning fault to both the parties directed that the
management should pay half the wages to the employees during the strike period.
Dismissing the appeal,
HELD: (1) There is much to be said in favour
of the view of the Tribunal that the blameworthiness may be equally apportioned
between the parties. Where the strike is illegal and sequel of a lockout legal,
the Court has to view the whole course of developments and not stop with
examining the initial legitimacy. If one side or other behaves unreasonably or
the overall interests of good industrial relations warrant the Tribunal making
such directions regarding strike period wage as will meet with justice,
fairplay and pragmatic wisdom, there is no error in doing so. The power of the
Tribunal is flexible. [236 F; 233 D-E] India Marine Service, [1963] SCR 575,
followed.
In the instant case there was a pending
industrial dispute when the Unions sprang a strike notice. The strike being
illegal, the lockout that followed, became a legal, defensive measure. But the
management could not behave unreasonably merely because the lockout was born
lawfully.
If. by subsequent conduct, the Unions had
shown readiness to resume work peacefully, the refusal to restart the industry
was not right and the initial legitimacy of the lockout lost its virtue by this
blemished sequel. [232 G-Hl (2) In an appeal under Article 136 of the
Constitution, this Court would interfere with the Award under challenge only if
extraordinary flaws or grave injustice our other recognised grounds are made
out. [231 E-F] Bengal Chemical. [1959] Suppl. 2 SCR 136, 141; and Associated Cement
Companies Ltd. AIR 1972 SC 1552. 1554, followed.
In the instant case the direction of the
Tribunal that the Company should pay Tiffin allowance at the rate of 50 paise
on working days to the employees in the staff canteen and that the members of
the subordinate staff should be sup plied with warm coats did not call for
interference.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 232 of 1970.
Appeal by special leave from the Award dated
the 2-9- 1969 of the 5th Industrial Tribunal, West Bengal, in Case No. 321 of
1967 published in the Calcutta Gazette dated the 16-10-1969 229 S. Chaudhury
and D. N. Gupta for the Appellant.
Kapil Sibbal for the Respondents.
The Judgment of the Court was delivered by
" KRISHNA IYER, J. There is a tragic touch in processual protraction as
this little lis lasting a whole decade pathetically illustrates. Such lingering
legal machinery is by-passed by both sides in practice largely because, by
sheer slow motion, it denies relief when needed and drives parties to seek remedies
by direct action or political intervention. What elegant alibi can there be for
the routine charter of demands put forward in the middle of 1966, ripening into
an industrial reference in November 1966 after a flare-up of illegal strike and
failure of conciliation, taking around 3 years for rendering a short award and
a little over five years for reviewing it in this Court? Law-makers whose vocal
concern for industrial peace and constitutional promises for the working class
is being put to the test by failure in the field will, we hope, alert
themselves. Labour litigation can be a course or dread where one side is weak,
as here, and has not been able to hire legal services but has been made good by
amicus curiae, and some other side, regardless of cost, is anxious to settle
some principle, as counsel for the appellant impressed on us. We now move into
the area of facts which wears a jural apparel.
The narrative of necessary facts starts
naturally with a bonus dispute in the Statesman Ltd (a newspaper with editions
published in Calcutta and Delhi) which was referred to adjudication in
September 1966 and was, admittedly, pending at a time when the Calcutta workers
reportedly resorted to rude tactics to press an earlier charter of demands
presented to-the management. On September 20, 1966, events reached a crescendo
of illegal and disorderly strike at midday with a reprisal of lock-out at
mid-night so soon as the administrative officer, with police assistance, gained
his freedom. Even in humane affairs a storm is followed by a calm, may be. For,
the two Unions, sobered, perhaps by this sudden action of the management wrote
the very next day (21st September) to the employer requesting for lifting the
lock-out, proferring peaceful resumption of work and requiring at least an
interim relief on the 'economic' demands. The letter speaks for itself and may
be read presently. The employer was not ready to accept this assurance. The
lock-out dragged on, despite the seeming offer of the olive branch by Labour.
Mistrust on both sides is inevitable when
estrangement vitiates a relations and language is suspect when bitterness is
the rule of interpretation. Right or wrong, the management took the view that
the offer of good behavior by the workers was conditional and not convincing,
so that the lock-out was not lifted for several days. The deputy Commissioner
of Labour, who had interceded to conciliate, had unavailingly requested the
Management to lift the lock- out and had found Labour insisting on some interim
'economic' relief as a H '' ground for withdrawal of the strike. At certain
stages of conflict in this world, face- saving becomes more important than
heart-searching Life is not logic and Prestige amends propriety.
230 The cold-war correspondence continued for
a little while more, each blaming the other, till at last the State, on
November 4, 1966. referred SL prints of dispute to the Fifth Industrial
Tribunal Calcutta, before whom the bonus dispute was already pending. Better
sense on both sides resulted in the termination of the strike and the closure,
and work was resumed from November 8, 1966. The award that " followed upon
the dispute was rendered on September 2, 1969, nearly three years after the
reference of the dispute.
One is led to wonder why there should have
been so much delays but the blame, if any, has to be shared between the State
Government and the Tribunal. For, after the Fifth Tribunal started the enquiry
and examined a few witnesses, the State Government ordered transfer of the
industrial dispute to another Tribunal and, not surprisingly, omitted to
communicate promptly the factum of such transfer to the affected Tribunal.
Thus, although the order of transfer was made on March 31, 1967- the enquiry
continued upto April 22, 1967. When actual notice of the transfer was received
by the Fifth Tribunal on April 24, representation was made by it about the
enquiry having commenced and, naturally, Government re-transferred the dispute
to the same Tribunal.
After this minor episode, of transfer and
re-transfer, the enquiry was continued and the award made.
We are now concerned only with three
disputes. Of the three issues, two deal with petty items like warm coats for
the subordinate staff and canteen allowance for the employees' canteen
staff-financially too negligible to engage the attention of this Court. The
other item, which is meaty enough to merit our verdict, relates to the wages
during the period of work stoppage from September 20, 1966 to November 8, 1966.
The tribunal, considering, in its totality the facts and circumstances of the
case, the share of blame on the part of each party the role of broad justice in
producing industrial peace and advertence to the relevant materials on record,
held 'that the company should pay half the wages to the employees during the
period from September 20 to November 7, 1966.
The Management, disappointed by this
directions as well as the orders regarding warm coats and canteen allowance,
has come directly to this Court securing special l have under Art. 13.
Even though leave has been granted by this
Court, the very width of its power under Art. 136 is a warning against its
free-wheeling exercise save in grave situations. In Bengal Chemical (1)
Subbarao, J. (as the then was) pointed out that:
"The same principle should, therefore,
be applied in exercising the power of interference with the awards of tribunals
irrespective of the fact that the question arises at the time of granting
special leave or at the time the appeal is disposed of. It would be illogical
to apply two different standards at two different stages of the same case. The
same view was expressed by this Court in Pritam Singh v. State of Madras (1950
SCR 453), Hem Raj v. State of Ajmer (1954 SCR (1) [1959] Supp. 2 S.C.R. 136,
141 231 1153) and Sadhu Singh v. State of Pepsu (AIR 1954 SC A 271)".
From this it follows that when awards of
Industrial Tribunals are challenged in this Court, we have to apply those
several tests which have become part of the self- imposed restraints on its
special jurisdiction.
What are these self-created trammels upon the
exercise of this Court's power ? The answer is furnished by this Court in the
Associated Cement Companies Ltd.(1) Mathew J.
followed Bengal Chemical (2) (both these
cases related to industrial awards challenged in appeal under Art. 136 of the
Constitution), where this Court had observed:
"Though Art. 136 is couched in widest
terms, it is necessary for this Court to exercise its discretionary
jurisdiction only in cases where awards are made in violation of the principles
of natural justice causing substantial and grave injustice to parties or
raising an important principle of industrial law requiring elucidation and
final decision by this Court or disclosing such other exceptional or special
circumstances which merit the consideration of this Court." "The
portion of the award with which we are concerned does not raise any important
principle of law requiring elucidation and final decision by this Court.
Nor does it disclose any exceptional or
special circumstances which merit decision by this Court. On a question like
this, where the Tribunal, on a consideration of all the materials placed before
it and having regard to the overall picture came to a conclusion, we do not
think this Court should interfere." Circumspection and circumscription
must therefore induce us to interfere with the award under challenge only if
extraordinary flaws or grave injustice or other recognised grounds are made
out. This perspective is sufficient in itself to dispose of the two tiny items
of dispute bearing on warm coats and canteen allowance. Even so, we will
briefly refer to them.
The canteen staff claimed allowance of 50
paise per working day. There are two canteens, one for officers and the other
for the subordinate staff. While the staff of the officers' canteen are drawing
the dietary allowance of SO paise, the employees of the staff canteen are
denied this paltry sum. There is no reasonable basis for this invidious
treatment and we find no ground to interfere with the Tribunal's direction that
'the company should pay tiffin allowance at the rate of 50 paise per working
days to the employees in the staff canteen'. Of course, if they take free food
from the canteen they will be ineligible for the allowance since they cannot
have both.
Equally untenable is the grievance against
warm coats supplied to the subordinate staff. It is common case that the
management does supply warm coats to Jamadars, gate- darwans and inspectors but
does not extend this warm facility to darwans and delivery peons Calcutta.
(1) A1.I.R. 1972 S. C. 1552, 1554. (2) [1959]
Supp. S.C.R.
136,141 16-L390 SCI/76 232 cold does not
spare either category and therefore no climatic distiction can be made between
the two. True it is that in the charter of demands warm coats were claimed only
for those employees who delivered newspapers. Even of the dispute referred to
the Tribunal is in wider terms and we are satisfied that the award calls for no
interference when it states 'that all the members of the subordinate staff
should be supplied with warm coats'. Of course, it need hardly be said that
these employees cannot claim warm jerseys over and above coats.
The bone of contention between the parties
bears upon the wages during the strike period. We have already indicated that
the award crystallizes a discretionary conclusion reached after a survey of all
the facts and animated by a sense of broad justice. The Tribunal had something
to say against the workers and the management and felt impelled to state:
"I find that both the parties were at
fault. That being, the position I am of opinion that both the parties should be
held responsible for the delay in the matter of the with drawing of the
lock-out. In these circumstances, I am of opinion that the company should pay half
the wages to the employees during the period from 20th September 1966 to 7th
November 1966." Captious criticisms apart, the conspectus of relevant
circumstances more or less bears out the propriety this direction.
The crucial issue is as to whether we have
any material to castigate this conclusion as unconscionable or unjuristic,
involving gross injustice, violating a well established rule of law or
otherwise attracting out special responsibility to declare the law in a twilit
area of public importance to industrial life. We will examine the pertinent
circumstances from this angle and it will be evident that the more we ponder
the subject the more we are satisfied about the legal soundness and practical
wisdom of the award, having in mind industrial peace as the goal.
The smouldering dispute between the
Management and the workers apparently burst into flame on September 2, 1966
Going by the Tribunal's reading of the situation there was a strike that day.
The pendency of certain types of proceedings Before a Tribunal stamps a strike
or lockout with illegality as. (s.24). While s. 23 prohibits strikes and
lock-outs when mentioned there are under way, s. 24 (3) absolves a lockout of
illegality if it is caused by an illegal strike. There surely was a pending
industrial dispute when the Union sprang the strike. Being therefore illegal,
the lock-out that followed became a legal, defensive measure. So far is smooth
sailing. But the management cannot behave unreasonably merely because the lock
out is born lawfully. If by subsequent conduct, imaginatively interested the
Unions have shown readiness to resume work peacefully, the refusal to re-start
the industry is not right and the initial legitimacy of the lockout loses its
virtue by this blemished sequel. Nor can any management expect, as feelings run
high, charge-sheets in criminal courts are laid against workers and they are
otherwise afflicted by the pinch of 233 unemployment , to get proof of good
behaviour beyond their written word. Nor can they realistically insist that
they abandon their demands for better benefits before the lock- out is lifted.
In this hungry world the weaker many cannot afford the luxury of finery in
speech which the happier new can afford. In the rough and tumble of industrial
disputes conciliation is a necessary grace the stronger party, the socially
conscious management, must cultivate and huff a flaw it must eschew. In the
realistic temper of bargaining between two wings of an industry- loth
managements and workers belong equally to the industry, for in one owns the
other produces-a feeling of partnership must prevail to persuade the two sides
to trust each rather than such to point flaws t in the language used. Such is
the spirit of give and take which must inform industrial negotiation if peace
and production are the bona fide end and national development the great
concern. This broad philosophic approach amply vindicates the justice of the
Tribunal's impugned award.
To appreciate this view, a flash back into
the events around and after September 20, 1966 is helpful. The backdrop of law
may be briefly recapitulated before going into factual details.
If the strike is illegal, wages during the
period will ordinary be negatived unless considerate circumstances constrain a
different course. Likewise if the lock-out is illegal full wages for the
closure period shall have to be 'forked out', if one may use that expression.
But in between lies a grey area of twilit law. Strictly speaking, the whole
field is left to the judicious discretion of the Tribunal.
Where the strike is illegal and the sequel of
a lock-out legal, we have to view the whole course of developments and not stop
with examining the initial legitimately. If one side or other behaves
unreasonably or the over-all interests of good industrial relations warrant the
tribunal making such directions regarding strike period wages as will meet with
justice, fair play and pragmatic wisdom, there is no error in doing so. His
power is flexible.
We are heartened and strengthened in our approach
by the decision in India Marine Service(1). There the Court noted that 'the
attitude of the company was a reasonable one and that it even proposed to the
union and through it to its workmen that work should go on, that the dispute
should be taken before the Conciliation officer for conciliation and that in
the meanwhile they were prepared to grant some interim relief to the workmen.
'In our opinion', added the Court "while the strike was unjustifiable, the
lock-out when it was ordered on November 13., 1958, was justified. It seems to
us, however, that though the lock-out was justified at its commencement its
continuance for 53 days was wholly unreasonable and therefore, unjustified. IQ
a case where a strike is unjustified and is followed by a lock-out which has,
because of its long duration. become unjustified it would not be a proper
course for an industrial tribunal to direct the payment of the whole of the
wages for the period of the lock-out. We would like to make it clear that in a
case where the strike is unjustified and the lock-out is justified the (1)
(1963) 2 S.C.R. 575.
234 workmen would not be entitled to any
wages at all.
Similarly where the strike is justified and
the lock- out is unjustified the workmen would be entitled to the entire wages
for the period of strike and lock-out.
Where, however, a strike is unjustified and
is followed by a lock-out which becomes unjustified, a case for apportionment
of blame arises. In our opinion in the case before us the blame for the
situation " which resulted after the strike and the lock-out can be
apportioned roughly half and half between the company and its workers. In the
circumstances we therefore direct that the workmen should get half their wages
from November 14, , 1958 to January 3, 1959 (both days inclusive)." The
factual milieu surrounding the strike-lock-out complex, as neatly presented by
Shri Kapil Sibbal, shows how the flow of events exonerated the Unions of
serious impropriety and the employer was trying to be too clever.
When the workers struck, the Management put
up a notice of closure wherein it was stated:
"The stay-in-strike resorted to by the
workmen is unjustified and illegal in view of the pendency of the proceedings
before the Fifth Industrial Tribunal and also violates the Code of Discipline.
The representatives of the Unions were made aware of this fact when the
management met them to discuss their demands today.
In the circumstances, the management has no
option but to keep the establishment closed until such time as the work men
assure the management of Normal and peaceful resumption of work."
(emphasis, added) The simple insistence of the Management in the closure notice
was an assurance from the workmen 'of normal and peaceful resumption of work'.
No sooner was this notice put up than the Unions responded constructively,
moderating the usual tantrums they are given to in an atmosphere of conflict.
The very next day after the closure, i.e., on September 21, the Secretary of
the Union wrote back a letter wherein he stated inter alia:
"While we deny the various allegations
contained in your said Notice and hold you wholly liable for the development on
20-9-66 in suddenly advising your supervisory staff to stop all processes of
work from 12.30 p.m. and creating a confusion amongst the workmen who were
working all the time till then, presumably to prepare a ground for the illegal
Lockout since some days past as peaceful and' constitutional movement of the
Unions was there to your dislike, we should tell you here and now that no useful
purpose will be served by such black-mailing Notice far less the cause of the
industrial peace and progress of a reputable concern like 'The Statesman' ....
" x x x x x "You know more than anybody. else that your- workmen are
all peace loving people and have coop rated with you 235 all along with respect
and affection. You had never any A occasion to find fault with them for any in disciplined
con duct. Our Unions have also a long tradition of faithful cooperation with
the management in every hour of crisis and we are proud of our said lofty
tradition. There was no obstruction in the movement of anybody at any stage on
20-9-66 as alleged or at all and the police ought not to have been invited in
the office. Considering everything we are of "P the opinion that no
interest of the management or of the workmen will be served by such acrimonious
correspondence " any delay in the settlement of the outstanding disputes
will make the situation more complex.
You are therefore requested to withdraw your
aforesaid Notice, arrange an immediate sitting with us and meet the genuine
grievances of the employees, if not in full at least as an interim arrangement
and note in this context if any assurance is necessary that all along in the
past the workmen will maintain peace and work normally and peacefully unless
they are sufficiently provoked from your end." (emphasis, added) It is
obvious that the tone of this reply is conciliatory and literally conforms to
the demand for the assurance from the workmen of peaceful and normal resumption
of work. It is fair to infer that the receipt of this letter should have
persuaded the Management in a spirit of goodwill, to lift the lock-out and give
a trial to the workers' willingness.
Is not a worker's word, until the contrary is
proved, as good as his bond ? Moreover, a strike is called off when the
strikers agree to come back to work. Curiously enough, the management struck a
discordant note in their letter two days later. Instead of a favourable
response, the appellant recited the old facts and concluded:
"We have no intention of keeping the
office closed longer than is necessary, and as soon as the Management is reason
ably convinced that discipline and normal production will be maintained and
that there will be no recurrence of the acts of indiscipline which led to the
illegal strike and closure, we shall take steps to open the office " The
shift in stand is obvious. The first letter merely demanded of the workmen an
assurance of normal and peaceful resumption of work. When this was given the
Management quietly tilted its stance and demanded that it should be 'reasonably
convinced that discipline and normal production will be maintained and that
there will be no recurrence of the acts of indiscipline'.. The further letter
of October 31, 1966 by the Union highlights the anxiety of the workers for
resumption of work Of course, the staying power of the workers is limited and
wanes after a time. Naturally, they press the Management to withdraw the
closure. The language of the letter Exhibit E-7 is tellingly temperate:
"Assuming though not conceding even by
any stretch of imagination that there was an illegal strike as alleged by 236
you and the lock-out for 41 days till date after the Unions' unequivocal
assurance of peace and cooperation given to you on behalf of the workmen in
their letter dated 21-9-66 in reply to your notice dated 20-9-66 where you
asked for such an assurance. So far as the Unions demands are concerned, they
are only of incidental nature because of the suffering thrust upon the workers
on account of the unproved lock out. We want peace and a climate where lock and
strike will he a matter of the past. In that spirit we have selected the least
controversial 11 items out of all the items of demands for immediate settlement.
Hope you will appreciate the same by entering into a negotiated settlement and
we assure you that if necessary we shall not even fight the Bonus case before
the Tribunal if on that item also you agree to settle." J' lt was
mentioned by Shri Sibbal that there were charge- sheets against the workers at
the instance of the Management which embittered relations. There is also the
reference in the evidence of the Deputy Commissioner of Labour that the
Management was unwilling to lift the lock-out when requested and the workers
were unwilling to withdraw the strike without settlement of disputes. In an
escalating situation of conflict, developments lead to deterioration of
industrial quiet and we have to look at the whole picture with realism.
There was a minor ripple of disputation as to
whether the evidence recorded by the Fifth Industrial Tribunal between the date
when the transfer order was passed by the government and the re-transfer order
was made could be read as evidence. The Tribunal has come to the same
conclusion both by excluding and by including such evidence in his verdict.
Shri Kapil Sibbal has fairly taken us through these materials to convince us
that the verdict cannot be deflected by eliminating or reading the disputed
testimony.
We feel satisfied that there is much to be
said in favour of the ultimate view taken by the Tribunal that blameworthiness
may be equally apportioned between the parties Had the Management reacted with
goodwill when the workers the very next day offered to be peaceful and resume
work, the prolonged situation of cessation of work could have been saved. It is
therefore a case which attracts Indian Marine Service (supra). In that case
also this Court found it fair to direct that the workmen should get half the
wages during the strike period. The Tribunal's view is certainly not
unreasonable. May be, it is a just solution. We hope that both sides after
these long years, will bury the hatchet and work for the better efficiency and
greater status of a leading newspaper of India.
Having regard to the circumstances of the
case, it is proper to direct that the appeal be dismissed but the parties will
bear their respective costs. Before parting with this case we deem it our duty
to record our appreciation of the thoroughness of preparation of Shri Kapil
Sibbal a young advocate of promise, who has assisted the Court as amicus curiae
with presidential industry and persuasive felicity.
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