M/S Savita
Chemicals (Pvt) Ltd. Vs. Dyes & Chemical Workers Union & Anr [1998] INSC
601 (11 December 1998)
S.B.Majmudar,
M. Jagannadha Rao. S.B. Majmudar, J.
ACT:
HEAD NOTE:
The
appellant company, on grant of leave to appeal under Article 136 of the Constitution
of India, has brought in challenge the judgment and order of the learned Single
Judge of the High Court allowed Writ Petition filed by Respondent No.1 Union
under Article 227 of the Constitution of India and quashed the decision of the
Presiding Officer, First Labour Court, Thane. By the said decision, the First Labour
Court, Thane, took the view on an application moved by the appellant company
that Respondent No.1 union had gone on an illegal strike from 30th March, 1983 pursuant to the strike notice dated
14th March, 1983. In the impugned judgment, learned
Single Judge of the High Court took the contrary view and held that the
appellant had failed to establish that the strike in question was illegal.
In
order to appreciate the grievances of the appellant against the decision of the
High Court, it will be necessary to have a glance at the background facts.
Introductory
Facts:
The
appellant is a company registered under the Companies Act, 1956 and is carrying
on the business of chemicals at Thane in the State of Maharashtra since more than 38 years.
Respondent
No.1 is a workers union registered under the Trade Unions Act, 1926. Respondent
No.1 union had submitted a charter of demand to the appellant no 1st April, 1981.
During
negotiations a settlement was arrived at before the Conciliation Officer
between the parties on 8th
March, 1982.
The
said settlement was valid up to December 1984. The settlement, inter alia,
amongst others, covered the following two demands;
i)
Demand No.14 - Privilege Leave;
ii)
Demand No.26 Medical Check-up;
It is
the case of the appellant company that during the subsistence of the aforesaid
settlement, Respondent No.1 union sent a letter of demand to the Factory
Manager of the appellant company on 14th March, 1983. As per the said letter, various
demands were raised and it was submitted by Respondent No.1 union that it would
go on strike on the expiry of 14 days from the date of service of the notice.
According to Respondent No.1, the said notice was to be considered as notice for
going on strike. The Factory Manager of the appellant company sent a reply to
the notice of Respondent No.1 on 23rd March, 1983. Respondent No.1 union, having gone on strike from 30th March, 1983, sent a replication on 2nd April, 1983.
The
appellant company which is governed by the Maharashtra Recognition of Trade
Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter
referred to as the 'Maharashtra Act') filed an application under Section 25 of
the Maharashtra Act before the Labour Court,
Thane, seeking a declaration that Respondent No.1, union had gone on an illegal
strike. In the said application, the appellant's case was that the said strike
was illegal under Section 24(1)(i)(a) and (i) of the Maharashtra Act. The said
application was moved as per the provisions of Section 24(1) read with Section
25(1) of the Maharashtra Act.
The Labour Court, after hearing the parties, by its
order dated 20th May,
1983 came to the
conclusion that the letter dated 14th March, 1983 was not a strike notice as required by law and was also
contrary to the provisions of Section 24(1)(i) of the Maharashtra Act. It,
therefore, declared that the strike resorted to by the workmen and the staff members
with effect from 30th
March, 1983 was
illegal.
Respondent
No.1 challenged the said order of the Labour Court in the aforesaid writ petition which was registered as Writ
Petition No.2171 of 1983 in the High Court. As noted earlier, learned single
Judge of the High Court, by his order allowed the said writ petition and set
aside the order of the Labour
Court and held that
the strike was not illegal. The said decision was rendered on 27th November, 1992. It is this decision, which is
brought on the anvil of scrutiny of this Court in this appeal.
RIVAL
CONTENTIONS:
-----------------
Shri M.C. Bhandare, learned senior counsel for the appellant contended that the
Labour Court was perfectly justified in taking the view that the impugned
notice dated 14th March, 11983 was not legal and valid as it violated
provisions of Section 24(1)(a) of the Maharashtra Act as the said notice of
strike was not in the prescribed form. He also submitted that the said notice
was contrary to Rules 50 and 51 of the Labour Courts (Practice & Procedure)
Rules, 1975. That the notice did not recite that Respondent No.1 union, being a
recognised union, obtained vote of majority of the members in favour of the
strike before serving the notice as required under Clause (b) of sub-section
(1) of Section 24 of the Maharashtra Act. Consequently, according to the
learned senior counsel for the appellant, strike would become illegal also as
per Section 24(1)(b) of the Maharashtra Act. He next contended that the
impugned strike was also hit by Section 24(1)(i) of the Maharashtra Act as it
was resorted to pursuant to the said notice, during the period in which
settlement of 8th March, 1982 was in operation and the notice amongst others
was based also in respect of two matters covered by the settlement, namely,
Demand No.14 - Privilege Leave and Demand No. 26 - Medical Check-up, both of
which were settled pursuant to the aforesaid settlement. It was also contended
that once the Labour Court had come to the conclusion on facts on the relevant
issue in the light of the evidence laid before it and appreciated by it, it was
not open to the High Court under Article 227 to set aside the findings of fact
when there was no patent error reflected in the judgment of the Labour Court.
He also tried to submit that the High Court should not have entertained the
writ petition as Respondent No.1 had a remedy of going in revision in the Industrial Court under Section 44 of Maharashtra Act
though ultimately the said contention was not seriously pressed. Learned senior
counsel for the appellant contended that in any case the impugned strike was
clearly violative of the requisite provisions of Section 24 of the Maharashtra
Act and it was wrongly held by the High Court as not to have resulted in an
illegal strike. It was, therefore, contended that the decision of the learned
Single Judge is required to be set aside and the decision rendered by the Labour Court deserves to be upheld.
Ms.
Anita Shenoy, learned counsel for the Respondent, on the other hand, submitted
that the appellant company had filed the application under Section 24 read with
Section 25 of the Maharashtra Act only on the ground that the strike in
question was allegedly illegal as per the provisions of Section 24(1)(a)
meaning thereby it was alleged that the notice was not in the prescribed form
and also on the ground of violative of Section 24(1)*i); that no case was even
alleged for voiding the notice and the ultimate strike on the ground that
provisions of Section 24(1)(b) were violated. It was also submitted by her that
the main requirements of the prescribed notice as per Form-I read with Rule 22
of the Rules under the Act were complied with by the said notice. That the
notice was addressed to the authority of the company in charge of the
management of the factory at the relevant time; that it was clearly mentioned
that there were grounds indicated therein which were compelling Respondent No.1
union to go on strike. Even the time for going on strike was also mentioned as
14 days' after the service of the notice' that clause-2 of the prescribed
Form-1 could not have applied as it was not the case of the appellant company
itself before the Labour Court that Respondent No.1 was a recognised union as
per the Maharashtra Act. Therefore, the asterisk placed against clause 2 of
Form-1 which permitted the striking off of clause 2 when not applicable gets
squarely applied to the facts of the present case. She submitted that in order
to be a recognised union. certificate was to be issued in favour of Respondent
No.1 union, as seen from the definition of Section 3(13) of the Maharashtra
Act. That it was not the case of the appellant that provisions of Chapter III,
especially, Sections 10 to 12 were ever complied with by Respondent No.1 union
so as to be treated as a recognised union under the Maharashtra Act.
Consequently, paragraph 2 of the prescribed Form-I of the notice did not apply
to Respondent No.1 union. Therefore, there was no occasion for Respondent No.1
union to even whisper about obtaining vote of majority of the members in the
said notice as tried to be submitted by learned senior counsel for the
appellant. It was contended that the notice in question substantially complied
with the requirements of the said prescribed form of the notice. Consequently,
the Labour Court was in patent error when it took the view that Respondent No.1
had not given strike notice in the prescribeed form and on that score Section
24(1)(a) got attracted on the facts of the present case. Such a patent error
was rightly set aside by the High Court under Article 227 of the Constitution
of India. She next contended that as the appellant company did not invoke
alleged violation of Section 24(1)(b) before the Labour Court, there was no question of examining the said ground either
by the Labour Court or by the High Court. She submitted
that the very fact that the said sub-clause (b) was not pressed in service by
the appellant company shows that it neverr treated Respondent No.1 as a recognised
union. So far as the applicability of Section 24(1)(i) is concerned, she
submitted that the strike notice was not given during the currency of the
settlement with respect to any of the matters covered by the settlement. It was
submitted that Demand No.14 regarding the privilege leave as found in the
settlement only granted crystalisation of the right of the workmen represented
by Respondent No.1 union for getting privilege leave of 12 days for each
completed 240 days of work per year and further privilege leave of one day for
every additional 12 days of work as provided therein. That the dispute raised
in the strike notice did not seek, in any way, to change the basis of the said
grant of privilege leave but the grievance was entirely different as it
pertained to the proper computation of the privilege leave as per the terms of
the settlement. In a way it amounted to calling for correct and proper
implementation of the settlement for which Respondent No.1 union could have
filed a complaint under Section 28 of the Act pertaining to unfair labour
practice on the part of the employer as found in Schedule IV Item 9 of the Maharashtra
Act. But that did not take away the additional right of strike available to
Respondent No.1 union on behalf of its workmen. It was also submitted that the
very fact that failure to implement the award was made by the legislature a subbject
matter of the complaint, showed that such implementation would not be covered
by the settlement. It is for the simple reason that if it had already been
covered by the settlement, even the more drastic remedy of strike for getting
the settlement implemented would have stood barred under Section 24(1)(i).
In
other words, it was contended that matters covered by the settlement as per
Section 24(1)(i) would be only those matters which were expressly referred to
in the settlement.
Computation
of the benefit as per the agreed terms in the settlement was not a matter which
was covered by the settlement but was a matter even if arising out of the
settlement was one which was consequent upon the settlement.
It was
an independent matter for which there was no express provision in the
settlement. It was posterior to the settlement and not embeedded therein.
Consequently, Section 24(1)(i) also was not applicable to the facts of the
present case and as the Labour
Court had committed a
patent error in this connection it was rightly corrected by the High Court.
Similar
was her contention regarding Demand No.26 about Medical Check-up. It was
submitted that the said settlement had nothing to do witth the prevention of discase
as Demand No.26 referred to medical treatment for the disease which was already
suffered by the workmen due to occupational hazards. Prevention of such disease
which was the subject matter of impugned notice was anterior to the question of
medical check-up and was not covered by the terms of the settlement. Even on that
ground Section 24(1)(i) did not get attracted. That the High Court rightly
corrected the patent error of the Labour Court in this connection. It was, therefore, contended that the
High Court, in exercise of its powers under Article 227, was justified in
interfering with the order of the Labour Court and in setting aside the patently erroneous order of the
said court. It was, therefore, submitted that the appeal deserves to be
dismissed. She contended that 40 workmen who were out of job since more than 15
years have suffered immensely and that their services have been illegally
terminated by the appellant company. This part of the grievance, in our view,
cannot form subject matter of the present proceedings and, therefore, whatever
practice on the part of the employer as found in Schedule IV Item 9 of the Maharashtra
Act. But that did not take away the additional right of strike available to
Respondent No.1 union on behalf of its workmen. It was also submitted hat the
very fact that failure to implement the award was made by the legislature a
subject matter of the complaint, showed that such implementation would not be
covered by the settlement.
It is
for the simple reason that if it had already been covered by the settlement,
even the more drastic remedy of strike for getting the settlement implemented would
have stood barred under Section 24(1)(i). In other words, it was contended that
matters covered by the settlement as per Section 24(1)(i) would be only those
matters which were expressly referred to in the settlement. Computation of the
benefit as per the agreed terms in the settlement was not a matter which was
covered by the settlement but was a matter even if arising out of the
settlement was one which was consequent upon the settlement. It was an independent
matter for which there was no express provision in the settlement. It was
posterior to the settlement and not embedded therein. Consequently, Section
24(1)(i) also was not applicable to the facts of the present case and as the Labour Court had committed a patent error in
this connection it was rightly corrected by the High Court. Similar was her
contention regarding Demand No.26 about Medical Check-up.
It was
submitted that the said settlement had nothing to do with the prevention of discase
as Demand No.26 referred to medical treatment for the disease which was already
suffered by the workmen due to occupational hazards. Prevention of such disease
which was the subject matter of impugned notice was anterior to the question of
medical check-up and was not covered by the terms of the settlement. Even on
that ground Section 24(1)(i) did not get attracted. That the High Court rightly
corrected the patent error of the Labour Court in this connection. It was, therefore, contended that the
High Court, in exercise of its powers under Article 227, was justified in
interfering with the order of the Labour Court and in setting aside the patently erroneous order of the
said court. It was, therefore, submitted that the appeal deserves to be
dismissed. She contended that 40 workmen who were out of job since more than 15
years have suffered immensely and that their services have been illegally
terminated by the appellant company. This part of the grievance, in our view,
cannot form subject matter of the present proceedings and, therefore, whatever
remedies may be available to the concerned workmen, in this connection, may be
open to them in accordance with law. It will be equally open to the appellant
company to resist the said future proceedings in accordance with law if at all
that occasion arises. We do not express any opinion about the same. In this
case, we are concerned with the short question whether the High Court was
justified in setting aside the Labour Court's
order declaring the strike of the workmen from 30th March, 1983 illegal as per provisions of Section 24(1)(i) and Section
24(1)(i) of the Maharashtra Act.
Aforesaid
rival contentions give rise to the following points for our consideration:
i)
Whether the impugned strike notice of 14th March, 1983 given by Respondent No.1 union on
behalf of its members was violative of Section 24(1)(a) of the Maharashtra Act;
ii) Whethever
the impugned strike notice is violative of provision of Section 24(1)(b) of the
Maharashtra Act;
iii)
Whether the impugned strike notice was hit by Section 24(1)(i) of the Maharashtra
Act;
iv)
Whether the High Court, in exercise of its jurisdiction under Article 227 of
the Constitution of India, was justified in interfering with the findings
reached by the Labour Court; and
v)
What final order? Before taking up the consideration of these aforesaid points,
it will be necessary to have a look at the relevant statutory scheme in the
light of which the controversies between the parties will have to be resolved.
STATUTORY
SCHEME:
----------------
The Maharashtra Act is enacted, amongst others, for the recognition of trade
unions for facilitating collective bargaining for certain undertakings, to
state their rights and obligations; to confer certain powers on unrecognised
unions and to provide for declaring certain strikes and lock-outs as illegal
strikes and lock-outs, to define and provide for the prevention of certain
unfair labour practices and to constitute courts (as independent machinery) for
carrying out the purposes of according recognition to trade unions.
Section
3, sub-section (13) defines a recognised union Chapter III deals with
recognition of unions and lays down that the provisions of this chapter will
apply to every undertaking, wherein fifty or more employees are employed, or were
employed on any day of the preceding twelve months;
Section
12 lays down the procedure to be followed by the Industrial Court while granting certificate of recognition to the applicant
union. Chapter V deals with illegal strikes and lock-outs. Section 24 covers
these topics. The relevant provisions of Section 24 read as under:
"24.
Illegal strike and lock-out:- In this Act, unless the context requires
otherwise:-
(1)
"illegal strike" means a strike which is commenced or continued.
(a) without
giving to the employer notice of strike in the prescribed form, or within
fourteen days of the giving of such notice;
(b) where
there is a recognised union, without obtaining the vote of the majority of the
members of the union, in favour of the strike before the notice of the strike
is given:
(c) xxxxxx
xxxxx xxxx (d) xxxxxx xxxxx xxxx (e) xxxxxx xxxxx xxxx (f) xxxxxx xxxxx xxxx
(g) xxxxxx xxxxx xxxx (h) xxxxxx xxxxx xxxx (i) during any period in which any
settlement or award in in operation, in respect of any of the matters covered
by the settlement or award." (Emphasis supplied) Section 25 deals with
procedure to be followed for getting the declaration whether strike or lock-out
is illegal. Sub-section (1) thereof which is relevant for our purpose provides
that:
"Where
the employees in any undertaking have proposed to go on strike or have
commenced a strike, the State Government or the employeer of the undertaking
may make a reference to the Labour Court
for a declaration that such strike is illegal." Sub-section (5) of Section
25 lays down that:
"Where
any strike or lock-out declared to be illegal under this section is withdrawn
within forty-eight hours of such declaration, such strike or lock-out shall
not, for the purposes of this Act, be deemed to be illegal under this
Act." Chapter IV deals with Unfair Labour Practices. Section 26 thereof
which is the first section in that Chapter lays down that:
"unless
the context requires otherwise, 'unfair labour practices' mean any of the
practices listed in Schedules II, III and IV." Section 28 prescribes the
procedure for dealing with complaints relating to unfair labour practices.
Sub-section (1) thereof provides :
"Where
any person has engaged in or is engaging in any unfair labour practice, then
any union or any employee or any employer or any Investigating Officer may,
within ninety days of the occurrence of such unfair labour practice, file a
complaint before the Court competent to deal with such complaint either under
section 5, or as the case may be, under section 7, of this Act:" Schedulee
IV, which is relevant for our purpose, deals with General Unfair Labour
Practices on the part of employers. Item 9 thereof deals with failure to
implement award, settlement or agreement on the part of the employer which
would be treated as general unfair labour practice on the part of the
employers. It is in the background of the aforesaid statutory scheme that we
have to consider the points which arise for our determination.
Point
No.1:
----------
The factual matrix relevant for consideration of this point indicates, as noted
earlier, that there was settlement arrived at between the appellant company and
Respondent No.1 union on 8th
March, 1982 which,
amongst others, settled demand nos. 14 and 26 regarding privilege leave and
medical check-up. We will have occasion to deal with the terms of settlement
regarding these demands a little later when we will deal with point no.3. It is
sufficient for the present to mention that the aforesaid settlement was for
three years valid up to December, 1984.
It is
during the subsistence of the aforesaid settlement that Respondent No.1 union
sent a letter of demand to the Factory Manager of the appellant company on 14th March, 1983, as noted earlier. It will be
relevant at this stage to refer to the exact wording of the said letterr. It
read as underr:
"Ref.No.DCWU/146/1983_
Hand Delivery Dated 14-3-1983.
The
Factory Manager, Savita Chemicals P. Ltd., Plot No.17A, Belapur Road, Thane.
-----
Sir, We find that one Shri U.V. Sinkar and Shri Durga Prasad P.S.R.K., working
as chemists in your company have been under the pretext of retrenchment and/or
slackness of work, removed by you. The ground advanced is a cloak though
factually the work under no circumstances was reduced and there were junior
most persons continued in the employment in the similar category.
We may
also bring to your notice that ever since the staff members have enrolled
themselves as members of our union, your management has started harassing them
and you have been demanding their resignations from the primary membership of
the union. Threats were openly held that the union will be liquidated by the
management.
We
also find that the workmen are subjected to harassment and the workmen who have
been appointed as probationers are continued as probationers despite the fact
that the law of the land namely Employment Standing Orders Act 1946 which
becomes applicable to your establishment does not permit continuance of such
employees as probationers for an indifinite period. "Similarly there have
been illegal changes brought about in the matter of computing the privilege
leave." There have been instances where the workmen under fabulous
allegations charge-sheeted and removed, and many more are awaiting the
charge-sheets. This has become the order of the day, and the lives of the
workmen in the company also have become introlerable.
(Emphasis
supplied) There are also difficulties and hazards emanating from the operations
and no effective steps have been taken by your management to prevent such hazards.
It is
very difficult to understand how the management has been continuing its
operations in a crude fashion and exposing the workmen to serious types of
hazards. The process of sulphonation is positively causing dangerous effects on
the lives of the workmen and no steps of any manner have been taken either to
modify and/or cure the processes whereby the ingredients or hazards are reduced
and the lives become tolerable. Similarly operation containing Polyneuclear
Aromatics and Alkylate is capable of causing cancer to the workmen. It is
rather tragic that no steps have been taken to prevent such processes where
large majority of the workmen not only in your company but those working
surround your company who are susceptible to such after effects are given any
assurance by way of rectifying the method and taking away the dangerous hazards
involved. Lives of the workmen are often becoming dangerous and under no
circumstances, it is possible for the workmen, considering the total
indifference on the part of the management to continue operation in the
circumstances in which the management wants to continue it. The workmen,
therefore, have resolved that the total attitude of the management towards
resolution of the industrial dispute and other relevant circumstances as stated
hereinabove, which are making the lives of the workmen very dangerous and are
exposing them to the dangers and therefore, the workmen in order to prevent the
after effects and such dangers and also shabby treatment meted out to the
workmen and also the physical attacks lodged against the workmen through
anti-social elements employment by the company, to protect themselves and their
rights and on that account, the workmen have decided to proceed on strike and
that being so, this notice is given to you. The workmen therefore, want you to
treat this letter to be treated as notice of strike and it may be noted that
after the expiry of 14 days from the date of receipt of this letter hereof, the
workmen will proceed on strike and the consequence in such circumstances
flowing there-from shall be your responsibility which please note.
Thanking
you, Yours faithfully Sd/ - General Secretary The said letter was addressed by
Respondent No.1 union to the Factory Manager of the appellant company. As seen
from this letter, the following averments 1 to 8 contained therein had nothing
to do with Section 24(1)(i) of the Act.
(1)
Firstly it was mentioned that one Shri U.V.Sinkar and shri Durga Prasad
P.S.R.K., working as chemists were wrongly retrenched.
(2)
Secondly the grievance of Respondent No.1 union was that the management had
started harassing the staff members who were enrolled as members of the union
and their resignations were subjected to harassment and the workmen who had
been appointed as probationers were continued as probationers despite the fact
that the law of the land, namely, Employment Standing Orders Act, 1946 did not
permit such continuance.
Then
followed the recitals which have been strongly pressed in service by the
learned senior counsel for the appellant, in support of his submission, which
in his view made the proposed strike illegal under the relevant provisions of
Section 24. It will, therefore, be profitable to extract the recitals in extenso.
It has been mentioned i second part of paragraph three of the notice as under:
"Similarly
there have been illegal changess brought about in the matter of computing the
privilege leave."
(4)
The rest of the paragraph dealt with different grievances, namely, that workmen
under frivolous allegations were charge-sheeted and removed and many more were
awaiting charge-sheets.
(5)
Then followed the fourth grievance regarding the difficulties and hazards
emanating from the operation of the factory and that no effective steps had
been taken by the management to prevent such hazards. It was recited that the
management had been continuing its operations in a crude fashion and exposing
the workmen to serious types of hazards.
(6) It
was then mentioned that the process of sulphonation was positively causing dangerous
effects on the lives of the workmen and no steps of any manner had been taken
either to modify and/or cure the processes whereby the ingredients or hazards
were reduced and the lives became tolerable.
(7)
Similarly, operation containing Polynuclear Aromatics and Alkylate was capable
of causing cancer to the workmen.
(8)
Then the grievance was made that no steps had been taken to prevent such
processes where large majority of the workmen not only in the company but those
working in the surroundings of the company who were susceptible to such after
effects were not given any assurance by way of rectifying the method and taking
away the dangerous hazards involved. It was then recited that the lives of the
workmen were often becoming dangerous and under no circumstances, it was
possible for the workmen, considering the total indiffierence on the part of
the management to continue operation in the circumstances in which the
management wanted to continue the work. It was then recited that the workmen,
therefore, had resolved that considering the total attitude of the management
regarding resolution of the industrial dispute and other relevant circumstances
as stated herein, they had decided to proceed on strike and that being so this
notice was given to the addressee. It was then mentioned in the notice that the
workmen wanted the addressee to treat this letter as notice of strike and it
was to be noted that after the expiry of 14 days from the date of receipt of
the letter, the workmen would proceed on strike. The said letter was replied to
on behalf of the company by its Factory Manager on 23rd March, 1983 refuting the allegations made in the strike notice and
calling the representatives of the union for discussion and settlement of the
matter amicably. It is thereafter that the members of respondent No.1 union
went on strike from 30th
March, 1983 and then
sent the replication through the union on 2nd April, 1983 refuting the contents of the reply
of the managementt dated 23rd
March, 1983.
In the
light of the aforesaid factual matrix, first question arises whether the
impugned notice of 14th
March, 1983 fell foul
on the touch-stone of Section 24(1)(a) of thee Maharashtra Act. Learned senior
counsel for the appellant submitted that the said notice was not in the
prescribed form. For supporting this contention, he relied upon Rule 22 framed
by the State Government undr Section 61(1) of the Act which lays down that:
"the
State Government may, by notification, in the Official Gazette, and subject to
the condition of previous publication, make rules for carrying out the purposes
of this Act".
The
relevant rule is found in the Maharashtra
recognition of Trade Unions & Prevention of Unfair Labour Practices Rules,
1975. Rule 22 is found in Chapter V of the said rules. It lays down as follows:
"22.
Notice of strike :- The notice of strike under clause (a) of sub-section (1) of
section 24 shall be in the Form I and shall be sent by registered post."
When we turn to Form No.1, we find the prescribed form as under:
FORM -
I (See Rule 22) Name of the Trade Union:
Name
of 5 elected representatives of the workmen, where no Trade Union exists :
Address...
Dated
the... day of .... ..... 19 , To, (Here mention name of the employer and full
address of the undertaking) Dear Sir(s)/Madam, In accordance with the
provisions contained in sub-section (1) of section 24 of the Maharashtra
Recognition of Trade Unions and Prevention of unfair Labour Practices Act,
1971, I/We.
(Here
insert name of the person(s)) hereby give you Notice that I/we propose to call
a strike of the workmen employed in your undertaking propose to go on strike
along with the other workmen employed in yourr undertaking form the .....day of
..... 19 ..... for the reason(s) explained in the Annexure attached hereto.
2. *
This Union being a recognised Union in your undertaking has obtained the vote
of majority of the memberrs in your undertaking in favour of the strike, before
serving this notice on you, under clause (b) of sub-section (2) of section 24
of the Act.
Yours faithfully
Signature Place....... General Secretary/Secretary, ..... ....... .......
(Here
insert name of the Union) *Strike of whichever is not
applicable Annexure Statement of Reasons Copy to:
(1)
The Investigating Officer ......
(Here
enter office address of the Investigating Officer, for the area concerned) (2)
The Registrar, Industrial
Court, Maharashtra, Bombay.
(3)
The Judge, Labour Court .... ......
(Here
enter address of the Labour
Court, of the area
concerned).
(4)
The Commissioner of Labour, Bombay.
-----------
The learned senior counsel for the appellant relied upon Rules 50 & 51 of
the Labour Courts (Practice & Procedure) Rules, 1975. So far as these rules
are concerned, they are framed by the Industrial Court of maharashtra in
exercise of its powers conferred under Section 44 of the Maharashtra Act. When
we turn to Section 44, we find that it deals with powers of Industrial Court in connection with exercise of
superintendence over all Labour Courts. It lays down as follows:
"The
Industrial Court shall have superintendence over all
Labour Courts and may.
(a) call
for returns;
(b)
make and issue general rules and prescribe forms for regulating the practice
and procedure of such Courts in matters not expressly provided for by this Act,
and in particular, for securing the expeditious disposal of the cases;
(c) prescribe
form in which books, entries and accounts shall be kept by officers of any
Courts; and
(d) settle
a table of fees payable for process issued by a Labour Court or the Industrial Court."
It, therefore, becomes obvious that the Labour Courts (Practice &
procedure) Rules, 1975 are for guidance of the Labour Courts and for regulating
the practice and procedure of these courts. Thus, Rules 50 and 51 which are
part and parcel of these rules, cannot have anything to do with the format of
the notice of strike which a union has to give to the management as per Section
24(1)(a). Prescribed format for the purpose of the said provision will
necessarily be as per Form-I as was laid down by Rule 22 of the Rules framed by
the State Govt. Rules, 1975 are, therefore, totally redundant and irrelevant
for resolving this controversy.
We,
therefore, do not dilate on the same. however, Shri Bhandare, learned senior
counsel for the appellant, contends that at least prescribed Form-I as per Rule
22 of the Rules framed by the State of Maharashtra is relevant for deciding
this controversy. To that extent he is right. Now, a mere look at the said
Form-I shows that the notice must contain, amongst others, thee following basic
requirement:
i) The
name of the Trade Union giving notice, its address and the date of the notice;
ii)
The name of the employer and full address of the undertaking for which the
notice is meant;
iii)
Clear indication in the notice about the call for strike of the workmen
employed in the undertaking and the date from which the strike is to be
resorted to;
iv)
and the reasons for the proposed strike.
It is
easy to visualise that if all the aforesaid four requirements are fulfilled, in
substance, the basic requirements of Form-I would get satisfied. It is not as
if that the notice must be typed in the samee sequence in which Form-I is
drafted or that it must mention Section 24(1).
The
latter are mere formal requirements. In substance, the notice must fulfil the
aforesaid basic requirements of the prescribed form. If they are fulfilled,
which section of the Act applies to such notice can be easily found out by
reference to the Act. Similarly, whether notice is given by registered post or
by hand delivery is also not a basic requirement. It refers to mode of service.
In the present case, it is not in dispute that notice was duly served on the
management. Sending of copies of notice to mentioneed persons is also not a
part of the basic requirement of the notice. When we examine the impugned
strike notice, we find that all these four basic requirements of Form-I have
been complied with in the present case. the name and address of the Trade Union
which served the notice are clearly mentioned, the date of the notice is also
indicated, the nature of the addressee of the notice and his address are also
mentioned, namely, it has been addressed to the Factory Manager of the company
who was in-charge of the company at the relevant time and under whom the
workmen proposing to go on strike were actually working. It is also clearly mentioneed
as to forrm which date the strike is proposed to be resorted to, as it is
mentioned that the strike would be resorted to on the expiry of 14 days from
the date of the receipt of the letter cum notice. It is also clearly mentioned
that the letter will be treated as notice for going on proposed strike. Then
follows the heart of the notice, namely, reasons why the proposed strike has to
be resorted. Thus, all the basic requirements of Form-I have been satisfied. even
the Labour Court took the view that the substance of
the notice had to be seen and not its form.
Still,
however, it persuaded itself to hold that the notice was not in the prescribeed
fform. The said finding of the Labour Court was patently illegal and was
rightly reversed by tthe High Court in the impugned judgment, Learned senior
counsel for the appellant, Shri Bhandare, however, submitted that requirement
of paragraph 2 of the said Form-I was not complied with in the present case. It
is not mentioned in the notice that the Union beeing a recognised union has
obtained the vote of majority of the members to go on strike. It must be kept
in view that this clause 2 of Form-I being an asterisk which says that any
portion which is not applicable has to be struck off when not applicable.
It was
not the case of the appellannt at any time that Respondent no.1 Union was recognised union under the Act having followed
the equirements and had obtained the certificate of a recognised union under
Section 12 of the Act. On the contrary, when we turn to the application filed
by the appellant before the Labour Court,
we find that it was the case of the appellant itsef before the Labour Court that the Union was a registered Union
and claimed to represent the employees employed by the applicant in the said
factory. It was not the case of the appellant before the Labour Court in the application Under Section 25
that respondent No.1 Union was a recognised union under the Act.
Not
only that, the application sought to invoke only Section 24(1)(a) and Section
24(1)(i) of the Maharashtra Act and did not invoke Section 24(1)(b) of the Act
which deals with a recognised union. It is also the case of Respondent no.1
that it is not a recognised union under the Act, Thus, it was almost an
admitted position on the record before the Labour Court that Respondent no.1 Union
was not a recognised union under the Act. Once that conclusion is reached, it
becomes obvious that paragraph 2 of the form-I did not apply to the facts of
the present case and had to be treated to have been struck-off for the purpose
of issuing strike notice by Respondent no.1 Union to the appellant company.
Consequently,
the finding of the Labour Court that the impugned notice was not in a prescribed
form and therefore, would result in the strike of 30th March, 1983 onwards
becoming an illegal strike being contrary to Section 24(1)(a) of the Maharashtra
Act must be held to be patently erroneous and was rightly sett aside by the
High COurt in writ jurisdication. In fact, on this aspect, two views are not
possible at all and only one view which appealed to the High Court is the only
possible and permissible view. The view taken by the Labour COurt was clearly
contrary to evidence on record and had to be treated as perverse and patently
illegal. It must, therefore, be held that the impugned notice of strike was not
violative of the provisions of Section 24(1)(a) of the Maharashtra Act. It must
be held that the said notice was a perfectly valid strike notice as required by
the said provision read with Rule 22 and Form-I of the relevant M.R.T. and
P.U.I.P., Rules, 1975. The first point is, therefore, answered in negative, in favour
of Respondent no.1 Union and against the appellant company.
Point
No.2:
This
takes us to the consideration of Point No.2, It is obvious that it was not the
case of the appellant company before the Labour Court that the impugned strike
was contrary to the provisions of Section 24(1)(b) of the Act, In fact, as seen
earlier, it was not the case of the appellant company that Respondent no.1
Union, was a recognised union under the Act at the relevant time when it gave
the impugned notice. COnsequently, the appellant's case before the Labour Court for getting the strike declared illegal
was based only on the violation of Section 24(1)(a) of the Act. The Labour
Court has also treated the proceedings accordingly and the ultimate decision
rendered by the Labour Court is also to the effect that the strike notice of
14th March, 1983 was no notice in law and violative of provisions of Section
24(1)(i). In substance, the Labour Court
had no occasion to consider the question whether it was violative also of
Section 24(1)(b) of the Act. It is also, in this connection, perttinent to note
the prayer in the application moved by the appellant before the Labour Court under Section 25 of the Act. the
said prayer reads as under:
"The
Applicant prays that the Hon'ble
Court may be pleased
to declare:
(i)
That the strike resorted to by the workmen as well as by the staff members
employed in the Applicant's factory commencing from 30-3-83 at their respective
shift schedule timings and continued thereafter every day in all the shifts and
which is still continuing in an illegal strike under Sec.24(1)(a) & (i) of
the MRTU & PULP Act, 1971." It, therefore, becomes obvious that it is
not open to learned senior counsel for the appellant - Shri Bhandare to submit
that the impugned strike notice was violative of the provision of Section 24(1)(b)
of the Act. Consequently, this point does not arise for our consideration and
must be held to be redundant and is not applicable to the facts of the present
case. It must, therefore, be held while answering this point that the impougned
strike notice cannot be said to be violative of the provision of Section 24(1)(b)
of the Act for the aforesaid reasons.
Point
No.3:
----------
So far as this point is concerned, it requires a more closer scrutiny. As we
have seen earlier, there was also a bunding settlement between the parties in
connection with demand nos. 14 and 26. We shall first deal with settlement on
demand no.14 regarding Privilege Leave.
So far
as this demand is concerned, the settlement reads as under:
"Demand
No.14: PRIVILEGE LEAVE:
-------------------------------
The existing practice of 12 days leave for the first 240 days worked and 1 day
for every 12 days worked beyond 240 days shall continue and in all other
respect the privisions of Factory Act and existing rules shall apply." A
mere look at the settlement on this Item shows that it was agreed between the
parties that the then existing practice of granting 12 days privilege leave for
each completed 240 days work per year and one day more for every additional 12
days of work beyond 240 days was to continue and in all other respects thee
provisions of Factory Act and existing rules were to apply. Now, the question
is whether any part of this settlement on privilege leave was sought to be
by-passed or challenged in the impugned notice so as to get voided on the touchstone
of Section 24(1)(i) of the Act, The said provision lays down that "Illegal
strike" means a strike which is commenced or continued during any period
in which any settlement or award is in operation, in respect of any of the
matters covered by the settlement or award. The question is whether the
proposed strike, amongst others, was concerning the grievances in connection
with any matter "covered" by the settlement. A conjoint reading of
relevant clauses of settlement on demand No.14 regarding Privilege Leave shows
that it was settled between the parties that during the continuation of the
settlement, a workman would be entitled to claim only 12 days for 240 days of
work and 1 day for every additional 12 days of work beyond 240 days thereafter
in a given year. It was not the case of Respondent No.1 Union in the impugned
notice of strike that they wanted any more days of privilege leave after 240
days of work in a year by way of grant of privilege leave vis-avis the number
of days worked during the year. The impugned strike notice, as noted earlier,
recited an entirly different grievance, namely, that there were illegal changes
brought about in the matter of computing privilege leave. Actual and correct
computation of privilege leave on the basis of actual days worked in a year for
concerned workers was not covereed by the terms of the settlement. This
grievance pertained to non-implementation of the agreed settlement regarding
privilege leave and had nothing to do with the claim for any extra privilege
leave in addition to that which was agreed to between the parties. To take an
analogy, the rights crystalised in the decree stand on an entirely different ffooting
as compared to the grievance in execution proceedings regarding
non-implementation of the settled rights under the decree. The grievance made
in the impugned strike notice did not pertain to any modification of the crystalised
rights regarding privilege leave granted to the workmen under the settlement
but it pertained to an entirely different grievance based on a situation which
was posterior to settlement of rights and obligations regarding privilege leave
between the parties. Thus, as seen earlier, this grievance about
non-implementation of the crystallised terms of settlement cannot be said to be
a matter "covered" by the settlement for purposes of the difinition
of "Illegal strike" referred to above. It can be said to be amounting
to a grievance in connection with non-implementation of the settlement in its
true and correct perspective. That, of course, would also amount to allegation
of unfair labour practice on the part of the employer as reflected by a
conjoint reading of section 26 and Schedule IV Item 9 of the Act, as noted
earlier. But the allegation of unfair labour practice on the part of the
management has nothing to do with the question whether it also amounts to going
behind the settlement. Thus, the strike notice referred to a claim which arose
subsequent to the settlement in connection with non-implementation of the main
terms of the settlement. The Labour Court
was patently in error when it took the view that because of the alternative
remedy available to the workmen of filing a complaint about alleged unfair labour
practice on the part of the management, they could not have resorted to a more
drastic remedy of strike under the provisions of the Maharashtra Act. Nothing
in this Act could be relied upon to show that if any grievance of the workmen
is covered by unfair labour practice alleged against the employer, they cannot
resort to strike. However learned senior counsel for the appellant Shri Bhandare,
rightly submitted that such a more drastic remedy was of the last resort. He
was also right when he submitted that when a less drastic remedy was available,
the workmen should have resorted to the same for maintaining industrial peace
and production. However, that would be in the realm of trade union policy. It
may be more prudent for a union of workmen, with a view to having industrial
peace and continued production as well as for not disrupting continuity of
employment of workmen, to resort to negotiations, and that if needed, to go in
the Labour Court with complaint under Section 28 on the ground of unfair labour
practice by the employer for the alleged non-implementation of the settlement.
It may also be an ideal solution of the problems. But what is ideal may not
necessarily be filed by a more militant body of workmen. It may in the long
run, prove to be a more drastic remedy for the workmen as they would suffer
pangs of unemployment and starvation not only for themselves but also for the
members of their families.
But
only because such better and more purdent remedy was available, it cannot be
said that the extreme step of strike resorted to be the Union by not following
such remedy was per se illegal unless it fell within the fore-corners of
Section 24(1)(i) of the Maharashtra Act. It is also easy to visualise that the
same Maharashtra legislature which enacted Section 24(1)(i) also enacted
Schedule IV Item 9 by treating it to be an unfair labour practice on the part
of the employer. The Maharashtra Act laid down two separate provisions in
connection with illegal strike as well as unfair labour practice by the
employer. What is unfair labour practice on the part of the employer cannot be
pressed in service by the management to show that workers making grievances
regarding the same could not have resorted to the strike in connection with the
same unfair labour practice and if they did so the strike only on that score
became an illegal strike, especially when it was not contrary to any of the
provisions of Section 24(1). In any case, the grievance regarding
non-implementation of the settlement is not treated by the legislature to be a
matter "covered" by the settlement as both these topics are
separately dealt with it by enacting Section 24(1)(i) on the one hand and
Schedule IV Item 9 of the Act on the other.
But
leaving aside these aspects of the matter, it becomes clear that the intention
of the legislature by enacting 24(1)(i) is that during any period in which any
settlement is in operation if strike is restored to by the union or the workmen
in connection with any matter "covered" by the settlement the strike
would be illegal. Therefore, it must be shown that the strike has been resorted
to in connection with any matter covered by the settlement. It therefore
necessarily means that the terms of the settlement, when read, must indicate
that they encompassed any matter which is made the subject matter of the strike
notice. We must see the express terms of settlement with a view to finding out
as to which matters are covered by the settlement. This necessarly would
connote that the settlement in express terms must refer to a matter which is
subsequently made a subject matter of notice of strike. When we turn to the
settlement of demand no. 14 regarding privilege leave, we find that how 12 days
leave for the first 240 days of work in a year and 1 day for every additional
12 days worked beyond 240 days worked are computed in a given year, is not a mater
which is at all indicated or mentioned in the settlement. All that the
settlement has guaranteed is the right of the workmen to earn 12 days privilege
leave for 240 days worked in a year and additional one day for every 12 days
beyond 240 days worked in a year. The question regarding the correct method of
computation of the leave under the settlement is not expressly covered by the
terms of the said settlement. Any grievance in connection with the same
therefore, has to be treated to be outside the compass of the settlement. In
this connection, it is profitable to note that the phrase "covered by the
settlement" as found in the said clause of Section 24 is not defined by
the Act nor it is defined by the Bombay Industrial Relations Act, 1946 or by
the Central Act. namely, the Industrial Disputes Act, 1947. Definition section
3 sub-section (18) lays down as under :
"words
and expressions used in this Act and not defined therein, but defined in the
Bombay Act shall, in relation to an industry to which the provisions of the
Bombay Act apply, have the meanings assigned to them by the Bombay Act and in
any other case, shall have the meanings assigned to them by the Central
Act." Bombay Act is defined as Bombay Industrial Relations Act by section
3, sub-section (1) and the Central Act means Industrial Disputes Act, 1947 as
defined by Section 3, sub-section (2). In any of these Acts the terms
"covered" has not been defined. We can, therefore, turn to the
general dictionary meaning of the term "covered". When we undertake
this exercise, we find the term "cover" defined by Concise Oxford
Dictionary, Seventh Edition at page 219 to mean, amongst others "include,
comprise, deal with". It is pertinent to note that the legislature in its wisdome
has not construed a strike to be illegal if the same is resorted to during any
period of settlement which is in operation, in respect of any of the matters
"arising out of such settlement". The term "covered" is
more restrictive in nature as compared to the term "arising out of" or
"referable to". If the phraseology employed in the said provision was
to the effect any of the matters "arising out of or "referable to any
settlement", learned senior counsel for the appellant would have been
right in his contention that implementation of the settlement also would be a
matter "arising out of " the settlement or may be "referable to
the settlement. But these words are conspicuously absent and only the phrase
"matters covered by the settlement" has been employed by the
legislature to treat any strike regarding such covered matters in a settlement
to amount to an illegal strike. The term "arising from" has also a
precise meaning as found at page 46 of the aforesaid Concise Oxford Dictionary
which states that the word "arise" menas "originate; be born;
come into notice or result (from out of)". Question of implementation of
the terms of settlement may be said nto be a matter "arising out of"
the settlement or "referable to" the settlement but it is certainly
not "covered" by the settlement. Therefore, it is far from being
"covered" by the settlement. In Black's Law Dictionary, Fifth
Edition, at page 99 the term "arising out of" has been indicated to
have a special meaning relating to a decision in the case of Newman V. Bennett
(Kansas Reports). It has been mentioned in the said dictionary that the
"words "arising out of employment" refer to the origin of the
cause of the injury". Thus the term "arising out of employment"
in this case was held to refer to a grievance whose origin was found in the
employment concerned as noted in this dictionary. Similarly, if the words
"arising out of settlement" were employed by the legislature in the
aforesaid clause, then it could have been said that any grievance regarding
non-implementation of the terms of the settlement would have its origin in the
settlement. However, as such a pharaseology is conspicuously absent in the said
clause, it must be held that the legislature in its wisdom wanted to indicate a
situation where parties to the binding settlement cannot resort to strike or
lack out as the case army be, in connection with these matters which were not
expressly so covered and referred to in the settlement and thus matters which
were expressly not so covered could be made the subject matter of grievance by
the parties concerned during the arriving of such settlement and if a strike is
resorted to by the lunion of workmen on that ground, it could not be said that
the said strike would be hit ny the provisions of Section 24(1)(i) of the Act.
As a result of the aforesaid conclusion, it must be held that the impugned
strike notice was not violative of Section 24(1)(i) Act so far as the grievence
regarding computation of privilege leave was concerned. The Labour Court had patently erred in mis-reading
the relevant provisions of the Act and the express terms of the settlement
while reaching the conclusion that the impugned notice refers to the grievance
regarding non-implementation of the settlement terms in concetion with
privilege leave and had, therefore, violated the aforesaid provisions of the
Act. This patent error was rightly set aside by the High Court in exercise of
its jurisdiction under Article 227.
It was
further contended by learned senior counsel for the appellant that, in any
case, the impugned strike notice was also violative of the aforesaid
provisions, in connection with the settlement regarding demand no. 26 providing
for medical check-up. It, therefore, becomes necessary to look at the terms of
the settlement on the said demand reads as under :
"Demand
No. 26 : MEDICAL CHECK UP The Company shall get at its expense all the
confirmed workmen medically examined i.e. X-ray, blood and Urine examination
and medical check up at the beginning of the year and the reports obtained. If
during this check up any workman is found suffering from any dements arising
out of the chemicals of gas emanating from the process in the factory the
management will bear the medical expenses for his immediate and initial
treatment".
So far
as this contention is concerned, Shri Bhandare, learned senior counsel for the
appellant is on a still weaker footing. The settlement regarding medical check
up deals with the rights of the workmen to get medical re-imbursement and the
procedure for the medical nomination of the workmen suffering from any ailment
or disease. This right would arise under the settlement in connection with
those workmen who have already got afflicted by occupational ailments. This has
nothing to do with the grievance found in the impugned strike notice regarding
the health hazards suffered by the workmen and preventive measures required to
be taken by the company in this connection. This grievance found in the notice
is based on the dictum "prevention is better than cure". The
settlement regarding demand no. 26 pertaining to medical check up deals with
the procedure to be followed and the rights available to the workman after he
has suffered from occupational diseases. The strike notice referred to an
independent grievance in connection with the situation wherein a disease on
proper preventive measures could be avoided. It also referred to various health
hazards due to the working conditions of the workmen. These grievances are
entirely foreign to the terms of the settlement regarding medical check up. We
fail to appreciate as to how the Labour Court could persuade itself to hold
that the terms of settlement regarding demand no.
26
were also sought to be contravened by the impugned demands in the notice. The
said finding of the Labour Court to say least, was totally contrary to the
express terms of the settlement of demand no. 26. Such a patently erroneous
finding had to be set aside by the High Court in writ proceedings and no fault
can be found with the High Court in undertaking such an exercise. The valiant
attempt of Shri Bhandare, learned senior counsel for the appellant, for getting
the impugned strike declared as illegal on this ground is found to be wholly
without any substance. It must, therefore, be held that the impugned strike
notice was not violative of provisions of Section 24(1)(i) of the Act and had
nothing to do with settlement on demand nos. 14 and 26. The third point for
determination is to be answered in negative against the appellant and in favour
of Respondent no.1.
Point
NO. 4.
So far
as this point is concerned, placing reliance on various decisions of this court
namely, Harish Vishnu 1104, Nagendra Nath Bora & Anr. vs. The Commissioner
of Hills Division & Appeals, Assam, and Others 1958 SCR 1240 and Sadhu Ram
vs. Delhi Transport Corporation, AIR 1984 SC 1467, learned senior counsel for
the appellant submitted that unless there was a patent error committed by the Labour
Court, the High Court under Article 227 could not have interfered with the
findings of the Labour Court as if it was bearing an appeal. There cannot be
any dispute on the said settled legal position. Under Article 227 of the
Constitution of India, the High Court could not have set aside any finding
reached by the lower authorities where two views were possible and unless those
findings were found to be patently bad and suffering from clear errors of law.
As we have already discussed earlier while considering point nos. 1 and 3, the
findings reached by the Labour Court on the relevant terms were patently
erroneous and dehors the factual and legal position on record. The said
patently illegal findings could not have been countenanced under Article 227 of
the Constitution of Indian by the High court and the High Court would have
failed to exercise its jurisdiction if it had not set aside such patently
illegal findings of the Labour Court. Consequently, on this point the appellant
has no case. Point No. 4 is, therefore, answered in negative against the
appellant and in favour of the respondent.
Point
No. 5:
In
view of our conclusions on the aforesaid points, the inevitable result is that
this appeal fails and is dismissed. In the facts and circumstances of the case,
there will be no orders as to costs.
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