Before the Supreme Court of India
AIR 1995 SC 319
Syndicate Bank and Ors.
K. Umesh Nayak
Date of Judgement
13 Sept. 1994
Justice P. B. Sawant
This appeal has been referred to the Constitution Bench because of the conflicting opinion given by this court in its previous three judgments in the cases of Churakulum Tea Estate v. Workmen,[i] and Crompton Greaves Ltd v. Workmen,[ii] on one hand and Bank of India v. T.S. Kelawala,[iii] on the other. The question is whether workmen who proceed on strike, whether legal or illegal, are entitled to wages for the period of the strike? In the first two judgments of this Court, the view taken by this court is that the strike must be both legal and justified to entitle the workmen to the wages for the period of strike whereas in the latter this court has taken the view that it does not matter whether the strike is legal or illegal, the employees are not entitled to wages for the period of the strike. In the present case, the Appellant bank has refused to provide the wages to the employee federation which is the Respondent, for the period for which the federation is going on the strike. Hence the issue becomes pertinent to the present case.
On 10 April 1989, a memorandum of settlement was signed by the Indian Banks’ Association and the All Indian Bank Employees’ Unions including the National Confederation of Bank Employees as the fifth bipartite settlement. The appellant Bank through its employee federation was bound by the said settlement. Three separate settlements were entered into between the appellant bank and its employee federation on 9 June 1989. Under these settlements, the employees of the appellant were entitled to certain advantages except for those provided under the Bipartite Settlement. However, the appellant bank did not immediately implement the settlement because of which the employee Federation had to send a telex message to the appellant on 22 June 1989 calling upon it to implement the same without further loss of time or else an agitation would be launched for its implementation. The bank replied that it needs the government’s approval to implement the said settlement and it is making efforts to obtain the same and hence the federation should cooperate with it. On 24 July 1989, the federation again made the same request to the appellant only this time with a threat of a token strike. The response of the appellant was the same as earlier. On 1 September 1989, the Federation issued a notice of the strike, to be held on three different days beginning from 18 September 1989, demanding immediate implementation of all agreements/ understandings reached between the parties. At this stage, Deputy Chief Labor Commissioner and Conciliatory Officer took cognizance of the dispute and initiated conciliatory proceedings to resolve the same. While the proceedings were pending, the employee federation on 6 October 1989 filed a writ petition before the High Court for the immediate implementation of the three settlements dated 9 June 1989. In the petition, the court ordered the immediate implementation of the settlement agreed between the parties. On 12 October 1989 the Bank issued a circular stating therein that if the employees went ahead with the strike on 16 October 1989, the Management of the Bank would deduct the salary for the days the employees would be on strike. In spite of the circular, the employees went on strike on 16 October 1989 and on 17 October 1989, wrote a letter to the conciliatory officer requesting him to deem the proceedings to be closed from their side and filed a writ petition on 7 November 1989 to quash the circular of 12 October 1989 and to direct the Bank not to make any deduction of salary for the day of the strike. The writ petition was admitted and the High Court issued an interim injunction restraining the bank from deducting the salary. As the arguments advanced the learned Single Judge ruled in the favor of the Bank while when the matter went in appeal to the Division Bench it overruled the judgment given by the Single Judge and ruled in the favor of the employees. It is because of these two conflicting the said appeal has been filed and the matter has been referred to this court.
Statutes and provisions discussed
- Section 12 of the Industrial Disputes Act,
- Section 18(1) of the Industrial Disputes Act,
- Section 22 of the Industrial Disputes Act,
- Section 23(a) of the Industrial Disputes Act,
- Section 24(1) of the Industrial Disputes Act,
- Rule 58.4 of the Industrial Disputes (Central) Rules
- Whether the strike is legal or illegal?
- Whether the decision given by the Division Bench needs to be set aside?
Arguments of the Appellant:
The Appellant contended that since under the provisions of sub-section (1)(d) of Section 22 of the Industrial Disputes Act, the employees were prohibited from resorting to strike during the pendency of the conciliation proceedings and for seven days after the conclusion of such proceedings, and since admittedly the conciliation proceedings were pending to resolve an industrial dispute between the parties, the strike in question was illegal. The industrial dispute had arisen because while the Bank was required to require the approval of the Central Government for the settlements in question, the contention of the staff was that no such approval was necessary and there was no such condition incorporated within the settlements. This being an industrial dispute within the meaning of the Act, the conciliation proceedings were validly pending on the date of the strike.
Arguments of the Respondent:
The Respondent contended that there could be no valid conciliation proceedings as there was no industrial dispute. The settlements were already arrived at between the parties solemnly and there could be no further industrial dispute with regard to their implementation. Hence, the conciliation proceedings were non est. The provisions of Section 22(1)(d) did not, therefore, come into play.
The Supreme Court as on the first issue abstained from deciding it as it held that since the proper forum for the decision on the said issues in the present case is the adjudicator under the Industrial Disputes Act, 1947 which is the Deputy Chief Labor Commissioner and Conciliatory Officer.
As with regards to the second issue, this Court held that the High Court in the present case had erred in recording its findings on the counts, viz., the legality and justifiability, by assuming jurisdiction which was properly vested in the industrial adjudicator. The impugned order of the High Court has, therefore, to be set aside.
This Court further in exercising its power under Article 142 of the Constitution of India allowed the appeal to the appellant to the appropriate authority under the Act within eight weeks from the date of passing of this judgment.
Since the Industrial Disputes Act, 1947 provides a proper procedure for the resolution of an Industrial Dispute, the Supreme Court is not the proper authority to decide whether the strike is illegal or not and the proper forum for deciding this issue is the adjudicator under the Industrial Disputes Act, 1947.
Since the High court has itself erred in assuming the jurisdiction which is not vested in it and is vested in the Industrial Adjudicator by the virtue of the Industrial Disputes Act, 1947, the order given by the Division Bench is deemed to be set aside.
The strike as a weapon was evolved by the workers as a type of protest during their long struggle with the employers. The question of whether a strike or lockout is legal or illegal does not present much difficulty for resolution since all that’s required to be examined to answer the question is whether or not there has been a breach of the relevant provisions. The cessation or stoppage of labors whether by the workers or by the employer is detrimental to the production and economy and the well-being of the society as a whole. It is for this reason that the industrial legislation while not denying the right of workmen to strike, has tried to regulate it along, with the right of the employer to lockout and has also provided machinery for peaceful investigation, settlement, arbitration, and adjudication of the disputes between them.
To conclude, legality or illegality of a strike is to be determined by proper procedure and forum as has been provided in the Industrial Disputes Act. It is not on the High Court to decide industrial disputes when the same is pending before the proper forum provided under the Industrial Disputes Act. If the court exceeds its jurisdiction and encroaches upon the jurisdiction of an industrial tribunal, the same is liable to be set aside.
Edited by Parul Soni
Approved & Published – Sakshi Raje
[i] Churakulum Tea Estate v. Workmen, AIR 1969 SC 998.
[ii] Crompton Greaves Ltd v. Workmen, AIR 1978 SC 1489.
[iii] Bank of India v. T.S. Kelawala, 1990 SCR (3) 214.