BALLARPUR COLLIERIES CO, versus THE PRESIDING OFFICER, C.G.I.T. DHANBAD AND ANR.

BALLARPUR COLLIERIES CO,

THE PRESIDING OFFICER, C.G.I.T. DHANBAD AND A.l.~lt. March 14, 1972

[C. A. VAIDIALINGAM AND I. D. DuA, JJ.]

Industrial Disputes Act, 1947-S. 23(b) and S. 23(c)-During pen-denc)' of proceedings befo;-e Tribunal c.·nd during settlement workers struck-Whether S. 23 (b) or S. 23 (c) is attracted.

In 1956 the "Majumdar Award'" was published and to this Award the appellant' was also party. In January/February, 1960 the workers of the appellant Colliery had gone on strike. The efforts of the ma'lage-c ment failed to persuade the workers to resume duty. On the interven-t:on of the Regional Labour Commissioner (C), Bombay, the matter was resolved as result of which the workers resumed their duty and also got their dues etc., irilm the management. In the report o'f what had trans-pired during the negotiation! (Ex.D) it was stated, inter a/'a, that the Regional Commissioner had also been assured by the workers that they would see that "such strikes are not resorted to in future and would adopt all consftutio'1al means to get their grievances redressed". Later, due to 0 certain d:fficulties in interpreting the terms df the Maiumdar Award, the Central Government, under s. 36A .of the Industrial Disputes Act, 1947, referred to Shri Palit. the Chairman of the Central Government Indlls,. ·trial Tribunal, Dhanbad, the necessary question seeking interpretation of certain provisions of the' said Award. Thi~ reference is dated May 23, 1960. '

It) 'the Award riven by Shri' Palit it was mentioned that all the l)Brtie8 who were impleaded in the Majumdar Award would be bound by. the Ia ter 1\.,.ard.

During the. pendency of the proceedings before Shri Palit. the workers of the app~lant went on strike from October, 4, 1960, the cause for the strike being ~dismissal of 6 workmen. No notice of the strike, as requ:r-ed by Sta'1dhg Order .no. 32, was given. The .aooellant, therefo.re, filed an ap~Hcation. belfo•e the Regio,al Labour Commissioner (Centra1) on October 31, 1960 for 'declaration that the str:'ke was ille~al. The Re-gional Commissioner he4f the strike to be le~al and an · apt>eal to the Industrial Tr{bu',al by tl'le apoellaTit also failed. Thereafter. the appellant filed wtit "Detition before the Hillh Court but it was dism'ssed. · On appeal to this Court, two main points we·e raised by 'the a-ppellant : ( 1) that the strike took place during the pend•mcv of the _reference before Shri Palit and t[1],erefore under cl. (b) of s. 23 of t11J Industrial Dispu'e5 Act, ·the strike was .me~al; (2) in anv case, the ' atr~ke took place duri11~ the Ml\dency ot the aettlemel1t tected b~ th,e Re· ~lonal Commissioner, Bombay a11d, tberefo"e, und r el. (e) of s. 23 of the Industrial Dlaoutea Act, the strike wu llleaal.

All owina the at)'j)ell,

H&.D: (l) nte lepl tftect of rerere11ce under 1. 36A ol th~ lfldUI· trial Dlsoutes Act Ia· to.. reonen the narller reference termlnatln~ i11 the ¥•1umdq,. Award, thouQh o~lv for the llmlted nt1mos" nf t.l:!e interoreta. h~n of .the provision~ of the award. i" resDf!ct of the dtftlcultiet or d()nJ,ta ~~vlniZ rise ~o the refere'lce. S'nee the .. .,,ellaflt wa1 Mrty to the Pallt Award, Its a.,~licatio; to wltMrAw and it1 non-nll~ici.,•tlo'' .If) the pro-ceedln"S notw1thatand·n~, 1. 2'(b) ·nf tl,e Indu~tr1al Dieputet Act wu attracted and the ttrike was illepl. (813 E] ;

[1972] 3 S.C.R.

Workmen of the Motor Industries Co. Ltd. v. Management of Motor Industries Co. Ltd. [1970] 1 S.C.R. 304 and Hochtief Gammon v. Indus-trial Tribunal, Bhubane~hwar [!964) 7 S.C.R. 596, referred to.

(ii) The assurance of the workers to the Commissioner that they would not resort to such strikes in future and that ,they would adopt all constitu.tional means to get their gr,evances redressed, neither amounted to contract nor was it matter cove~cd by the said settl~ment with the Regional Labour Commissioner. Therefore, s-: 23 (c) was not ·attracted in the facts and circumstances of the present c3se. In order to be hit by s. 23(c) the strike must be in breach of contract in respect df matter covered by settlem~nt which is in operation at the time of the strike. rs11 Gl

CIVIL APPELLATE JURISDICTION: C.A. No. 876 oi 1968. Appeal by special leave from the judgment and order dated October 28, 1965 of the Patna High Court in M.J.C .. No. 721 of 1962.

M. N. Phadke and Bhuvnesh Kumar_i, for the appellant.

The Judgment of the_ Court was delivered by

Dua, J. Facts giving rise to this appeal by special leave may briefly be stated :

Qn May 18, 1956 an award was made by Shri Majumdar, which is popular1y known as the M1jumdar Award. On May 23, 1960 the Central Government, in exercise ~f the power conferred by s. 36A of the Industrial Disputes Act, 14 of 1947 (hereinafter called the Act) referred to Shri G. Palit, Chainnan, Central Gov-enun~t Industrial Tribunal, Dhanbad the question

"Whether 'traffic' is to be placed in Grade II of ·the clerical service in tenns of the said Award the award being the award of the All India Industrial Tribunal (Colliery Disputes) published in the Gazette of India Extraordinary Part II, Section 3 .dated ·the 26th May, 1956 (S.R.O. No. 1224 dated 18-5-56).

'Traffics' are category cf clerical s_taff covered by the award of the All India Industrial Tribunal (Colliery Disputes), popularly known as the 'Majumdar Award', and it appears that in ·the opinion of the Government difficulty or doubt had arisen with regard to the inter-pretation of the provisiCitlS of the said award in so far as it related to the scale of pay etc. for 'Traffics' and accord.; ingly, the question had been referred for ~terp~tation to the Dhanbad Central Government Industnal Tnbunal, then presided over by Shri .. Palit. TIPs order of the Central Government gave rise to Reference No. 27 of 1960."

During the course oi the hearing. of this refe~n.ce some c~Uiery owners including the appellfi:nt Ballarpu!' Collienes Co., whtch IS private partnership, in whose collieries there were mo workmen ·

BALLARPUR COLLIERIES V. PRESIDING OFFICER (Dua, J.) 8 07

with the designation of 'Traffic', wanted to be excluded {rom t11e reference altogether on the· ground tlrat they were not interested in the dispute pendihg before the Ttiblinal presided over by Shri Palit. The appellant presented an application in August, 1960 stating : ·,

"So far as ·the petitioner is concerned this dispute does not concern these collieries because th~y have not got any traffic in employees coming under this .category. As such the presence of the petitioner before this Tribunal is not necessary."

It appears that tbe Tribunal did not record any express order either. pennitting the appellant to withdraw from the dispute or declining such pennission. The Appellant, however, did not take part in the proceedings thereafter and the workers of the appellant's colliery also did not take any steps to participate therein. In the Award Jl;iven by Shri Palit known a~ 'Palit's ·Award' which was publishqd in the Gazette of India on November 22, 1960, it is not ,disputed that the case of these collieries as well, including the appellant's colliery at Ballarpur where the workmen· described as 'Traffic' did not exist for the ~e being; was dealt with. Reference to the application presented by the appellant and other colliery owners. was made in the Award in the followinR terms:"Then with reference to the contention ot. some of the . collieries that where the workmen designated >as 'traffic' do not occur, their names should be omitted from the present reference under section 18 ( 3) of the Indus-trial Disputes Act, 1947. But this· section has been wrongly invoked here. In the present case I have not summoned them in pursuance of the .said section. · So the question does not arise whether they were so sum~ moned without proper cause. They have been sum-F moned in the present case bec~use they were parties to the ori~nal award. I haye to summon all the parties who were impleaded in the original coal Award. So this contention is ov_er ruled. In an omnibuo; or industrywise reference it .is not necessary that the disoute must relate to each one of them O" the cause of action muc;t exist in all cases. Even if the dispute i~ not there but they are made parties in the reference, all that mav be said is that they are under no oblieation to imnlement the Award. But the award will be bindinq on all of them all the same. So lam unable to. exclude them."

DurinQ" the oendencv of the omceedings befMe' Stiri Pali~ the II worlc.ers of the aooellant's collierv we'lt on strilc.e from October 4. 1960. the cau'\e for the strike beinl!: dismissal of six workmen. No l)otice was givep. of the strike though, . accordin~ to . the judgrrient '

of the_ High Court u~der appeal under standing Order No. 32 of the Standmg Orders ~pproved by the Statutory Authority, the workmen were bound to give 14 days' notiCe before going on strike. The appellant, the~e~ore, filed an application, b~:ore the Regional Labour Comtruss10ner (Central), on October 31; 1960, in pursu-ance of Paragraph 8 ( 1 ) of the Coal Mines Bonus Scheme for declaration that the strike was illegal. The Regional Commissioner, however, _held the_ strike to be legal with the result that the appel-1ant preferred an appeal before the Industrial Tribunal under para-g~aph 8 ( 4) of the said Scheme. This appeal filed a.nd the appellant approached the Patna High Court by means of writ petition as~ ailing the legality of the strike. The following three points were raised by the appellant in challenging the strike before the High Court:-

( 1) The strike took place during the pendency of Re-:erence No. 27_ of 1960 before Shri Pali•, and consequently clause (b) of secticn 23 woul_d apply.

(2) The strike took place durin~ the pendency of th~ settlement effected by the Regional Labour Com-m;ssioner, BombJy, while settling the dispute which arose out of the strike in January /Febru· ary, 1960 and consequently clause (c) of ~~ction 23 of the Act woul)l apply.

( 3) In any vie~ of the case, as the Labourers resorted to strike without ~iving due notice as requited· by Standing 0"der No. 32, the strike .W!$ i.n breach of contract between the employer. and its .workmen and was, therefore, illegal. -The High Court did not agree wilh the appellant's c~~entions and dismissed the writ petition. . · Bef-ore us .the same thre_e points were. -rais~d. by Shri Phadke, 1ea~ed c(!unsel.for th~ appellant. The third J~oint was veiy fai.rly not pressed by Shri Phadke becau)e mere breach. of Standmg Order. could not render the strike illegal under ss. 23, and 2~. a.f the Act: ·Only th~ first two points were presse~. In so far as S: 23 (c) is concet111ed Sh"i Ph~dke made refereq~ to the settl~tnent, . copy of which was annexed with thewrit'petition in the ~ltft.'Court. It aopears that the worken of the. aopeUant's ~1liezy had qone on strike in the months of January/February, 1960 and ef!orta of the mana~ement had failed to persuade the workers to ores_urhe duty .. The Regional Labour ComntiMioner(C) Bombav, thertupon.~e D.0.1~\ter dated February 4. 1960. toSh~ Hald~ltar. ~U:~t R Of the Warke"s' Unibn, · ift '+et)ly ttHhe said P~~1dent'a, t.el~~m of the .same date,'in which 'the·l;abolir Cdm~lSSIOner h~. ··~ ·that he··was going to visit Nagpur·oh Peb!fllary 9,.1960 and would

BALLARPUR COLLXERIES v. Pl\ESIDING OFFICER (Dua, J.) 809

look into. the matter. The Regional Labour Commissioner had in that letter requested Shri Haldulk:ar to make it convenient to see him at the office of the Conc.iliation Officer at Nagpur. The Regional Labour Commissioner then used his good offices in getting the matter resolved ·as result of which the workers resumed their duty and got their dues etc., from the management. The report Of what transpired at the time of the visit of the Regional Labour Commissioner was recorded in 'annexure D' annexed to the writ petition filed in the High Court. It appears from "annexure D" that after dis·cussing t~1e matter with the appellant and the _Jvork· men, the Regional Labour Conunissioner induced both sides to adopt reasonable attitude and the strike was called off. The relevant portion of annexure 'D' may here be reproduced :·

lt was on lOth February, 1960, th1tt 1 visited Chanda and had talk:> with Shri Zallaram, Vice-President of the Union and other important workers of the Col1ie y. representative of the Management Shri S. V. Kanade, Personnel Officer was als9 present at the tim! of discus-sion. I impressed upon the Union Officials and the workers that going on strike would not solve their prob-lems but would on the other hand create complications and bitter relations between the Management and the workers. I also emphasised upon the Management that they should also see that the grievance of the workers were not allowed to accumulate and full justice was given to them. Considerable discussions continued on this issue and I asked the Union Officials that they would withdraw the strike immediately so that the relations between workers and management could be restored to normalcy ...... The lJnion thereupon stated that owing. to_ the strike the workers were likely to lose their bonus and continuity of service for purposes of annual leave. I t~ld them that I would take up the matter with the Management provided they call off the strike first to which they agreed.. I was also assured that they would see that such strikes are not resol'ted to in future and wotild adopt 'all constitutional means to get their griev-<mces tedressed.

i saw Shri Jamnadas Daga, this morning on my retum ftom<GlJ4n~:aud infoim~ him of·the disc~ioo which had t~ans¢roi i at Qband.a\ H~ agreed to .. CODSider the· m.att.er favQW'abcy'; wllenJ infcmnod.hi.m .that.tne workers had already agreed to call off the strike on- the 1Oth

SUPREME COURT 1EPORTS [1972) 3 S.C.R..

February, 1960 the Ma.nagement agreed to the follow-ing:

( i) that the 3 suspended workers would be allowed to join their duties within peiiod of 24· hours to 48 houi:s and possibly within .24 hours after the resumption of wo&

( ii) tb4lt the workers will not be deprived of the Annual leave under 'the Mines Act 52 with wages on account of this stoppage of work if they are otherwise eligible.

(iii) That although the strike'rs are not· entitled to bonus as special case, which will not form precedent, the Management has agreed to reduce the qualifying period from 65 to 60 attendances to 50 and 45 attendances in the quarter ending March, 1960 only. As regards the amount of bonus it would be calculated at.one-sixth of the earned basic wage instead of one-third nonnally paid under the Bonus Scheme. ·

(iv) Workers who have left the colliery for their homes, would be allowed to join their duties within period of 15 days from the resumption of w·()'rk."

According to Shri Phadke this report embodies settlement btetween the appellant and the workmen and the assuran~ given by the workmen not to resort to strike but to adopt constitutional means for getting their ·grievances redressed being one of the matters coveted by the settlement, s. 23(c) of the A,ct was attracted ren-dering the strike illegal.

Let us see if s. 23 supports this submission. That section Teads: .

"23 General prohibition of strikes alld lock-outs;

No workman who is employed in ·any industrial ~tal:iishment shall go on strike in breach of oontr~t and n6 employer of any such workman shall declare lock-G · out;_

(a) during the pen~ncy of concillatiQn l)rocetdings before Board and c;even days after the conctu-sion of such··l?f()(;eedinp;

(b) during the pendency of ~g! beft)re Labour Court, Tribunal or N~~ Tn~ -~ two months after the conckisiotf or·~~--i"'g-;:

~~~ ' " ' .. J

BALLARPUR COLLIERIES v. PRESIDING OFFICER (Dua, J.) 811

(bb) during the pendency of arbitration proceedings before an arbitrator and two months after the condusion of such proceedings, where notifica-tion has been issued under sub-section (3A) of section 1 OA; or

(c) during any period in which settlement or award i; in operation, in respect of any of the matters covered by the settlement o: award."

In support of his contention Shri Phadke relied upon recent deci-sion of this Coun in Workmen of the Motor Industries Co. Ltd. v. Management of Motor Industries Co. L'd. Bangalore(l) specific reJia.nce being placed on the following passage at pp. 31 0~ 1 J :

"Read in the c.ontext of the other provisions of Part I of the seitlement of which it is part~ cl. 5 was intended to prohibit (a) direct action without notice 'by or at the instance of the association, and (b) strikes 1Sy W9rkmen themselves without the approval of the as;ociatioo. The words 'in no case' used in the clause emphasise that direct action by either party without notice should not be re-sorted to for any reason whatsoever. There can be no doubt that the settlement was cae as defined by s. 2 ( p) ct the Lndustrial Disputes Act and was binding on the\ workmen under s. 18 ( 3 )' of th..: Act until it was validly terminated and was in fore" wr .. ~n ~he said strike took place. The strike was lightning one, was resorted to, without noiice and was not at the call of the association' and was, therefore, in breach of cl. 5 .''

In this Judgment rderence was also made 1o an earlier unreported decision of this Court in Tata Engineering & Lacomotlve Co. Ltd. v. C. B. Mittere) in supp<>q of the conclusion arrived at therein. In our opinion, it is difficult to hold that in the circumstances o( the present case the assurance stated to have been given by-the work-men to the Regional Labour Commissioner that they (the work-men) would see that they do not resort to sU,ch strikes in .future and that they adopt all constitutional means to get their grj¢vances redressed amount to term of the settlement, breach of which wquld attract Cl. (c) of s. 23 of the Act. In order to be bit by s. 23 (c) the strike must be ill breach of contract in · respect of matter covered by the settlement which is in operation at the time of the strike. Tb.e &Ssurance referred to in the Regiomil Labour Gommis-sioner's report neither amounts to contract nor is it matter covered by -the aforesaid settlerrient.

This co~tention, therefore. must fail.

(1) [1970} I S.C.R. 304. (2) C.A. No. 633 of i%3, d/2.4.1964.

The appellant's learned counsel next submitt,.ed that the present case cleany fell within s. 23 (b). The High Court decided this point against the appellant principally on the ground that during the pepdency Gf reference No. 27 of 1960 the appellant had applied before Shri Palit in August, 1960 to be discharged from the pro-ceeding5 on the ground that the dispute pen~ling in that Tribu~al did [lOt concern the appellant's cJllieries. After the application n the appellant took no part in the proceedings and as appeared 1rom the judgment of the appellate authority the workmen also had not taken any steps in the said refereqce.. The appellant and the workmen having not taken part in the reference pending before Shri Palit the High Court felt that they ,were •U:it parties to those proceedings though in the opinion of the High Court the appellant and the workmen were bound by the decision in those proceedings. On this reasoning s. 23 ( o) was also ruled out by the High Court and the writ petition was dismissed on the ground that there was no error appare.nt on the face of the record because there was no statutory provisicm dealing with the circumstances like the preseriL Reference was made t.ly the High Ccurt to decision cl this Court in Hochtief Gammon v. lndustrial Tribunal, Bhubaneshwar(l) case in which s. 18 (3) (b) of the Act had come up for construction. But that decision was considered to be unhelpfdul became, accordihng C::: .. '.~ to the High Court. Shri Palit's Tribunal ha not summoned t (;~' ahppellant undecr s..t8.( 3 )C(b) but had called tfhehappe~l~ntbeca~se ~ll t Ba 11 arpur o 1enes 11ompany was one o t ongma 1parttes -.~ to the award known as M:>jumdar Award. The High Court, how-E ever, inferred from the folbwing observation in the Palit Award: "In an omnibu~ or industrywise reference it is not neces£ary that the dispute must relate to each one of them or the cause cl action must exist in all cases." that there was no d~soute between the appellant and its workmen l pending before Shri Palit's Tribunal. This view of the High Court was seriously assailed tefore us by Shri Phadke. According to him the reference under s .. 36A of the Act requiring consideration of any provision of an eadier award or settlemt:ltlt J1.1Ust relate back to the earlier reference culminating in the award or settlement and, therefore,· if the appellant was party to the original reference which resulted in the 'Majumdar Award', then the appellant must necessarily be.considered ·to be party to the later reference of which· Shti Ph-lit was seized. And if that be so, theu, the appellant, in Shri Phadke's submission;· must be considered to be party to the reference under s. 36f\.~ notWith~ standing its desire not to take part.m those ·procee4ings or,even an Hi exprec;s anplication bY it to the Tribunalfor.p,enni,ssion .to withd(aw therefro.m..

(l) [l964J 7 S.C.ll

BALLARPUa. COLLIERIES v. PRESIDING OFFICER (Dua, J.) 81_3

In our view, there is force in Shri Phadke's submission and the High Court was wrong in holding that s. 23 (b) is inapplicable· to the present case. Section 3 6A provides :

"36A Power to remove difficulties :

( 1) If in the opinion of the appropriate Government, .J any difficulty or doubt .arises as to the ipterpreta-tion of any provision of an award or settlement, it may refer the question to such Iaoour'Court, Tri-bunal or National Tribunal as it may think fit.

(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard., decide such question and its decision shall be .final and binding on all such parties."

Now, quite clearly proceedings for removing difficulties or doubts arising as to the interpretation of any provision of the Majumdar Award must be construed to have the effect of reviving those ear-lier proceedings for the limited purpose of considering the removal of such difficulty or doubt. It is only by virtually reopelling the proceedings of the earlier reference that the purpose and object of correct interpretation of that Award ·and of the removal of difficul-ties or doubts arising therefrom could ble achieved. The legal effect of reference under s. 36 must, therefore, in our opinion be to .reopen the earlier reference procedings which terminated in the MajQmdar Award, though only for the limited purpose of the interpretation of ·the provisions of that Award in respect of such difficulties or doubtS as· required removal. Now, it that be the sco~ of s. 36A ?~ the Act then th~re can be lil!le·doubt !hat all parties to the ongmal reference which resulted m the MaJumdar Award must as matter of law be deemed necesSarily to be parties to the proceedings to t,he reference under s. 36A •as well. This seems to us to be implicit in the very scheme ·and b~t ·of this section as would be· cleat from· the fact that the· decision of the question referred under· this section has been rendered final and binding on all parties who have been given an opportunity of being heard. This does not contemplate con.sideration of the question whether any party was in fact feeling interested in the particular subject matter of difficulty or doubt. In this connection it has to be borne in mind that proceedings or industrial adjudicati~n are not considered as proceedings purely between two private parties having no impact on the industry as such. Such proceedings involve larger 'II publlc interest in which the industry as such (including the em~ ployer.·and the labour) is vitally interested. The scheme of the law of industrial adjudication designed to promote ind·ustrlal peace and harmony so as to increase production and help the1 groWth and 6-L1061Sup.CI

[1972] 3 S.C.R.

sUPREME COURT REPORTS

. al conomY has to ~ considered in the ooc~. progress of na.tiO.n ti~ional set up according to '!'hich the ~tatt !)as gc~ of our cons effectively protect s~tal order m which to stnve to scc.ure a:l political justice must info,rm all institutions social.. e~n:lfe•~r the material resources of the community are so o~ n~tton best to subserve the cOIWJ?-OD. $ood· . The appellant dis~but~ :hcrelore, by merely expressmg tts. des.ue even. if that 1 ~ir! fs[0 ]e ressed by presenting formal applicauon to WI!hdraw the xp eedings cease to be party to those procee<hngs so ~fa avofcfilie legal' consequences which, according to legisl~tive mten · men' t flow by reason . . of the pendency ·L-- fo of those proceedmgs. be l.d to The appellant, in our op!DlOD, must wge r _ ave continued to remain party to th~ re~erence ~fore the · ~nbunat presided over by Shri Palit, its a.pplicauoa !O With~aw and 1ts non-participation in tbe proceedings notw1tbstanding. Even :r;on-participation of workmen would not change the legal posttton. Once it is held that the appellant was party to those proceedings then there can be no difficulty in holding that s. 23(b) would be attracted to those proceecllogs and if that sub...section is attracted then obviously the strike has to be held to be illegal. The refer-D enre (No. 27 ot 1960) it may he recalled, was made in May, 1960, and the Award was published on November 22, 1960 : the work· men went on strike on October 4, 1960 which was clearly during the pendency of those proceedings.. We are, therefore, of the view that the fmpugood strike was ille~ and the High Court, s~aking ~ respect, was not right i.n holding to the contrary. The appeal I IS accordingly allov;od and reversing the judgment of the High Court we q~USh the order of the Central Government Industrial Tribunal dated April 16, 1960 as ilio tho order of the Regional Labour ~~r (Central) Bombay dated November t9, 1960 ~bich bad held the c;trlke of the workmen not to be illegal. ~venom~ aU these orders w~ bold th& the workmen's strike Wll! illegal~ ia violation ot '· 23-(b) o( the Act. The a!'Ptat ' :crordlllgiy ail~ and the workmen's strike held illegal. [t is i.onf~nate d!a~ the respondeat! aro not rtpresent~ before us th . ptto ?f SCI'Vl<:e and we, therefore, did not hav~ the benefit of r,;,::~ ~~~~re i& no Jef're~tatlon on behal! of the :e WI ~ no orde~ u f.() ~ts .

Appeal aiiOVffd.