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PETITIONER: MANAGEMENT OF M/S PRADIP LAMP WORKS

       Vs.

RESPONDENT: PRADIP LAMP WORKERS KARAMCHARYA SANGH AND ANOTHER

DATE OF JUDGMENT: 16/10/1969

BENCH:

ACT: Industrial  Dispute-Illegal  strike by workmen  followed  by unjustified lock-out by employers-Wages for period of  lock- out when blame apportionable between employers and  Workmen- Adjournment for producing evidence as to blame circumstances justifying.

HEADNOTE: There  was a one-day strike by the workmen in the  appellant factory  on  February  27,  1964.   On  the  same  day   the management  declared a lock-out which continued  till  March 22,  1964.   The industrial dispute being  referred  to  the Tribunal,  the latter found that the strike was illegal  and therefore  the lock-out on February 27 was  justified.   The Tribunal  however  held  that the  prolonged  lock-out  from February  28, onwards was unjustified.  On this finding  the Tribunal awarded wages for the period of the lock-out  after February  28,  1964 to the workmen.  In  appeal  by  special leave  before this Court it was contended on behalf  of  the employers  that the workmen were not free from blame in  the matter of lock-out and therefore in view of the decisions of this  Court  only  half  the wages for  the  period  of  the unjustified  lock-out  should  have  been  awarded  to   the workmen.  It was also submitted that the Tribunal was  wrong in refusing the appellant’s prayer for adjournment which was sought  for the purpose of producing evidence regarding  the blame for the lock-out. HELD:     (i) It was incumbent on the Tribunal to apply  its mind  to the question of apportionment of blame on  the  two parties  and  to  its effect on the amount of  wages  to  be awarded  to  the workmen for the period  of  lock-out  after February 28. 1964.  The order of the Tribunal ignoring  this important aspect was difficult to sustain. (885 B-C] India  General  Navigation  and Railway Co.  Ltd.  v.  Their Worknzeii,  [1960] 2 S.C.R. 1, India Marine Service  Private Ltd.  v.  Their Workinen, [1963] 3 S.C.R.  575  and  jeypore Sugar Company Ltd. v. Their Employees. [1955] 1   L.L.J. 444, referred to. (ii) On  the  facts  of the case it  would  have  been  more appropriate exercise     of judicial discretion on the  part of the Tribunal to adjourn the case to the following day for the production of the appellant’s evidence, if necessary  on payment of costs. [885 C-D] (iii)     In  the  circumstances  of, the case  it  was  not necessary  to prolong the litigation by remitting  the  case back  to the Tribunal.  It was more just and proper  to  end the controversy by directing that half wages should be  paid to the workmen for the period of the lock-out from  February 28, 1964. 1885 E]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 482 of 1967. Appeal  by  special leave from the Award dated  October  13, 1966  of the Industrial Tribunal, Bihar, Patna in  Reference No. 7 of 1964 pronounced on the November 10, 1966. 881 H.   R.  Gokhale,  K.  B. Rohtagi and S.  P.  Wad,  for  the appellant, S.   C.  Manchanda,  S.  S. Khanduja and R.  A.  Gupta,  for respondent No. 1. The Judgment of the Court was delivered by Dua, J. This appeal by special leave is directed against the award  of the Industrial Tribunal, Bihar, dated October  13, 1966.  by means of which the workmen of the  appellant  were held  entitled  to  wages for the period  of  the  lock  out beginning  with February 28, 1964 and ending with March  22, 1964.               On  March  20,  1964  the  Governor  of  Bihar               referred   the  following  disputes   to   the               Industrial Tribunal :               1.    Whether  the  strike  launched  by   the               workers  on the morning of the 27th  February,               1964, was justified ?               2.    Whether  the  lock-out declared  by  the               Management is justified ?               3.    Whether  the  workmen  are  entitled  to               wages for the period of strike and/or lock-out               ? On the first point the Tribunal came to the conclusion  that the  strike  by  the workmen on February 27,  1964  was  not justified.   As  a result of this  conclusion  the  lock-out declared by the Management on February 27, 1964 was held  to be  justified but on a consideration of the material  placed before  the  Tribunal no justification for  continuing-  the lock-out   on  the  following  days  was  shown.   On   this conclusion  the Tribunal decided under point No. 3 that  the workmen  were entitled to wages for the remaining period  of the lock-out. In this Court the learned Advocate for the appellant  raised only two points.  The first submission attacked the decision of the Tribunal under point No. 2, where it is held that the lockout by the Management was unjustified after February 27, 1964  and the second submission assailed the decision  under point No. 3 awarding to the workmen wages for the period  of lock-out between February 28, 1964 and March 22, 1964. On  the first point Shri Gokhale very frankly conceded  that the finding of fact arrived at by the Tribunal was not  open to challenge in the present appeal under Article 136 of  the Constitution.  He, however, contended that the order of  the Tribunal  in this respect is open to question on the  ground that  the  appellant  had been  deprived  of  a  reason-able opportunity of adducing evidence in support of its case.  He referred  us to the proceeding--, of the Tribunal  held  on September 29, 1966.  On that date the Tribunal recorded  the following order 882               "Parties  present.  Management is  represented               by  Shri.  Pandey S. Prasad, personal  officer               and the workmen are represented by Shri Kalika               Nandan  Singh, Advocate, on behalf of  Pradeep               Lamp  Works  Karamchari Sangh and Shri  B.  B.               Karan  on  behalf  of  Pradeep  Lamp  Workers’

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             Union.  Shri Karan files written statement  on               behalf  of  his  union  today.   This  written               statement cannot be accepted it has been filed               so  late.  The Workers’ Union may  adduce  its               evidence if it so likes.               Hearing  oil  the case is taken  up.   As  the               Karamchari  Sangh  pleaded  its  inability  to               start  its evidence, the management is  called               upon to produce its witnesses.  The management               examines M.W. 1. Trilokinath Rastogi and  M.W.               2  Shri  R. M. Kahattriya who  are  discharged               after cross-examination.  M.W. 1. proves Exts.               A, A-1, B, B/1, B/2 & B/l for the  management.               Thereafter the management prays that the  case               may  be adjourned as it wants to examine  more               witnesses.  The parties should have come ready               with all their evidence today.  The prayer for               adjournment  by  the management  is  therefore               rejected.   Oral  evidence on  behalf  of  the               management  closed.   Union  examined   L.W.l.               Krishna Thakur who is discharged, after cross-               examination.   As  it  is late,  the  case  is               adjourned  for tomorrow for  further  hearing.               Call for the letter of the Labour               Commissioner dated 13-3-64 on party’s risk." The argument strongly pressed on behalf of the appellant was that  the  Tribunal was wrong in rejecting  the  appellant’s prayer for adjournment when it had already given time to the Karamchari  Sangh to produce its evidence later  because  of its  inability to start its evidence in the first  instance. According   to  the  appellant’s  argument  the   discretion exercised by the Tribunil was arbitrary and contrary to  the accepted   judicial  procedure.   In  this  connection   our attention  was also drawn to a written application  made  by the appellant to the Tribunal on September 29, 1966  seeking an  opportunity for producing the witnesses  named  therein, but the prayer was disallowed by the Tribunal.  The order of the  Tribunal  disallowing  the  prayer  was  described  the learned  Advocate to be discriminatory and violative of  the recognised  standards  of judicial  impartiality.   Had  the Sangh  been  compelled  to  start  its  evidence,  then,  so proceeded the argument, the appellant’s oral evidence  could not  be  closed  because  the case was  ad  journey  to  the following  day  without  concluding  the  recording  of  the evidence of the Union and on that day the remaining evidence of the management could be produced in the normal course.                             883 On  behalf  of the respondent Shri Manchanda tried  to  meet this  argument  by  submitting  that  the  parties  must  be presumed  to  have  been directed by  the  Tribunal  on  the previous  hearing to come ready with their oral evidence  on September 29, 1966.  To rebut this presumption, argued  Shri Manchanda,  the  appellant  should  have  got  printed   the previous order adjourning the case to September 29, 1966 for recording the evidence of the parties.  The learned Advocate also  submitted that the question whether or not a party  is entitled  to an adjournment for producing its evidence is  a matter  of discretion and the exercise of discretion  cannot be assailed on appeal under Art. 136 of the Constitution. The  second point strongly urged by Shri Gokhale relates  to the  grant  of full wages to the workmen for  the  remaining period  of the lock-out.  If the blame for the lock-out  was apportionable  to  both the parties the,  according  to  the submission, full wages could not be awarded.  In such  cases the  normal  practice, argued the learned Advocate,  was  to

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award  half of their wages.  In support of  this  submission reference  was,  to begin with, made to a decision  of  this Court  as India General Navigation and Railway Co.  Ltd.  v. Their Workmen. (1) At page 31 of the report this Court  said :               "As   regards  the  remaining   workmen,   the               question is whether the Tribunal was  entirely               correct  in ordering their reinstatement  with               full  back  wages and allowances on  and  from               August  20,  1955, till  reinstatement.   This               would  amount to wholly condoning the  illegal               act of the strikers.  On the findings  arrived               at  before  us,  the workmen  were  guilty  of               having participated in an illegal strike,  for               which  they  were liable to be dealt  with  by               their  employers.  It is also clear  that  the               inquiry held by the appellants, was not               wholly regular as individual charge sheets had               not  been delivered to the  workmen  proceeded               against.  When the blame attaches to both  the               parties, we think that they should divide  the               loss  half and half between them.  We,  there-               fore,   direct   that  those   workmen   whose               reinstatement by the Tribunal is upheld by us,               should be entitled only to half of their wages               during  the  period between the  date  of  the               cessation  of  the illegal strike  (i.e.  from               August 20, 1955) and the date the Award became               enforceable.   After  that date they  will  be               entitled    to    their   full    wages,    on               reinstatement."               (1)  [1960] 2 S.C.R.l.               Sup.(CI)170-11               884               The  other  decision cited on  this  point  is               reported as India               Marine   Service   Private   Ltd.   v.   Their               Workmen.(1) At page 583   of the report it was               observed thus :               "It is true that the strike was intended to be               a  token one.  But the object of  that  strike               being to circumvent settlement in an  amicable               manner, even though the company was ready  for               such settlement, we have no doubt that  strike               was  unjustified.  It is in the light of  this               finding  that the lock-out has to  be  judged.               In   our   opinion,  while  the   strike   was               unjustified  the lock-out when it was  ordered               on November 13, 1958, was justified.  It seems               to  us, however, that though the lock-out  was               justified at its commencement its continuation               for  53  days  was  wholly  unreasonable  and,               therefore,  unjustified..  In a case  where  a               strike  is  unjustified and is followed  by  a               lock-out   which  has  because  of  its   long               duration, become unjustified it would not be a               proper  course for an industrial  tribunal  to               direct  the payment of the whole of the  wages               for the period of the lock-out.  We would like               to  make  it clear that in a  case  where  the               strike  is  unjustified and  the  lock-out  is               justified the workmen would not be entitled to                             any  wages at all.  Similarly where th e  strike               is  justified and the lock-out is  unjustified

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             the  workmen would be entitled to  the  entire               wages  for the period of strike and  lock-out.               Where,  however,. a strike is unjustified  and               is  followed  by  a  lock-out  which   becomes               unjustified a case for apportionment of  blame               arises." In   that  case  also  the  blame  for  the  situation   was apportioned  roughly half and half between the  Company  and the Workmen with the result that the workmen were given half of their wages for the period in question. The, respondent’s learned Advocate, submitted in reply  that the management had been adopting dilatory tactics and  there was a very trivial instance of slapping a workman which  had led  to  a  demand by the workmen for an  apology  from  the offending party and this had led to the strike and the  lock out.   In  the  background of this  situation,  the  learned Advocate  contended,  the  order giving full  wages  to  the workmen was fully justified.  It was emphasised that for one day when the strike was held to be illegal, the workmen have been  deprived of their wages completely.   Thereafter  they were  always willing to work but the management  declared  a lock out and continued the same with- out any justification. The learned Advocate referred us to a (1)  [1963] 3 S.C.R. 575. 885 pany Ltd. v. Their Employees(1) in support of his submission that  the  assault on a workman was not a matter of  such  a serious  nature as would justify the management  to  declare the  lock-out, more particularly to continue it for  such  a long duration. In  our opinion, it was incumbent on the Tribunal  to  apply its  mind to the question of apportionment of blame  on  the two  parties and to its effect on the amount of wages to  be awarded to the workmen for the period of the lock out  after February 28, 1964.  The order of the Tribunal ignoring  this important aspect is infirm and is difficult to sustain.   In so far as the first question in concerned, prima facie,  the order  of the Tribunal does appear to be somewhat  arbitrary and  injudicious  and it would have  been  more  appropriate exercise  of judicial discretion to adjourn the case to  the following   day  for  the  production  of  the   appellant’s evidence, if necessary, on payment of costs.  Had we decided to  remit the case back to the Tribunal for considering  the question  of the effect of both parties being  blame  worthy for the lock out on the amount of wages to awarded, we would have  perhaps thought it proper also to direct the  Tribunal to permit the appellant to adduce evidence.  This  evidence, we  were  informed,  was only sought to be  adduced  on  the question  of apportionment of blame.  On a consideration  of all  the  facts and circumstances of the case  we,  however, feel  that it would be more just and proper not  to  prolong this  litigation and to put to an end to the controversy  by directing that half wages should be paid to the workmen  for the period of lock out from February 28, 1964. We accordingly allow the appeal to the extent stated but  in the circumstances of the case there would be no order as  to costs. G.C. Appeal allowed. (1) [1955] 2 L.L.J. 444. 886