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CASE NO.: Appeal (civil)  2567 of 2006

PETITIONER: Management, Essorpe Mills Ltd

RESPONDENT: Presiding Officer, Labour Court and Ors

DATE OF JUDGMENT: 04/04/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 2567 OF 2006

Dr. ARIJIT PASAYAT, J

1.      Challenge in this appeal is to the order passed by a  Division Bench of the Madras High Court dismissing the Writ  Appeals filed by the appellant.  

2.      Background facts as projected by the appellant are as  follows:         Respondents 2 to 23 went on illegal strike from  8.11.1990. Respondent No.15 and one S.L. Sundaram who  had died in the meantime were the first to strike work in the  blow room resulting in the stoppage of entire operation of the  appellant’s textile mills. Other workmen followed. All the 55  workers who resorted to strike were suspended. Even after  their suspension, respondents 2 to 17 remained in the  premises causing obstruction. All the 55 workers were charged  for mis-conduct. Out of them 34 apologized and they were  taken back into service. But subsequently, three more also  apologized and they too were allowed to join duty. The  respondents 2 to 23, however, did not relent. On 14.3.1991  the General Secretary of the Tamil Nadu Panchalai Workers’  Union served a strike notice on the management purportedly  under Section 22(1) of the Industrial Disputes Act, 1947 (in  short the ’Act’) stating that "strike would commence on or after  24.3.1991" and on 8th and 24th April and 13th May, 1991 the  respondents 2 to 23 were dismissed from service after holding  a disciplinary enquiry.  Petitions were filed under Section 2-A   of the Act for re-instatement with back wages and continuity  of service. The Labour Court by its award dated 24.1.1994  held that the strike was illegal. However, in purported exercise  of powers under Section 11-A of the Act the Labour Court  substituted the punishment of dismissal by order of discharge  and awarded compensation of Rs.50,000/- to each workman.  The award was challenged by the appellant as well as the  workmen before the High Court.  On 5.8.2000  a learned  Single Judge of the High Court allowed the Writ Petition  No.8389 of 1995 filed by the respondents 2 to 23 on the  ground of non compliance of Section 33 (2)(b) of the Act and  directed re-instatement of the workmen with full back wages  and continuity of service. He took the view that a copy of the  strike notice dated 14.3.1991 was sent to the Conciliation  Officer and, therefore, conciliation proceedings were pending  on the date of dismissal and since the dismissal was without  the approval of the Conciliation Officer in terms of Section 33

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of the Act the same was illegal. Reliance was placed on a  decision of this Court in Jaipur Zila Sahakari Bhoomi Vikas  Bank Ltd. V. Ram Gopal Sharma (2002 (2) SCC 244). The  appellant’s Writ Petition No.10239 of 1999 against the  alteration of punishment was dismissed.  On 30.12.2003 by  the impugned judgment a Division Bench of the High Court  dismissed the Writ Appeals holding that the judgment of this  Court did not make any distinction between the proceeding  pending before the Conciliation Officer and those pending  before an Industrial Tribunal.  

3.      On 21.2.2004 the Special Leave Petitions were filed and  when the matter came up for hearing on 20.3.2006 after  notice, a Bench of this Court suggested certain terms for  amicable settlement as set out in the order of said date. The  appellant agreed to the terms proposed, but the respondents 2  to 23 did not agree.  

4.      The basic stand of the appellant is as follows:                  The High Court failed to appreciate that in the absence of  a valid notice of strike in terms of Section 22(1) there can be  no commencement of conciliation proceedings in terms of  Section 20(1) of the Act. Section 22(1) prohibits a strike in a  public utility service, in breach of contract, without giving to  the employer advance notice of six weeks. It prohibits strike (a)  within the notice period of six weeks, (b) within 14 days of  giving such notice, (c) before the expiry of the date of strike  specified in such a notice, (d) during the pendency of any  conciliation proceedings before a Conciliation Officer and  seven days after the conclusion of such proceedings. The  strike notice issued on 14-3-1991 stating that the strike will  commence on or after 24-3-1991 i.e.  (just 10 days notice)  does not satisfy the requirement of advance notice stipulated  u/s 22 (1). Therefore, it is not a valid notice. Consequently, in  the eye of law there was no commencement of conciliation  proceedings as a result of the said notice.   5.     On the dates of dismissal of workmen no conciliation  proceeding was pending in the eye of law. Unless a conciliation  proceeding was pending at the time of dismissal of workmen,  Section 33 will not be attracted and there is no question of  seeking permission of the Conciliation Officer in such a case.

6.     The High Court failed to appreciate that in terms of  Section 33-A for not obtaining permission of the Conciliation  Officer under Section 33, the only legal consequence provided  is that the Conciliation Officer shall take the complaint of  contravention of the provisions of Section 33 into account in  mediating in and promoting the settlement of such industrial  dispute. Therefore the order of dismissal in any event was not  illegal. There was no complaint made to the Conciliation  Officer in this case.

7.      The Conciliation officer, unlike the Labour Court or an  Industrial Tribunal, has no power of adjudication. Therefore,  he cannot set aside the order of dismissal. The dismissal  remains valid.

8.      Stand of the respondents 2 to 23 on the other hand is  that the appellant did not raise the plea that there was no  conciliation proceeding pending at the time of dismissal of the  workmen.  It is stated that there was deemed conciliation.   Before a learned Single Judge  the primary issue revolved on  the question as to whether any notice of conciliation had been  issued by the Conciliation Officer and, therefore, there was

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pendency of conciliation proceeding. Learned Single Judge  held against the appellant relying on a decision of this Court  in Lokmat Newspapers  Pvt. Ltd. vs. Shankarprasad (1999 (6)  SCC 275) holding that once strike notice is issued under  Section 22 of the Act, conciliation proceeding is deemed to  have been commenced and no further notice from the  Conciliation Officer is necessary.  

9.      The stand that the notice of strike does not meet the  requirements of Section 22 of the Act is also not tenable.   Section 22(1)(d) of the Act provides that no person employed in  a public utility service shall go on strike in breach of contract  during the pendency of any conciliation proceedings before the  Conciliation Officer and 7 days after the conclusion of the  proceedings. The Conciliation Officer shall hold the  conciliation proceedings when notice under Section 22 of the  Act has been given. Under Section 12(3) if a settlement is  arrived at during conciliation proceedings, a report is to be  sent by the Conciliation Officer to the Government together  with the settlement. If no settlement is arrived at the  Conciliation Officer has to send the failure report under  Section 12(4) of the Act and Government has to refer the  dispute under Section 12(5). Unlike in the case of non public  utility service, the concept of deemed conciliation has been  statutorily provided in the case of public utility service so that  workmen did not go on strike during pendency of the  conciliation proceedings. When strike notice under Section 22  of the Act has been given the Conciliation Officer is  mandatorily required to hold the conciliation proceedings  under Section 20(1) of the Act.  

10.     The purpose of providing for deemed conciliation is to  prevent dis-location of public utility service. The object of  enacting sub-sections (a) and (b) of Section 22(1) is for the  purpose of ensuring that workers do not rush into strike and  give a chance to the Conciliation Officer to resolve the dispute.  

11.     It is therefore clear that there was a deemed conciliation  proceeding when the notice under Section 22 in Form ’O’  of  the Tamil Nadu Industrial Disputes Rules, 1958 (in short the  ’Rules’)  has been issued. Several alternatives are provided in  Section 22(1) and sub-clauses (a) to (d) are the alternatives  which is clear from the use of the expression "or". As such the  time limit set out in either one of the clauses (a) or (b) would  therefore have to be read disjunctively which is clear from sub- clause (c) which provides that strike shall not be undertaken  "before the expiry of the date of strike specified in any such  notice as aforesaid". It is further submitted that decision in  Jaipur Zila’s case (supra) has full application.   12.     A few facts which have relevance need to be noted.  

       The notice was given about the proposed strike after the  strike. Undisputedly, the workers resorted to strike on  8.11.1990. The notice was given on 14.3.1991. Different  stages enumerated by Section 22(1) are as follows: (i)     Advance notice of 6 weeks. (ii)    14 days given to the employer to consider the  notice; (iii)   the workmen giving the notice cannot go on strike  before the indicated date of strike; (iv)    Pendency of any conciliation proceedings.

13.     In this case no conciliation proceedings were pending  under sub-section (4). Sub-section (4) of Section 22 states that

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the notice of strike referred to in sub-section (1) has to be  given in such manner as may be prescribed. The Central Rule  71 prescribes the manner in which the notice has to be given  and the notice is in Form ’L’. The notice as mandated under  Section 22 has to be given to the employer.  

14.     Learned counsel for the respondent relied on Section 20  which deals with commencement and conclusion of  proceedings.  According to the High Court the conciliation  proceeding is deemed to have been commenced on the date on  which the notice of strike under Section 22 is received by the  Conciliation Officer. 15.     The High Court seems to have lost sight of the crucial  words "notice of strike or lock out under Section 22". Section  22 pre-supposes a notice before the workmen resorted to  strike.  The notice has to be given to the employer. Sub-section  (6) of Section 22 also has relevance because within a  particular time period after receipt of the notice under sub- section (1) he shall report to the appropriate Government or to  such authority as the Government may prescribe.  

16.     Stand of the respondents is that simultaneously notice is  required to be given to the Conciliation Officer in Form ’L’ and,  therefore, Section 20 has full application. This plea is clearly  untenable because Form ’L’ refers to Rule 71 and not Section  22. There is nothing in Section 22 which requires giving of  intimation or copy of the notice under Section 22 to the  Conciliation Officer. At the stage of notice under Section 22  there is no dispute.  

17.     The date of notice is 14.3.1991 and the proposed strike  was on 24.3.1991. Therefore, on the face of it,  it cannot be  treated to be a notice as contemplated under Section 22(1)(a).  The notice in question reads as follows:

               "By Registered Post         The Strike notice issued by the employees under Rule 59(1)

From: The General Secretary, Tamil Nadu Panchalal Workers Union, 39, 11th Cross Road, Tatabath, Coimbatore-12

To: The Management, Essorpe Mills, Saravanapatti (Post), Coimbatore-35.

Sir,

We have decided to strike work at Essorpe Mills,  Saravanampatti Post, Coimbatore. Therefore, we are  giving advance notice of strike under the provisions of  Section 22(1) of the Industrial Disputes Act, 1947  (Central Act No.14 of 1947). We would inform you as per  Section 22(1)(c) that the strike will commence on or after  24th March, 1991.

We have enclosed our demands under Rule 29 of the  Chennai Industrial Disputes Rules, 1958.

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                                       Always in service to the Nation                                         Sd/- K. Palanichamy,                                         The General Secretary,                                         Tamil Nadu Panchalal Workers Union

Copy to: 1.      Commissioner of Labour, Chennai 2.      Addl. Commissioner of Labour, Coimbatore 3.      Deputy Commissioner of Labour, Coimbatore 4.      Asstt. Commissioner of Labour (Conciliation-2),Coimbatore 5.      The Commissioner of Police, Coimbatore 6.      The Collector, Coimbatore 7.      The Commissioner cum Secretary, Labour and Recuirtment Board, Fort. St. George, Chennai 8.      The Inspector of Factories, Coimbatore"

18.     In the notice it is stated that the strike will commence on  or after 24.3.1991. Obviously, six weeks’ time before the date  of strike was not given. In this case notice is 14.3.1991 and  the proposed strike was on or after 24.3.1991.  The inevitable  conclusion is that the notice cannot be treated to be one under  Section 22. Jaipur Zila’s case (supra) has no application if the  notice given is not in accordance with law. If no notice is given  to the employer, the effect of it is that he is not aware of the  proceedings. Obviously,  the conciliation proceedings  must be  one meeting the requirements of law. Here, no notice in terms  of Section 22 of the Act was there.   

19.     Somewhat unacceptable plea has been taken by the  respondents 2 to 23 that in terms of Section 22(1)(b) after 14  days of giving the notice, the workmen can go on strike. If this  plea is accepted six weeks’ time stipulated in Section 22 (1)(a)  becomes redundant.  The expression "giving such notice" as  appearing in Section 22(1)(b)  refers to the notice under  Section 22(1)(a). Obviously,  therefore, the workmen cannot go  on strike within six weeks notice in terms of Section 22(1)(a)  and 14 days thereafter in terms of Section 22(1)(b).

20.     The expression "such notice" refers to 6 weeks advance  notice.  Earlier illegal strike is not remedied by a subsequent  strike as provided in Section 22. If such stand is accepted it  will go against the requirement of Section 22 which aims at  stalling action for illegal strike.  

21.     Above being the position, the judgments of learned Single  Judge as well as that of the Division Bench cannot be  sustained and deserve to be set aside which we direct.  Notwithstanding the same the fair approach indicated by the  appellant by accepting the decision of this Court by order  dated 20.3.2006  can be given effect to.  It is open to  respondents 2 to 23 or any of them to  comply with the terms  indicated.  

22.     The appeal is allowed to the extent indicated above. There  will be no order as to costs.